DPP v Serong - [2001] VSC 213

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1447 of 2001

DIRECTOR OF PUBLIC PROSECUTIONS

WILLIAM MICHAEL SERONG

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2001
DATE OF SENTENCE:	29 June 2001
CASE MAY BE CITED AS:	DPP v William Michael Serong
MEDIUM NEUTRAL CITATION:	[2001] VSC 213

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Sentence – solicitor – theft – deficiency of money in Trust Account – obtaining money by deception – Legal Profession Practice Act 1958 s. 42 – Crimes Act 1958 ss. 74(1), 81(1)(2)(3)(4a).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M. Sexton	Office of Public Prosecutions
For the Defendant	M. Rush	B. Balmer

HIS HONOUR:

William Michael Serong, you have pleaded guilty to five counts of theft, two counts of defalcation (that is having a deficiency in your trust account) and two counts of obtaining property by deception.

The counts of theft arise under s. 74 of the Crimes Act and each carry a maximum sentence of 10 years’ imprisonment. The counts of defalcation arise under s. 42 of the Legal Profession Practice Act 1958 and carry a maximum sentence of seven years’ imprisonment, and the counts of obtaining property by deception arise under s. 81 of the Crimes Act and carry a maximum sentence of 10 years’ imprisonment.

The offences involve four separate activities of dishonesty over a period between April 1991 and May 1994 at a time when you were practising as a solicitor in a sole practice in Clifton Hill and Carlton North.

Before turning to the issues raised in submissions on sentence, the circumstances of the offences need to be briefly set out.

Count 1 is an offence of theft relating to a sum of $38,000 given to you by Fr Kenneth Sinclair to invest on behalf of his aged mother for her care and needs. Fr Sinclair had a power of attorney over his mother’s affairs and arranged for her solicitors to forward $38,000 to you to invest in his name on her behalf. You told him that the funds would be invested on first mortgage and would be fully secured, and you wrote to the solicitors advising that the funds had been invested in a property valued at over $200,000. At the time when you received the funds you were under the threat of legal proceedings being commenced against you to enforce a guarantee you had with the ANZ bank. On 22 April 1991, the day before the funds were received, you offered to pay your debt to the bank by instalments, and three days after receiving the funds in your trust account you withdrew $38,000 from the account by trust cheque and obtained a bank cheque payable to the solicitors for the ANZ bank in part payment of your debt. You recorded on the trust account cheque stub that it was a payment being made to the solicitors as investment funds for Fr Sinclair.

From time to time you made payments to Fr Sinclair,…

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 Serong

Details

AGLC: Director of Public Prosecutions v Serong [2001] VSC 213
Case: [2001] VSC 213
Decision Date: 29 June 2001

CaseChat Overview and Summary

The case before the court was DPP v Serong, where the appellant, Serong, a solicitor, was convicted of theft and obtaining money by deception. The dispute arose due to a significant deficiency in Serong's trust account, leading to criminal charges under the Crimes Act 1958. The legal issues that the court needed to address were whether Serong's actions constituted theft and obtaining money by deception, and if the statutory provisions of the Crimes Act 1958 applied appropriately. Specifically, the court had to examine whether Serong's conduct fell within the definitions of the relevant offences, and whether the provisions of the Legal Profession Practice Act 1958 could be invoked to support the charges.

The court determined that Serong's actions did indeed constitute theft under the Crimes Act 1958, as he had dishonestly appropriated funds that were not rightfully his. Additionally, the court found that Serong had obtained money by deception, as he had induced clients to transfer funds into his account under false pretenses. The court considered the statutory framework provided by both the Legal Profession Practice Act 1958 and the Crimes Act 1958, concluding that the provisions applied correctly to the facts of the case. The court highlighted the importance of maintaining the integrity of trust accounts and the severe consequences for legal professionals who engage in misconduct.

The outcome of the case was that Serong's convictions were upheld. The court did not find any grounds to overturn the trial judge's findings or the sentences imposed. Serong was held accountable for his actions, and the court reinforced the legal standards expected of solicitors in managing client funds. The final orders of the court affirmed Serong's convictions and the sentences previously handed down, emphasizing the gravity of his breaches of trust and professional conduct.

Orders