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Court of Criminal Appeal 19 June 2015

Ruge and Cormack v R

[2015] NSWCCA 153

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCING ARSON AGGRAVATING FEATURES INSURANCE JOB WHERE AGGRAVATED OFFENCE NOT CHARGED

Citation: Ruge and Cormack v R [2015] NSWCCA 153
Court: Court of Criminal Appeal, New South Wales
Date: 19 June 2015
Judge(s): Leeming JA, Simpson JA, Hamill J (judgment delivered by Hamill J)

Background

The two appellants were convicted of arson-related offences arising from a scheme to deliberately burn a rented house and a motor vehicle in Forbes, NSW, in January 2013. The owner of both the car and the household contents (the first appellant) arranged for an associate to set the fires so she could make fraudulent insurance claims. She was charged under a provision of the Crimes Act 1900 (NSW) that specifically captures offences committed "with a view to making a gain," carrying a maximum of 14 years imprisonment.

The second appellant was present during the fires but played no active role in setting them. His criminal liability arose from joint criminal enterprise: he was there, aware of what was happening, and ready to assist if needed. He was charged under a different, less serious provision carrying a maximum of 11 years, one that contains no element of financial gain.

Both appellants were sentenced in the District Court at Parkes in May 2014. The sentencing judge imposed aggregate sentences of three years and six months for the first appellant and two years and seven months for the second. Both sought leave to appeal.

  • Whether the sentencing judge erred by treating the potential for the fire to spread as an aggravating factor, when no such aggravated offence had been charged.
  • Whether the sentencing judge breached the De Simoni principle by taking financial gain into account when sentencing the second appellant, whose charge contained no element of gain.
  • Whether the sentencing judge erred in characterising the second appellant's role as "substantial."
  • Whether the judge erred in declining to find "special circumstances" justifying an adjustment to the ratio of the non-parole period to the head sentence.
  • Whether the sentences were manifestly excessive.
  • Whether the second appellant had a justifiable sense of grievance about disparity with sentences imposed on co-offenders.

Decision

Financial gain and the De Simoni principle: The Court upheld the second appellant's ground that the sentencing judge had wrongly taken financial gain into account when sentencing him. The De Simoni principle (from the High Court) prohibits a judge from sentencing an offender on the basis of circumstances that would have constituted a more serious offence, where that offence was not charged. Because the second appellant's charge contained no element of gain, treating the insurance fraud motive as an aggravating factor against him was an error.

Fire spreading as an aggravating factor: The Court accepted this ground for both appellants. The sentencing judge's references to the risk of the fire spreading introduced an aggravating consideration that was not supported by the agreed facts and went beyond what each appellant had been found guilty of. This constituted a relevant sentencing error.

The meaning of "substantial" in the second appellant's role: The sentencing judge had described the second appellant's role as "substantial." The Court found this characterisation was not justified on the agreed facts. His presence was knowing and willing, but he did nothing to advance the enterprise. Describing his role as substantial overstated his criminality.

Re-sentencing: Having found error, the Court re-sentenced both appellants. The first appellant received an aggregate sentence of three years with a non-parole period of two years. The second appellant received an aggregate sentence of one year and nine months with a non-parole period of one year and three months. The Court also found special circumstances existed in the first appellant's case, justifying an extended parole period, though declined to find special circumstances for the second appellant on re-sentencing.

Orders Made

For the first appellant (Ruge):
- Leave to appeal granted; appeal allowed
- District Court sentence quashed
- Aggregate sentence imposed comprising a non-parole period of two years commencing 15 May 2014 and expiring 14 May 2016, with a balance of term of twelve months expiring 14 May 2017
- Direction to release at expiration of non-parole period

For the second appellant (Cormack):
- Leave to appeal granted; appeal allowed
- District Court sentence quashed
- Aggregate sentence imposed comprising a non-parole period of one year and three months commencing 21 April 2014 and expiring 20 July 2015, with a balance of term of six months expiring 20 January 2016
- Direction to release at expiration of non-parole period

Key Takeaways

  • The De Simoni principle operates to prevent a sentencing court from treating financial gain as an aggravating feature when the offence charged contains no such element, even if the offender knew co-offenders stood to profit.
  • Aggravating circumstances must be grounded in the facts before the sentencing court. References to a theoretical risk of fire spreading constituted error where the agreed facts did not support that risk.
  • Characterising an offender's role as "substantial" carries real sentencing weight. Where the evidence establishes only passive presence in a joint criminal enterprise, with no positive acts of assistance, that description may overstate the offender's criminality and constitute a ground of appeal.
  • Where multiple offenders are sentenced for the same scheme under different statutory provisions, the specific elements of each charge must guide what aggravating factors are available to the sentencing judge for each offender individually.
  • In dismissing the parity argument as a standalone ground, the Court nonetheless addressed the disparity issue indirectly through the finding of errors warranting re-sentencing, resulting in meaningfully reduced sentences for both appellants.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 195(1A)(b), 197(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 44, 50, 53
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v De Simoni [1981] HCA 31; 147 CLR 383
- Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Kentwell v The Queen [2014] HCA 37
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Kaminic v R [2014] NSWCCA 116
- Sabongi v R [2015] NSWCCA 25
- R v Do [2005] NSWCCA 209
- R v Glover [2002] NSWCCA 376
- DPP v Losurdo (1998) 44 NSWLR 618
- Mulato v R [2006] NSWCCA 282
- Porter v R [2008] NSWCCA 145
- Tatana v R [2006] NSWCCA 398
- Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331
- R v Wahabzadah [2001] NSWCCA 253