R v Ogden

Case [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.

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Details
AGLC
R v Ogden [2014] QCA 89
Case
[2014] QCA 89
Decision Date

CaseChat Overview and Summary

The appeal in R v Ogden was brought by the respondent, who had been sentenced to five years imprisonment with a non-parole period of 20 months after pleading guilty to two counts of defrauding the Commonwealth and three counts of obtaining a financial advantage by deception. The respondent had claimed benefits in others’ names and his own name over a span of 15 years. The central issue before the court was whether the sentencing judge had properly considered the full extent of the respondent's restitution and the impact of his health problems on the sentence. Additionally, the court examined whether the sentencing judge had appropriately disregarded submissions from the prosecution regarding the permissible bounds of sentences, in light of the principles outlined in Barbaro v The Queen.

The respondent argued that the sentence was manifestly excessive, considering the restitution made and his health issues. The court had to determine whether these factors were adequately weighed by the sentencing judge. Furthermore, the court scrutinised whether the judge's sentence was influenced by the prosecution's submissions on permissible sentence bounds, which, if improperly considered, would violate the principles set out in Barbaro v The Queen.

After reviewing the arguments, the court found that the sentencing judge had indeed taken into account the full restitution and the respondent's health problems, and had correctly disregarded the prosecution's inappropriate submissions on permissible sentences. The court concluded that the sentence was neither manifestly excessive nor inadequate, and thus, the application for leave to appeal against the sentence was refused. This outcome confirms the sentencing judge's approach was aligned with legal principles and adequately considered all relevant factors.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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