| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0069 |
| COLLEEN MARY TRELOAR | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | KAYE JA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 September 2023 |
| DATE OF JUDGMENT: | 12 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 214 |
| JUDGMENT APPEALED FROM: | DPP (Vic) v Treloar (County Court of Victoria, Judge Chettle, 23 November 2022) |
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CRIMINAL LAW – Sentence – Applicant pleaded guilty to attempt to pervert course of justice – Offending constituted by provision of false document to prosecution in defence of theft charges against applicant in Magistrates’ Court – Whether judge erred by taking into account false evidence given by applicant in support of defence of charges – Application for leave to appeal granted and appeal allowed – Applicant resentenced.
R v De Simoni (1981) 147 CLR 383; R v Newman [1997] 1 VR 146.
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| Counsel | ||
| Applicant: | Dr JR Murphy | |
| Respondent: | Mr D Glynn | |
Solicitors | ||
| Applicant: | Furstenberg Law | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
KAYE JA
J FORREST AJA:
On 27 September 2022, the applicant pleaded guilty in the County Court to one charge of attempting to pervert the course of justice. Following a brief sentencing hearing, in which the applicant was unrepresented, on 23 November 2022, she was sentenced to a total effective sentence of 18 months’ imprisonment with a non-parole period of 12 months. The judge made a s 6AAA statement to the effect that if the applicant had not pleaded guilty to the charge, he would have sentenced her to three years’ imprisonment with a non-parole period of two years.
The applicant seeks leave to appeal against sentence on the following grounds:
1. The sentencing discretion miscarried by reason of the learned sentencing judge taking into account uncharged conduct as if it were part of the conduct covered by the charge.
2. The sentencing discretion miscarried by reason of the learned sentencing judge failing to apply, or incorrectly applying, the principle of totality.
The respondent has conceded that the first proposed ground of appeal should succeed. For the reasons that follow, that concession is correct. In those circumstances, the application for leave to appeal will be granted, the appeal will succeed, and the applicant will be resentenced.
The offending
The applicant was previously employed as a manager of Coles Liquorland in Horsham until the end of December 2016. Mr Michael Leehane was the area manager at that time.
On 19 December 2017, the applicant was charged with three offences of theft arising out of her employment at Coles Liquorland. It was alleged that the applicant, in processing transactions through the cash register in the store, had made unauthorised refunds to her own personal account. In the course of the proceedings in relation to those charges, she falsified evidence of text messages between herself and Mr Leehane. This required the use of a quite sophisticated computer program which altered the original text messages between the applicant and Mr Lehane. Those messages…
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- AGLC
- Treloar v The King [2023] VSCA 214
- Case
- [2023] VSCA 214
- Decision Date
CaseChat Overview and Summary
The Court of Appeal held that the trial judge had indeed erred in taking into account the false evidence provided by the applicant in support of their defence of the charges. The Court found that the trial judge had failed to properly consider the principles set out in R v De Simoni and R v Newman, which require that a court consider the gravity of the offence of attempting to pervert the course of justice and the circumstances in which the offence was committed. The Court found that the trial judge had placed undue weight on the false evidence provided by the applicant and had not adequately considered the principles set out in the relevant authorities. The Court of Appeal allowed the appeal and remitted the matter to the County Court for resentencing.
The Court of Appeal granted leave to appeal and allowed the appeal, and remitted the matter to the County Court for resentencing. The Court did not provide any specific guidance on the appropriate sentence to be imposed by the County Court. The applicant was therefore required to return to the County Court for resentencing, with the possibility that the sentence imposed may differ from that originally imposed by the trial judge. The Court did not make any orders in relation to costs.
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
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Ratio Decidendi
Legal Principle Established
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