R v Kesik - [2006] VSC 493

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1503 of 2006

THE QUEEN

MICHAEL LUCIEN KESIK

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 OCTOBER 2006
DATE OF SENTENCE:	12 DECEMBER 2006
CASE MAY BE CITED AS:	R v KESIK
MEDIUM NEUTRAL CITATION:	[2006] VSC 493

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SENTENCE – Solicitor - Deficiencies in trust account and thefts – Offences committed over prolonged period – Money used principally to support business – Misuse of position of trust – Plea of guilty - Significant delay between initial admission of wrongdoing and court proceedings – Total effective sentence of 3 years imprisonment with non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Angela Cannon, Solicitor for Public Prosecutions
For the Accused	Mr D. Hallowes	Dwyer & Co.

HIS HONOUR:

Michael Lucian Kesik, you have pleaded guilty to 12 counts of having a deficiency in your trust account and two counts of theft. The offences took place between 22 November 1989 and 7 June 2000. Each of the counts, save for one count of theft (count 14) is a rolled up one encompassing a number of illegal transactions. The specific date of each item of offending is listed in schedules A to M attached to the presentment. These provide details of the particular counts. I am attaching the presentment together with those schedules to these sentencing remarks.

At the time of these offences you were a solicitor and holder of a practising certificate authorising you to receive trust money. In that role you conducted the practice of Hicks & Kesik in Main Street, Mornington, which you were operating as a sole practitioner. The firm dealt with a broad range of matters including deceased estates, conveyancing and mortgages. You operated two National Australia Bank accounts in the course of your business activities. One was a trust account, the other an office account which was used to pay office disbursements and your personal expenses. The latter included your home mortgage and rates.

In May and August 2000 an audit of your trust accounts and files was conducted by Victoria Lawyers RPA Ltd (who I will refer to as Victoria Lawyers). A random selection of those files revealed the appropriation of money from the trust account as costs prior to the issuing of bills of cost or statements of accounts, or in excess of bills of costs that had been prepared. The resultant deficiencies in your trust account related to files involving deceased estates.

This was not the first time that you had been involved in misconduct. In November 1995 you were referred to the Solicitors' Board for charging grossly excessive professional costs. On that occasion you were fined $4,000 and ordered to repay $22,000.

As a result of the investigation by Victoria Lawyers, your firm was placed into receivership on 8 November 2000. On that same day you participated in an interview conducted by members of Victoria Lawyers and the Law…

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 Kesik

Details

AGLC: R v Kesik [2006] VSC 493
Case: [2006] VSC 493
Decision Date: 12 December 2006

CaseChat Overview and Summary

In the matter of the criminal proceedings against Kesik, the appellant faced a court for offences involving trust account deficiencies and thefts, which were carried out over an extended period. These acts included misappropriating funds that were primarily used to support his business operations. The appellant, who held a position of trust as a solicitor, pleaded guilty to the charges. The court was tasked with determining an appropriate sentence, considering the gravity of the breaches, the misuse of his position, and the significant delay between his initial admission of guilt and the commencement of legal proceedings. The appellant's culpability was compounded by the prolonged nature of his misconduct and his exploitation of his professional position for personal gain.

The court's deliberation focused on several key legal issues, including the severity of the breaches, the appellant's misuse of his professional position, and the delay in facing justice. It was crucial to assess how these factors impacted the appropriate sentencing, given the appellant's plea of guilty and the personal and professional trust that had been breached. The court also needed to balance the need for deterrence and retribution with the possibility of rehabilitation. Additionally, the court considered the appellant's conduct post-admission of guilt and the potential for remorse.

After careful consideration, the court determined that the appellant's actions warranted a significant custodial sentence. The judge emphasised the importance of maintaining professional integrity and the severe consequences of breaching the trust placed in a solicitor. The court found that the total effective sentence should be three years in prison, with a non-parole period of 18 months. This sentence aimed to adequately reflect the seriousness of the offences, deter future misconduct, and provide some measure of justice to those affected by the appellant's actions.

Orders