Treloar v The King
[2023] VSCA 214
•12 September 2023
| 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 suggested that Mr Leehane had directed the applicant to make the refunds which were the subject of the theft charges. The applicant provided the falsified messages to her solicitor, Mr Andrew Moore, in support of her defence of the charges against her. She told Mr Moore that Mr Leehane had told her to effect the refunds in amounts which were equivalent to those by which she was allegedly underpaid, and instructed Mr Moore to provide the documents to the police prosecutor in the case. In accordance with those instructions, Mr Moore, on 23 March 2018, by email forwarded the altered text messages, and other documents, to Wimmera Prosecutions.
On 19 March 2019, the applicant gave evidence on a hearing in the Magistrates’ Court at Horsham in relation to the theft charges. In her evidence, and in cross-examination, she confirmed the contents of the altered text messages. Subsequently, on 14 May 2019, the applicant was convicted by the court on the three theft charges. She was sentenced to an aggregate term of imprisonment of four months.
On 9 May 2019, police executed a search warrant at the applicant’s residence and seized a laptop computer belonging to her. On examination, it was established that the applicant had used an unknown computer program to download the text messages from her mobile telephone and to alter them.
On 25 March 2020, the applicant was charged on summons with the offences of perjury, attempting to pervert the course of justice, making a false document, and committing an indictable offence while on bail. A series of committal mention hearings took place between October 2020 and March 2021. The committal hearing was held on 17 March 2021, and the applicant was committed for trial on the charge of attempting to pervert the course of justice. She was discharged on the other charges.
On 17 June 2021, the prosecution determined that it would not seek to directly indict the applicant on the charges of perjury and making a false document, and that it would only proceed on the charge of attempting to pervert the course of justice. Subsequently, the trial was listed for hearing in the County Court in Horsham on 15 March 2022. It was later adjourned to the September circuit as the applicant claimed to be unwell. By the time of that circuit, the applicant was unrepresented. She pleaded guilty and was arraigned on 27 September 2022. On the same day, she emailed a short written document setting out matters in mitigation. The hearing of the plea was adjourned to 26 October 2022.
Subsequently, the matter was twice adjourned on the application of the applicant, and the hearing was fixed for 21 November 2022. The applicant did not appear at court on that date and a warrant was issued for her arrest. On the morning of 23 November, the applicant was arrested and a video link was convened for the sentencing hearing.
The applicant’s circumstances
At the time of the plea the applicant was 58 years of age. She was born in Horsham and grew up in the Balmoral area. The applicant was educated to Year 12 level. She then joined the police force. After ten years serving with the Victoria Police, the applicant left her employment as she suffered a serious knee injury in a motor vehicle accident. At the time of sentence, she was then residing in Horsham with her husband, who was retired. She was responsible for the care of her 80 year old mother who had herself a number of health issues.
The applicant suffers from a number of medical issues, including high blood pressure and depression, for which she is prescribed medication. Her principal health problem concerns the injury to her knee. She has undergone a number of surgical procedures which included, it would seem, two knee replacement operations.
The applicant has one previous matter on her criminal history record. In May 2012, she had come before the Hamilton Magistrates’ Court on one charge of theft. The matter was adjourned, without conviction, for a period of two years and the applicant was required to pay $500 to the court fund.
Reasons for sentence
In sentencing the applicant, the judge evaluated her offending in the following terms:
Your offending for which I am to sentence you represents a serious example of the offence of attempting to pervert the course of justice. You carefully planned to escape personal responsibility for criminal conduct. You did so in an ongoing and protracted way.
You callously sought to falsely implicate an innocent man and did so by changing and amending and fabricating evidence. You lied on oath in relation to that evidence. I want to make it clear I am not punishing you for the theft of your employee's funds. You have already been punished for that.
Nor am I punishing you because you appear to have committed perjury or told lies in the Magistrates' Court. You are not charged with that offence. Your lies in the Magistrates' Court were part of your attempt to pervert the course of justice with the false text messages.
Nor, thirdly, am I sentencing you for your protracted attempts to avoid facing this court and the obfuscation you used in that attempt. That conduct is relevant only to your lack of remorse and your prospects for rehabilitation.[1]
[1]DPP (Vic) v Treloar (County Court of Victoria, Judge Chettle, 23 November 2022), [12]–[15] (‘Reasons’).
The judge considered that there were a number of mitigating factors which were to be taken into account. The applicant had pleaded guilty, which had added utilitarian value because of the effect which the COVID-19 pandemic has had on the criminal justice system. By her plea, she had facilitated the course of justice and accepted responsibility for her offending.[2] The judge also took into account that as a result of the pandemic, the applicant’s time in custody would be more onerous, and she might also have more difficulty in custody because she had previously been a police officer. In addition, the judge noted that the applicant had a number of medical conditions.[3]
[2]Reasons, [16]–[17].
[3]Reasons, [16]–[19].
The judge noted that the sentencing purposes of general deterrence and denunciation were the principal considerations that applied to the case. He also noted that the prosecution had conceded that a sentence combining a term of imprisonment with a community correction order would be within range. However, his Honour did not accept that submission. He considered that in view of the objective seriousness of the applicant’s offending, and her high moral culpability, it was necessary to impose a term of imprisonment. The judge regarded the applicant’s prospects of rehabilitation as ‘guarded’, as the applicant had demonstrated dishonesty, and her recent attempts to mislead the court raised concerns as to her future prospects.[4]
[4]Reasons, [24]–[26].
Ground 1
Ground 1 is based on the passages of the judge’s reasons for sentence, which are set out above, in which the judge characterised the lies, told by the applicant in the Magistrates’ Court proceedings, as part of her attempt to pervert the course of justice with the false text messages.[5]
[5]Reasons, [14].
Counsel for the applicant submitted that the lies, told by the applicant in the Magistrates’ Court proceedings, fell well outside the charge period, and were not included in the conduct that was particularised in the indictment. Accordingly, by taking those lies into account, the judge impermissibly took into account uncharged conduct as if it was the subject of the charge for which the applicant was to be sentenced.
As we have noted, counsel for the respondent accepted that the judge erred in taking into account the untruthful evidence given by the applicant before the magistrate on 19 March 2019, as part of the offence of attempting to pervert the course of justice. Counsel further accepted that that error by the judge was material, since it informed his Honour’s assessment of the gravity of the offence. In particular, it would appear to have been the basis of his conclusion that the offending conduct was ‘ongoing and protracted’.[6]
[6]Reasons, [12].
The concession so made by the prosecutor is correct. It is a fundamental principle that a person may not be sentenced for a criminal offence in respect of which that person has not been charged and convicted. That principle is an important qualification to the proposition that a sentencing judge should take into account all the relevant circumstances of the offending for which a convicted person is to be sentenced.
In R v De Simoni,[7] Gibbs CJ stated the principle in the following terms:
However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[8]
[7](1981) 147 CLR 383 (‘De Simoni’).
[8]Ibid 389. See also R v Webb [1971] VR 147, 152–3 (Winneke CJ, Pape and Lush JJ); R v Medcraft (1992) 60 A Crim R 181, 187–8 (Phillips CJ, Crockett and Southwell JJ); R v Newman [1997] 1 VR 146, 152 (Winneke P).
The charge on the indictment, to which the applicant pleaded guilty, alleged that the applicant ‘on or before 23 March 2018’, with the intent to pervert the course of justice, did a series of acts which had the tendency to pervert the course of justice.
Plainly the untruthful evidence, given by the applicant in the Magistrates’ Court on 19 March 2019, fell well outside the charge period.
More significantly, the charge on the indictment particularised the acts by the applicant, which had the tendency to pervert the course of justice, as her conduct in providing the false document to her legal representative, and instructing him to forward that document to the prosecutor, with the intention that it would be relied on as part of the police investigation into the matter. By taking into account the untruthful evidence that the applicant gave on oath in the Magistrates’ Court in March 2019, as ‘part of [her] attempt to pervert the course of justice,’[9] the judge, contrary to the principles explained by Gibbs CJ in De Simoni, erroneously took into account offending by the applicant for which she had not been convicted. As counsel for the respondent correctly noted, that error by the judge was material, particularly in view of his Honour’s assessment that the applicant’s conduct was ‘ongoing and protracted’.[10]
[9]Reasons, [14].
[10]Reasons, [12].
It follows that the applicant must be granted leave to appeal on ground 1, the appeal allowed, and the sentence imposed by the judge set aside. As a consequence, the applicant must be resentenced. In those circumstances, it is not necessary for us to consider the competing submissions as in relation to ground 2.
Resentence — submissions
In his submissions relating to resentencing, counsel for the applicant tendered several documents which concern the circumstances in which the applicant has so far served her term of imprisonment. Counsel submitted that the material demonstrates that the applicant’s time in prison has been, and will continue to be, more burdensome due to a number of factors, most particularly the pain and disability suffered by the applicant as a result of a longstanding serious knee injury.
In 1991, the applicant injured her right knee in a motor vehicle accident. In the years that followed, she underwent multiple arthroscopies of the knee, and ultimately she underwent a total knee replacement in October 2016. Following the operation, the applicant continued to have difficulties with the knee. In March 2017, and again in August 2017, she had arthroscopic arthrolysis of the knee. Following each procedure, the flexion of the knee improved, but in the months that followed it deteriorated. At present, she suffers chronic pain, and the flexion of the right knee is significantly reduced. Her orthopaedic surgeon, Mr Andrew Byrne, has advised that further surgery would potentially aggravate the injury.
It was submitted that as a consequence, the applicant’s time in prison would be more burdensome in two respects. First, the applicant would continue to suffer from pain, which she would not be able to alleviate as effectively than if she were residing in her own home. Secondly, the applicant’s injury, and the limited movement of the knee, has had the effect that she is not able to participate in any of the work programs that are available in the prison.
In addition, counsel noted that, as the applicant was formerly a member of Victoria Police, she has been assessed as a protection prisoner. In that respect, a letter by the Assistant Commissioner of the Sentence Management Division has indicated that, despite her status as a protection prisoner, the applicant has access to most education classes and other programs that are available to mainstream prisoners. Counsel further submitted that nevertheless the applicant would not have the same amount of freedom in prison as mainstream prisoners. It is said that she experiences a degree of anxiety subjectively arising from her concern that, as a result of her position as a protection prisoner might not be sufficient to protect her from retributive actions by other prisoners.
Finally, counsel noted that since she applicant’s incarceration, her mother has died, and her family has welcomed a baby boy. The applicant was very close to her late mother, and looked after her in her final years. It was distressing for the applicant not to be able to tend to her in her last days, and not to be able to attend her funeral. Counsel submitted that those factors have added to the burden of imprisonment for the applicant.
Resentencing — analysis and conclusion
The offence of attempting to pervert the course of justice is a particularly serious criminal offence. The maximum sentence for the offence is 25 years’ imprisonment, which reflects the inherent gravity of such an offence. In essence, offending such as that engaged in by the applicant is calculated to undermine and strike at the heart of our justice system.[11]
[11]Saleem v The Queen [2014] VSCA 190, [35] (Redlich and Priest JJA); Beljulji v The Queen [2017] VSCA 279, [39] (Santamaria JA); Hill v The Queen [2021] VSCA 349, [36].
In the present case, the offending by the applicant consisted of the presentation by her of documents, fraudulently altered by her, to the prosecution with the intention of exculpating herself Such conduct is particularly serious in our justice system. It is important that the prosecution be able to rely on and accept, on their face, the integrity of documents presented to them. At a practical level, it can be accepted that the prosecution branch of the justice system, and particularly police prosecutors, do not have sufficient resources to enable them to inspect and verify all documents and other materials provided to them in relation to the cases in which they are engaged. It is important, for the proper and efficient administration of justice, that the prosecution be able to rely on the integrity of such documents and materials. The offending of the kind engaged in by the applicant is apt to undermine that important aspect of our justice system, and as such to affect and compromise the proper administration of justice.[12]
[12]Compare Dieni v The Queen [2022] VSCA 16, [135].
For those reasons, the sentencing purposes of denunciation and general deterrence are accorded particular weight in cases involving an attempt to pervert the course of justice.[13] It is important that the sentences imposed in such cases be sufficient to properly express the condemnation by the courts and the community of the kind of conduct engaged in by the applicant. In addition, it is necessary that sentences be adequate to deter other likeminded persons in the community from engaging in such conduct.
[13]Pantazis v The Queen [2013] VSCA 59, [22] (Harper, Priest and Coghlan JJA); Saleem v The Queen [2014] VSCA 190, [35], [39] (Redlich and Priest JJA); Byrne v The Queen [2015] VSCA 294 [33] (Priest and Kaye JJA).
In the present case, the applicant’s culpability, and the gravity of the offending engaged in by her, was aggravated by the circumstance that she intentionally sought to implicate an innocent person, her area manager, in the unauthorised refunds which she had effected to her own personal account. Further, the applicant’s offending involved a degree of planning, and was implemented by a deliberate course of conduct. It would seem that she used an unknown computer program to download each of the nine messages from her mobile telephone onto her computer. She then altered the original content of each of those messages in the manner which we have described. Having done so, she provided the falsified messages to her solicitor, who was ignorant of the fraud being perpetrated by his client, and she instructed him to forward the documents to the police prosecutor, with the specific intention that they be relied upon as part of the police investigation into the matter.
It is unarguable that the only appropriate sentencing disposition in respect of that conduct was an appropriate term of imprisonment, which would be sufficient to fulfil the sentencing purposes of general deterrence, denunciation and specific deterrence.
As mitigating factors, the applicant was entitled to rely on her plea of guilty, albeit that it was made at a relatively late stage. As the judge recognised, the plea had added utilitarian value because of the effect that the COVID-19 pandemic has had on our justice system. His Honour also accepted that, by the plea, the applicant had facilitated the course of justice and demonstrated responsibility for her crime.[14]
[14]Reasons, [17].
In addition, the applicant has a very limited criminal history. For the reasons outlined by counsel, the sentence of imprisonment has been, and will continue to be, somewhat burdensome for her, particularly in view of her serious knee injury. The applicant does have available good family support on her release into the community, and, notwithstanding her restrictions, she has undertaken some constructive rehabilitative courses while in custody.
On the original plea, counsel for the applicant had submitted, and the prosecution accepted, that it would be appropriate to sentence the applicant to a term of imprisonment of less than twelve months combined with a community correction order. However, as counsel has properly pointed out, such a disposition would not be appropriate on resentencing. It is evident that, as a result of her limitations arising from her knee injury, the applicant would have a limited capacity to gainfully engage in the rehabilitative programs that are ordinarily undertaken by an offender serving a community correction order.
Based on the foregoing considerations, and taking into account and giving appropriate weight, both to the gravity of the offending, and to the mitigating factors which we have discussed, we consider that the appropriate disposition is to resentence the applicant to a term of imprisonment of 15 months, with a non-parole period of 9 months.
Accordingly, we propose to make the following orders:
(1)The application for leave to appeal against sentence is granted.
(2)The appeal is allowed.
(3)The sentence of 18 months’ imprisonment, with a non-parole period of 12 months, imposed by the County Court on 23 November 2022 is set aside.
(4)In lieu, the appellant is sentenced to 15 months’ imprisonment, with a non-parole period of 9 months.
(5)It is declared that the period of 288 days not including the date of judgment be reckoned as already served under that sentence and it is ordered that there be noted in the records of the court the fact that that declaration was made and its details.
(6)Pursuant to s 6AAA of the Sentencing Act1991, it is declared that but for the appellant’s guilty plea, she would have been sentenced to two years and six months’ imprisonment with a non-parole period of one year and nine months.
All other orders of the County Court are confirmed.
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