Kotsifas v The Queen - [2021] VSCA 368

SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0153

JAMES JOHN KOTSIFAS Appellant

v

THE QUEEN Respondent
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JUDGES: MAXWELL P, KAYE and EMERTON JJA

WHERE HELD: MELBOURNE

DATE OF HEARING: 4 November 2021

DATE OF JUDGMENT: 22 December 2021

MEDIUM NEUTRAL CITATION: [2021] VSCA 368

JUDGMENT APPEALED FROM: [2020] VSC 347 (Champion J)
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CRIMINAL LAW – Appeal – Sentence – Appellant solicitor pleaded guilty to 18 charges of causing trust account deficiencies and 5 charges of theft – Repeated offending over 3-year period – Appellant sentenced to 6 years’ imprisonment with 4 years non-parole – Sentencing discretion re-opened due to incorrect calculation of trust account deficiencies and losses provided by prosecution to sentencing judge – No reduction in gravity of offending or culpability – No basis for imposing different sentence – Appeal dismissed – Crimes Act 1958 s 74, Legal Profession Act 2004 s 3.3.21(1), Legal Profession Uniform Law Application Act 2014 s 148, Sentencing Act 1991 s 114, Criminal Procedure Act 2009 s 281.
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APPEARANCES: Counsel Solicitors

For the Appellant Mr S J Tovey Stary Norton Halphen

For the Respondent Mr B L Sonnet Ms A Hogan, Solicitor for Public Prosecutions
MAXWELL P
EMERTON JA:
Introduction

1 The appellant (‘JK’) was a solicitor, who operated his own firm. Over a period of almost three years, he misused and misappropriated trust funds for his own private purposes. 16 different clients were affected. The amounts involved totalled more than $314,000.

2 On 4 February 2020, JK pleaded guilty to five charges of theft and 18 charges of causing a deficiency in a trust account without reasonable excuse or authorisation. He was sentenced as follows:

Charges on

Indictment

J12118733
Offence Maximum Sentence Cumulation

1. Lawyer cause deficiency in trust account (s 3.3.21(1) of the Legal Profession Act 2004) 15 years’ imprisonment 1 year imprisonment Nil

2. Lawyer cause deficiency in trust account (s 3.3.21(1) of the Legal Profession Act 2004) 15 years’ imprisonment 9 months’ imprisonment Nil

3. Lawyer cause deficiency in trust account (s 3.3.21(1) of the Legal Profession Act 2004) 15 years’ imprisonment 1 year and 6 months’ imprisonment Nil

4. Lawyer cause deficiency in trust account (s 3.3.21(1) of the Legal Profession Act 2004) 15 years’ imprisonment 9 months’ imprisonment Nil

5. Lawyer cause deficiency in trust account (s 3.3.21(1) of the Legal Profession Act 2004) 15 years’ imprisonment 1 year imprisonment Nil

6. Lawyer cause deficiency in trust account (s 3.3.21(1) of the Legal Profession Act 2004) 15 years’ imprisonment 1 year imprisonment Nil

7. Theft (s 74 of the Crimes Act 1958) 10 years’ imprisonment 3 years’ imprisonment 6 months’ imprisonment

8. Lawyer cause deficiency in trust account (s 3.3.21(1) of the Legal Profession Act 2004) 15 years’ imprisonment 1 year imprisonment Nil

9. Lawyer cause deficiency in trust account (s 3.3.21(1) of the Legal Profession Act 2004) 15 years’ imprisonment 9 months’ imprisonment Nil

10. Theft (s 74 of the Crimes Act

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 Kotsifas v The Queen

Details

AGLC: Kotsifas v The Queen [2021] VSCA 368
Case: [2021] VSCA 368
Decision Date: 22 December 2021

CaseChat Overview and Summary

In the case of Kotsifas v The Queen, the appellant, a solicitor, was appealing against his sentence for causing trust account deficiencies and theft. The appellant had pleaded guilty to 18 charges of causing trust account deficiencies and 5 charges of theft, with the offences occurring over a three-year period. The appellant was sentenced to six years’ imprisonment with a non-parole period of four years. The appeal was based on the argument that the sentencing judge had made an error in calculating the trust account deficiencies and losses, which was provided by the prosecution. The appellant argued that this error required the re-opening of the sentencing discretion.

The court was required to determine whether the error in the calculation of the trust account deficiencies and losses warranted a re-opening of the sentencing discretion. The court also needed to assess whether there was any reduction in the gravity of the offending or the appellant's culpability, and whether there was any basis for imposing a different sentence. The appellant argued that the error in the calculation of the trust account deficiencies and losses warranted a re-opening of the sentencing discretion, as it was a significant error that could have impacted the sentence imposed.

The court found that there was no reduction in the gravity of the offending or the appellant's culpability, and there was no basis for imposing a different sentence. The court held that the error in the calculation of the trust account deficiencies and losses did not warrant a re-opening of the sentencing discretion. The court dismissed the appeal and affirmed the original sentence of six years’ imprisonment with a non-parole period of four years. The court found that the appellant's offending was serious and warranted a significant custodial sentence.

The court ordered that the appeal be dismissed and that the original sentence be upheld. The court held that the appellant's offending was serious and warranted a significant custodial sentence, and that there was no basis for imposing a different sentence. The court also held that the error in the calculation of the trust account deficiencies and losses did not warrant a re-opening of the sentencing discretion. The court's decision was based on the seriousness of the appellant's offending, the repeated nature of the offending, and the appellant's culpability.

Orders