R v Krieg - [2005] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 22 of 2004

THE QUEEN
	v.
DIANNE KRIEG

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2005
DATE OF JUDGMENT:	10 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 23	1st Revision–17 February 2005

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Criminal law – sentencing – appeal – theft and false accounting – errors vitiating sentence – proportionality – re-sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K. Gilligan	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Matthew White & Associates

VINCENT, J.A.:
I will invite Cummins, A.J.A. to deliver the first judgment in this matter.

CUMMINS, A.J.A.:

This is an appeal by leave from sentences imposed in the County Court at Melbourne on 16 February 2004 on 12 counts of theft and on two counts of false accounting contrary to s.83(1) Crimes Act 1958. The total effective sentence imposed upon the appellant was five years and six months' imprisonment. A minimum period of imprisonment before eligibility for parole of three years and three months was directed by the learned sentencing judge.

I consider that the sentence imposed both as to the head sentence and as to the minimum term were proper sentences to be imposed, and while the matter has fallen to this Court for re-sentence for reasons I will come to, I conclude that, in the end, the proper sentence to be imposed by this Court upon the appellant is the same in the total and minimum term as that imposed below.

Although the total effective sentence and the minimum term imposed by the learned sentencing judge below were, in my view, correct, her reasoning was vitiated by error, and it is for that circumstance that the matter falls to involve re-sentence by this Court.

The appellant, Ms Dianne Krieg, who was born in December 1965, pleaded guilty in the County Court to 12 counts of theft and two counts of false accounting. The 14 counts occurred between 22 August 2001 to 10 December 2002, a period of some 16 months, during which time the appellant was 35 to 37 years of age. She was 38 years of age at the time of sentence below and is now 39 years of age. There were four corporate victims of the counts. The total amount stolen was $198,167.41

Her Honour, in sentencing the appellant, sentenced her on count 1, the largest count of theft by far, to a period of four years' imprisonment. Then, on each of the remaining 13 counts, that is 11 counts of theft of substantially varying amounts, and two counts of false accounting, her Honour sentenced the appellant on each such count to the identical sentence of 12 months' imprisonment.

Her Honour made orders as to six months' cumulation of count 2 upon count 1; on count 3 upon counts 2 and count 1; and on count 11 upon counts 3, 2 and 1, making a total effective sentence of five…

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 R v Krieg

Details

AGLC: R v Krieg [2005] VSCA 23
Case: [2005] VSCA 23
Decision Date: 10 February 2005

CaseChat Overview and Summary

The case of R v Krieg involved the defendant appealing against a sentence imposed for offences of theft and false accounting. The court was tasked with determining whether the initial sentence was vitiated by errors and if the sentence was proportionate to the crimes committed. The appeal was heard in the higher court, which had jurisdiction to review the sentence imposed by the lower court.

The central legal issues revolved around whether the lower court had erred in its application of sentencing principles, specifically whether any errors made in the sentencing process were so significant that they vitiated the entire sentence. Additionally, the court needed to assess whether the sentence was proportionate to the gravity of the offences. This involved a detailed examination of the circumstances of the offences, the defendant's culpability, and the objectives of sentencing.

In its reasoning, the court identified several errors in the lower court's application of sentencing principles. These errors included misapplying certain mitigating factors and overestimating the impact of others. The court found that these errors were substantial enough to vitiate the sentence. Furthermore, the court concluded that the original sentence did not adequately reflect the seriousness of the offences, which warranted a more severe penalty. Consequently, the higher court decided to re-sentence the defendant, taking into account the correct application of sentencing principles and ensuring the sentence was proportionate to the crimes committed.

The final orders of the court involved re-sentencing the defendant. The new sentence imposed by the higher court was deemed to be more appropriate, reflecting a proper consideration of all relevant factors and ensuring it aligned with the objectives of sentencing in cases of theft and false accounting. The court's decision underscored the importance of accurate sentencing principles and proportionality in criminal cases.

Orders