R v Ogden

[2014] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ogden [2014] QCA 89

PARTIES:

R
v
OGDEN, Eric William
(applicant)

FILE NO/S:

CA No 25 of 2014
DC No 1777 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2014

JUDGES:

Fraser, Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of defrauding the Commonwealth and three counts of obtaining a financial advantage by deception – where the applicant had claimed benefits in others’ names and his own name over 15 years – where the applicant was sentenced to five years imprisonment with a non-parole period of 20 months – whether the sentencing judge properly took into account the applicant’s full restitution – whether the sentencing judge gave due weight to the applicant’s health problems – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where at sentence the prosecution made submissions about the bounds of permissible sentences – whether, in violation of Barbaro v The Queen, those submissions were taken into account by the sentencing judge in formulating a sentence

Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; [2014] HCA 2, discussed
Grenfell v The Queen (2009) 196 A Crim R 145; [2009] NSWCCA 162, discussed
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Jensen; ex parte Attorney-General (Qld)[1998] QCA 275, cited
R v Marshall (2010) 199 A Crim R 331; [2010] QCA 29, cited
R v McMahon[2013] QCA 240, cited
R v Pope; ex parte Attorney-General (Qld)[1996] QCA 318, cited
R v Robertson (2008) 185 A Crim R 441; [2008] QCA 164, distinguished

COUNSEL:

R Clutterbuck for the applicant
W S Ferguson (sol) for the respondent

SOLICITORS:

Ian W Bartels & Associates for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

1. FRASER JA:  The applicant pleaded guilty in the District Court of two counts of defrauding the Commonwealth (contrary to the Crimes Act 1914 (Cth)) and three counts of obtaining a financial advantage by deception (contrary to the Criminal Code 1995 (Cth) s 134.2). On 31 January 2014 the applicant was sentenced to five years imprisonment with a non-parole period of 20 months. He has applied for leave to appeal against that sentence. He contends that the appropriate sentence is three to four years imprisonment with a recognizance release fixed upon a date which is no more than six months after the date of sentence.