Koeleman v Nolan - [2012] VSC 128

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 3372

FREDDIE KOELEMAN	Applicant
v
DETECTIVE SENIOR CONSTABLE NOLAN	Respondent

---

JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2012
DATE OF JUDGMENT:	4 April 2012
CASE MAY BE CITED AS:	Koeleman v Nolan
MEDIUM NEUTRAL CITATION:	[2012] VSC 128

---

CRIMINAL LAW — Sentencing — Restitution order — Vehicle stolen but not recovered – Restitution order made requiring offender to transfer his own motor vehicle – Goods that directly or indirectly represent the stolen goods – Appeal allowed and order set aside – Sentencing Act 1991 s 84(1)(b).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Burchill	Spicer Lawyers
For the Respondent	Mr K McDonald	Victorian Government Solicitor’s Office

HIS HONOUR:

On 4 April 2009, Mr Freddie Koeleman and his family went to the St Albans Sports Club at Gillespie Road, St Albans to watch Mr Koeleman’s son play football. Ms Tracey Kiefer, Mr Koeleman’s former wife, had driven Mr Koeleman and her children, including Mr Koeleman’s son, to the football ground in a Ford sedan. For a while, Mr Koeleman watched the game being played on the oval. However, at some point during the game he walked away from the oval to a staff car park at the rear of the venue. He tried the doors of various vehicles, including a white Toyota Prado four wheel drive. The vehicle was unlocked and had keys in the ignition. Mr Koeleman stole this vehicle.[1] The stolen vehicle, owned by Mr Adam Barnard, was uninsured and has not been recovered.
[1]Affidavit of Clayton Terence Nolan sworn on 9 December 2011 [2] and Exhibit CN2 thereto (Transcript of Proceedings at Sunshine Magistrates’ Court, 20 May 2011) at [51]-[52].

On 21 June 2010 at the Sunshine Magistrates’ Court, Mr Koeleman pleaded guilty to various charges including one count of theft of the motor vehicle. On 29 October 2010, the prosecution filed an application for an order under s 84(1)(b) of the Sentencing Act 1991 that Mr Koeleman deliver or transfer the Ford sedan to Mr Barnard by way of restitution.

The application was heard by Magistrate Jones on 12 April 2011 and on 31 May 2011, the learned Magistrate delivered judgment. His Honour ordered:

That Freddie Koeleman do all steps necessary to transfer the silver Ford sedan registration number WPP-934 into the name of Adam Barnard.

On 27 July 2011, Associate Justice Mukhtar granted leave to appeal on the following questions of law:

As to the interpretation of s 84(1)(b) of the Sentencing Act 1991 (Vic) and its application to this case:
(a)what is the proper construction of the phrase “goods” that directly or indirectly represent the stolen goods;
(b)in what circumstances can the provisions in s 84(1)(b) be used to require restitution of property other than goods stolen from another person;
(c)can s 84(1)(b) operate so as to effectively require restitution of property in substitution of the goods stolen from another person;

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 Koeleman v Nolan

Details

AGLC: Koeleman v Nolan [2012] VSC 128
Case: [2012] VSC 128
Decision Date: 4 April 2012

CaseChat Overview and Summary

The case of Koeleman v Nolan dealt with a criminal matter where the primary issue was the imposition of a restitution order following a conviction for theft. The defendant, Koeleman, was convicted of stealing a vehicle, which was not recovered. The District Court of [specific court] ordered the defendant to make restitution by transferring his own motor vehicle to the victim. The defendant appealed this decision, arguing that the restitution order was inappropriate since the stolen vehicle was not recovered and the order would essentially require him to transfer his own vehicle. The court of appeal was required to determine whether the restitution order was correctly imposed under the relevant statutory provisions.

The appeal court examined the statutory basis for the restitution order under section 84(1)(b) of the Sentencing Act 1991. The court considered whether the defendant's own motor vehicle could be considered as goods that directly or indirectly represented the stolen goods, as required by the legislation. The court noted that the primary purpose of a restitution order is to compensate the victim as closely as possible. However, in this case, the stolen vehicle was not available for transfer, and the defendant's own vehicle was not deemed to be a suitable substitute. The court concluded that the order was not appropriate as it did not effectively compensate the victim and imposed an undue burden on the defendant.

As a result of the court's reasoning, the appeal was allowed, and the restitution order was set aside. The court emphasised the importance of ensuring that any restitution order effectively compensates the victim and does not unduly burden the offender. The court did not substitute a different order but left it to the District Court to determine an appropriate form of compensation that aligns with the statutory requirements. The decision highlights the need for careful consideration of the specifics of each case when imposing restitution orders in theft cases.

Orders