Ruge and Cormack v R [2015] NSWCCA 153

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ruge and Cormack v R [2015] NSWCCA 153 Hearing dates: 12 June 2015 Date of orders: 19 June 2015 Decision date: 19 June 2015 Before: Leeming JA at [1] Simpson JA at [2] Hamill J at [3] Decision: In Ms Ruge's case:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court.

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. 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.

In Mr Cormack's case:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court.

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. 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. Catchwords: Criminal law – sentencing – arson – aggravating features – insurance job – whether judge erred by taking into account financial gain – where aggravated offence not charged – whether judge erred in taking into account potential for fire to spread – special circumstances – parity and proportionality – meaning of "substantial" in context of assessment of criminality – error established – re-sentencing Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: R v De Simoni [1981] HCA 31; 147 CLR 383 R v Do [2005] NSWCCA 209 R v Glover [2002] NSWCCA 376 Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462 Kaminic v R [2014] NSWCCA 116; 88 ALJR 947 Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 DPP v Losurdo (1998) 44 NSWLR 618 Mulato v R [2006] NSWCCA 282 Porter v R [2008] NSWCCA 145 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 Sabongi v R [2015] NSWCCA 25 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 Texts Cited: New South Wales, Parliamentary Debates, Legislative Assembly, 28 October 1987, 15344 (Sheahan, Attorney-General) Category: Principal judgment Parties: Rebecca Maree Ruge (applicant) Alexander Stephen Cormack (applicant) Regina (respondent) Representation: Counsel: K Averre (Ruge) I Nash (Cormack) N Adams SC with S Palaniappan (Crown)