JUDGE:	NETTLE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2008
DATE OF SENTENCE:	27 June 2008
CASE MAY BE CITED AS:	R v Bernstein
MEDIUM NEUTRAL CITATION:	[2008] VSC 254

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Criminal Law – Sentencing – Suspended sentence – Theft – Obtain property by deception – – Deficiency in Trust Account – Legal practitioner – Plea of guilty – Restitution made – Relevance of age and mental condition – Wholly suspended sentence of three years’ and a fine of 240 penalty units.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C B Hillman, SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Offender	Mr T F Danos	Mr T Danos (Solicitor)

HIS HONOUR:

Maurice Bernstein, you have pleaded guilty to four counts of theft (Counts 1, 4, 5 and 6), one count of obtaining property by deception (Count 3) and one count of having a deficiency in your trust account without a reasonable excuse (Count 2).

The facts

You were admitted to practise as a solicitor in New South Wales in 1964 and, after marrying and moving to Victoria, on 1 September 1966 you were admitted to practise as a barrister and solicitor of this court. Following your admission here, you were employed as a solicitor with the firm of J & S Shatin, solicitors, and in 1972 you became a partner in that firm. Thereafter, the firm carried on practice under the name or style of J & S Shatin & Bernstein until Mr J Shatin died in 1980. Following his death, you and Mrs S Shatin carried on the practice in partnership until she died in 1984, and then you carried on alone until 1986.

In about June 1986, you entered into partnership with two long-standing employees of the practice, Gad Kolsky and Michael Karalis, and the three of you began to carry on the practice, at first from premises at 114 William Street, Melbourne and later, under the name ‘Shatin Bernstein & Kolsky’ (‘SBK’), from premises at 25 Ballantyne Street, South Melbourne.

In 1997, Mr Karalis left the firm and you and Mr Kolsky acquired his interest at a cost of some $173,000. Thereafter, you and Mr Kolsky continued to practise together in partnership, under the name ‘Shatin Bernstein Kolsky’, until the firm was dissolved on 16 November 2001.

On 23 April 2002, you committed the offence of theft which is the subject of Count 4. On that day you drew a cheque for $16,500 on the Shatin Bernstein trust account against the Estate of Elizabeth Freshman, and falsely described it in a file memorandum as payment made pursuant to an arrangement between Ms Fay Kayser (a beneficiary of the Estate) and Gryfenberg Nominees Pty Ltd. In truth there was no such arrangement. You used the cheque for $16,500 to repay your own indebtedness to the payee for monies borrowed on…

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 R v Bernstein

Details

AGLC: R v Bernstein [2008] VSC 254
Case: [2008] VSC 254
Decision Date: 27 June 2008

CaseChat Overview and Summary

The case of R v Bernstein involved the defendant, Bernstein, a legal practitioner, who pleaded guilty to charges of obtaining property by deception and a deficiency in a trust account. Bernstein's actions led to a shortfall in the trust account managed for client funds, and he was charged accordingly. The matter was heard in the Supreme Court of Queensland. Bernstein, aged 75, had a history of mental health issues, which was considered during sentencing. The court was required to determine an appropriate sentence, taking into account factors such as the defendant's age, mental condition, the nature of the offence, and the circumstances surrounding the crime.

The court's primary task was to weigh the aggravating and mitigating factors in the case. The judge acknowledged the seriousness of Bernstein's actions, which involved a breach of trust and professional misconduct. However, the court also recognised Bernstein's guilty plea, his age, mental health issues, and the fact that he had made full restitution to his clients. The judge considered these factors in the context of sentencing principles, particularly the need for punishment, deterrence, and rehabilitation. The court ultimately decided that a wholly suspended sentence was appropriate, given the mitigating circumstances.

Bernstein was sentenced to three years' imprisonment, wholly suspended for two years, and was also fined 240 penalty units. The court found that a wholly suspended sentence would serve the interests of justice by allowing Bernstein to avoid the immediate consequences of imprisonment while still acknowledging the gravity of his actions. The fine was intended to provide a measure of punishment and deterrence. The court's decision balanced the need for accountability with the recognition of Bernstein's personal circumstances and the restitution made to affected parties. The judgment highlighted the importance of considering individual factors in sentencing, particularly in cases involving professionals who have breached the trust placed in them.

Orders