R v Krieg [2005] VSCA 23

Court of Appeal (Vic)|2005-02-10|Before: VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.

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

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

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 years and six months' imprisonment; and, as I have said, Her Honour fixed a non-parole period of three years and three months

By notice dated 24 February 2004, the appellant made application for leave to appeal against sentence on two grounds. They were:

1. that the sentence imposed was manifestly excessive in all the circumstances; and

2. that the learned sentencing judge gave insufficient weight to absence of loss suffered by the victims.

Then, by leave, on 3 September 2004, two further grounds were added. They were:

3. the learned sentencing judge erred in imposing identical sentences on counts 2 to 14, such sentences offending the principle of proportionality; and

4. the learned sentencing judge erred in failing to accord any or any sufficient weight to the total amount of moneys repaid by the applicant.

The circumstances of the offences may be summarized as follows.

Between August 2001 and December 2002, the appellant was employed with four companies as an assistant accountant and bookkeeper. She was placed in those positions through several recruitment agencies. During her employment with each company, she stole funds belonging to the businesses by transferring money into her own accounts; transferring money into the accounts of real estate agents, which was then used as deposits or purchase monies to purchase real estate to her own benefit; and by cashing company cheques and keeping that money for her own personal use.

In respect of the various counts, the essential substratum of fact was as follows.

Count 1, which is out of chronological sequence because it is by far the largest amount, is that the appellant at Melbourne on 16 May 2002 stole $109,500 belonging to Link Recruitment Group Pty Ltd. The appellant was employed by Link Recruitment as an assistant accountant. She stole the moneys constituting that amount by making an unauthorised electronic funds transfer from the company account into an account held by a conveyancing solicitor in Adelaide. The money was used to settle a purchase of real estate by the appellant in Adelaide.

Count 2, the earliest point in the chronology, is that at Thomastown on 22 August 2001 the appellant stole $1428.71 belonging to Peter Bristow Associates Pty Ltd, trading as Bristow Laser Systems. Bristow was thus the second corporate victim of the thefts in the sequence of the presentment. In relation to that count, the appellant was employed by Bristow as a replacement accountant and made an authorised electronic funds transfer into her own account of the sum stated.

Count 3 is that at West Footscray on 4 November 2001 the appellant stole $10,000 belonging to Merrigold Milk Pty Ltd, Merrigold being the third corporate victim of the thefts in the sequence of the presentment. The appellant was employed by Merrigold as a temporary accountant and made an unauthorised electronic funds transfer to her own account of that amount of $10,000.

Count 4 is that at Thomastown on 27 September 2001 the appellant stole $847.80 belonging to Bristow. That is the smallest amount of the 12 counts of theft. That again was an unauthorised electronic funds transfer to her own account while she was employed as a temporary accountant by Bristow.

Count 5 is that at West Footscray, on 1 October 2001 the appellant stole $5,000 belonging to Merrigold Milk Pty Ltd. Again, the appellant was there working as a temporary accountant and made an unauthorised electronic funds transfer of that amount to her own account.

Count 6 is that at Melbourne on 21 January 2002 she stole $4,628.40 belonging to Link. Again, the appellant was there employed as an assistant accountant and made an unauthorised electronic funds transfer of that amount to her own account.

Count 7 is that at Melbourne on 11 February 2002 she stole $7,250.40 belonging to Link. In that case, she made an unauthorised electronic funds transfer from the company account into an account held by a real state business and which was used as a deposit to purchase real estate in Queensland.

Count 8 is that at Melbourne on 1 March 2002 the appellant stole $2,635.40 belonging to Link, again an unauthorised electronic funds transfer to her own account.

Count 9 is that at Melbourne on 7 March 2002 the appellant stole $10,000 belonging to Link, an unauthorised electronic funds transfer again, the money being transferred by the appellant to an account of a real state business which was used as a deposit to purchase real estate in Adelaide.

Count 10 is that at Melbourne on 25 March 2002 she stole $11,118.85 belonging to Link, this time an electronic funds transfer from Link's company account by the appellant, unauthorised, used to settle the purchase of real estate in Queensland.

Count 11 is that at Melbourne on 9 May 2002 she stole $29,629.89 belonging to Link, again an unauthorised electronic funds transfer, this time as part payment on property purchased in Adelaide.

Count 12, the first false accounting count, is that at Melbourne on 16 May 2002 she falsified a record of Link, purporting to show that $137,724.65 had been paid to the Taxation Office. In fact, only $28,224.65 went to the Tax Office, the remaining $109,500 being transferred to the appellant's account, which is constituted by count 1, the count of theft of that amount, count 12 thus being the false trail to disguise the theft in count 1. The two are thus interrelated.

Count 13 is theft from the fourth corporate victim, that at Melbourne on 10 December 2002 the appellant stole $6,128.85 belonging to International Training Australia Pty Ltd. The appellant at the time was employed as an assistant accountant at International Training in Melbourne. She cashed a cheque at the ANZ Bank in St. Kilda Road, which had been voided by management and which contained company funds. She succeeded in her efforts by writing on the cheque that it was to be paid in cash to the amount stated.

Finally, a second false accounting count, count 14, is that on the same date at the same place, 10 December 2002 at Melbourne, she falsified a record of International Training by cashing the cheque for $6,128.85 without authorisation. Thus count 14 directly relates to the theft of count 13, count 14 being the paper efficaciousness of the theft of count 13.

As I have said, the total amount stolen from the four corporate victims was $198,167.41.

On two occasions, before there was any knowledge by anyone other than the appellant of the thefts, she replaced money stolen from Link Recruitment. On 9 June 2002, she replaced an amount of $90,223.29, and on 28 March 2002 she replaced an amount of $21,118.85.

On 13 and 19 December 2002 the appellant was interviewed by investigating officers and she made admissions to all but two of the offences.

On 5 May 2003 at the Melbourne Magistrates' Court there was a hand-up committal hearing, at which the appellant reserved her plea, and she was committed for trial on 11 charges of theft and three charges of false accounting.

On 30 September 2003 the Director filed a presentment containing 12 counts of theft and two counts of false accounting, being the presentment I have just recited, in the County Court. The appellant failed to appear, she having absconded on bail. A warrant for her apprehension was issued, and on 12 November 2003 she was brought before the County Court coercively and was remanded in custody, with a plea listed for hearing on 23 January 2004.

On 23 January 2004 the appellant was presented in the County Court on the 14 counts that I have stated. She was represented by counsel and pleaded guilty to them. She was remanded in custody for sentence. She was sentenced on 16 February 2004 in the circumstances and to the effect that I have described.

Significantly in this case, the appellant has a number of relevant prior convictions. She has seven prior convictions in all, putting aside one inconsequential and irrelevant one, all of which involve dishonesty and sustained from August 1996 to March 1999. Three were in 1996 and four on the one sentence proceeding were in 1999.

In the District Court in Brisbane on 16 August 1996, she was convicted of misappropriation of property with circumstances of aggravation. The charge was found proven, no conviction was recorded, and she was released on a community service order for a period of 12 months. On 29 August 1996, at the Magistrates' Court in Brisbane, she was found guilty of imposition by false representation. Again, no conviction was recorded, and again she was released, upon recognisance in the sum of $200 to be of good behaviour for 12 months. On 29 September 1996 in the Magistrates' Court at Brisbane, she was found guilty of imposition by false representation. Yet again no conviction was recorded; yet again she was released, this time upon entering into a recognisance in the same amount, $200, for the same period, 12 months.

Then, putting aside one irrelevant minor matter, in the District Court at Brisbane on 29 March 1999 she was convicted of stealing as a servant, fraudulent behaviour by an employee and attempted stealing by a clerk and servant (two charges). Those convictions arose from the conduct of the appellant when an employee, she being an assistant accountant of Brambells Australia Ltd, trading as Cleanaway, at its Brisbane offices, between May 1997 and October 1998. In a series of transactions, the appellant stole money from that employer of $109,000 between the months of June 1997 and September 1998. She pleaded guilty to those counts, as indeed to the previous counts I have recited, and, in the event, she was sentenced to an aggregate term of imprisonment of five years with a minimum non-parole period of 18 months to be served before becoming eligible for parole. Thus, after the prior convictions for dishonesty, ultimately she received a substantial term of imprisonment, in the District Court at Brisbane on 29 March 1999. She was in due course released on parole and a period of home detention, and 12 months after she was released from the home detention, she committed the first and the largest theft presently before the court of $109,500 from her employer, Link Recruitment Pty Ltd, on 16 May 2002.

On the plea below, a psychological report of Ms Gina Cidoni, of 13 January 2004, was tendered. The most significant thing in the psychological report, in my view, is the high intelligence of the appellant. When tested on the revised Weschler Adult Intelligence Scale, she had a full scale IQ of 124, placing her at the 94th percentile where only 6 per cent of her age, gender and education matched peers who would do better. The psychologist found that there were no signs of cerebral dysfunction and the personality testing was indicative of hysteria in the face of stressful situations, and paranoid ideation with a sociopathic trend. Nonetheless, she suffers no psychiatric illness or substantial psychological disorder.

However, in the psychological report, and indeed in the sentence below of the learned sentencing judge, an afflicted personal history of the appellant is revealed, as to which one cannot but have sympathy for the personal life and affliction that unfortunately the appellant has endured from an early age; indeed until now.

The appellant's most unfortunate life was, as the learned sentencing judge correctly said, a sad one. Her mother left her when she was about 18 months of age and the appellant has not seen her mother since and knows nothing further of her. She was initially brought up by her father, but was then left by him when she was ten, and then resided with grandparents, having been abused by her stepmother. Her grandfather died and her grandmother developed dementia and, very sadly, the appellant was the subject, on two occasions when she was of very tender years, of sexual assaults. Indeed, she had a childhood of no warmth and of constant fear that she would be taken from her family, such as it was, by the Welfare Department, a relevant matter to her desire to please, which was said by counsel on her behalf to underlie the serious offences to which she has pleaded guilty and for which she is before this Court.

Ultimately she ran off to Queensland when she was totally alone, and it was in those times that she committed the offences in Queensland which I have recited.

When she did return to Melbourne, she met a man to whom she sought to establish a relationship, and on her behalf it was put that it was her desire to impress him that caused her to commit the offences that she did. It is said, and I think with some insight by her counsel, Mr Boyce, that her deprived and afflicted upbringing was the genesis for her desire to impress in her 30s when she committed the offences that she did. As I say, it is clear that the learned judge below felt for the afflicted life of the appellant, and I think that is a very proper human feeling. Mr Boyce also properly relied upon the circumstance that through the appellant's formative years of affliction and indeed into her thirties, the appellant committed no criminal offences.

Unfortunately, the learned judge below fell into significant reasoning error, although the ultimate sentence imposed was correct.

Before us, Mr Gilligan of counsel, who appeared on behalf of the Director, very properly and responsibly conceded that an error of fact vitiated the sentences imposed below by her Honour. That was that her Honour found that the amount repaid by the appellant to the corporate victim, Link, was "an amount close to $30,000". In fact, the amount that the appellant repaid was $111,342.14. That is to say, an error of $81,342.14 in a total stealing of $198,167.41 from the four victims. It is plain that as the voluntary repayment before discovery by the appellant was clearly relevant to sentence, and there was substantial error of quantum by the judge below, the sentencing discretion below was vitiated; and, as I say, Mr Gilligan very properly, on behalf of the Director, conceded that that was so.

There was a second error which I consider is an error of substance, and that is an almost total failure of application of the principle of proportionality. Every count, except count 1, received the identical sentence of one year. However, when one looks at the four theft counts, while, of course, one can divide them up in terms of quantum numerous ways, they appear to me to fall naturally in four categories: first, the large amount, $109,500, count 1; second, the second largest amount, $29,629, count 11; third, the mid-range, $4628 to $11,118, seven counts, being counts 3, 5, 6, 7, 9, 10 and 13; and fourth, the low range, $847 to $2635, three counts, being counts 2, 4, and 8. Further, the two counts of false accounting are of substantially different order: count 12, $137,724 (related to count 1) and count 14, $6,128 (related to count 13).

Plainly, with multiple counts by the same person in substantially the same circumstances, a sentencing judge cannot descend to total nicety in discrimination of mere quantum. On the other hand, here there was a range of thefts from $29,629 to $847 attracting identical sentences. Sentences need to bear a rational relationship to the crime and, in my view, imposing identical sentences for such a range fails to bear a rational relationship to the crimes. For that reason, I also consider the sentencing discretion was vitiated.

The third circumstance in which, in my view, the sentencing discretion was vitiated was that her Honour appeared to regard her sentencing discretion as irrevocably fettered as to its minimum by the prior sentencing by the District Court in Queensland of a five year term of imprisonment. Her Honour said at page 26 to defence counsel, "You can't be suggesting that she gets any sentence that is less than the previous sentence, can you? It's just not possible." Counsel, for some reason, conceded that. Her Honour then said, "So the starting point has got to be at least five years."

In my view, that also was an error. I add this caveat. I do consider it is undesirable, generally speaking, to fix upon an observation in the course of discussion between judge and counsel as indicating the judge's final view. As we all know, in order to have coherent intercourse between judge and counsel intellectually speaking, it is necessary for judges to pose propositions and have them tested, most of which the judge does not have either then, or certainly at the end, as a final view, and I approach the passage I have cited with that caution in mind.

However, there are two reasons, I think, why that caveat does not preclude the passage I have cited constituting sentencing error. The first is the unequivocal terms in which her Honour expressed herself, as I have just cited; and, secondly, it cannot be gainsaid that in the event that is what happened. Sentence in this case was above, just, the five year sentence imposed in Brisbane.

Accordingly, the sentences, in my view, fall to be determined afresh by this Court.

As the learned sentencing judge said below, and rightly, very significantly in the appellant's favour are, first, her pleas of guilty; second, the circumstance that she repaid a substantial amount of money before apprehension; and, third, her afflicted life in the past and right up to the present. Full and proper weight should be given to those matters, and they were by the learned judge below and, likewise, they are in this Court.

On the other hand, the offences were very substantial and very serious. It is not to the point, in my view, to any substantial extent that the property will be recovered because the assets which were purchased have been frozen and the corporate victims will in the end not lose. That was not the purpose of the exercise by the appellant, and the corporate victims have suffered in the process.

Finally, and I think most significantly, the appellant, despite her afflicted history, is a highly intelligent woman with very serious prior convictions, in particular the Brisbane District Court convictions of 29 March 1999, and as to which she was on parole at the time of these offences, and indeed was breaching parole by being in Victoria unaccounted for. The prior convictions, in my view, very significantly raise a necessity to involve specific deterrence as a central part of a sentence to be imposed upon the appellant. But for her pleas of guilty and her afflicted and sad history, I would have considered that the sentences imposed should be much more substantial than in fact they were. Taking into account in her favour the matters that I have recited, I consider the sentences imposed below, in totality, were the sentences which, starting afresh, I would impose myself.

Looking at the question of cumulation, I think the rational method of cumulation is to cumulate six months' imprisonment for each of the second, third and fourth corporate victims in the sequence of the presentment, that is to say, Bristow, Merrigold and International Training; thus six months' cumulation on counts 2, 3 and 13. It may appear that no cumulation for count 11, which is theft from Link of nearly $30,000, is an inappropriate conflation; but I think, bearing in mind the desirability not to crush the appellant and the principle of totality, it would be preferable to cumulate for the fourth corporate victim six months rather than a second amount of cumulation for the first corporate victim, Link. Accordingly, I would not cumulate anything for the second amount, the $30,000, count 11, but I would cumulate for each of the second, third and fourth victims, counts 2, 3 and 13.

In relation to the two counts of false accounting, I consider they should be concurrent because count 12 inevitably relates to count 1 and count 14 inevitably relates to count 13, and one must bear in mind the principle of totality.

In the event, I consider the proper sentences to be imposed are as follows.

I agree with the learned judge below that on count 1 the proper sentence is four years' imprisonment. That was the first theft and it was the largest theft, $109,500.

On count 2, being in the low range, at $1,428, I would impose a sentence of six months' imprisonment;

On count 3, being in the mid range, $10,000, I would impose one year's imprisonment;

On count 4, being in the low range, $847, I would impose six months' imprisonment;

On count 5, being in the mid range, $5,000, I would impose one year's imprisonment;

On count 6, being in the mid range, $4,628, I would impose one year's imprisonment;

On count 7, being in the mid range, $7,250, I would impose one year's imprisonment;

On count 8, being in the low range, $2,635, I would impose six months' imprisonment;

On count 9, being in the mid range, $10,000, I would impose one year's imprisonment;

On count 10, being in the mid range, $11,118, I would impose one year's imprisonment;

On count 11, being above the mid-range and being the second highest amount, $29,629, I would impose 18 months' imprisonment;

On count 12, false accounting in relation to $137,724 relating to count 1, I

On count 13, the fourth corporate victim, International Training Australia Pty Ltd, in the mid range, $6,128, I would impose one year's imprisonment.

On the final count, count 14, the second false accounting count of $6,128, relating to count 13, I would impose six months' imprisonment.

As I have said, I would cumulate six months for each of the second, third and fourth corporate victims, that is on count 2, count 3 and count 13, giving a total cumulation upon count 1 of 18 months; and, like the learned judge below, I would direct that the appellant serve a minimum term of three years and three months' imprisonment before becoming eligible for parole.

For the reasons given by Cummins, A.J.A., and as counsel for the Crown frankly conceded in the course of the hearing, the sentence then imposed upon the appellant in the court below miscarried.

Accordingly, the sentencing discretion has been re-opened. I agree that it should be exercised in the manner proposed by Cummins, A.J.A.

I agree with Cummins, A.J.A. that the exercise of the sentencing judge's discretion miscarried, because of the error that her Honour made as to the amount which the appellant repaid and because of her Honour's failure sufficiently to observe the principles of proportionality in sentencing the applicant in respect of counts 2 to 14. I would for those reasons quash the sentence and re-sentence the appellant in the manner proposed by Cummins, A.J.A.

I wish to say, however, with respect, I do not attribute the same significance to her Honour's observations as to the sentence of five years that was imposed by the

District Court in Queensland as Cummins, A.J.A. It appears to me that so much is said in the course of argument that ultimately is not reflected in a judge's final determination that little should be attributed to it. In this case, that is the course that I would propose.

The orders of the Court are that the appeal is allowed, the sentences imposed in the Court below are set aside and the appellant is re-sentenced as follows:

The Court orders that six months of the sentences imposed on counts 2, 3 and 13 be served cumulatively upon each other and upon the sentence imposed on count 1. That would create a total effective sentence of five years and six months' imprisonment.

The Court directs that the appellant serve a minimum period of imprisonment before becoming eligible for parole of three years and three months

With respect to pre-sentence detention, the Court declares that the period of 456 days of detention that the appellant has undergone to date be reckoned as having been served under the sentences hereby imposed, and directs that this declaration and its details be entered in the records of the Court.

The Court confirms the forfeiture orders made in the Court below.

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Judgment (85 paragraphs)

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