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District Court 26 April 2018

R v Bolger

[2018] NSWDC 285

Fraud & dishonestyTheft & property
CRIMINAL SENTENCE DISHONESTLY DAMAGE BY MEANS OF FIRE NO EVIDENCE OF CONTRITION TOTALITY OF OFFENDING WITHOUT REGARD TO PUBLIC SAFETY

Citation: R v Bolger [2018] NSWDC 285
Court: District Court of New South Wales
Date: 26 April 2018
Judge(s): Judge S Norrish QC

Background

The offender, a 49-year-old man, was found guilty by a jury of two offences arising from a fire at his residential property in Tamworth on 16 March 2013. The jury concluded, on the basis of circumstantial evidence, that he had deliberately started the fire in a front bedroom of his home and then attempted to claim insurance money from NRMA by falsely representing the fire as accidental.

The circumstantial evidence at trial included the offender's presence in the house when the fire began, evidence of significant financial difficulties at the time, a pattern of increasing his insurance cover in the months before the fire, inconsistencies in his accounts of how the fire started, and his removal of a CCTV hard drive to a friend's address while lying to an insurer's investigator about it. Expert fire investigators disagreed on the precise origin point within the bedroom, though both agreed no accelerant was used.

A second fire at the same property in 2013 caused near-total destruction of the building, but the jury acquitted the offender of the counts relating to that fire. Sentencing therefore proceeded on the two counts connected only to the first fire.

  • What sentences were appropriate for the two counts, given the different maximum penalties (14 years for dishonestly damaging property by fire; 10 years for dishonestly attempting to obtain a financial advantage)?
  • How should the sentences be structured to avoid double punishment, given the two counts substantially overlapped factually?
  • Were there special circumstances warranting an adjustment to the standard ratio between the non-parole period and the balance of the sentence?
  • What weight should be given to aggravating features, including the degree of planning and the absence of any contrition?

Decision

The District Court observed that the two counts arose from a common factual core: the deliberate lighting of the fire was the predicate act for both the property damage offence and the insurance fraud offence. Judge Norrish noted the obligation under Pearce v R to avoid double punishment for what was, in substance, a single course of criminal conduct, while still recognising that each count addressed a distinct legal wrong.

The court identified several aggravating features: the offence was planned, including the increase in insurance cover in the months beforehand; it was carried out without regard for public safety, given the risk that fire poses; and the offender showed no remorse, having pleaded not guilty and made no acknowledgement of responsibility. The absence of a guilty plea meant no utilitarian discount applied and no mitigating weight could be given to contrition.

On the question of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, the court found that a departure from the standard non-parole period ratio was justified. The reasons included that this was the offender's first time in custody, that he would need professional assistance adjusting to community life and managing his financial affairs on release, and that he may benefit from counselling related to the impact of his partner's medical condition. The non-parole period was set at 18 months out of a total sentence of three years, representing a longer balance of sentence than the statutory default.

Orders Made

  • Count 1 (dishonestly damaging property by fire, maximum 14 years): convicted and sentenced to three years imprisonment, comprising an 18-month non-parole period commencing 26 April 2018 and a balance of sentence of 18 months expiring 25 April 2021.
  • Count 2 (dishonestly attempting to obtain a financial advantage, maximum 10 years): convicted and sentenced to two and a half years imprisonment, comprising an 18-month non-parole period commencing 26 April 2018 and a balance of sentence of one year expiring 25 October 2020.
  • The sentences were ordered to be served concurrently, producing a total effective sentence of three years imprisonment with a non-parole period of 18 months from 26 April 2018.
  • The offender was directed to be released to parole on 25 October 2019.

Key Takeaways

  • Where two counts arise from a substantially overlapping factual matrix, the sentencing court must take care to avoid double punishment, as required by Pearce v R, while still recognising the distinct legal character of each offence.
  • Planning an arson offence over an extended period, including steps such as increasing insurance coverage in advance, constitutes a significant aggravating feature that increases the objective seriousness of the conduct.
  • The absence of a guilty plea removes both the utilitarian sentencing discount and any potential mitigating weight attributable to contrition or acceptance of responsibility.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 need not rest on a single factor; a combination of matters, including a first period of custody, anticipated reintegration challenges, and personal circumstances on release, can collectively satisfy the threshold.
  • Deliberate fire-setting in a residential building is treated seriously by the courts because of the inherent and indiscriminate danger to public safety, regardless of whether that danger eventuates.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 192E(1), 197(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Cahyadi v R [2007] 168 A Crim R 41
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Isaacs v R (1997) 41 NSWLR 374
- Kearsley v R [2017] NSWCCA 28
- Nasser v R [2017] NSWCCA 104
- Pearce v R (1998) 194 CLR 610
- Porter v R [2008] NSWCCA 145
- R v Ahmad Hassoun [2016] NSWDC 409
- R v Allpass (1993) 72 A Crim R 561
- R v Bradley Alan Smith [2018] NSWDC 18
- R v Daetz [2003] NSWCCA 216
- R v Dinos [1999] NSWCCA 208
- R v Eagan [2013] NSWCCA 196
- R v Elzakhem [2008] NSWCCA 31
- R v Hammoud [2000] NSWCCA 540
- R v Hanney [2014] NSWDC 13
- R v Markarian [2005] NSWCCA 264
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Pitt [2001] NSWCCA 156
- R v VAA [2006] NSWCCA 44