DPP v Blackberry - [2019] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0112

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
KIM CHARLES BLACKBERRY	Respondent

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JUDGES:	BEACH, KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2019
DATE OF JUDGMENT:	21 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 269
JUDGMENT APPEALED FROM:	[2019] VSC 279 (Lasry J)

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CRIMINAL LAW – Sentence – Crown appeal – Multiple charges of obtaining property by deception and using a false document – Legal practitioner – Offending in the course of acting as a solicitor for purchasers in property transactions – Offending involving total amount of approximately $240,000 – Partial repayment of amounts taken – Plea of guilty – Sentenced to aggregate sentence of 2 years’ imprisonment, with non-parole period of 16 months – Whether sentence manifestly inadequate – Sentence within range – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B F Kissane QC with Ms J Warren	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr P S Tiwana with Mr D J Carolan	Dribbin & Brown Criminal Lawyers

BEACH JA
KYROU JA
T FORREST JA:

Between January 2002 and July 2008, the respondent acted as solicitor for the purchasers in 13 property transactions. On 11 April 2019, he pleaded guilty to 27 charges (13 charges of obtaining property by deception contrary to s 81 of the Crimes Act 1958, and 14 charges of using a false document contrary to s 83A of that Act) arising out of these transactions. In each transaction, the respondent obtained some or all of the money that the purchasers gave him for the payment of stamp duty to the State Revenue Office.

The maximum penalty for obtaining property by deception is 10 years’ imprisonment. The maximum penalty for using a false document is also 10 years’ imprisonment. On 3 May 2019, the applicant was sentenced to an aggregate sentence of two years’ imprisonment with a non-parole period of 16 months.

The Director of Public Prosecutions now appeals against the sentence imposed, contending that the aggregate sentence and non-parole period are manifestly inadequate.

Circumstances of the offending

In each of the 13 transactions to which we have referred, the respondent’s clients paid cash and, as a result, no bank was involved at settlement. The absence of a bank at settlement enabled the respondent to control the stamping and lodgement of transfer documentation with the State Revenue Office and the Land Titles Office.

In each transaction, the purchasers provided the respondent with the full amount of stamp duty payable on their respective purchases. The respondent used two methods to retain some or all of the stamp duty paid to him by his clients.

The first method was the making and use of false documents that understated the amount of consideration paid by the purchaser to the vendor. That occurred in three of the transactions.

The second method was the making and using of false documents to misrepresent to the State Revenue Office…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Blackberry

Details

AGLC: Director of Public Prosecutions v Kim Charles Blackberry [2019] VSCA 269
Case: [2019] VSCA 269
Decision Date: 21 November 2019

CaseChat Overview and Summary

A lawyer was convicted of multiple charges of obtaining property by deception and using a false document, following his actions while acting as a solicitor for purchasers in property transactions. The total amount involved was approximately $240,000, with partial repayment made. The lawyer pleaded guilty and was sentenced to an aggregate of 2 years’ imprisonment, with a non-parole period of 16 months. The Director of Public Prosecutions (DPP) appealed the sentence, arguing it was manifestly inadequate.

The appeal centred on the severity of the crimes and whether the sentence was appropriate given the totality of the offending. The court considered the range of sentences for such offences and noted that the sentence imposed was within this range. The court concluded that the sentence was not manifestly inadequate and dismissed the appeal.

The court found that the sentence reflected the seriousness of the offending, taking into account the lawyer’s guilty plea and partial repayment. The appeal was dismissed, and the original sentence stood. The court emphasised the importance of the legal practitioner’s role and the need for appropriate deterrence, but also recognised the mitigating factors in this case. The final orders of the court confirmed the dismissal of the appeal and the upholding of the original sentence.

Orders