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2 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.

3 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.

4 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.

5 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 Institute of Victoria Professional Standards Division. You admitted taking between $250,000 and $300,000 from various nominated clients although you had not kept records of the exact amounts taken. Ultimately, the sum involved would prove to be in excess of $500,000.

6 In the course of that interview you stated that your problems had commenced 12 years earlier (in 1988) when you were granted a large overdraft of $20,000 by the National Australia Bank and the size of your practice did not generate sufficient income to service that loan.

7 Subsequently, in December 2004, you pleaded guilty before the Legal Profession Tribunal to a number of charges of professional misconduct. You were disqualified from applying for a practising certificate for 12 years and ordered to pay $12,000 costs. The Tribunal also recommended that your name be struck off the roll of practitioners. This has since occurred.

8 I was informed that there is significant overlap between the matters heard by the Legal Profession Tribunal and those charges to which you have now pleaded guilty.

9 To place your offending in perspective, it is necessary to briefly summarise the various counts on the presentment.

10 The first count involved Monica Sadowski, a woman aged 64, who had not only been a close friend of your mother's but was your godmother. Relying upon you as her solicitor she invested $12,000 through First Mortgage Securities held with your law practice. You paid her the interest on an initial mortgage when it was paid out and, as instructed, reinvested her money. When that second mortgage was repaid in the sum of $12,184 [I will refer only to dollar amounts], you withdrew that sum from your trust account by way of false entry. On three occasions you purported to make payments to Ms Sadowski and on a fourth you withdrew $1,000 on account of costs. You had never rendered a bill of costs although you would have been entitled to some recompense. Ms Sadowski believed she received only one payment from you, being $4,500 in about 1992, but the only extant record is of the initial payment of interest to her of $1,482.

11 In the course of an extensive record of interview conducted by investigating police on 2 May 2005, you told them you had used the money to pay for damage to a motor car with which you had collided, not wishing to claim on your own insurance company.

12 Counts 2 and 4 relate to the estate of Ivy Skinner who died in November 1987. Her trustees appointed you to act in relation to the administration of the estate. It was decided by the trustees that Ms Skinner's assets were to be sold and invested so as to support her invalid son John Skinner. Three residential units were purchased and you were instructed to manage those investments. Trust account ledgers were set up in relation to each unit and you had the trustee sign an authority to invest. Between November 1989 and October 1996, under cover of false trust ledger entries, you withdrew various amounts in 83 separate transactions totalling $84,480. About half of this amount (withdrawals of $38,000 and $4,200 made on 7 February and 30 April 1992 respectively) were shown as investments with the National Australia Bank. The remainder of the amounts were recorded as professional costs and/or disbursements although no bill of costs or statement of accounts were provided.

13 Similarly, count 4 involved a withdrawal on 44 occasions of a total of $4,341 under the pretext that it was professional costs and/or disbursements. Again no bill of costs or statement of account was provided.

14 In your record of interview you stated that the money involved in both these counts was used in the running of your practice.

15 An assessment by the Law Institute of Victoria Cost Advisory Service indicated that you were entitled to charge $9,603 in costs whereas your purported costs were $46,549.

16 Counts 3 and 8 involved the estate of Una Bowen, who had been a long standing client of yours. In 1993 due to poor health she entrusted you with her financial affairs. Indeed, in 1996 she signed an enduring power of attorney with you as that attorney. Utilising this instrument you became a signatory to Ms Bowen's Commonwealth Bank account. Thereafter, on 26 occasions between July 1995 and May 1999 you stole a total of $174,891 from this account. On some occasions this was by way of cheques made payable to your firm or other unknown persons. Another modus operandi was to use a withdrawal slip either to obtain cash in hand or to purchase Commonwealth Bank cheques made payable to your firm or another party.

17 Una Bowen died in March 1998 and you were appointed executor of her will and trustee of her estate. There was no specific allowance for executor's commission. Part of Ms Bowen's estate comprised 3,300 National Australia Bank shares. You did not include these in her list of assets but had them sold receiving the proceeds of $82,682. This was disguised by entries in the relevant trust ledger falsely purporting to invest the money with a firm Swan Pool Bay Pty Ltd. The amounts involved were $59,150 and $22,000.

18 Additionally, between May 1998 and April 2000, in 36 transactions, you withdrew $75,030. This you claimed to be for professional costs and executor's commission. In respect of these matters you had not prepared any bill of costs or trust account statements and you had not sought the permission of the beneficiaries to withdraw these sums.

19 The Victoria Lawyers Costs Advisory Service calculated that professional costs amounted to $2,585. You asserted to the investigators a belief that the amount of $28,500 that you extracted in executor's commission without the consent of the beneficiaries or a Supreme Court order, could be rectified in some form of final accounting. In relation to both counts you told the police that the money was used to run the practice and pay staff, but it is clear from the records that some of the money was also used for personal purposes.

20 Mr Lance Rolf died in January 1997 and you were engaged by his son to obtain probate and to administer the estate. Apart from a bill of costs and disbursements of $5,168, rendered in April 1997, you withdrew further amounts totalling $1,080. You explained this deficiency in your trust account as pressure of work and inadvertence but that you had no solid excuse. [This was count 5.]

21 Count 6, which was also a trust account deficiency, involved the estate of a Harold Stephens who died in August 1997. You were a joint executor of the will which made no specific provision for executor's commission. On 20 occasions between October 1997 and August 1999 you withdrew a total of $38,352 from moneys held on behalf of the estate. You made an entry in the trust ledger to the effect that the moneys were taken for professional costs and executor's commission but you failed to render any bill of costs or seek the consent of the beneficiaries to your receipt of commission.

22 Your excuse to investigators was essentially the same as you proffered for your handling of Una Bowen's estate.

23 Count 7 involved the estates of Kenneth and Cornelia Nicholson who died in December 1997 as the result of a motor cycle accident. Their children, who were your niece and nephew, were the executors of their will. You were engaged to obtain probate and administer the estate. Between 1998 and July 2000, in a series of 22 transactions, you withdrew $16,659 as professional costs. You provided no bill of costs and the Law Institute Costing Service calculated that the proper and reasonable costs according to the Supreme Court scale were $4,632. Your excuse in the record of interview for the withdrawal of funds was that, because it was a family matter, you took the view "perhaps incorrectly, that strict compliance was not necessary".

24 In the case of Doreen Atkins, who died in July 1998, you were appointed executor of her will and trustee of her estate. You advised the beneficiary of the estate, a Richard Sullivan, by letter that you would be charging $3,000 professional costs and disbursements for the administration. In fact you issued a bill of costs for $3,417 on 10 August 1998, and, between 25 August and 27 October 1998, in four transactions, you withdrew a further $2,609. No bill of costs was rendered for this additional amount.

25 You told the interviewing police that you could not give a reason for having a technical deficiency but that you must have accounted to Mr Sullivan at some stage. There is no evidence of this having occurred. This was count 9 on the presentment.

26 Count 10 concerned the estate of Mildred Pepperell who died in August 1998. You were instructed by her son Roger, who was the executor of the will, to act in relation to its administration. You wrote to Roger Pepperell in November 1998 advising him that your charges would be in accordance with the Solicitors' Remuneration Order and Probate and the Administration Rules of the Supreme Court less 10%, and that a bill of costs would be forwarded upon completion of the requisite work. The amount was to be deducted from moneys held in trust on behalf of the estate. A bill of $949 was rendered in March 1999. However, on 15 occasions between September 1998 and March 2000, you withdrew $14,790 from the trust moneys for purported professional costs without providing any bill of costs. According to the Law Institute Costing Service, this represented some $5,000 more than your entitlement.

27 In your record of interview you attributed this discrepancy to pressure and work and inadvertency but said that you had no excuse.

28 Count 11 involved a further trust account deficiency relating to the estate of a Robert Hungerford, who died in December 1998. Once again you were instructed by the executor to act in relation to the administration. Between January 1999 and April 2000, in 12 transactions, you withdrew sums of money totalling $15,362. These sums were recorded in the trust account ledger as having been taken on account of costs, but no bill of costs was provided.

29 In your record of interview you conceded that there was no acceptable reason for this deficiency and for the failure to render a bill of costs, but that the deficit was remedied by a subsequent agreement as to fees.

30 The same scenario emerges in relation to count 12 which relates to the estate of Beryl Hazel, who died in September 1999. You were instructed by the executor (her daughter) to act as the administrator of the estate. Between October 1999 and January 2000, on nine occasions, you withdrew a total of $5,462 from the trust account recording these sums as professional costs and disbursements. No bill of costs or statement of account was created.

31 You told the investigators that you had no reasonable excuse for not rendering a bill of costs.

32 Count 13 was in respect of the estate of Betty Collie, who died in October 1999. You were engaged by her executor (who was a solicitor) to administer her estate. In a memorandum to the executor which you provided in December 1999, you indicated that costs would be $5,583. However, you first withdrew $1,383 in excess of that figure, and later, between 8 February and 2 March 2000, you withdrew a further $6,800 asserted to be professional costs and disbursements. There was no bill of costs or statement of account. The total deficiency therefore was $8,183.

33 In your record of interview you stated that, since the client was a friend of yours, you did not believe strict compliance was necessary. You also asserted that the solicitor told you that you could take costs as you went and account to him at the end.

34 The final count on the presentment charges the theft of a cheque belonging to Cornelius DeWit. Mr DeWit gave you a power of attorney in May 1999. On 9 May 2000, unbeknown to him, you wrote to the Manager of the Westpac Bank in Caboolture, Queensland where Mr DeWit had an account. You indicated that he wished to close the account and requested the final balance, which totalled $3,827, be sent to your office. You banked the cheque that was forwarded by Westpac on 7 June 2000 and, thereafter, you used the money for your own purposes.

35 In the record of interview you admitted that the cheque was wrongfully taken and said that you would have used the proceeds for running the office.

36 I was informed that seven claims had been made on the Law Institute Fidelity Fund resulting in a payout of $377,694. Other potential claimants have not sought relief because of their relationship with you.

37 Originally the Legal Services Board was contemplating seeking an order for compensation pursuant to the Sentencing Act for the amount paid out. I have since been informed that application will not be pursued.

38 The offences to which you have pleaded guilty are serious ones. You took substantial sums of money over a period of time which spanned from November 1989 to June 2000 although most of your offending occurred between 1995 and 2000. The total amount of money involved was $512,434. Apart from the two offences of theft where you abused your role as power of attorney, your other offences involved the pilfering of deceased estates. Your victims included your godmother, a niece and nephew whose parents had died in tragic circumstances, and clients of long standing and friends. One thing that they all had in common was their trust of you - a trust which you betrayed. On many occasions you used false entries in the trust ledger to disguise your depredations; a modus operandi clearly demonstrating your knowledge of wrongdoing. In a number of cases you syphoned money from the estate funds under the guise of unauthorised executor's commissions and of professional costs and disbursements which were clearly excessive. This was despite your encounter with the Solicitors' Board in 1995 (to which I have previously referred) when you were found guilty of charging grossly excessive professional costs.

39 I have on previous occasions when sentencing solicitors noted that not only do offences of this nature constitute a breach of the trust of clients, but they also constitute a betrayal of the trust of the profession of which you were a member and of the community you swore to serve upon your admission to practice. Actions like yours undermine the confidence the community should have in its legal advisors. Consequently, the courts have a duty, by the sentences imposed on offenders, not only to reflect the gravity of the offences, but also to deter other lawyers who might be minded to commit similar criminal acts.

40 Of course, in considering the appropriate sentence in any particular case, it is necessary to deal with it in the light of all the circumstances surrounding the offences and the personal background of the offender.

41 You are presently aged 59 and you have one younger brother. Your father was an electronics engineer and your mother a secretary. Both are deceased. You grew up in West Heidelberg moving to Rosanna when you were aged 17. You were educated at CBC Parade before attending Monash University where you completed the degrees of Bachelor of Jurisprudence and Bachelor of Laws, the latter in 1971.

42 In 1968, while at University, you married and you and your wife set up home in Glen Waverley. Your first child was born in December 1969 while you were still attending University. You had to undertake part time work to support your family and you took jobs as a taxi driver, cleaner and hospital orderly. You were also a member of the CMF where you attained the rank of Acting Sergeant. You had two more children in the 1970's. Two of your children are married and you presently have five grandchildren.

43 In 1971 you commenced your articles with the firm of KC Kranage in Malvern and, upon your admission to practice in 1972, you were employed by a legal firm in Mornington, Hicks & Co. of which a Mr Ron Hicks was the sole practitioner. Thereafter, you and your family lived in Mornington.

44 After a brief sojourn with another firm, you rejoined Hicks & Co. becoming a partner in 1975. At that time the name of the firm was changed to Hicks & Kesik.

45 In 1985 you purchased Mr Hicks' share in the business and you continued to run the firm as a sole practitioner.

46 In 1987 there was a brief legal foray into Dromana where you went into partnership with another solicitor. That practice was sold in 1990.

47 According to your counsel, the genesis of your offending was the financial difficulties you experienced in running your business. To the normal recurrent expenditure, which included staff salaries and rental charges was added the cost of servicing your National Australia Bank overdraft of $20,000. Your financial situation was also exacerbated by acts of dishonesty by a law clerk that you had employed. Asked during the record of interview how your business was operating from 1995 to 2000, you answered "disastrously" and said that you were covering your losses by the use of the clients' money. As you informed the interviewing police, you assuaged your conscience by taking out small sums of money when you were desperate, vowing on each occasion that it would be the last. You also had the expectation, quite unrealistic in the circumstances, that you could eventually pay the money back. You even spoke of the possible injection of funds through taking on a partner.

48 I accept that most the money you took was to keep your business afloat. Indeed, there is no evidence of any of the money being spent on an extravagant lifestyle or the acquisition of assets. You wanted to be seen as a successful and respected sole practitioner in the Mornington area. Unfortunately you chose to maintain that façade by resorting to dishonesty.

49 I take into account in your favour your co-operation with the investigators from Victoria Lawyers and the Law Institute from November 2000 when your firm was placed in receivership. That co-operation continued during the course of the police investigation. You told the police, in effect, that your conscience impelled you to admit your actions and that you were relieved when these matters were finally exposed.

50 I am informed that you have made restitution to the Legal Practice Board of about $138,000. This amount was raised through the sale of your motor car, the utilisation of your equity in your home (which has now been transferred to your wife) and the sale of your business. An additional amount came from costs ultimately received for legal work done by your practice. At this time you no longer have any assets.

51 Since March 2001 you have worked on a casual basis as a funeral director's assistant; first with John Allison Monkhouse and, subsequently, with Syd Peek & Daughter. As is clear from your history, you have always been a hard worker and assiduous in providing for the needs of your family.

52 There is another aspect of your life which must not be overlooked. Apart from your business, you were, and are, a devoted family man. You also have strong ties with the local Catholic Church in Mornington where you have assisted in fund raising and helping out people in distress. For a number of years in the late 1970's, you worked for the St. Vincent de Paul organisation. You have also given your time to the Mornington Community Information and Support Centre, providing free legal advice. Mr Phillip Dwyer, a solicitor, and Mr Phillip Henshaw, a consultant, both gave character evidence on your behalf, emphasising your loyalty to your family and the church and your very considerable remorse at what has transpired.

53 In addition, a vast number of character references were tendered to the Court. They had been prepared by Magistrates, lawyers (including your former partners), a parish priest, a paediatrician, a school principal and teachers as well as your most recent employer, Syd Peek & Daughter. It is fair to say that the authors write in glowing terms of your professionalism and integrity as a solicitor and of your extensive community service. Another theme of the letters is that your offending is out of character and reference is made to your remorse at what has occurred and additionally, the devastating effect that your actions have had on both yourself and your family.

54 On the basis of this material I accept unreservedly that, prior to your offending, you were a person of good character. I further accept that you are remorseful. In all the circumstances I regard your prospects of rehabilitation as excellent and the need for any specific deterrence minimal.

55 Additionally, you are entitled to the benefit of your pleas of guilty entered at the committal mention stage.

56 In this case there is another significant factor which needs to be taken into account and that is the extraordinary delay between your initial admissions in November 2000 and the time you were eventually charged in May 2006. No doubt considerable investigative endeavour was required to muster the materials which demonstrate the commission of frauds of this nature. However, on any view, an inordinate length of time has elapsed in this case. One result of that is that your life, to a considerable extent, has been in limbo for almost six years. Further, the fact that the matter has been hanging over your head for that time constitutes, in itself, a considerable level of punishment. In your case there is some substance in the aphorism "justice delayed is justice denied". I need to reflect this factor in the sentence imposed.

57 Finally, an ancillary aspect of punishment has been the loss of your capacity to practise your profession. Your fall from grace has been very great.

58 Whilst having regard to all of the mitigating factors, this was a serious and prolonged course of offending requiring (as your counsel conceded) a custodial sentence. In passing sentence I take into account the variation in maximum sentences for the offence of having a trust account deficiency which has occurred during the period of your offending. In fixing the individual sentences and in crafting the total effective sentence, I have had regard to the principles of totality and proportionality. Balancing as best I can the sentencing principles enunciated in the Sentencing Act, including punishment, denunciation, specific and general deterrence and rehabilitation, I sentence you to the following periods of imprisonment: