Ruge and Cormack v R

1. [1]

   LEEMING JA: I agree with Hamill J.

2. [2]

   SIMPSON JA: I agree with Hamill J.

3. [3]

   HAMILL J: The applicants seek leave to appeal against sentences imposed upon them by his Honour Judge King SC DCJ in the District Court sitting in Parkes on Friday, 16 May 2014.

4. [4]

   Each applicant was charged with two offences that can generally be described as arson although they were charged under different provisions of the Crimes Act 1900 (NSW). Ms Ruge was charged under s 197(1)(b) of the Crimes Act, an offence carrying a maximum penalty of 14 years imprisonment. The elements of that offence include that the act was done “dishonestly, with a view to making a gain”. Mr Cormack was charged under s 195(1A)(b) carrying a maximum penalty of 11 years. That offence does not involve an allegation that he was motivated to obtain a gain. The difference between the charges is of some significance in view of his submissions on this application.

5. [5]

   In general terms, the allegation was that Ms Ruge was the owner of a car, and certain chattels located inside a residential property that she was renting. Both the car and the property within the premises were insured with the NRMA. She arranged for another man (Jack Buckman) to set fire to the property and her car with a view to making claims on her insurance policy. Ms Ruge was not present when the fires were set. However, Mr Cormack was present when Mr Buckman set both of the fires. Mr Cormack played no part in the setting of the fires and his criminal liability arose from the application of principles of joint criminal enterprise. He was present, with knowledge that the crimes were being committed, ready, willing and able to assist. However, the evidence showed that he did nothing himself to advance the enterprise.

6. [6]

   The sentence proceedings took place on Wednesday, 14 May 2014. The proceedings initially involved all three offenders. At the conclusion of the evidence and submissions on 15 May 2014, Mr Buckman sought an adjournment to enable further evidence to be obtained. The proceedings were then separated and the present applicants were sentenced the following day, Friday, 16 May 2014.

7. [7]

   King DCJ imposed aggregate sentences pursuant to s 53 Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). No complaint is made in relation to the manner in which his Honour dealt with that provision. In accordance with the section, King DCJ indicated the individual sentences he would have imposed for each count and then imposed the following aggregate sentences:

8. [8]

   Ms Ruge relies on the following grounds of appeal:

   1. (1)

      The sentencing Judge erred in taking into account irrelevant considerations regarding the potential for a fire to spread and the risk to others.

   2. (2)

      The sentencing Judge erred in failing to make a finding of the existence of special circumstances and adjusting the ratio of the non-parole period to the head sentence to a greater extent than he did.

   3. (3)

      The aggregate sentence imposed was manifestly excessive.

9. [9]

   Mr Cormack notified four grounds of appeal but was given leave to rely on a similar ground to Ms Ruge’s first ground. In the result his grounds of appeal are as follows:

   1. (1)

      The learned sentencing Judge contravened the principle in R v De Simoni (1981) 147 CLR 383 by sentencing the applicant on the basis of that he believed his co-offenders would financially benefit from their crimes by way of a fraudulent insurance claim.

   2. (2)

      The learned sentencing Judge erred in finding that the applicant’s role was “substantial”.

   3. (3)

      The sentence imposed on the applicant was manifestly excessive.

   4. (4)

      The applicant has a justifiable sense of grievance arising out of the disparity between the sentence he received and those imposed on his co-offenders.

   5. (5)

      The sentencing Judge erred in taking into account irrelevant considerations regarding the potential for a fire to spread and the risk to others.

10. [10]

    Each of the applicants referred to the sentence imposed on Mr Buckman on 10 October 2014 in support of aspects of their appeal grounds. King DCJ sentenced Mr Buckman on 10 October 2014 in relation to two offences under s 197 (that is, the same offences in relation to which Ms Ruge was sentenced). A total sentence of three years and six months was imposed. His Honour made a finding of special circumstances under s 44 of the Sentencing Act and imposed a non-parole period of two years.

11. [11]

    The facts found by King DCJ, based on an agreed statement of facts tendered in each case, were as follows:

12. [12]

    His Honour made similar findings of fact when he came to sentence Mr Buckman. In accordance with her duty of fairness and candour, and somewhat against her interests in resisting the grounds based on parity, the learned Crown Advocate directed the Court’s attention to the primary Judge’s finding that “the role and moral culpability of the offender Mr Buckman must be seen as being equal to that of Ms Ruge.”

13. [13]

    Both applicants pleaded guilty in the Local Court and King DCJ reduced their sentences by 25% for the utilitarian value of their pleas. His Honour summarised the material tendered on their behalf and the following brief outline is a condensed version of the relevant part of his Honour’s judgment on sentence.

14. [14]

    Ms Ruge was born in November 1989. She was 23 years old at the time of the offences and 24 when she stood to be sentenced. She had a child (a four year old son) but had broken up with the father of that child and was living with her parents by the time of sentence. She had no criminal convictions but developed a drug and alcohol dependency in her early twenties. His Honour noted that was then a “significant period of engagement with the criminal milieu”. She undertook rehabilitation programmes during the period of remand. She had been in a residential programme but had not spent time in custody. The primary Judge treated this as “quasi custody” and gave her credit for two (of four) months spent in residential rehabilitation. Ms Ruge presented with excellent references and had a reasonable record of employment since leaving school. However, her drug problem caused her to leave her job. Her efforts at overcoming her drug problem were impressive. She spent time in Bloomfield Psychiatric Hospital as well as the residential rehabilitation facility. The primary Judge questioned whether “she fully realised the significance of her offending behaviour” but accepted that she had “demonstrated genuine remorse and contrition”. According to the sentencing Judge, she “could readily be described as a person of general good character”, prior to developing her drug habit and leaving her job.

15. [15]

    Mr Cormack was born on 12 June 1992. He was 20 years old at the time of the offences and almost 22 at the time of sentence. He had a criminal history commencing in the Children’s Court. This included some serious offences including demanding property with menaces (2012), armed with intent (2013) and a common assault resulting in a full time gaol sentence (2013). King DCJ referred to the criminal record as “appalling”. Because of a “family breakdown”, the applicant was raised by an older sister. She died in a car accident when the applicant was 12 years of age and he entered a “downhill spiral”. He had not had a job since he left school. King DCJ was not satisfied that he was genuinely remorseful but noted that he had made some “partial admissions” on arrest and considered this to be “some evidence of remorse and contrition.” His Honour was not satisfied that there were good prospects of rehabilitation and found that Mr Cormack had a “high risk of re-offending”. King DCJ said the only thing in his favour was that he was still a relatively young man and would benefit from supervision.

Ruge Ground 1; Cormack Ground 5:The sentencing Judge erred in taking into account irrelevant considerations regarding the potential for a fire to spread and the risk to others.

1. [16]

   After setting out the agreed statement of facts, King DCJ made a number of observations concerning the seriousness of the offence. The applicants contend that some of these remarks disclose error. His Honour said:

2. [17]

   Later he said:

3. [18]

   The applicants contend that, on the evidence led in this case, these findings were not open or available to inform a proper assessment of the objective criminality of the individual offences. It was submitted that there was no evidence to support the finding that there was a “substantial” or “significant” risk of the additional damage contemplated. The applicant says that the only relevant evidence pointed in the opposite direction. That evidence was the part of the statement of facts where it was said that “the premises located at 143 York Street, Forbes was a single detached house”.

4. [19]

   The applicants pointed to the observations in Porter v R [2008] NSWCCA 145 where Johnson J referred to the variety of circumstances in which arson could occur and some of the factors that were relevant to an assessment of the objective seriousness of any individual offence. The factors included:

5. [20]

   The applicants submitted that the evidence did not permit an adverse finding in relation to those two factors.

6. [21]

   The respondent submitted that the comments were unremarkable and that there is, in almost every case of arson, a risk of the fire spreading and a risk of harm to fire fighters. Those factors are the reason that a higher maximum penalty is prescribed where damage is by means of fire or explosion. The respondent pointed to the structure of the provisions creating the offences and made reference to the second reading speech in which the Attorney General explained that where property is damaged by fire or explosion there is an increased maximum penalty because of the kinds of risks to which his Honour referred.

7. [22]

   Section 195(1) creates an offence of destroying or damaging property. Such an offence carries a maximum penalty of five years’ imprisonment. If the damage is caused by means of a fire or explosion that maximum penalty is increased to 10 years. Subsection (1A) contains the same distinction for the offence when committed in company. The basic maximum penalty for deliberately damaging property while in company is six years. If the damage is caused by means of a fire or explosion the maximum penalty is increased to 11 years. Section 197 has the additional element of the offence being motivated “dishonestly, with a view to making a gain” and maintains the same structure. An offence of damaging property with the dishonest intention carries a maximum penalty of seven years while the same offence committed by means of a fire or explosion carries a maximum penalty of 14 years.

8. [23]

   When the sections were introduced the Attorney General told Parliament that:

9. [24]

   In R v Glover [2002] NSWCCA 376 Dunford J (with whom Ipp AJA and Studdert J agreed) referred at [56] to the second reading speech and said that “the use of the words ‘potential harm’ as opposed to ‘damage’ strongly suggest that the Attorney was referring to potential risk to other persons”.

10. [25]

    It can be accepted that the use of fire and explosion carries with it a risk that the fire may spread and may endanger the lives of other people (including fire fighters etc) indirectly. An observation that the offence generically is a serious one for that reason is not objectionable. The question is whether the remarks in the present case were of such a nature or whether they were remarks directed to an assessment of the objective criminality in the present case. That question must be answered by reference to a consideration of the judgment on sentence read as a whole and the impugned comments read in context.

11. [26]

    The context in which the comments appear in the remarks on sentence creates an ambiguity. The passage commences with the words “the offences brought against each of the offenders … must be regarded as very serious offences”. There is then a reference to the specific property particularised in the charges (“a motor vehicle and the residential premises and its contents as to use Mr Cormack’s words ‘an insurance job’”). His Honour then described the “sum potentially at risk” and then made the remarks to which exception is taken. That context would suggest that his Honour was assessing the objective criminality of this particular case, rather than referring to the seriousness of offences of arson in a general or generic sense. I accept that if his Honour was making a finding that increased the relative objective criminality of the particular offence within the genus created by the ss 195 and 197, there needed to be something more than the evidence presented in the District Court.

12. [27]

    On the other hand, each of the impugned comments commences with the words “is always” and “also always”. The use of the word “always” suggests that his Honour was making a more general reference to offences of arson.

13. [28]

    Resolution of this ground is difficult. On a reading of the whole of remarks (and putting aside the sentencing outcome), I am not satisfied that King DCJ fell into the error contended for by the applicants. Standing alone, I would not be satisfied that this ground justifies intervention. However, it does not stand alone.

Ruge Ground 2-3:The sentencing Judge erred in failing to make a finding of the existence of special circumstances and adjusting the ratio of the non-parole period to the head sentence to a greater extent than he did.The sentence is manifestly excessive

1. [29]

   On its face, the second ground argued on behalf of Ms Ruge is an assertion that the learned sentencing Judge erred in failing to find special circumstances under s 44 of the Sentencing Act. However, the way in which the matter was argued involved the submission that that failure gave rise to a justifiable sense of grievance when comparison is made with the non-parole component of the sentence later imposed on Mr Buckman. It is in this regard that the finding made as to their equal criminality is significant.

2. [30]

   Mr Buckman was a person with a number of previous offences on his record albeit that those offences were dealt with in the Children’s Court. On the other hand, he was younger than Ms Ruge. However both offenders were quite young and both presented evidence as to efforts that they had made towards rehabilitation. While Ms Ruge presented to the Court with no previous convictions on her record, there was evidence that she had a significant drug problem at the time of the offences, had fallen in with a bad crowd (the “criminal milieu” as the primary Judge put it) and that she had taken steps to overcome those problems.

3. [31]

   The same kind of material that led his Honour to find special circumstances in Mr Buckman’s case would rationally lead to a similar finding in Ms Ruge’s case. On an entirely superficial analysis, it is a surprising result that a person with no prior offences on their record should receive a more severe sentence than an offender who comes to Court with a significant record of previous offending. I accept that in some circumstances the result will be that the person with the record may obtain the benefit of a finding of special circumstances because of their need for a longer period of supervision upon their release from prison. Further, it has been said “disparity is unlikely to be found in relation to a finding of special circumstances in relation to one co-offender and not another”: Lau v R [2010] NSWCCA 43 at [15] (McClellan CJ at CL). However, his Honour went on to say:

4. [32]

   The issue has been contemplated in a variety of factual circumstances: see, for example R v Wahabzadah [2001] NSWCCA 253, Tatana v R [2006] NSWCCA 398, R v Do [2005] NSWCCA 209.

5. [33]

   Even if it is accepted (as was put by the respondent) that Mr Buckman was at a “crossroads” in his life, the circumstance of the present case did not suggest that Mr Buckman had a greater need for an extended period of supervision upon his release than did Ms Ruge.

6. [34]

   The application of principles of equal justice and parity are not to be applied with technicality but by reference to the substance of the case. In Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462 it was said at [30]:

7. [35]

   As Dawson and Gaudron JJ said in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301-302:

8. [36]

   I am satisfied that there was an error, in the sense of an unjustified inconsistency, in the approach to special circumstances taken in the two cases. Although the ground was not formulated as a parity ground per se, I am satisfied that Ms Ruge is entitled to a “justifiable sense of grievance” as a consequence of the disparity between the respective non-parole periods imposed on her and Mr Buckman.

9. [37]

   In those circumstances, it is perhaps unnecessary to deal with the contention in Ground 3 that the sentence is manifestly excessive. However, in my assessment, the aggregate sentence imposed on Ms Ruge can properly be described as manifestly excessive in the sense that it was “unreasonable” or “plainly unjust”. Even though the offence was a very serious one and the loss to the insurance companies of some magnitude, it was an offence with very little planning and was carried out in a most amateur way. The subjective features of Ms Ruge were such that the objective seriousness had to be balanced against the individual circumstances of her case. As Mr Averre pointed out, the starting point was in excess of four and a half years and his Honour also said that he gave her (two months) credit for four months that she spent in a residential rehabilitation programme. That means that the starting point was approaching five years. That is excessive for a first offender of 24 years of age who had taken great strides towards rehabilitation.

Cormack Ground 1: The learned sentencing Judge contravened the principle in R v De Simoni (1981) 147 CLR 383 by sentencing the applicant on the basis that he believed his co-offenders would financially benefit from their crimes by way of a fraudulent insurance claim.

1. [38]

   Mr Cormack contends under Ground 1 that comments made by the sentencing Judge infringed the principles in R v De Simoni [1981] HCA 21; 147 CLR 383. His Honour referred to the fact that the applicant was aware that it was an “insurance job” and that he knew that Ms Ruge “was to gain substantially”. His Honour said that the applicant must have believed that it was not simply a matter of gaining the value of the car and her property present in the premises but also the value of the house. The full text of the impugned remark is as follows:

2. [39]

   As has been seen, s 197 creates an offence carrying a maximum penalty of 14 years whereas s 195 creates an offence carrying 10 years or (when committed in company) 11 years. The element of “dishonestly, with a view to making a gain for that person or another” is a factual circumstance that aggravates the criminality of a particular case and exposes an offender to a higher penalty. In R v De Simoni, Gibbs CJ (with whom Mason and Murphy JJ agreed) said at 392:

3. [40]

   As acknowledged by Gibbs CJ, the application of these principles may result in an artificial fact finding exercise. The present case provides an example. The agreed facts referred to the applicant’s admission on arrest that he knew that “Ruge had spoken of doing an ‘insurance job’”. It was this evidence, along with his evidence that Ms Ruge told him that she owned the house, that led the primary Judge to make the findings that he did. It is perhaps unfortunate that the detail of the applicant’s admission remained in the agreed facts tendered before King DCJ. It seems to have led his Honour into error. Nevertheless, the principle must be applied. A reading of the judgment on sentence establishes that his Honour took into account a circumstance of aggravation that was not charged against Cormack but which exposed him to a more severe maximum penalty.

4. [41]

   I have taken into account the submission of the respondent pointing to various parts of the remarks or judgment on sentence where his Honour referred to other parts of the agreed facts. However, the passages to which the applicant refers leads me to conclude that error is established. I would uphold Ground 1.

Cormack Grounds 2-4:The learned sentencing Judge erred in finding that the applicant’s role was substantial. The sentence imposed on the applicant was manifestly excessiveThe applicant has a justifiable sense of grievance arising out of the disparity between the sentence he received and those imposed on his co-offenders.

1. [42]

   It is convenient to deal with Grounds 2, 3 and 4 together. They all hinge on an assertion that the primary Judge erred in his assessment of the applicant’s criminality and role in the offences. This led his Honour to impose a sentence that was manifestly excessive and one which lacked due proportion with the sentence imposed on Ms Ruge and Mr Buckman thereby engendering a justifiable sense of grievance in Mr Cormack. The critical passage in his Honour’s remarks was when he described the applicant’s role in the offending as being “substantial”. The full context in which that passage appeared was this:

2. [43]

   As Mr Nash pointed out, the concession made by the Crown at first instance was stronger than that passage suggested. The advocate appearing for the Crown at sentence properly conceded that “the criminality of Mr Cormack is significantly less than that of Ms Ruge and Mr Buckman”. He described his role as “his presence emboldening Mr Buckman to carry out the offence of lighting the fires but that concession is made your Honour”. On the hearing of the appeal, there was some discussion as to the meaning of the word “substantial” and the flexibility with which that word is used in legal discourse. The word has received judicial consideration particularly in the context of statutory interpretation. Deane J once famously said that it was a word more appropriate “to a maze than to legislative provisions exposing officials of unions and others to action for substantial damages”: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331. In DPP v Losurdo (1998) 44 NSWLR 618 the Court (Priestley and Handley JJA and Sheppard AJA) noted that Deane J went on to say that:

3. [44]

   The Court concluded in DPP v Losurdo (622) that:

4. [45]

   Plainly, the meaning of the word “substantial” turns on the context in which it is used. The context here was an assessment of the role of the offender for the purpose of determining his objective criminality both generally and relative to his co-offenders. In that context, I am unable to see how the role that Mr Cormack played can properly be described as a substantial one. Apart from being present throughout the enterprise, there was no evidence that he did anything to actually encourage or embolden Mr Buckman in setting the fires or in making his escape.

5. [46]

   I have previously expressed some misgivings concerning the authorities in New South Wales as to the approach of an intermediate appellate Court in dealing with a ground that asserts error in a sentencing Judge’s assessment of the relative objective criminality: see Kaminic v R [2014] NSWCCA 116 at [79]-[89]. However, in Sabongi v R [2015] NSWCCA 25 at [70]-[71] I acknowledged that the law appeared to be settled and that the approach urged by Spigelman CJ and Simpson J in Mulato v R [2006] NSWCCA 282 applied. Accordingly, the question is whether it was open to King DCJ to categorize Mr Cormack’s role as “a substantial one”.

6. [47]

   I am satisfied that it was not open to categorise Mr Cormack’s role in the offences as “substantial”. The primary Judge overstated his role and erred in his assessment of the objective criminality. Ground 2 is made out and this in turns satisfies me that Grounds 3 and 4 must also be upheld.

7. [48]

   In Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 at [42]-[43] French CJ, Hayne, Bell and Keane JJ set out the correct approach to s 6(3) Criminal Appeal Act 1912 (NSW) in a case where this Court finds error in the sentencing process:

8. [49]

   Like the sentencing Judge, I am of the opinion that it is appropriate to impose aggregate sentence pursuant to s 53A of the Sentencing Act. The commencement dates of the sentences, taking into account the different periods of pre-sentence custody, were agreed in the District Court. The sentence must reflect the purposes of sentencing in s 3A of the Sentencing Act. The offenders must be adequately punished and their conduct must be denounced. The sentences must send a clear message that such conduct will be met with serious punishment. The harm to the victims must be recognised. The community must be protected from the offender and, in this case, that may best be served by another purpose of sentencing, namely promoting the rehabilitation of the offenders.

9. [50]

   In Ms Ruge’s case, I take into account the period of “quasi custody” when the applicant was in residential rehabilitation. I would allow a discount of 25% for the plea of guilty. I take into account the serious objective criminality involved in each offence, noting that the total loss to the insurance company resulting from the house fire was substantially greater than that involved in destruction to the car. Having considered all possible alternatives, I am satisfied for the purpose of s 5 of the Sentencing Act that no sentence other than imprisonment is appropriate. The offences were part of the one enterprise but involved separate acts and discrete damage. But for the imposition of an aggregate sentence, it would have been appropriate that the sentences be largely concurrent but with a degree of accumulation. For the purpose of s 53A(2)(b), I record that the individual sentences that I would have imposed are 18 months (for the offence involving the motor car) and two years three months (for the offence involving the property within the house). I would find special circumstances pursuant to s 44(2B) of the Sentencing Act. Those circumstances are that Ms Ruge is a person without previous criminal convictions but with a history of drug abuse who will benefit from a longer than usual period of supervised parole.

10. [51]

    In the result, I would propose an aggregate sentence of three years with an aggregate non-parole period of two years. Pursuant to s 50 of the Sentencing Act, she is entitled to be released at the expiration of the non-parole period.

11. [52]

    In Mr Cormack’s case, I take into account his limited role in the two offences. However, at the time of the offences he was on a deferred sentence bond (s 9 Sentencing Act) for damaging property and a suspended sentence bond (s 12 Sentencing Act) for being armed with intent. The breach of conditional liberty is an aggravating feature. No sentence other than imprisonment is appropriate in all of the circumstances. I would provide a 25% discount for his plea of guilty. I take into account his youth but note that his criminal history disentitles him to leniency. I am guarded as to his prospects of rehabilitation. His response to supervision in the past has been poor. I take the same approach to accumulation and concurrency as I have in Ms Ruge’s case. I record indicative sentences of 12 months for the offence involving the vehicle and 18 months for the offence involving the property in the house. I cannot identify special circumstances justifying a reduction in the non-parole period that would apply by application of s 44 of the Sentencing Act although I will round down the non-parole period in favour of the offender. I would propose an aggregate (total) sentence of one year and nine months with an aggregate non-parole period of one year and three months.

12. [53]

    I propose the following orders in Ms Ruge’s case:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal allowed.

    3. (3)

       Quash the sentence imposed in the District Court.

    4. (4)

       In lieu thereof, impose an aggregate sentence comprising a non-parole period of two years commencing on 15 May 2014 and expiring on 14 May 2016 with a balance of term of twelve months commencing 15 May 2016 and expiring 14 May 2017.

    5. (5)

       Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW) direct that the offender be released at the expiration of the non-parole period.

13. [54]

    I propose the following order in Mr Cormack’s case:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal allowed.

    3. (3)

       Quash the sentence imposed in the District Court.

    4. (4)

       In lieu thereof, impose an aggregate sentence comprising a non-parole period of one year and three months commencing on 21 April 2014 and expiring on 20 July 2015 with a balance of term of six months commencing 21 July 2015 and expiring 20 January 2016.

    5. (5)

       Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW) direct that the offender be released at the expiration of the non-parole period.