Treloar v The King - [2023] VSCA 214

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…

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 Treloar v The King

Details

AGLC: Treloar v The King [2023] VSCA 214
Case: [2023] VSCA 214
Decision Date: 12 September 2023

CaseChat Overview and Summary

In the matter of Treloar versus The King, the applicant sought leave to appeal against a sentence imposed by a trial judge in the County Court. The applicant had pleaded guilty to attempting to pervert the course of justice. The offending arose from the applicant providing a false document to the prosecution in the context of defending theft charges brought against them in the Magistrates’ Court. The applicant sought to have the appeal allowed on the basis that the trial judge had erred by taking into account the false evidence given by the applicant in support of their defence of the charges. The Court of Appeal was required to consider whether the trial judge had erred in taking into account the false evidence provided by the applicant in support of their defence of the charges.

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