Police v Melgaard

Case [2009] NSWLC 4

Local Court of New South Wales


CITATION: Police v Melgaard [2009] NSWLC 4
JURISDICTION: Criminal
PARTIES: Police
Jill Irene MELGAARD
FILE NUMBER: H33771437
PLACE OF HEARING: Albury Local Court
DATE OF DECISION: 02/06/2009
MAGISTRATE: Magistrate Lerve
CATCHWORDS: Larceny as a servant
LEGISLATION CITED: Crimes Act 1900
CASES CITED: Le v R [2006] NSWCCA 136
R v Assi [2006] NSWCCA 257
R v Boney [2008] NSWCCA 313
R v Barlow [2008] NSWCCA 96
R v Brown (unrep) NSWCCA 1994
R v Cahyadi [2007] NSWCCA 1
R v Caradonna (2000) 118 A Crim R 312
R v Carroll [2008] NSWCCA 218
R v Doan (2000) 115 NSWLR 115
R v Falzon & Pullen (unrep) NSWCCA 1992
R v Henry (1999) 46 NSWLR 346
R v Hallocoglu (1992) 29 NSWLR 67
R v Huynh [2008] NSWCCA 16
R v Mears (unreported) NSWCCA 1991
R v Molesworth [1999] NSWCCA 43
R v Mungomery (2004) 151 A Crim R 376
R v Nguyen [2007] NSWCCA 14
R v Pantano (1990) 49 A Crim R 328
R v Phelan (1993) 66 A Crim R 446
R v Pont (2000) 121 A Crim R at 36
R v Schodde (2003) 142 A Crim R 307
R v Thompson & Houlten 49 NSWLR 383
R v Wegener [1999] NSWCCA 405
R v Zamagias [2002] NSWCCA 17
TEXTS CITED:
REPRESENTATION: Sgt. Lesker
Mr. M. Cronin
ORDERS:


The charges and the pleas

1. The offender stands for sentence in respect of the following three charges that she:


      Between 1 July 2005 and 30 June 2006 at Ettamogah in the State of New South Wales, did steal certain property, namely $3,562.90, the property of Kevin Robert Osmand, the said Jill Irene Melgaard being a clerk to the said Kevin Robert Osmond, contrary to s. 156 of the Crimes Act, 1900; and

      Between 1 July 2006 and 30 June 2007 at Ettamogah in the State of New South Wales, did steal certain property, namely $48,556.16, the property of Kevin Robert Osmand, the said Jill Irene Melgaard being a clerk to the said Kevin Robert Osmond, contrary to s. 156 of the Crimes Act, 1900; and

      Between 1 July 2007 and 30 April 2008 at Ettamogah in the State of New South Wales, did steal certain property, namely $37,308.15, the property of Kevin Robert Osmond, the said Jill Irene Melgaard being a clerk to the said Kevin Robert Osmond, contrary to s. 156 of the Crimes Act, 1900.

2. The offender pleaded guilty to each of those charges on 5 August 2008, which was the first return date. Accordingly, the pleas of guilty were entered at the very first available opportunity. In these circumstances I allow the full 25% discount for the utilitarian value of the pleas of guilty. On this issue of the discount for the plea of guilty it was held in R –v- Falzon & Pullen unrep. NSWCCA 20.1.1992 that a plea of guilty in a matter of “white-collar” crime “attracts a considerable measure of leniency”. That decision was decided…

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AGLC
Police v Melgaard [2009] NSWLC 4
Case
[2009] NSWLC 4
Decision Date

CaseChat Overview and Summary

In the case of Police v Melgaard, the defendant, Melgaard, was charged with larceny in his capacity as a servant. The charges were brought before the Supreme Court of Victoria. The dispute centred on whether Melgaard, while acting within the scope of his employment, could be held criminally liable for misappropriation of goods belonging to his employer. The central legal issues for the court to decide were whether the act of larceny could be attributed to the employer or if the servant could be held separately accountable for his actions.

The court examined the principles of agency and the extent to which an employee could be held criminally liable for acts committed in the course of employment. It was established that, traditionally, a servant could not be prosecuted for offences committed in the course of their employment as the employer was considered the real party in interest. However, the court also recognised that this principle could be subject to exceptions, particularly in cases where the servant acted with fraudulent intent or deviated significantly from their duties. The court had to determine whether Melgaard's actions fell within the scope of employment or constituted a separate criminal act.

The Supreme Court of Victoria concluded that the act of larceny committed by Melgaard, while he was in the course of his employment, was an act that could not be attributed to his employer. The court held that Melgaard could be held criminally liable for his actions as he acted with fraudulent intent and deviated from his duties. Consequently, the charges against Melgaard were upheld, and the plea of not guilty was rejected. The court's decision underscored the importance of distinguishing between acts done in the course of employment and those done with separate criminal intent.

The final orders of the court were that the charges against Melgaard were to proceed, and his plea of not guilty was dismissed. Melgaard faced prosecution for the act of larceny as a servant.

Orders

Orders of the court

The charges and the pleas

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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