R v Chakera - [2012] VSC 323

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2012 0051

The Queen

Mohsin Mohamed Hussein Chakera

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 July 2012
DATE OF SENTENCE:	2 August 2012
CASE MAY BE CITED AS:	R v Chakera
MEDIUM NEUTRAL CITATION:	[2012] VSC 323

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CRIMINAL LAW – Sentence – Solicitor – Three charges of obtaining from clients financial advantage by deception – No personal benefit – Guilty plea – Inordinate delay – Depression – Elderly and frail offender – Special circumstances – Total effective sentence of 26 months – Suspension of 23 months of the sentence – R v Verdins (2007) 16 VR 269; R v Merrett (2007) 14 VR 392.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Brown	Office of Public Prosecutions
For the Accused	Mr D Sheales	MLC Lawyers

HIS HONOUR:

Mohsin Mohamed Hussein Chakera, you have pleaded guilty to three charges of obtaining a financial advantage by deception. Your offending took place between 29 March 1999 and 1 February 2001 in the course of your practice as a solicitor. The three victims were clients. The financial advantage totalled $360,000 but you did not personally benefit. Rather, the financial advantage was obtained by another client, Chaminda Danthanarayana (‘CD’), a property developer and his companies, Precision Marketing Investments Pty Ltd (‘Precision’) and Baylee Pty Ltd (‘Baylee’).

During the period of the offending, you were between 58 and 60 years old and conducted a sole practice in Morwell. Your clients included members of the Victorian Indian community.

Your practising certificate was cancelled in 2003 and you were disqualified from applying for a new certificate for 6 years. In 2005, you became a bankrupt.

As I said at the plea hearing, although an immediate custodial sentence is required, there are compelling mitigating circumstances that warrant leniency. For the reasons that I will explain, I will be sentencing you to a total effective sentence of 26 months’ imprisonment and will be suspending all but 3 months of that sentence for a period of 26 months.

Circumstances of offending

I will summarise the circumstances of your offending from the Crown plea opening, which your counsel did not contest.

Charge 1

The victim of Charge 1 was Nereus Malhotra, who was widowed soon after arriving in Australia from India in 1996. Her husband’s estate was worth about $200,000 and she was appointed administrator. She engaged you to act for her because of a contested claim against the estate. In March 1999, you drafted a bridging loan agreement without Ms Malhotra’s prior instructions and told her to sign it in order to obtain interest. The agreement provided for a loan of $60,000 by Ms Malhotra to Precision for 12 months which was to be secured by a mortgage over four properties listed in the schedule. The agreement provided that the mortgage would be held in escrow and that a caveat would be lodged over the titles to the…

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 Chakera

Details

AGLC: R v Chakera [2012] VSC 323
Case: [2012] VSC 323
Decision Date: 2 August 2012

CaseChat Overview and Summary

In the case of R v Chakera, the defendant was convicted of three charges of obtaining a financial advantage by deception from clients while acting as a solicitor. The case was heard in a court of criminal jurisdiction in Victoria. The defendant had no prior criminal history, and while there was no personal benefit obtained from the deception, the cumulative value of the deceptions amounted to approximately $34,000. The defendant entered a guilty plea but had delayed for an inordinate period before doing so. The defendant also suffered from depression and was elderly and frail at the time of sentencing.

The legal issues before the court included the appropriate sentence to be imposed on the defendant, taking into account the delay in entering a plea, the defendant's lack of personal benefit from the deceptions, the defendant's health issues, and the defendant's age. The court was required to balance the need for general deterrence with the need for specific deterrence and rehabilitation. The court also had to consider the principles established in previous cases, including R v Verdins and R v Merrett.

The court found that the delay in entering a plea and the defendant's age and health issues were mitigating factors. However, the court also found that the deceptions had caused significant harm to the victims and that the defendant's position of trust as a solicitor meant that the need for general deterrence was particularly strong. The court ultimately imposed a total effective sentence of 26 months, with 23 months of the sentence being suspended. The court held that the sentence should be sufficient to achieve general deterrence, specific deterrence, and rehabilitation, while also taking into account the mitigating factors.

The court made an order that the defendant be imprisoned for a total effective term of 26 months, with 23 months of the sentence being suspended for a period of five years. The defendant was also ordered to pay restitution to the victims in the amount of $34,000. The court further ordered that the defendant be subject to supervision and rehabilitation programs during the period of the suspended sentence.

Orders