Summers v Tasmania

[2015] TASCCA 23

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Summers v Tasmania [2015] TASCCA 23

PARTIES:  SUMMERS, Brooke Hope
  v
  STATE OF TASMANIA

FILE NO:  CCA 1579/2015
DELIVERED ON:  20 November 2015
DELIVERED AT:  Hobart
HEARING DATE:  9 November 2015
JUDGMENT OF:  Tennent, Porter and Estcourt JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Specific errors of fact – Multiple errors alleged – Fact asserted in mitigation but opposite fact in aggravation not established beyond reasonable doubt where no dispute – Where mistake of fact as to benefit to be obtained by appellant from crimes of dishonesty – Where adverse fact asserted by Crown and contradicted by appellant but conflict not resolved by evidence – Sentence quashed and appellant re-sentenced – Parity with co-offender.
Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:
             Appellant:  F Brimfield
             Respondent:  J Dennison
Solicitors:
             Appellant:  Ogilvie Jennings
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 23
Number of paragraphs: 58

Serial No 23/2015
File No CCA 1579/2015

BROOKE HOPE SUMMERS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
PORTER J
ESTCOURT J
20 November 2015

Orders of the Court

Appeal allowed.

Sentence imposed on 4 September 2015 quashed.

The proceedings in respect of the appellant are adjourned for a period of two years pursuant to the Sentencing Act 1997, s 7(f), upon her undertaking given to the Court this day that she will be of good behaviour for that period.

Serial No 23/2015
File No CCA 1579/2015

BROOKE HOPE SUMMERS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
20 November 2015

The appellant, Brooke Hope Summers, and Kyle Douglas Schultz were jointly charged with one count of unlawfully setting fire to property and one count of attempting to dishonestly acquire a financial advantage. Each pleaded guilty on 14 August 2015. Counsel for Schultz made a plea in mitigation that day and sentence followed on the same day. Schulz was dealt with pursuant to the Sentencing Act 1997 ("the Act"), s 7(f), that is upon his undertaking to be of good behaviour for two years his matter was adjourned for that period. As to the appellant, a plea in mitigation was not made until 27 August. The Chief Justice adjourned sentence to 4 September and sought an assessment in relation to her suitability to perform community service. The appellant was deemed suitable to perform community service and, on 4 September, it was ordered she perform 140 hours of community service. Because of the provisions of the Act, his Honour was obliged to record a conviction.
The sentences imposed on the two accused were obviously different and it was essentially that difference and the reasons for it which have given rise to this appeal. It is necessary to note what his Honour said when he sentenced Schultz and the appellant. The comments on passing sentence in relation to each were as follows:
"Kyle Douglas Schultz, you have pleaded guilty to two charges: a charge of unlawfully setting fire to property, and a charge of attempting to dishonestly acquire a financial advantage. You committed these crimes on 14 August 2014, a year ago today, and you did so against your better judgment. You were asked by a woman who owned a car to set fire to it so that she could make a fraudulent insurance claim, and you did. You took the car to a place on the outskirts of the metropolitan area and set fire to it using fuel that had been given to you. You did that at the instigation of the owner of the vehicle. That amounts to the crime of unlawfully setting fire to property because any injury to property that is caused with intent to defraud is unlawful. The consequence of this act was that the owner of the car had her car destroyed. She is worse off as a result, but that serves her right because she wanted this done as part of a plan to defraud an insurance company.
The second charge is the charge of attempting to dishonestly acquire a financial advantage. The vehicle was insured for $21,100. From what I know of the vehicle that was probably far more than it was worth. The plan was that if the insurance company paid that money out, then you would receive $2,000, and a friend of yours would also receive some money – you did not know how much. [The claim was refused. The $2,000 was not paid.]
The woman who asked you to do this was someone that you had not met before that day. You initially refused on a number of occasions, but you were in some financial difficulty, and eventually you agreed to do it because you were in need of money. You regretted it immediately afterwards. You co-operated fully with the police. You pleaded guilty at a very early stage. You have no significant prior convictions. You are unlikely ever to offend in this sort of way again, or to commit any crime or offence of dishonesty, and you have agreed to give evidence against the woman who owned the car. In fact, you offered to do so before any steps were taken to get you to do so.
I think, in all the circumstances, that I should take a very lenient course, particularly because of your co-operation with the police and with the Crown. I initially thought about imposing a community service order, but I think that would be too harsh in all the circumstances. I think the most appropriate course is for me to give you a chance to have a clear record if you do not re-offend in the future. So what I propose to do is to adjourn the proceedings for two years, if you give an undertaking to be of good behaviour for that period. If you give that undertaking and do not get into any more trouble in the next two years that will be the end of the matter. But if you do get into any more trouble, then you can be brought back and dealt with for these crimes.
[The undertaking was given.]
I note your undertaking to be of good behaviour for two years. I adjourn the proceedings for two years, without conviction. You have to pay victims of crime compensation levies of $100 within 28 days."
"Ms Summers has pleaded guilty to charges of unlawfully setting fire to property and attempting to dishonestly acquire a financial advantage. She committed these crimes on 14 August 2014 at the request of her fiancé's mother. That woman owned a car, and wanted someone to set fire to it so that she could make a fraudulent insurance claim. From what Ms Summers told the police, it appears that these plans were formulated about three months previously, not implemented at that time, revived, and implemented on 14 August. The car was insured for $21,100, but was worth far less. Ms Summers owed the car's owner about $8,000. It was agreed that that debt would be waived if she took part in the burning of the vehicle. The owner also agreed to pay $2,000 to a young man, whom I was told she had not met before that day, for participating in the burning of the vehicle. Ms Summers now says that her fiancé's mother had met that man before that day, but that is not something that should result in more lenient treatment for her. The $2,000 was to come from the proceeds of the insurance claim.
Ms Summers and the young man went to the outskirts of the Hobart metropolitan area and the vehicle was set alight. They thereby committed the crime of unlawfully setting fire to property. Even though the vehicle was burned with the consent of its owner, that amounted to a crime because any injury to property is unlawful if it is caused with intent to defraud.
The owner of the car made an insurance claim, but the insurance company found out what had happened, and the claim was refused.
Ms Summers was interviewed by the police about four months after the burning of the car. She co-operated with the police and made admissions as to the relevant facts. She regrets what she has done. She pleaded guilty at an early stage.
Ms Summers was 21 years old when she committed these crimes and is now 22. She has no significant prior convictions. What she did was out of character. She earns an income looking after children through a Family Day Care scheme. There is a strong chance that she will lose that work, and that income, as a result of convictions for crimes of dishonesty.
The young man who was involved in these crimes also pleaded guilty before me. I took a lenient course in his case, adjourning the matter for two years, without imposing convictions, on his undertaking to be of good behaviour for that period of two years. In Ms Summers' case, there are reasons not to be lenient. The young man gave in to temptation on the spur of the moment as the result of financial difficulty. However Ms Summers had been aware of the proposed fraud for months, and had had plenty of time to think better of it. The young man stood to receive $2,000, but Ms Summers stood to benefit to the tune of $8,000. The young man was sentenced on the basis that he volunteered to give evidence against the car owner before being asked. I have been told today that he agreed only after being asked, but if he was sentenced on a false basis, that is still no reason to take as lenient a course in Ms Summers' case. Ms Summers said that she would give evidence against her fiancé's mother, but only after being asked. And I am conscious of the impact that doing so, and promising to do so, is likely to have in relation to the relationship with her fiancé and his family. Ms Summers had an interest in helping her fiancé's mother because of the relationship with her fiancé. The young man had no interest in helping the mother to gain a financial advantage apart from the fact that he had been promised $2,000. In all the circumstances, I do not think I should take as lenient a course with Ms Summers as I did with her co-offender.[emphasis added for the purpose of [19]] Despite the possible consequences, I will impose a community service order. The law does not permit me to do that without imposing convictions.
Brooke Hope Summers, I convict you on both charges and sentence you to perform 140 hours' community service. I order you to pay your victims of crime compensation levies of $100 within 28 days."
The notice of appeal filed on the appellant's behalf asserted the following errors on the part of the Chief Justice:
"AThe learned Chief Justice made errors of fact following the submissions made in mitigation by the Appellant;
BThat the errors of fact pleaded in the ground above were facts that were pertinent to the severity of the sentence imposed by the Chief Justice; and
CConsequently, the learned Chief Justice erred in law in that he imposed a sentence which was manifestly excessive in all the circumstances."
In par2 of his contentions filed on 12 October 2015, counsel for the appellant identified the errors of fact underpinning grounds of appeal A and B. They were:
"2 The errors of fact made by the learned Chief Justice were:
aThat the Appellant had only agreed to give evidence in the Prosecution of the principal accused (Munnings) after being asked by Prosecution;
b That the Appellant owed Munnings, the sum of $8000.00; and
cThat the Appellant had known about the proposed crime for months in advance."
At the hearing of the appeal, it was accepted that, if this Court determined that the Chief Justice had indeed made errors in the facts upon which he sentenced the appellant, and it was determined that such errors were material errors as far as the appellant's sentence was concerned, then the appellant's sentence should be reviewed. It would then be a matter for this Court to either re-sentence the appellant or remit the matter to the Chief Justice to re-sentence.

The asserted errors of fact

"That the Appellant had only agreed to give evidence in the Prosecution of the principal accused (Munnings) after being asked by Prosecution"

It is necessary to look at the factual background to the charges. At the time of the offending in August 2014, the appellant was engaged to be married to the son of Helen Munnings. Ms Munnings owed the appellant and her son the sum of $8,000. Ms Munnings had taken a car as part of a matrimonial settlement and it was insured. She discovered that the car was mechanically unsound and was trying to sell it. Her efforts were unsuccessful. She was in financial difficulties. She hatched a plan to fake a theft and destruction of the car with the intention of making a claim on the insurance. She prevailed upon the appellant to be involved and told her that it was the only way that the appellant was likely to get back the $8,000 owed to her.
The appellant and Ms Munnings, it appears on the day of the actual crimes, involved Schultz. He was offered $2,000, to be paid from the proceeds of the insurance claim, to help with the crimes. Reluctantly he agreed. He and the appellant collected the car from Ms Munning's daughter's house. The appellant drove it to a location and Schulz went in another car. Schultz then set the car on fire and the appellant and Schultz left it to burn. The next day the appellant returned the key to the car she had used to Ms Munnings. Ms Munnings notified her insurer of the loss of the vehicle. It does not appear any insurance monies were ever paid to Ms Munnings. Schultz did not seek any money.
Shultz pleaded guilty to charges in the Magistrates Court and was committed to this Court for sentence. The appellant did not enter a plea of guilty until committed to this Court. However, the State acknowledged that her counsel had indicated a plea very early and it was only negotiations about the basis of it which delayed the actual plea.
During the course of the proceedings in relation to both the appellant and Schultz an issue arose about whether each had volunteered to give evidence against Ms Munnings at her trial without being asked by the State, or had agreed to do so after being asked. The Chief Justice had been told that Schultz offered to do so without being asked, and sentenced him accordingly. His Honour was then told during the proceedings in relation to the appellant that that was not so. There followed what can only be described as somewhat confusing submissions about the issue. His Honour then said in his comments about the appellant that she had only agreed to give evidence after being asked to do so.
It should be said that in relation to each of Schultz and the appellant, they agreed to give evidence against Ms Munnings. However the fact that the appellant may have only agreed after being asked, whereas Schultz might have offered before being asked, appears to have been a point of difference relied upon by the Chief Justice when he sentenced the appellant. It appears to have been given as a reason why his Honour felt he should not be as lenient with the appellant as he was with Schultz. In that context, it was a finding adverse to the appellant. For the Chief Justice to have made that adverse finding he would need to have been satisfied beyond reasonable doubt that it was correct. With respect, I cannot see how he could have been so satisfied. The submissions by counsel were not only confusing but, in my view, inadequate to underpin such a finding. It was simply unclear what the position was with the appellant.
It was therefore not so much an error of fact by the Chief Justice as a finding not open on the material put before the Chief Justice.

"That the Appellant owed Munnings the sum of $8,000"

The State conceded at the hearing of the appeal that this finding of fact was wrong. At no stage during the sentencing process was the Chief Justice told this. The situation was that Ms Munnings owed the appellant that amount, and the appellant was told by Ms Munnings that the only way she was going to get her money was from the insurance claim. The situation therefore was that the appellant was entitled to be paid at some stage by Ms Munnings the sum of $8,000 by way of repayment of a debt. The only benefit the appellant stood to gain from agreeing to help Ms Munnings was that she might have actually had the debt repaid, whereas it could be inferred that Ms Munnings' financial position generally might suggest that the appellant was unlikely to have her debt repaid in any timely fashion.
There can be little doubt this was a finding of fact adverse to the appellant and it was wrong. I am satisfied it was a fact material to the sentence imposed by the Chief Justice and, as such, impacted adversely on the sentencing process.

"That the Appellant had known about the proposed crime for months in advance"

At no stage during the course of the sentencing process was the Chief Justice told that the appellant had known about the crimes for months in advance. At 11 of the appeal book, there is a transcript of the Crown statement of facts. Counsel for the State said, when providing a summary of what the appellant had told police when interviewed about the events giving rise to the charges:
"There were original planned arrangements made within the Munnings family for this to occur, but they had fallen through approximately three months prior to the August date. Mrs Munnings was extremely tight for money and had financial issues."
In the course of the plea in mitigation by the appellant's counsel, she told his Honour (this appears at 22 of the appeal book commencing at line 25):
"In the months prior to the offence, Ms Munnings had joked socially in front of Ms Summers on numerous occasions that it would be best if the SUV was to go missing or be stolen. And Ms Summers instructed that she never took these remarks to be anything other than flippant remarks or as jokes. And although that she was aware of the dire financial straits that Ms Munnings was in she never thought that she would make good on this joke.
Then one day Ms Munnings cornered Ms Summers privately and disclosed her intention to have the car burnt out, to report it as stolen and to claim the insurance money."
There is nothing in what followed which would have suggested this final approach occurred months before the events.
Counsel for the State did not challenge the version of events as provided by the appellant's counsel, and his Honour was therefore obliged to accept it. He clearly did not do so, and it must be concluded he therefore sentenced the appellant on an incorrect basis as far as this issue was concerned.

Consequences of errors in material facts

There is no dispute on this appeal that the appellant's sentence is to be reviewed if this Court concludes that his Honour sentenced the appellant on the basis of incorrect facts. There is also no dispute that, if that conclusion is reached, this Court should proceed to review the sentence rather than send it back to the sentencing judge. The Criminal Code Act 1924, s 402(4), provides that:
"(4)        On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
Subsections 4A) and (4B) then provide:
"(4A)     The Court, on hearing an appeal against a sentence passed on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor), may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard.
(4B)       Despite subsection (4A), the Court, in passing another sentence under subsection (4), must not take into account the element of double jeopardy involved in the person being sentenced again, in order to pass a less severe sentence than the Court would otherwise consider appropriate."
The Court heard submissions from counsel about any re-sentence in the event the sentence was to be reviewed. Counsel for the appellant submitted that the appellant should be sentenced in the same manner as Schultz. The appellant was not present at the hearing of her appeal. It was pointed out to her counsel that, if the Court were minded to review the sentence and to impose the same sentence as that imposed upon Schultz, the appellant would then need to be present. At that point, her counsel said the appellant was heavily pregnant. Subsequent inquiries revealed her child was due to be born on 8 December.

Counsel for the appellant had initially submitted that there was nothing further he wished to tell the Court about the appellant's circumstances. The fact that the appellant was heavily pregnant only arose as a result of an enquiry about an unrelated matter. When pressed after this information came to light, counsel for the appellant confirmed there was nothing else in relation to the appellant that the Court might need to consider for the purpose of re-sentence.

Review of sentence

The Chief Justice imposed disparate sentences on the appellant and Schultz. Both were young without any significant prior convictions. Schultz was unemployed. The appellant worked and stood to lose her employment if convicted. The reasons his Honour gave for not dealing with the appellant as leniently as he did Schultz are those which appear in italics in [2] of these reasons where the comments on passing sentence in relation to the appellant are set out.
It is clear that the factual bases for differentiating between the sentences imposed upon the appellant and Schultz were, to a significant extent, wrong. His Honour also appears to have accepted as a factor adverse to the appellant that she had an interest in helping Ms Munnings because of her relationship to the family. In doing so, his Honour has ignored the matters put in mitigation to the effect that the appellant felt pressured to help because of her relationship, a matter not challenged by the State.
The issue is not necessarily whether the sentence imposed upon Schultz in isolation was an appropriate sentence for the appellant. The issue is whether there were cogent reasons for differentiating between the sentences imposed on the appellant and Schultz if the facts found to be errors were corrected. In my view, there were no such cogent reasons. Additionally, I have significant doubts that the appellant would be suitable in any event to perform community service, given she already has a young child and is about to give birth to a second.
I would allow the appeal and quash the sentence imposed upon the appellant by the Chief Justice. I would re-sentence the appellant. I would order that pursuant to the Act, s 7(f), the proceedings against the appellant be adjourned for a period of two years upon her undertaking to the Court that she will be of good behaviour for that period.

File No CCA 1579/2015

BROOKE HOPE SUMMERS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J
20 November 2015

This is an appeal against sentence. The facts and the comments of the sentencing judge on sentencing the appellant's co-accused and (later) the appellant, are set out in the judgments of Tennent and Estcourt JJ. Each has also set out the grounds of appeal.
I agree that this appeal should be disposed of in the way my colleagues have proposed. However, there are some differences in the approach of their Honours, albeit perhaps slight in some respects, and it is desirable that I briefly set out my views.

Errors of fact

The first alleged error of fact relates to the issue of whether the appellant offered to give evidence against the instigator of these crimes, Ms Munnings, who stood to gain the greatest benefit from their commission. The sentencing judge was told that the appellant "volunteered" to give evidence against Ms Munnings. This immediately followed a discussion between his Honour and counsel, in which it was said that the co-accused, Mr Schultz, was sentenced on the basis that he had volunteered to give evidence. His Honour was told that this was not so, in the sense that Mr Schultz had agreed to give evidence after it was raised with him by the Crown. Counsel for the appellant suggested that his Honour ought to have interpreted the use of the word "volunteer" as meaning that the appellant was the first to mention her willingness to give evidence.
As a matter advanced on behalf of the appellant in her favour, in order to act upon it the sentencing judge needed to be satisfied of the fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281 [27]. The absence of persuasion about a matter in mitigation is not the equivalent of persuasion of the opposite fact in aggravation: Weininger v The Queen (2003) 212 CLR 629 at 638 [24]. There may be little in the distinction which was drawn and the matter was treated as more of a differentiating factor than an aggravating one as such. It remained, however, a matter used in a way adverse to the appellant. I agree with Tennent J that on the material, the sentencing judge could not have been satisfied of the fact beyond reasonable doubt. I agree that ground 2(a) is made out.
As to ground 2(b), I agree that, as properly conceded by Crown counsel, the sentencing judge wrongly stated what he had been told about the benefit which the appellant stood to gain for the commission of the crimes. The Crown facts were simply that the appellant would receive $8000 from the insurance payout sum. Counsel for the appellant told the sentencing judge that the appellant was to have money owed to her repaid, as distinct from getting a reward of the same amount by a waiver of a debt owed. This seems to have been treated as both a matter of aggravation, as well as differentiation from Mr Schultz. That fact, as asserted in mitigation, was not implausible or inherently unlikely, and ought to have been accepted. I agree that the error was a material one.
The last error of fact, alleged in ground 2(c), is the finding made by the sentencing judge that the appellant had known about the proposed crimes for "months in advance". The Crown asserted this to be the fact by reference to the appellant's police interview in which the appellant said that planned arrangements for the crimes had fallen through about three months before their actual commission. On the other hand, it was expressly put to the sentencing judge on behalf of the appellant that Ms Munnings had joked on numerous occasions that it would be best if the vehicle was to go missing or be stolen. It was expressly put that the appellant did not take these remarks to be anything other than flippant remarks or as jokes.
For the fact to be used in a way adverse to the appellant, the sentencing judge needed to be satisfied beyond reasonable doubt of that fact. It was treated as adverse in the sense that it provided for differentiation from Mr Schultz. Plainly, there was a dispute about it. The assertion on behalf of the appellant went unchallenged by the Crown. Ordinarily, where there is a dispute on a material issue, the sentencing judge should raise the matter with the parties, so that sworn evidence can be taken if the issue cannot otherwise be resolved.
Section 81(4) of the Sentencing Act 1997 provides that if an offender challenges the truth of any information put before the court, the court may require that information to be proved in a like manner as if it were to be received at a trial. In this case, the Crown's assertion of fact came in the form of a summary of what the appellant is alleged to have said to police in an interview. In light of what had been put on the appellant's behalf, the Crown might have sought to provide the sentencing judge with a transcript of what the appellant actually said, in order to establish the accuracy of the summary. The appellant could have then given evidence about why she said the things she did, or what she intended to convey. None of that happened.
It follows that in the absence of a resolution and proof beyond reasonable doubt of the asserted fact, the trial judge had to exclude it from his consideration: Roberts v Tasmania [2011] TASCCA 2 at [10]: R v Olbrich (above) at 281 [25].

Review of the sentence

Material errors of fact have been established and it follows that the appellant's sentence must be reviewed. Although it is not necessary to consider the appellant's further argument about disparity as such, on a correct view of the facts and assessed objectively, the appellant would have a justifiable sense of grievance. I agree with my colleagues' observations about the personal circumstances of the appellant. Equal justice and consistency in punishment are reflected in the parity principle which requires that like offenders should be treated in a like manner: Green v The Queen (2011) 244 CLR 462 at 473 [28]. I agree that, in all of the circumstances of the case and taking into account the factor of parity, the outcome should be that the appellant is sentenced in the same way as was Mr Schultz.

File No CCA 1579/2015

BROOKE HOPE SUMMERS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
20 November 2015

This is an appeal against a sentence imposed upon the appellant by Blow CJ on 4 September 2015.
On 14 August 2015 Ms Summers pleaded guilty along with her co-accused, Kyle Schultz, to charges of unlawfully setting fire to property and attempting to dishonestly acquire a financial advantage.
Submissions in mitigation were made on behalf of Mr Schultz and he was sentenced on that same day. No convictions were recorded, and upon him giving an undertaking to be of good behaviour for two years, the charges against him were adjourned for that period of time.
The appellant's sentencing hearing was adjourned until 27 August 2015 for a plea in mitigation. On that day convictions were recorded against her on both charges and she was ordered to perform 140 hours' community service. (I note in passing that the learned sentencing judge remarked, "I will impose a community service order. The law does not permit me to do that without imposing convictions.")
In sentencing Mr Schultz his Honour made the following comments:
"Kyle Douglas Schultz, you have pleaded guilty to two charges: a charge of unlawfully setting fire to property, and a charge of attempting to dishonestly acquire a financial advantage. You committed these crimes on 14 August 2014, a year ago today, and you did so against your better judgment. You were asked by a woman who owned a car to set fire to it so that she could make a fraudulent insurance claim, and you did. You took the car to a place on the outskirts of the metropolitan area and set fire to it using fuel that had been given to you. You did that at the instigation of the owner of the vehicle. That amounts to the crime of unlawfully setting fire to property because any injury to property that is caused with intent to defraud is unlawful. The consequence of this act was that the owner of the car had her car destroyed. She is worse off as a result, but that serves her right because she wanted this done as part of a plan to defraud an insurance company.
The second charge is the charge of attempting to dishonestly acquire a financial advantage. The vehicle was insured for $21,100. From what I know of the vehicle that was probably far more than it was worth. The plan was that if the insurance company paid that money out, then you would receive $2,000, and a friend of yours would also receive some money – you did not know how much. [The claim was refused. The $2,000 was not paid.]
The woman who asked you to do this was someone that you had not met before that day. You initially refused on a number of occasions, but you were in some financial difficulty, and eventually you agreed to do it because you were in need of money. You regretted it immediately afterwards. You co-operated fully with the police. You pleaded guilty at a very early stage. You have no significant prior convictions. You are unlikely ever to offend in this sort of way again, or to commit any crime or offence of dishonesty, and you have agreed to give evidence against the woman who owned the car. In fact, you offered to do so before any steps were taken to get you to do so.
I think, in all the circumstances, that I should take a very lenient course, particularly because of your co-operation with the police and with the Crown. I initially thought about imposing a community service order, but I think that would be too harsh in all the circumstances. I think the most appropriate course is for me to give you a chance to have a clear record if you do not re-offend in the future. So what I propose to do is to adjourn the proceedings for two years, if you give an undertaking to be of good behaviour for that period. If you give that undertaking and do not get into any more trouble in the next two years that will be the end of the matter. But if you do get into any more trouble, then you can be brought back and dealt with for these crimes."
In sentencing Ms Summers his Honour made the following comments:
"Ms Summers has pleaded guilty to charges of unlawfully setting fire to property and attempting to dishonestly acquire a financial advantage. She committed these crimes on 14 August 2014 at the request of her fiancé's mother. That woman owned a car, and wanted someone to set fire to it so that she could make a fraudulent insurance claim. From what Ms Summers told the police, it appears that these plans were formulated about three months previously, not implemented at that time, revived, and implemented on 14 August. The car was insured for $21,100, but was worth far less. Ms Summers owed the car's owner about $8,000. It was agreed that that debt would be waived if she took part in the burning of the vehicle. The owner also agreed to pay $2,000 to a young man, whom I was told she had not met before that day, for participating in the burning of the vehicle. Ms Summers now says that her fiancé's mother had met that man before that day, but that is not something that should result in more lenient treatment for her. The $2,000 was to come from the proceeds of the insurance claim.
Ms Summers and the young man went to the outskirts of the Hobart metropolitan area and the vehicle was set alight. They thereby committed the crime of unlawfully setting fire to property. Even though the vehicle was burned with the consent of its owner, that amounted to a crime because any injury to property is unlawful if it is caused with intent to defraud.
The owner of the car made an insurance claim, but the insurance company found out what had happened, and the claim was refused.
Ms Summers was interviewed by the police about four months after the burning of the car. She co-operated with the police and made admissions as to the relevant facts. She regrets what she has done. She pleaded guilty at an early stage.
Ms Summers was 21 years old when she committed these crimes and is now 22. She has no significant prior convictions. What she did was out of character. She earns an income looking after children through a Family Day Care scheme. There is a strong chance that she will lose that work, and that income, as a result of convictions for crimes of dishonesty.
The young man who was involved in these crimes also pleaded guilty before me. I took a lenient course in his case, adjourning the matter for two years, without imposing convictions, on his undertaking to be of good behaviour for that period of two years. In Ms Summers' case, there are reasons not to be lenient. The young man gave in to temptation on the spur of the moment as the result of financial difficulty. However Ms Summers had been aware of the proposed fraud for months, and had had plenty of time to think better of it. The young man stood to receive $2,000, but Ms Summers stood to benefit to the tune of $8,000. The young man was sentenced on the basis that he volunteered to give evidence against the car owner before being asked. I have been told today that he agreed only after being asked, but if he was sentenced on a false basis, that is still no reason to take as lenient a course in Ms Summers' case. Ms Summers said that she would give evidence against her fiancé's mother, but only after being asked. And I am conscious of the impact that doing so, and promising to do so, is likely to have in relation to the relationship with her fiancé and his family. Ms Summers had an interest in helping her fiancé's mother because of the relationship with her fiancé. The young man had no interest in helping the mother to gain a financial advantage apart from the fact that he had been promised $2,000. In all the circumstances, I do not think I should take as lenient a course with Ms Summers as I did with her co-offender. Despite the possible consequences, I will impose a community service order. The law does not permit me to do that without imposing convictions.
Brooke Hope Summers, I convict you on both charges and sentence you to perform 140 hours' community service. I order you to pay your victims of crime compensation levies of $100 within 28 days."
It is necessary to consider both sets of comments on passing sentence because of the comparison made by the learned sentencing judge between the appellant's culpability and circumstances and those of her co-offender. As can be seen above, his Honour noted centrally to his conviction and sentencing of the appellant:
"The young man who was involved in these crimes also pleaded guilty before me. I took a lenient course in his case, adjourning the matter for two years, without imposing convictions, on his undertaking to be of good behaviour for that period of two years. In Ms Summers' case, there are reasons not to be lenient."
The grievance arising from the learned trial judge's approach is reflected in the notice of appeal which states:
"1     The Appellant's Grounds of Appeal are that:
aThe learned Chief Justice made errors of fact following the submissions made in mitigation by the Appellant;
bThat the errors of fact pleaded in the ground above were facts that were pertinent to the severity of the sentence imposed by the learned Chief Justice; and
cConsequently, the learned Chief Justice erred in law in that he imposed a sentence which was manifestly excessive in all the circumstances.
2      The errors of fact made by the learned Chief Justice were:
aThat the Appellant had only agreed to give evidence in the Prosecution of the principal accused (Munnings) after being asked by Prosecution;
b      That the Appellant owed Munnings, the sum of $8000.00; and
c      That the Appellant had known about the proposed crime for months in advance.
3The learned Chief Justice imposed a sentence which was manifestly excessive when compared to the sentence of the co-accused, Kyle Douglas Schultz, who was charged jointly with the Appellant and whose involvement and culpability in the crimes is similar, if not more involved, than the Appellant."
I am not satisfied that there was sufficient material before the learned sentencing judge to suggest that there was any operative significance in the fact that the appellant had only volunteered to give evidence against the principal offender after she was asked to do so. The fact is she was prepared to assist the Crown and that, his Honour was told by Crown counsel, this was "early on in the piece". Moreover, she was willing to give evidence against her future mother-in-law which would no doubt be difficult in terms of family relationships. She also expressed through her counsel "an extreme amount of remorse".
Having said that, I am unable to find that ground 2(a) of the notice of appeal is made out in its terms.
I am satisfied that his Honour misunderstood what was put to him about the $8,000 debt.
As noted already, his Honour commented on passing sentence:
"Ms Summers owed the car's owner about $8,000. It was agreed that that debt would be waived if she took part in the burning of the vehicle. The owner also agreed to pay $2,000 to a young man, whom I was told she had not met before that day, for participating in the burning of the vehicle…
The young man stood to receive $2,000, but Ms Summers stood to benefit to the tune of $8,000."
What had been in fact put to his Honour in the submissions of the appellant's counsel in mitigation was as follows:
"Ms Munnings had previously borrowed the sum of eight thousand dollars from, Ms Summers and her fiancée, and she indicated that if Ms Summers assisted her, that this amount would be repaid and that this was the only way that she would ever get that money back".

That is not to say that the appellant acted without the hope of benefit, but I accept the submission of her counsel, Mr Brimfield, that the benefit is more properly characterised as the repayment of a lawfully owed debt, with unlawfully obtained monies. It is thus not as disparate from Mr Schultz's situation with respect to benefit as the learned sentencing judge envisaged.
I am satisfied that ground 2(b) is made out and that the error was a material error.
I am satisfied that his Honour also erred in sentencing the appellant on the basis that she had been aware of the proposed fraud for months in advance.
In his comments in passing sentence, the learned Chief Justice stated:
"The young man gave into temptation on the spur of the moment as the result of financial difficulty. However Ms Summers had been aware of the proposed fraud for months, and had had plenty of time to think better of it."
Whatever else may have been contained in the material before the learned sentencing judge, the fact is that the Crown did not challenge the submission of the appellant's counsel on the sentencing hearing that is set out in the following passage of the transcript of the hearing:
"MS MITCHELL: In the months prior to the offence, Ms Munnings, had joked socially in front of Ms Summers on numerous occasions that it would be best if the SUV was to go missing or be stolen. And Ms Summers instructed that she never took these remarks to be anything other than flippant remarks or as jokes".
There was, in my view, insufficient in the material before his Honour to make out to the requisite standard any suggestion that the appellant was actually aware of a serious proposal by Ms Munnings to commit the crimes, or had been asked to assist with their commission, months in advance of 14 August 2014.
Ground 2(c) of the notice of appeal succeeds in my view.
It follows from all that I have said that I accept that the appellant was sentenced on a factually incorrect basis. The appellant is content that this Court re-sentence her.
In my view, had the factual errors not been made by the learned sentencing judge there was no basis for distinguishing between the appellant and Mr Schultz in terms of punishment. Indeed, on a correct understanding of the facts, I regard the appellant as a perfect candidate for the same sentencing course as the learned judge adopted with respect to Mr Schultz. I am of the opinion that the appellant also deserved a chance to retain a record clear of convictions if she did not re-offend in the ensuing two years.
The appellant was 21 years old when she committed the crimes. She had no significant prior convictions, her only brushes with the law being two traffic infringement notices for exceeding the speed limit by less than 10km/h. She made full admissions and was very co-operative with police. She pleaded guilty at an early stage. She was prepared to assist the Crown by giving evidence against her future mother-in-law. She was remorseful. What she did was out of character. Her role in the commission of the crimes might be said to be akin to accessorial. And, most importantly, her employment involved looking after children through a family day care scheme and there was a strong chance that she would lose that work as a result of incurring convictions for crimes of dishonesty.
In my view, the errors of fact made by the learned sentencing judge had the effect of rendering the appellant's sentence manifestly excessive, and lacking in parity with the sentence imposed on Mr Schultz.
If I am wrong in my conclusion that the sentence imposed on the appellant was manifestly excessive on the facts as correctly viewed and in her personal circumstances, then it is nonetheless open to this Court to reduce a sentence that is not in itself manifestly excessive in order to correct an unjustified disparity with the sentence imposed on a co-offender (Lowe v The Queen (1984) 154 CLR 606 per Gibbs CJ at 609-610 and Postiglione v The Queen (1997) 189 CLR 295 per Dawson and Gaudron JJ at 301). That is so even if the co-offender's sentence can be said to be itself inadequate. I would take that course in this case.
I would allow the appeal and set aside the convictions and the sentencing order. I would substitute an order that upon the appellant giving the required undertaking to be of good behaviour for a period for two years the proceedings against her be adjourned for that period.

[2015] TASCCA 23

20 November 2015

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Appeal

Sentencing

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