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DPP v Bourozikas

DPP v Bourozikas

Case [2009] VSCA 29 3 March 2009

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 966 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
GEORGE BOUROZIKAS

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JUDGES:	VINCENT and NETTLE JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2009
DATE OF JUDGMENT:	3 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 29

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Criminal law – Sentence – Deficiencies in trust account and theft – Whether total effective sentence of 18 months’ imprisonment of which 12 months were suspended was manifestly inadequate – Solicitor – Sole practitioner - Plea of guilty at first opportunity – Restitution made – Young son with medical condition – Effects of sentencing on family – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC with Mr B L Sonnett	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr P G Priest QC with Ms E McKinnon	S Kourkoulis & Associates

VINCENT JA
NETTLE JA
VICKERY AJA:

This is a Crown appeal against a total effective sentence of 18 months’ imprisonment (of which 12 months were suspended) imposed on the respondent on pleading guilty to one count of without reasonable excuse having a deficiency of $100,000 in his trust account (Count 1 on Presentment X00942529 (‘the first presentment’), two counts of theft of $50,000 each (Counts 2 and 3 on the first presentment) and one count of theft of $43,170.79 (the sole count on Presentment X01811787 (‘the second presentment’)).

The facts

The facts of the matter appear in the judge’s sentencing remarks. At relevant times, the respondent carried on practice as a solicitor under the name or style of George Bourozikas, Solicitor, from premises at 384 Haughton Road, Clayton. While so practising, he acted for the executor of the Estate of Lorraine Brooks, deceased and for that purpose established a trust ledger card in the name of the estate for distribution of funds to the beneficiaries, Joy Lau and Raymond Brooks.

On 9 May 2006, he wrote two trust account cheques of $50,000 each, payable to himself, and deposited them into his personal cheque account for the payment of personal expenses (Counts 2 and 3 on the first presentment). That created the deficiency of $100,000 in the trust account which is the subject of Count 1 on the first presentment. He then attempted to conceal the deficiency by creating false entries in the trust ledger, cash payments journal, and cheque book stubs, and by placing on the estate’s file two unsigned letters addressed to the beneficiaries each purporting to enclose a cheque for $50,000 by way of distribution from the estate.

The defalcation was exposed as part of a routine audit. Once the facts were ascertained, the respondent surrendered his practising certificate and, after the Law Institute had appointment a receiver, the practice was sold.

On 22 February 2008 the respondent was interviewed by officers of the Fraud Squad and admitted what he had done. He said that he had done it because he had been under financial pressure and that…

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 Bourozikas

Details

AGLC: DPP v Bourozikas [2009] VSCA 29
Case: [2009] VSCA 29
Decision Date: 3 March 2009

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Bourozikas, the defendant, a sole practitioner solicitor, was convicted for deficiencies in his trust account and theft. The case was heard in the Supreme Court of Victoria. Bourozikas appealed against his sentence, arguing that the total effective sentence of 18 months’ imprisonment, of which 12 months were suspended, was manifestly inadequate. The appeal was based on various factors including his plea of guilty at the first opportunity, the making of restitution, and the personal circumstances of his young son who has a medical condition.

The legal issues before the court involved whether the sentence imposed was manifestly inadequate and if so, whether it should be increased. The court was required to consider the totality of the circumstances, including the nature and seriousness of the offences, the personal circumstances of the offender, and the principles of sentencing.

The court found that while the sentence imposed was on the lower end of the spectrum, it was not manifestly inadequate. The court acknowledged the personal circumstances of the offender and his family but held that they did not warrant a departure from the principle that a custodial sentence should be imposed for these types of offences. The court further noted that the offender had pleaded guilty at the first opportunity and had made restitution, which were mitigating factors. The appeal was dismissed, and the sentence upheld.

Orders