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Kruger v The King

Kruger v The King

Case [2023] VSCA 149 20 June 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0083

CAROLYN DAWN KRUGER	Appellant
v
THE KING	Respondent

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JUDGE:	BEACH and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2023
DATE OF JUDGMENT:	20 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 149
JUDGMENT APPEALED FROM:	[2022] VCC 594 (Judge Syme)

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CRIMINAL LAW – Sentence – Appeal – Theft (8 charges) – Theft from employer of amounts totalling in excess of $3.7 million – TES of 5 years and 4 months, with NPP of 4 years – Appeal against NPP – Whether judge erred in failing to conclude that appellant’s childhood trauma and deprivation reduced her moral culpability for offending – Whether judge erred in failing to find serious risk that imprisonment would have adverse effect on appellant’s mental health – Judge erred in failing to conclude that appellant’s childhood deprivation reduced her moral culpability – Appellant not establishing that any different non-parole period should be imposed – Appeal dismissed.

Criminal Procedure Act 2009, s 281(1)(b).

Power v The Queen (1974) 131 CLR 623; R v Morgan (1980) 7 A Crim R 146; DPP v Bulfin [1998] 4 VR 114; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; DL v The Queen (2018) 265 CLR 215; DPP v Herrmann [2021] VSCA 160; and Chuah v The Queen [2022] VSCA 51 referred to.

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Counsel
Appellant:	Mr CT Carr SC with Ms K Farrell
Respondent:	Ms A Moran with Ms S Lenthall

Solicitors
Appellant:	Galbally Parker Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA

TAYLOR JA:

The appellant was employed as a bookkeeper by a water filtration business, Triangle Waterquip Pty Ltd (‘Triangle’). Between 3 January 2008 and 18 February 2015, she made 349 unauthorised electronic transfers from Triangle’s bank accounts to bank accounts in her name or under her control. In total, over a seven year period, the appellant stole a total of $3,780,672.93 from Triangle. On 28 June 2019, in relation to this offending, the appellant pleaded guilty in the County Court to eight charges of theft contrary to s 74(1) of the Crimes Act 1958. The maximum term of imprisonment for theft is 10 years.
On 7 April 2022, following a plea hearing on 31 March 2022 and further submissions made on 7 April, the appellant was sentenced to 3 years’ imprisonment on each charge. The sentence imposed upon charge 1 was the base sentence, and the judge cumulated 4 months of each of the sentences imposed on charges 2 to 8, making a total effective sentence of 5 years and 4 months. A non-parole period of 4 years was fixed.[1] Pursuant to leave granted on 8 November 2022,[2] the appellant appeals against her sentence on the following grounds:
[1]DPP v Kruger [2022] VCC 594 (‘Sentencing Reasons’).
[2]Kruger v The King [2022] VSCA 244 (‘Leave Reasons’). In order to make these reasons comprehensible as…

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 Kruger v The King

Details

AGLC: Kruger v The King [2023] VSCA 149
Case: [2023] VSCA 149
Decision Date: 20 June 2023

CaseChat Overview and Summary

Kruger was convicted on eight charges of theft from his employer, with the total amount stolen exceeding $3.7 million. The trial judge sentenced Kruger to a total effective sentence of 5 years and 4 months, with a non-parole period of 4 years. Kruger appealed the non-parole period, arguing that the trial judge erred in failing to conclude that his childhood trauma and deprivation reduced his moral culpability for the offending. Additionally, he argued that the judge erred in not finding that there was a serious risk that imprisonment would have an adverse effect on his mental health. The appeal was heard by the Court of Appeal.

The legal issues in this appeal were whether the trial judge erred in failing to conclude that Kruger's childhood trauma and deprivation reduced his moral culpability for the offending, and whether the judge erred in not finding that there was a serious risk that imprisonment would have an adverse effect on Kruger's mental health. The appeal also considered whether Kruger had established that a different non-parole period should be imposed.

The Court of Appeal found that the trial judge erred in not considering Kruger's childhood trauma and deprivation in assessing his moral culpability. However, the Court concluded that this error did not affect the overall sentence imposed. The Court also found that Kruger had not established that there was a serious risk that imprisonment would have an adverse effect on his mental health. The Court held that Kruger had not established that a different non-parole period should be imposed. Therefore, the appeal was dismissed.

No further orders were made by the Court of Appeal.

Orders