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DPP v Caulfield

DPP v Caulfield

Case [2019] VSCA 131 14 June 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0012

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
KERRY CAULFIELD	Respondent

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JUDGES:	PRIEST, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 June 2019
DATE OF JUDGMENT:	14 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 131
JUDGMENT APPEALED FROM:	DPP v Caulfield [2018] VCC 2213 (Judge Cohen)

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CRIMINAL LAW – Sentence – Director’s appeal – Plea of guilty to theft from employer – Respondent sentenced to total effective sentence of 9 months’ imprisonment and 2 year Community Correction Order with conditions – Whether sentence manifestly inadequate – Prolonged offending – More than $460,000 taken from employer – Concealment of offending – Abuse of trust – ‘Rolled-up’ charge – Early plea – Admission and cooperation with investigators – Genuine remorse – Whether Court should exercise residual discretion – DPP v Bulfin [1998] 4 VR 114, Dyason v The Queen (2015) 251 A Crim R 366 considered – Appeal allowed – Respondent resentenced to 2 years and 6 months’ imprisonment – Non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Ms K E Judd QC, Director of Public Prosecutions with Ms A Ellis	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent:	Mr T Kassimatis QC with Ms R Avis	James Dowsley & Associates

PRIEST JA

KAYE JA

WEINBERG JA:

On 28 November 2018 the respondent pleaded guilty, in the County Court at Melbourne, to a single ‘rolled-up’ charge of theft. She was sentenced on 20 December 2018 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1.
Theft

[s.74(1) Crimes Act 1958]
10 years’ imprisonment 9 months’ imprisonment and a 2 year Community Correction Order N/A

Total Effective Sentence:
9 months’ imprisonment and a 2 year Community Correction Order with special conditions:

·     50 hours of unpaid community work;

·      Supervision;

·     Mental health assessment and treatment; and

·     Attend a program or programs to reduce the risk of re-offending.

Non-Parole Period: N/A

(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: Nil

S. 6AAA Sentencing Act 1991 declaration 3 years’ imprisonment with a non-parole period of 2 years

Other relevant order: Forensic sample order
Ground of appeal

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Theft [s.74(1) Crimes Act 1958]	10 years’ imprisonment	9 months’ imprisonment and a 2 year Community Correction Order	N/A
Total Effective Sentence:	9 months’ imprisonment and a 2 year Community Correction Order with special conditions: · 50 hours of unpaid community work; · Supervision; · Mental health assessment and treatment; and · Attend a program or programs to reduce the risk of re-offending.
Non-Parole Period:	N/A
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:	Nil
S. 6AAA Sentencing Act 1991 declaration	3 years’ imprisonment with a non-parole period of 2 years
Other relevant order: Forensic sample order

By notice filed on 17 January 2019, the Director of Public Prosecutions has appealed against this sentence on the following ground:

Ground 1: The sentence imposed is manifestly inadequate.
Particulars
The sentence reflects that the learned sentencing judge:
(a)Failed properly to consider the objective gravity of the offending conduct;
(b)Failed to give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence and specific deterrence;
(c)Gave too much weight to mitigating factors concerning the offender; and
(d)Failed to give sufficient weight to the maximum penalty for the offence.

Background facts

The offending took place over a period of three years, commencing in February 2015 and continuing through to February 2018. During that period, the respondent stole a total of $463,028.80 from her employer, Hopper Motor Group (‘the company’).…

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 DPP v Caulfield

Details

AGLC: DPP v Caulfield [2019] VSCA 131
Case: [2019] VSCA 131
Decision Date: 14 June 2019

CaseChat Overview and Summary

In the case of DPP v Caulfield, the Director of Public Prosecutions appealed against the sentence imposed on Caulfield, who had pleaded guilty to theft from his employer. Caulfield was sentenced to a total effective sentence of nine months' imprisonment and a two-year Community Correction Order, which included specific conditions. The appeal focused on whether the original sentence was manifestly inadequate given the circumstances of the case, which involved prolonged offending, the theft of over $460,000, concealment of the offending, and an abuse of trust. The prosecution argued that the sentence did not adequately reflect the seriousness of the crime.

The court was required to determine if the original sentence was manifestly inadequate and whether there were grounds to exercise the residual discretion in sentencing. The court considered factors such as the prolonged nature of the offending, the amount stolen, Caulfield's concealment of the crime, and his abuse of trust. It also took into account mitigating factors such as Caulfield's early guilty plea, his admission of the offence, his cooperation with investigators, and his genuine expression of remorse. The court referenced previous cases, including DPP v Bulfin and Dyason v The Queen, to guide its assessment of the sentence's adequacy.

The Court of Appeal found that the original sentence was indeed manifestly inadequate. It acknowledged the gravity of the offence and the breach of trust but also recognised Caulfield's remorse and cooperation with authorities. The court exercised its residual discretion and resentenced Caulfield to two years and six months' imprisonment, with a non-parole period of 18 months. This resentence aimed to appropriately reflect the seriousness of the crime while considering Caulfield's mitigating factors.

Orders