R v Blackberry - [2019] VSC 279

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0030

THE QUEEN	Crown
v
KIM BLACKBERRY	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2019
DATE OF SENTENCE:	3 May 2019
CASE MAY BE CITED AS:	R v Blackberry
MEDIUM NEUTRAL CITATION:	[2019] VSC 279

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CRIMINAL LAW – Sentence – Multiple counts of obtaining property by deception – Multiple counts of using a false document – Dishonesty offences – Solicitor acting for purchasers in property conveyancing – Lodged fraudulent transfer documentation to State Revenue Office – Fraudulently claimed stamp duty exemption – Retained all or some stamp duty paid by clients – Accused made efforts to avoid apprehension by police – Guilty plea – Prior good character – Sentence of two years’ imprisonment with non-parole period of 16 months – Crimes Act 1958 (Vic) ss 81 and 83A, Duties Act 2000 (Vic) ss 43 and 44, Sentencing Act 1991 (Vic) ss 6AAA and 9.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Lewis	Office of Public Prosecution
For the Accused	Mr Tiwana	Dribbin & Brown Criminal Lawyers

HIS HONOUR:

Kim Blackberry, on Thursday, 11 April 2019, you pleaded guilty to an indictment that contained 27 charges, including 13 charges of obtaining property by deception and 14 charges of using a false document. Your offending represented by these charges covered the period from March 2002 until July 2008, and concern activities that you engaged in as a practising solicitor.

During the relevant period, you were a solicitor acting for purchasers in 13 property transactions. In each of the 13 transactions your clients paid cash and, as a result, no bank was involved in the settlement of the transaction. The absence of a bank at the settlement enabled you to control the stamping and lodgement of transfer documentation with the State Revenue Office and the Land Titles Office.

In each of these 13 transactions you dishonestly obtained some or all of the money that the purchasers paid to you for the payment of stamp duty to the State Revenue Office.

The maximum penalty for obtaining property by deception contrary to s 81 of the Crimes Act 1958(Vic) (‘Crimes Act’) is 10 years’ imprisonment. The maximum penalty for using false documents contrary to s 83A of the Crimes Act is also 10 years’ imprisonment.

It is now my responsibility to sentence you for this offending.

Circumstances of offending

You committed these offences as a legal practitioner. You were first admitted as a practising solicitor in Victoria on 17 December 1993. You then obtained a practising certificate in Victoria on 1 January 1998. Your primary area of practice from that time onward was conveyancing.

In 2002, you were one of three partners in a business called ‘The Conveyancer,’ which specialised in conveyancing and probate work. You also performed work as a sole practitioner in Melbourne and Drysdale.

In June 2008, the State Revenue Office commenced an investigation into…

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 Blackberry

Details

AGLC: R v Blackberry [2019] VSC 279
Case: [2019] VSC 279
Decision Date: 3 May 2019

CaseChat Overview and Summary

In the case before the court, the defendant, Blackberry, faced multiple charges related to fraudulent activities in property conveyancing. The defendant, acting as a solicitor for clients purchasing properties, was accused of lodging fraudulent transfer documentation with the State Revenue Office, falsely claiming stamp duty exemptions, and retaining a portion or all of the stamp duty paid by the clients. The case was heard in the Supreme Court of Victoria. The defendant pleaded guilty to all charges, which included obtaining property by deception and using false documents.

The legal issues before the court were primarily focused on the appropriate sentence to be imposed on the defendant, taking into account the nature and seriousness of the offences, the defendant's culpability, and relevant sentencing principles. The court had to consider the cumulative impact of the defendant's actions, including the breach of trust, the scale of the fraud, and the defendant's attempts to evade apprehension by the police. Additionally, the court needed to balance the need for punishment and deterrence with the defendant's prior good character and the likelihood of rehabilitation.

The court, in determining the sentence, considered the aggravating and mitigating factors of the case. Aggravating factors included the breach of professional trust, the significant financial loss to clients, and the defendant's efforts to avoid legal consequences. Mitigating factors included the defendant's guilty plea, remorse, and prior good character. The court imposed a sentence of two years' imprisonment with a non-parole period of 16 months, reflecting the seriousness of the offences while also considering the mitigating factors. The court emphasised the need to uphold public confidence in the legal profession and the importance of deterring similar conduct in the future.

The court made several orders, including that the defendant serve a sentence of two years' imprisonment with a non-parole period of 16 months. The court also made orders under the Sentencing Act 1991 (Vic) to ensure the defendant's rehabilitation and to protect the public. The specific details of the orders were not elaborated upon in the text provided.

Orders