Kruger v The King - [2022] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0083

CAROLYN DAWN KRUGER	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2022
DATE OF JUDGMENT:	8 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 244
JUDGMENT APPEALED FROM:	[2022] VCC 594 (Judge Syme)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – 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 – Whether reasonably arguable judge erred in failing to give any weight to applicant’s childhood trauma and deprivation – Whether reasonably arguable judge erred in failing to find serious risk of imprisonment would have adverse effect on applicant’s mental health – Whether reasonably arguable judge denied applicant procedural fairness – Whether reasonably arguable NPP manifestly excessive – Reasonably arguable judge erred in failing to give weight to childhood deprivation and trauma; alternatively, denied applicant procedural fairness – Reasonably arguable judge erred in failing to find imprisonment would have adverse effect on mental health; alternatively, denied applicant procedural fairness – Not reasonably arguable that NPP manifestly excessive – No reasonable prospect that Court of Appeal would reduce TES – Leave to appeal granted on grounds found to be reasonably arguable, limited to complaints about the NPP.

Criminal Procedure Act 2009, s 280(1).

DPP v Bulfin [1998] 4 VR 114; R v Verdins (2007) 16 VR 269; Ludeman v The Queen (2010) 31 VR 606; Clarkson v The Queen (2011) 32 VR 361; Bugmy v The Queen (2013) 249 CLR 571; DL v The Queen (2018) 265 CLR 215; DPP v Herrman [2021] VSCA 160; and Chuah v The Queen [2022] VSCA 51 referred to.

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Counsel
Applicant:		Mr CT Carr KC with Mr J Murphy
Respondent:		Ms K Hammill
Solicitors
Applicant:	Galbally Parker Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The applicant was employed as a bookkeeper by a water filtration business, Triangle Waterquip Pty Ltd (‘Triangle’). Between 3 January 2008 and 18 February 2015, the applicant 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 applicant stole a total of $3,780,672.93 from Triangle. On 28 June 2019, in relation to this offending, the applicant 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 applicant 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…

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 [2022] VSCA 244
Case: [2022] VSCA 244
Decision Date: 8 November 2022

CaseChat Overview and Summary

Kruger applied for leave to appeal against his sentence on eight charges of theft from his employer, amounting to over $3.7 million. The trial judge imposed a total effective sentence of 5 years and 4 months imprisonment, with a non-parole period of 4 years. Kruger argued that the trial judge failed to properly consider his childhood trauma and deprivation, and the risk that imprisonment would adversely affect his mental health. He also argued that he was denied procedural fairness in relation to these matters.

The court was required to decide whether Kruger's grounds for appeal were reasonably arguable, and whether there was a reasonable prospect that the Court of Appeal would reduce his total effective sentence if leave to appeal was granted. The court needed to consider whether the non-parole period was manifestly excessive.

The court found that it was reasonably arguable that the trial judge erred in failing to give any weight to Kruger’s childhood trauma and deprivation, or in failing to find that there was a serious risk of imprisonment having a significant adverse effect on Kruger’s mental health. It was also reasonably arguable that the trial judge denied Kruger procedural fairness in relation to these matters. However, it was not reasonably arguable that the non-parole period was manifestly excessive. The court also found that there was no reasonable prospect that the Court of Appeal would reduce Kruger’s total effective sentence if leave to appeal was granted. Therefore, leave to appeal was granted in respect of the non-parole period, but refused in relation to the individual sentences and orders for cumulation.

The court ordered that Kruger be granted leave to appeal on the grounds that the non-parole period was erroneously determined due to the trial judge's failure to give any weight to his childhood trauma and deprivation, or failure to find that there was a serious risk of imprisonment having a significant adverse effect on his mental health. Leave to appeal was refused in relation to the individual sentences imposed on charges 1 to 8 and the orders for cumulation made in respect of those sentences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows from the above that the appropriate course to be taken on this application for leave to appeal is to grant leave in respect of proposed grounds 1 and 2, limited to complaints about the non-parole period fixed by the judge. Leave to appeal should be refused in relation to the applicant’s proposed grounds of appeal that seek to set aside the individual sentences on charges 1 to 8 and the orders for cumulation, pursuant to s 280(1)(b); alternatively pursuant to s 280(1)(a) of the Criminal Procedure Act.Conclusion For the above reasons, I will make the following orders:(1)The applicant is granted leave to appeal on the following grounds:1.There was an error in the non-parole period by reason of the sentencing judge’s:(a)failure to give any weight to the applicant’s childhood trauma and deprivation; or(b)failure to afford the applicant procedural fairness before not accepting, or not giving any weight in mitigation to, the evidence of the applicant’s childhood trauma and deprivation.2.There was an error in the non-parole period by reason of the sentencing judge’s:(a)failure to find that there was a serious risk of imprisonment having a significant adverse effect on the applicant’s mental health (other than any claimed dissociative identity disorder), including her major depressive disorder and/or complex post-traumatic stress disorder; or(b)failure to afford the applicant procedural fairness before not accepting, or not giving any weight in mitigation to, the evidence that that there was a serious risk of imprisonment having a significant adverse effect on the applicant’s mental health (other than any claimed dissociative identity disorder), including her major depressive disorder and/or complex post-traumatic stress disorder.(2)Leave to appeal on proposed ground 3 is refused.(3)Leave to appeal against the individual sentences imposed on charges 1 to 8 and the orders for cumulation made in respect of those sentences is refused.---

Ratio Decidendi

Legal Principle Established

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