R v Schroen - [2001] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 137 of 2000

THE QUEEN
	v.
JENNIFER MAY SCHROEN

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JUDGES:	WINNEKE, P., CHARLES and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2001
DATE OF JUDGMENT:	2 August 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 126

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Criminal law - Sentence - Perjury - Manifest excess - General deterrence - R. v. Patniyot and Dailakis [2000] VSCA 55.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.G. Just	Solicitor for Public Prosecutions
For the Applicant	Mr M. O'Connell	R. Melasecca

WINNEKE, P.:

I will invite Vincent, J.A. to give the first judgment.

VINCENT, J.A.:

The applicant entered a plea of guilty before the County Court at Melbourne on 14 December 1998 to 15 counts of theft committed between November 1996 and January 1998.

She had been, during that period, employed as a clerical assistant at the Canterbury Private Nursing Home and, as part of her duties, was responsible for the preparation of fortnightly wages sheets for the payment of staff wages, including her own. Availing herself of the opportunity which this position afforded her, through the creation of false records, the applicant fraudulently secured overpayment of amounts of $2,000 to $4,000 per fortnight, totalling, over the period of 15 months involved, approximately $94,000. The offending started within a few months of the commencement of her employment and continued until the overpayments were discovered in January 1998 when an audit was conducted.

This was not the first occasion on which the applicant appeared before a court in respect of offences of dishonesty. She had, on 11 October 1995, been convicted at the Magistrates' Court at Castlemaine of six charges of obtaining financial advantage by deception. She had, it appears, negotiated a number of valueless cheques, the proceeds of which were used to pay for accounts incurred by her husband and herself in the conduct of a tree-felling business and for domestic purposes. A sentence of imprisonment for a period of three months was imposed in respect of each of these offences, the service of which was suspended for a period of two years.

After hearing a plea in mitigation, Judge Anderson, in the County Court proceeding, imposed a sentence of imprisonment for four months on each count, with one month of each of the sentences on counts 2 to 15 being served cumulatively upon the sentence imposed on count 1 and each other. This created an effective sentence of 18 months' imprisonment in respect of which he fixed a non-parole period of four months.

The plea presented before Judge Anderson possessed a number of unsatisfactory features. It was claimed, for example, that some of the stolen money was used to pay drug debts incurred by the brother-in-law of the applicant. His Honour, after a careful analysis of the records before him, concluded that this was highly unlikely to have been the case. The assertion was advanced that the proceeds of her offences were used principally for the payment of household…

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 Schroen

Details

AGLC: R v Schroen [2001] VSCA 126
Case: [2001] VSCA 126
Decision Date: 2 August 2001

CaseChat Overview and Summary

The appellant, Schroen, was convicted of perjury and sentenced to imprisonment by the County Court. Schroen appealed the severity of the sentence on the grounds that it was manifestly excessive. The appeal was heard by the Court of Appeal, with the Court considering the principles established in the case of R. v. Patniyot and Dailakis.

The central issue before the Court was whether the sentence imposed on Schroen was manifestly excessive. This required the Court to consider the nature and gravity of the offence, the culpability of the offender, and the need for general deterrence, in accordance with the principles set out in Patniyot and Dailakis. The Court also needed to determine whether the sentence could be considered appropriate in the circumstances, taking into account the principles of sentencing and the relevant legal framework.

The Court found that the trial judge had considered the relevant principles and had exercised his discretion appropriately in determining the sentence. The Court concluded that the sentence was not manifestly excessive and dismissed the appeal. The Court emphasised that the trial judge had carefully considered the relevant factors and had imposed a sentence that was commensurate with the seriousness of the offence and the culpability of the offender. The Court also noted that the need for general deterrence was an important consideration in sentencing, and that the sentence imposed in this case was consistent with that principle. The Court found that the sentence was not so severe as to shock the conscience of the community and that it was not manifestly excessive.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the County Court. The Court's decision underscores the importance of considering the relevant principles of sentencing and the need for general deterrence when determining the appropriate sentence for an offence such as perjury.

Orders