R v Muehle & Goggs No. Sccrm-00-52, Sccrm-00-138, Sccrm-00-51

R v MUEHLE & GOGGS
[2000] SASC 262

Court of Criminal Appeal: Prior, Nyland and Martin JJ

1................ PRIOR J........................... I agree with the reasons given by Martin J. These two appeals against sentence should be dismissed.

2................ NYLAND J........ I agree that the appeals should be dismissed for the reasons expressed by Martin J.

3................ MARTIN J......... The appellants appeal against sentences imposed for the offences of Endangering Life (s 29(1) of the Criminal Law Consolidation Act 1935) (“the CLCA”) and Arson (s 85(1) of the CLCA). Both convictions arose out of the one incident which occurred during the evening of Saturday 28 February 1999 when a co-offender, Mr Daniel Pitt, threw a Molotov cocktail into the front bedroom of occupied premises at Noarlunga Downs. A fire ensued in the front bedroom. The appellant Muehle pleaded guilty and was sentenced to three years and four months imprisonment with a non-parole period of 22 months. The other two offenders were convicted by a jury after a trial before the learned sentencing Judge. In respect of the appellant Goggs, the learned sentencing judge imposed a sentence of eight years imprisonment and fixed a non-parole period of five years and six months. Mr Pitt was sentenced to five years imprisonment with a non-parole period of two years and three months.

The appellants complain that their respective sentences are manifestly excessive. In addition, the appellant Goggs contends that the disparity between the sentence imposed upon him and those imposed upon his co-offenders is so unreasonable as to give rise to a justifiable sense of grievance and a miscarriage of justice.
There is no dispute about the factual background to these offences. Mr Goggs and his wife lived opposite the premises into which the Molotov cocktail was thrown. Over a period of time a number of incidents occurred which caused tension between Mr and Mrs Goggs and the neighbours. Two nights before the offending an altercation occurred between Mrs Goggs and one of the young women living in the premises across the road. Mrs Goggs sustained a number of injuries. Mr Goggs was upset and his Honour found that he had reached the point where the situation with the neighbours had become intolerable.
Mr Muehle had been boarding at the Goggs’ home for some time. He had known Mr Pitt for a number of years. Not long before the offences were committed, Mr Pitt asked Mr Muehle whether he could move into the Goggs’ home. Mr Muehle agreed to discuss the request with Mr and Mrs Goggs. The day following the incident in which Mrs Goggs was injured, the three men met at premises in which Mr Pitt was residing for the purpose of discussing whether Mr Pitt could come to live at the Goggs’ home. During that conversation the situation with the neighbours was raised. The learned sentencing judge found as follows:
“It is obvious that you, Goggs, were troubled by the disputes and in particular the attacks upon your wife. You said you intended to make those responsible pay for the attack on your wife. During this conversation, Molotov cocktails were mentioned. Pitt told you that he knew how to prepare Molotov cocktails and the idea of throwing them at the Brights’ home was first raised. I am satisfied that it was you, Pitt, who said that you knew how to make Molotov cocktails. You, Goggs, embraced the idea and you, Muehle, did nothing to discourage the suggestion that that may be a solution to the neighbourhood problems.”
The learned sentencing Judge found that, on the day of the incident, Pitt came to the Goggs’ home. During the course of the afternoon there were discussions between the three offenders about various matters, including the way in which to deal with the neighbours. His Honour found that Goggs was very angry with what had been occurring and that Goggs pursued his intention to exact revenge. An attack upon the home of the neighbours with Molotov cocktails was discussed and all offenders participated in the discussion. Mr Muehle took a less active role. His Honour found that during the afternoon Mr Goggs and Mr Pitt left the house to purchase bottled beer with the intention of using the bottles for the preparation of Molotov cocktails. They also purchased petrol. His Honour concluded that Mr Goggs and Mr Pitt “had every intention of preparing the Molotov cocktails that evening and that the petrol and beer was purchased for that purpose.”
The learned sentencing Judge found that during the evening Mr Pitt prepared three Molotov cocktails in the garage of the premises. He also found that it was Mr Pitt who later threw one of those Molotov cocktails through the window of the front bedroom of the neighbouring premises. The other two cocktails were found outside the premises. His Honour found that Mr Muehle assisted in the preparation of the cocktails, but only to the extent of providing gloves to Mr Pitt for use in the preparation. He was satisfied that Mr Muehle realised that the two co-offenders were serious and that he at least foresaw the likelihood that a Molotov cocktail or cocktails would be thrown with the consequence that people’s lives would be endangered and the house burnt.
As to Mr Goggs, the learned sentencing Judge was not satisfied that Mr Goggs was involved in the physical preparation of the Molotov cocktails. His Honour found that, in addition to being involved in the purchase of the beer and petrol, Mr Goggs had planned the act and encouraged Mr Pitt throughout. He was satisfied that Mr Goggs possessed a serious intention that the Molotov cocktails be used that evening. Mr Goggs went to bed possessed of that intention and with every expectation that a bombing would occur. His Honour was also satisfied that both Mr Goggs and Mr Pitt knew that there were people in the premises and that lives would be endangered.
In addition to those factual findings, the learned sentencing Judge made the following findings in respect of Mr Goggs which brought into focus the role of Mr Goggs as the prime mover:
“In respect of these offences, you have shown no contrition. I accept the submissions of Ms Chapman for the Director of Public Prosecutions that you were the prime mover in this offence. You had the motive, you had the influence over Pitt and Muehle. Pitt was attempting to ingratiate himself with you. He wanted to move in. He also has a personality which leads him to antisocial conduct, if he thinks it may gain him friendship and the respect of others. You took advantage of his youth and personality. In my view, you were the prime mover in respect of this offence. I therefore distinguish you from Pitt. I also distinguish between you and Pitt because Pitt is a much younger man and was influenced by you.”
Counsel for the appellant Goggs questioned the finding by the learned sentencing Judge that Mr Goggs was the prime mover. In addition, he argued that when the respective roles of Mr Goggs and Mr Pitt are properly analysed, a finding that Mr Goggs was the prime mover does not translate into a finding that the conduct of Mr Goggs was more culpable than that of Mr Pitt. In addition, with respect to the reference to the existence of influence over Mr Pitt, counsel argued that unless the existence of the influence was accompanied by a finding of deliberate exploitation, the capacity to influence similarly does not point to the conduct of Mr Goggs being more culpable.
In arriving at his view, the learned sentencing Judge was entitled to take into account the background to the offending and the motivation possessed by the appellant Goggs. His Honour had the considerable advantage of having seen and heard the witnesses. His Honour was satisfied that Mr Goggs was pursuing an intention to extract revenge. Evidence had been given by an employee of the South Australian Housing Trust that on about 23 February 1999, approximately five days before the offending, the appellant Goggs attended at the Noarlunga office of the Housing Trust to complain about the neighbours. Although the officer could not see Mr Goggs, he heard his loud and threatening voice. The appellant made a statement to the effect that if the Housing Trust would not do something about the situation there would be bloodshed. In addition, evidence was given that during the afternoon of the day of the offending, Mrs Goggs spoke of being punched by the neighbour and the appellant Goggs said “that they were going to get her back”. The following evidence was given: (p 293)
“Q.... Was he a bit more specific about what he was going to do.
A.He said something about cocktails, but I had no idea that -
Q...... Can you say what he said.
A.He just said he was going to get back at her, and that he wasn’t going to actually do it, somebody else was going to do it.
Q...... Did he use the word “cocktails”.
A.I heard him mention the word “cocktails, yes”.
Q...... Did you speak to him about that.
A.No, just when he turned and told me he had something planned, that’s when I asked him what he was doing, and he said “cocktails”, but I had no idea what he meant by that.” (my emphasis)
The witness was asked about the manner of the appellant Goggs when he was talking about the neighbour and the cocktails: (p 295)
“Q.... How was Mr Goggs’ manner when he talked to you about Leanne.
A.He was pretty abrupt about it, had a lot of hate for her.
Q...... What was his manner like when he was talking about Leanne and the cocktails.
A.He was pretty calm about the whole thing.”
Against that background, the learned sentencing Judge also had the advantage of seeing and hearing both the appellant Goggs and Mr Pitt give evidence. In all the circumstances his Honour was entitled to find that the appellant Goggs was the driving force behind the offending and that he took advantage of Mr Pitt’s youth and personality. That personality had a tendency to lead Mr Pitt to anti-social conduct if he thought such conduct might gain him friendship and respect of others. In my opinion, there is no substance in these complaints about the approach taken by the learned sentencing Judge.
As to the factual basis upon which Mr Muehle was sentenced, counsel contended that his Honour erred in sentencing on the basis that Mr Muehle “foresaw the likelihood” that the cocktail would be thrown. The written submissions asserted that his Honour erred because “the submissions made on behalf of the appellant were that he recognised that there was a risk that something might happen.” During submissions before the learned sentencing Judge, counsel for Mr Muehle had conceded that the appellant knew there was a “realistic risk” that a cocktail or cocktails would be thrown.
Following analysis of the evidence during the course of submissions in this Court, ultimately counsel for the appellant Muehle pursued this complaint with little enthusiasm. She recognised that the difference between a foresight of likelihood and the realisation of a “realistic risk” was insignificant for the purposes of sentencing. Having regard to all the material put before his Honour through the appellant’s interview and submissions of counsel, in my opinion the following finding was not only open to his Honour, but was the appropriate finding:
“On the evidence before me, Muehle, I do not conclude that you were involved in the throwing of the cocktails. However, you were involved in the preparation of the Molotov cocktails and you must have realised that Goggs and Pitt were serious. I treat you on the basis that you at least foresaw the likelihood that the Molotov cocktail or cocktails would be thrown, that people’s lives would be endangered and that the house would be burnt.”
As to the personal circumstances of the appellants, Mr Muehle was 45 years of age. He committed offences of dishonesty in 1990 and 1992, but was not required to serve a sentence of imprisonment. The learned sentencing Judge was told that the appellant suffers from health problems of a physical nature and possesses a personality exhibiting many dependent traits. He is passive and has difficulty expressing disagreement with others upon whom he has developed an emotional dependency. By reason of his physical difficulty and the psychological factors, Mr Muehle will experience difficulties coping with the prison system. He managed poorly during a period on remand and became depressed with signs of an Adjustment Disorder. The learned sentencing Judge specifically took into account the appellant’s health problems and the problems that he may have in serving a gaol sentence.
The evidence concerning the appellant Muehle’s health was supplemented by further material tendered on this appeal. That material confirms that the appellant is experiencing difficulties because of his poor physical health but, in my opinion, it falls well short of providing a basis upon which this Court should interfere with an otherwise appropriate sentence.
Mr Muehle was entitled to benefit by way of mitigation for his plea of guilty and the finding of the learned sentencing Judge that he is now truly sorry for what occurred.
Mr Pitt was 18 years of age at the time of the offending. He had not previously been found guilty of any offence. I have already referred to the finding of the learned sentencing Judge concerning the influence that Mr Goggs had over Mr Pitt. The learned sentencing Judge made the following findings:
“In your case, Pitt, I take into account everything your counsel has put to me. I have given anxious consideration to the psychological assessment and to the pre-sentence report. I accept that you are a person who has a tendency to acquiesce in others’ demands and this may have been a factor in your involvement in these offences. On the other hand, you were aware of the seriousness of the offending. You are a person who is not over-submissive and you were quite capable of deciding not to be a party to this conduct. You are young, you were experiencing a difficult period in your life when you and your stepfather were not getting on, you had left home. It seems your life was in some disorder. You had no permanent home and no job. I accept that you now have the support of your family and I only hope that when you are released from custody, you will put these matters behind you and make something of your life. I hope your family and your girlfriend will continue to support you.”
The appellant Goggs was 37 years of age. He was convicted of a number of serious offences between 1983 and 1989 and had served a lengthy period of imprisonment. The offences under consideration were breaches of a bond given in respect of suspended sentences imposed on 28 July 1998 for two offences of threatening to cause harm. As the learned sentencing Judge observed, Mr Goggs has a major problem with his temper. In respect of the current offences, he has shown no contrition.
The crimes were particularly serious. The victims were vulnerable to this type of cowardly attack. The element of general deterrence played a particularly significant role in the sentencing process. Neighbourhood disputes are not unusual and penalties must be imposed that will send a clear message to the community that resort to violence as a means of settling such disputes will not be tolerated by the criminal courts. In particular, resort to violence that endangers life and property will be met with severe penalties. In this context it is appropriate to bear in mind the remarks of Crockett J, with whom Murray and Hampel JJ agreed, in R v Sakr (1987) 31 A Crim R 444 at 451:
“The use of bombs and explosives is the trade mark of the terrorist, whose acts of lawlessness have engendered a special revulsion that is due not only to the fact that death is so often the intention of the perpetrator, but also because the recklessness with which the offence is, by its very nature, invested is so likely to lead to the loss of innocent lives and, less importantly, to the destruction of the property of innocent third persons. It is an offence that is callous in its conception, wanton in its perpetration and, if the intent is given effect to ruthlessly destructive in its aftermath. It is a crime that is relatively novel in this country, as I have already indicated, and yet it is plain that there is a community recognition that it is regarded with a particular repugnance because its commission represents a profound assault upon a stable society and the law and order that is necessary for that society’s survival. Those responsible for such reprehensible conduct must expect to suffer condign punishment.
If ever there were a case in which the nature of the offence and the circumstances of its commission, called for a deterrent penalty, then this is that case. The court is justified in believing that the community would expect that the punishment to be imposed should mark its intention, so far as it might be within the power of the court to do so, to arrest the insipient growth of terrorist-style criminal activity in this community.”
As to the appellant Muehle, in my opinion the sentence of three years and four calendar months imprisonment and the non-parole period of 22 months were not manifestly excessive. The allowance of eight months for the plea of guilty was adequate. It was a late plea having occurred after an unsuccessful challenge on a voir dire to the admissibility of statements to the police. The role of the appellant was less culpable than the co-offenders, but by his presence, participation in discussions and conduct he gave his imprimatur and assistance to an enterprise that was both criminal and dangerous to life. While both the head sentence and non-parole period were at the upper end of the appropriate range, in my opinion they were within the range of the discretion properly available to the learned sentencing judge.
A number of features of the offending and circumstances personal to the offenders justified a degree of disparity between the sentences imposed upon each of the offenders. Viewed in comparison with the sentence imposed upon Mr Muehle, the period of five years imprisonment fixed with respect to Mr Pitt was justified. Mr Pitt prepared the Molotov cocktails and threw a cocktail. He was not entitled to the benefit of a plea of guilty and contrition. In addition to a comparison with the sentence imposed upon Mr Muehle, in my opinion considered in the light of the criminality of Mr Pitt’s conduct, and making full allowance for the matters in mitigation, the sentence of five years was within the range of the sentencing discretion. The lower than usual non-parole period was justified in view of Mr Pitt’s youth and lack of prior offending.
As to the appellant Goggs, viewed in isolation from the sentences imposed upon the other two offenders, in my opinion the sentence of eight years is at the upper end of the proper range of penalty, but is not manifestly excessive. The maximum penalty for the crime of endangering life is 15 years and, where the damage exceeds $2 000 but does not exceed $25 000, the maximum for arson is five years imprisonment. The appellant had revenge uppermost in his mind and knew that the house would be occupied at the time that he anticipated and intended Mr Pitt throw the Molotov cocktail into the premises. The appellant was not entitled to the benefit of a plea of guilty and has shown no hint of contrition. The appellant Goggs has a record of prior offending of a particularly serious nature. There was very little that could be said by way of mitigation on his behalf.
The disparity between the sentence imposed upon the appellant Goggs and that imposed upon Mr Pitt was substantial. While grounds existed to justify a disparity between those two offenders, the critical question is whether the extent of the disparity was justified.
As mentioned, counsel for the appellant Goggs first attacked the finding that the appellant was the prime mover. I have already indicated that, in my opinion, that finding was justified and appropriate. Counsel submitted, however, that even if the appellant was regarded as the prime mover, bearing in mind the physical roles played by each offender such a finding did not mean that the appellant’s conduct was more culpable than that of Mr Pitt.

Counsel contended that it was Mr Pitt who proposed the idea of throwing a fire bomb or Molotov cocktail into the premises. The learned sentencing Judge did not make a finding that it was Mr Pitt’s idea or that he first mentioned the possibility of throwing a cocktail into the premises. His Honour referred to the mention of cocktails during a conversation and to the appellant Goggs embracing the idea. He did not make a specific finding as to who first mentioned the possibility of using Molotov cocktails. Even if the suggestion or idea had come from Mr Pitt, in my opinion that fact would not have been significant in the ultimate result.
As to the comparison of their culpability based on their roles in the preparation and commission of the crimes, those roles had to be viewed against the background of the finding that the appellant was the driving force behind the commission of the crimes. It was Mr Goggs’ determination to exact revenge and his influence over the younger person with a dependent anti-social personality that led to the younger person physically creating the cocktails and throwing one of those cocktails. As counsel for the Director expressed the situation, in effect Mr Pitt was the appellant’s agent. In those circumstances, the learned sentencing Judge was entitled to distinguish between the appellant and Mr Pitt on the basis that the appellant’s conduct was more culpable.
If the only basis of distinguishing between the appellant and Mr Pitt was their respective culpability, in my opinion the substantial disparity would not have been justified. However, the learned sentencing Judge indicated that in addition to regarding the appellant as the prime mover with influence over Mr Pitt, he distinguished between them primarily on the basis of the youth of Mr Pitt and his lack of prior convictions. Counsel for the appellant Goggs attacked that approach.
First it was submitted that the young age of Mr Pitt was not a basis for distinguishing between the offenders in view of the serious nature of the offending. Counsel referred to three New South Wales authorities in which, notwithstanding the youth of the offenders, the importance of general deterrence in cases of serious crimes was emphasised (R v Pham and Ly (1991) 55 A Crim R 128 at 135; R v Hawkins (1993) 67 A Crim R 64 at 66; R v Gordon (1994) 71 A Crim R 459 at 469). In each of those authorities, however, the court also recognised that the youth of the offender was not to be disregarded in the sentencing process. In my opinion the youth of Mr Pitt was a significant factor of distinction between the two offenders.
Counsel for the appellant Goggs also challenged the reliance by the learned sentencing Judge on the distinction between the offenders in terms of their prior offending. He pointed out that although Mr Pitt had not previously been convicted of any offence, during the course of his evidence he had admitted being involved in both the larceny of a sheep and the particularly brutal ill treatment of that sheep. While accepting that the prior offending of the appellant was more serious, counsel for the appellant contended that the learned sentencing Judge was not entitled to rely upon the difference in antecedents as a basis for distinguishing between the offenders.
Mr Pitt was aged 17 years at the time of the offending with respect to the sheep. While his conduct was totally unacceptable, in the light of his anti-social personality and youth that conduct did not disentitle him to a degree of mitigation which was not available to the appellant. As mentioned, the prior offending of the appellant Goggs was particularly serious. In 1988 the appellant was convicted of a number of serious sexual offences against young women. He was sentenced to a total of four years imprisonment. In 1998 the appellant was convicted of two offences of threatening to cause harm and sentenced to nine months imprisonment. The sentence was suspended. The crimes now under consideration were a breach of the bond given in connection with that suspended sentence. The learned sentencing Judge was entitled to distinguish between the offenders on the basis of their antecedents.
During the course of his attempt to dilute any distinction between the appellant Goggs and Mr Pitt, counsel for the appellant also focused upon their motivation. He suggested that as Mr Pitt did not have a reason for committing the crimes other than an attempt to ingratiate himself with the appellant, the court should take a more serious view of his offending than the view taken of the culpability of Mr Goggs who possessed the motivation of revenge. Not surprisingly, counsel was unable to support that rather startling proposition with any authority. Pressed on the issue, counsel retreated to an alternative position that the appellant should not have been treated as more culpable than Mr Pitt by reason of their respective motivations. I do not agree. The learned sentencing Judge found that Mr Pitt possessed a personality which made him susceptible to the commission of anti-social conduct if he thought the conduct might gain him the friendship and respect of others. The appellant took advantage of that personality and used Mr Pitt as his means of exacting revenge. Viewed in this way it can readily be appreciated that the motivation of each of the offenders led inexorably to the conclusion that the conduct of the appellant was more culpable than that of Mr Pitt.
In the particular circumstances of this matter, in my opinion, while the disparity between the sentences imposed upon the appellant Goggs and Mr Pitt is substantial, it cannot be said to be manifestly excessive. Similarly, the disparity between the sentences imposed upon the two appellants cannot be said to be manifestly excessive. In each instance, the degree of disparity was justified by the factors to which I have referred and was within the range of the discretion of the learned sentencing Judge.
I would dismiss both appeals.

[2000] SASC 262

4 August 2000