DPP v Blackberry
[2019] VSCA 269
•21 November 2019
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 the association or relationships between the vendor and purchaser. That occurred in the remaining ten transactions. The purpose of misrepresenting the association or relationship between the vendor and purchaser was to falsely claim the benefit of exemptions from the payment of stamp duty under ss 43 and 44 of the Duties Act 2000. Using this method, the respondent misrepresented the underlying purpose of the transactions as being a consequence of:
·the breakdown of genuine de facto domestic relationships;
·the breakdown of a marriage;
·a transfer between married couples; or
·orders of the Family Court of Australia.
In the course of his offending, the respondent falsified a number of prescribed forms, including transfers and statutory declarations. In order to complete the transactions, he forged the signatures of his clients and the vendors on these falsified documents. He also signed documents as a witness to his forged signatures.
On the occasions when he lodged relevant statutory declarations, the respondent forged the signature of the person making the declaration and then signed and witnessed the declaration, purporting to utilise his authority as a legal practitioner, with the intention that a person receiving the document would believe it to be genuine. On two occasions, he assumed the identity of another legal practitioner to witness a statutory declaration.
In total, the applicant used 56 false documents in the course of his offending, dishonestly obtaining $246,166.[1]
[1]A full description of the details of the respondent’s offending in relation to each transaction is set out in Schedule A of the sentencing judge’s reasons for sentence: R v Blackberry [2019] VSC 279 (‘Reasons’).
Reasons for sentence
The judge described the circumstances of the respondent’s offending and its detection, noting that in October 2008 the respondent wrote to a State Revenue Office investigator stating his willingness to cooperate.[2] The judge noted that following the State Revenue Office investigation, a repayment plan was arranged. The judge said that the respondent followed that plan, but that the plan ceased when the respondent lost the ability to comply with it due to having lost his employment. The judge noted that, as at the date the plea was heard, the sum outstanding under the payment plan was a little over $130,000.[3]
[2]Reasons [6]–[22].
[3]Ibid [23].
The judge noted that the respondent’s conduct was referred to Victoria Police in 2009, but that it ‘appear[ed] likely that the investigation was a relatively low priority’ within the fraud squad, and the matter was reassigned within Victoria Police in 2011. In 2011, the respondent left Victoria for Tasmania and, in June of that year, a warrant was issued for his arrest.[4]
[4]Ibid [25].
The judge said that over the following years, the respondent made efforts to avoid apprehension by police. He was eventually arrested in Tasmania in July 2018. Upon his arrest, however, he attempted to conceal his identity: first by using a false name and identity as an English tourist; and secondly, by the production of a bank card in the name of his brother. Ultimately the respondent admitted his identity. He was interviewed by police and made admissions in relation to his offending.[5]
[5]Ibid [25]–[27].
Next, the judge said that it was concerning that the respondent viewed his crimes as victimless because he was ‘only defrauding the State government’.[6] As the judge rightly said, in committing his offences, the respondent was also defrauding his own clients from whom the State Revenue Office could (but to date has not chosen to) seek to recover the amounts owed in respect of the property transactions.
[6]Ibid [28].
In relation to the seriousness of the respondent’s offending and his moral culpability, the judge said:
As is the case with any practising solicitor who takes advantage of their position of trust to defraud clients, your offences are very serious. A solicitor assumes the control of a client’s transaction including, in these cases, the client’s funds. Such clients rely completely not only on their lawyer’s legal expertise but on their honesty. Given the period of time over which you operated this system in order to obtain these funds, your moral culpability is high. You had ample time for reflection and, in its own way, your scheme was quite elaborate. It was manipulative, deliberate and planned.[7]
[7]Ibid [29].
The judge then turned to victim impact statements that had been filed by two of the respondent’s former clients. He said of one client that she was likely to endure the consequences of the respondent’s breach of trust in relation to her ‘for some considerable time’.[8] He then referred to the emotional effect upon the other client, when that client realised that the trust he had placed in the respondent as his solicitor had been betrayed.[9]
[8]Ibid [30].
[9]Ibid [31].
The judge then turned to the respondent’s personal circumstances,[10] noting that the respondent was almost 60 years of age at the time of sentencing; that his childhood was marked by difficulties with his father; and that his mother is now apparently heavily reliant upon him as a result of her age and ill health.
[10]Ibid [33]–[43].
In relation to the respondent’s character, the judge said:
I accept that you are a community-minded person and that you have undertaken activities that are of assistance to the community, particularly in relation to the development of websites aimed at raising awareness about the UN Convention of the Rights of the Child, consequences of unlawful offending, and dissuading people against the use of violence in the workplace and at home.
Until these offences were committed you were a person of good character apart from some minor spent convictions many years earlier in the Children’s Court.[11]
[11]Ibid [42]–[43].
The judge noted that the respondent pleaded guilty on the day on which his plea was heard, although he had indicated from July 2018 onwards that he would plead guilty.[12] The judge said that upon the discovery of the respondent’s dishonesty he should have made full and complete admissions both to the State Revenue Office and later to police. The judge said that ‘that occurred to a degree but was incomplete’. The judge said that while it was clear the respondent was remorseful for what had occurred, his attempts to avoid being spoken to by the police between 2011 and 2018 ‘qualifie[d] the remorse that [he had] shown to some degree’.[13]
[12]Ibid [44].
[13]Ibid [45].
The judge observed that during the period of delay in the finalisation of the matter, the respondent did not commit any other offences and had worked as best he could and contributed to the community. The judge accepted that, despite the respondent’s reluctance to face the consequences of his actions, he had demonstrated that his prospects of rehabilitation were good.[14]
[14]Ibid [46]–[48].
As to delay, the judge accepted that the three-year delay from 2008 until the respondent went to Tasmania in 2011 was not delay for which the respondent was responsible. While the delay from 2011 onwards was delay to which the respondent contributed, the judge said that he would take that delay into account ‘in the sense that these matters have no doubt been a constant source of concern for [the respondent]’.[15]
[15]Ibid [49].
The judge concluded his sentencing remarks by saying:
The result of your actions is that your career as a lawyer is finished. On 11 April 2019, I made orders resulting in your name being removed from the roll of legal practitioners. In all the circumstances, I would regard specific deterrence as a less significant sentencing factor in this case; however, general deterrence remains important. Those lawyers tempted to try to gain for themselves financially by breaching the trust placed in them by their clients need to understand that the punishment they will face when their crimes are discovered will be significant.[16]
[16]Ibid [50].
Parties’ contentions
The Director particularised her ground of appeal of manifest inadequacy, saying that the sentencing judge:
·failed to have sufficient regard to the objective gravity of the offending;
·failed to give sufficient weight to the serious breach of trust by an officer of the court;
·failed to have sufficient regard to the principles of just punishment, general deterrence and denunciation;
·failed to have sufficient regard to the maximum penalties for the offences;
·failed to have sufficient regard to the effect upon the victims; and
·gave excessive weight to factors in mitigation.
The Director submitted that the extent and breadth of the respondent’s offending, the breach of trust committed in his role as a solicitor and the degree of sophistication of the offending, involving the production of multiple false documents with forged signatures, required a significantly longer term of imprisonment and non-parole period than that imposed by the judge.
Additionally, the Director contended that the matters in mitigation had been over-valued by the judge in the sentencing synthesis — particularly in circumstances where, after an initial period of cooperation, the respondent made efforts to avoid apprehension for an extended period between 2011 and 2018. Further, the Director noted that in the case of ‘white-collar offending’ it is the offender’s good character that allows him or her to gain people’s trust and to offend in the first place. This, it was submitted, was precisely what had occurred in this case.
In relation to comparable cases, the Director relied upon this Court’s decision in Dankovic v The Queen[17] as showing that the sentence imposed by the judge was manifestly inadequate. In Dankovic, the offender, a conveyancer, was sentenced to a total effective sentence of two years and six months with a non-parole period of one year and eight months after pleading guilty to two charges of obtaining property by deception, one charge of obtaining a financial advantage by deception, one charge of making a false document and one charge of using a false document. The total sum involved in the offending in Dankovic was, however, a little less than $20,000.
[17][2012] VSCA 255 (‘Dankovic’).
In response to the Director’s submissions, the respondent contended that the sentence imposed was within range. The respondent relied upon the following matters:
(1) Each of the 13 charges of obtaining property by deception was a single charge. Unlike in many other cases involving offending of this kind, there were no rolled-up charges in this case.
(2) Again, unlike in many other cases of like offending, the respondent in this case did not fall to be sentenced as a continuing criminal enterprise offender.[18]
(3) The quantum of the respondent’s offending was, in relative terms, modest — Nettle JA, in R v Bernstein,[19] having described offending, by a solicitor, involving $230,850 as ‘hardly the largest defalcation in the history of corrupt solicitors’.[20]
(4) The respondent’s good character and positive work in the community, as referred to by the judge in his reasons for sentence[21] was a very significant matter in the sentencing synthesis.
[18]See s 6I of the Sentencing Act 1991.
[19][2008] VSC 254 (‘Bernstein’).
[20]Ibid [23].
[21]Reasons [42].
In relation to comparable cases, the respondent submitted that, once the facts in Dankovic were fully appreciated, the sentence in Dankovic did not support the proposition that the respondent’s sentence was manifestly inadequate. That said, the respondent contended that Bernstein and two other cases, R v Tansey[22] and R v Kesik,[23] were more appropriate comparators when looking at the sentence imposed by the judge in the present case.
[22][2012] VSC 221 (‘Tansey’).
[23][2006] VSC 493 (‘Kesik’).
Was the sentence manifestly inadequate?
The judge correctly described the respondent’s offences as ‘very serious’ and his moral culpability as ‘high’.[24] The judge was also right to say that the respondent’s ‘scheme’ was ‘quite elaborate’, ‘manipulative’, and ‘deliberate and planned’.[25] The judge was also right to say that lawyers who are tempted to try to gain for themselves financially in the way the respondent offended need to understand that the punishment they face when their crimes are discovered will be significant.[26]
[24]Reasons [29].
[25]Ibid.
[26]Ibid [50].
There can be no doubt that a gaol sentence was called for in respect of the respondent’s offending. The question is whether the sentence imposed by the judge was wholly outside (below) the range open to him in the reasonable exercise of the sentencing discretion. As has been said many times before, it is not to the point that one or more members of this Court might have imposed a higher sentence than that imposed by the judge.
The amount involved in offending of the present kind is often regarded as having real (albeit not determinative) significance in the sentencing synthesis. The amount involved in the present case is less than many other examples of this sort of offending. That said, there is force in the Director’s submission that the extent and breadth of the respondent’s offending, and its degree of sophistication, make it more serious offending than some less sophisticated offending involving greater sums of money.
Having considered the facts of, and sentences imposed in, the decisions of Dankovic, Bernstein, Tansey and Kesik, to which we were referred, we are unpersuaded that those decisions provide any support for the proposition that the sentence imposed by the judge in this case was manifestly inadequate. Specifically:
(1) Dankovic was a case where a conveyancer was sentenced to a total effective sentence of two years and six months with a non-parole period of one year and eight months in respect of five charges, to which we have already referred. While the total amount involved in that case was considerably less than the total amount involved in the respondent’s offending, three of the offences committed by the conveyancer were committed after she had been charged with her first two offences and while she was on bail in respect of that offending.
(2) Tansey was a case that involved 25 counts of theft by a solicitor from his clients. A total amount of the order of $1.99 million was taken, of which $1.3 million was still outstanding at the time of the plea. Fifteen of the charges were continuing criminal enterprise offences, and the offender was a continuing criminal enterprise offender. Delay, described by the sentencing judge in that case as ‘inordinate’, was, however, a significant issue in that case. The offender was sentenced to a total effective sentence of four years’ imprisonment, with a non-parole period of two years and six months.
(3) Kesik was a case involving a solicitor who was sentenced for deficiencies in his trust account and thefts in the total amount of $512,434. He was sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of 18 months. The offending occurred over a period of 11 years. It involved trust account deficits, and was less sophisticated than the respondent’s offending in the present case.
(4) Bernstein was a case involving a solicitor who was sentenced in respect of four counts of theft, one count of obtaining property by deception and one count of trust account defalcation. He received a wholly suspended sentence of three years’ imprisonment. As we have already observed, the amount involved in the offending in Bernstein was similar to the amount involved in the present case. In Bernstein, however, the offender was a little older than the respondent. There were some mental health issues, not rising to a level that engaged the principles identified in R v Verdins,[27] and the funds that had been taken by the solicitor had been repaid.
[27](2007) 16 VR 269.
The question of whether a sentence is manifestly inadequate usually does not admit of much argument. In the present case, we have looked carefully at all of the circumstances of the respondent’s offending and all of the circumstances personal to him, including the matters relied upon by the Director in relation to the respondent’s attempts to avoid apprehension by the police between 2011 and 2018. In the end, we have concluded that the sentence (both the aggregate sentence and the non-parole period) imposed by the judge was at the low end of the range. We see no basis for concluding, however, that it was wholly outside the permissible range or manifestly inadequate.
We are fortified in our conclusion by the facts of, and the sentences imposed in, the cases to which we have referred above — particularly, Kesik and Bernstein.
Conclusion
The Director’s appeal must be dismissed.
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