R v Ogborne [2006] QCA 236

Court of Appeal (Qld)|2006-06-23|Before: de Jersey CJ, McMurdo P and Keane JASeparate reasons for judgment of, each member of the Court, all concurring as to the order made

Director of Public Prosecutions (Queensland) for the respondent

[1] de JERSEY CJ: The applicant was originally charged with the murder of Mr Rieck. On the morning of the first day set for trial, he pleaded guilty to manslaughter, which the Crown accepted in discharge of the indictment. That occurred on 2 March 2005. His sentencing was then adjourned at his request: there was a suggestion psychiatric evidence would be obtained.

[2] The sentencing resumed on 12 August 2005. The applicant had terminated his lawyers' instructions, so that counsel withdrew. The applicant informed the Judge he would represent himself. In the course of his subsequent submissions to the Judge, the applicant denied responsibility for the death of the deceased. But he did not seek to withdraw his plea of guilty to manslaughter, and the Judge proceeded to sentence him. No complaint is now made about that.

[3] The applicant was sentenced to 14 years imprisonment, to be served cumulatively upon a four year nine month term which had been imposed upon him in the District Court on 20 September 2002 for an offence of doing grievous bodily harm committed on 21 March 2001. (He was also then sentenced to two years imprisonment for burglary, to be served concurrently.) The learned District Court Judge, sentencing the applicant for the offence of doing grievous bodily harm, rightly described it as a very severe assault, in which the victim very nearly died of the injuries brutally inflicted upon him by the applicant. The applicant went to the home of a person who had stolen his bicycle, and assaulted that person inflicting extensive injuries: fractures, traumatic pancreatitis, loss of a kidney etc. Mr Martin SC, who appeared before us for the Crown, described it as an outrageously disproportionate response to a comparatively trivial insult.

[4] The applicant committed the instant manslaughter on or about 10 April 2002 while on bail for the grievous bodily harm and burglary offences.

[5] The applicant came in August 2005 to be sentenced for this offence of manslaughter carrying the burden of a substantial criminal history, mostly comprising offences of dishonesty, drug crime and violence. It covers 38 appearances involving 74 offences. The offences of violence included assault occasioning bodily harm, serious assaults on a police officer, the offence of doing grievous bodily harm to which I have referred, and breaches of domestic violence orders (which I assume probably involved violence).

[6] The sentencing Judge took the view that the applicant's plea of guilty to manslaughter attracted little significance because it was not indicative of remorse and came late in the day. He considered the case of R v Bates; R v Baker [2002] QCA 174 approximately similar. He took the relevant range to be 14 to 16 years - that is, after taking account of the plea of guilty, and reasoned that the totality principle meant two to three years should then be deducted because this sentence would be served cumulatively upon that imposed in the District Court. Having said that retribution, deterrence and the protection of society warranted a severe penalty, he selected 16 years, which he then reduced by two years to the 14 year term he imposed.

[7] The complaint now made is that there was inadequate recognition of the plea of guilty, in aiding the administration of justice (see Cameron v The Queen (2002) 209 CLR 339), and that the totality principle should have resulted in a lesser term.

[8] Mr Rafter SC, who appeared for the applicant, referred to a number of cases as supporting a lesser basic term than 14 to 16 years. The cases to which he referred are aging, and I consider his Honour was right to derive the greatest assistance from the quite recent case of Bates. That case is important to the disposition of this, not only because of the broad comparability of the circumstances, but because it reflects what is currently perceived as a substantial need for strongly deterrent sentences in relation to seriously violent crime. It may be added that this applicant, 42 years of age at the time of the offence, was substantially older than the offenders involved in most of the cases to which Mr Rafter referred.

[9] I turn to the circumstances of the killing. The evidence against the applicant came substantially from an indemnified witness Hoare. The essence of the matter is that for some reason unknown to us, the applicant subjected the deceased to what the sentencing Judge termed a severe battering, destroying much of the deceased's bony facial structure, pushing in the entire upper row of the deceased's teeth, and displacing his jaw and nose. The applicant (who was himself uninjured) coerced Hoare into helping him dispose of the body, which the applicant left wrapped in a piece of carpet and rug in bushland near Ipswich, where the deceased's skeletal remains were found about five months later. Then they returned to clean the residence where the body had been originally. Hoare said the applicant threatened to kill him if he did not assist. Before seeing the body of the deceased, Hoare had gone with the applicant on the understanding they were to steal some copper wire. Some six to seven months after the discovery of the remains, the police interviewed the applicant who on two occasions denied any knowledge of the death.

[10] It was a brutal killing. Steps taken by the applicant to dispose of the body and conceal his crime reflect an added level of callousness. The deceased's mother has suffered greatly through the loss of her son.

[11] The Crown apparently accepted the plea of guilty in discharge of the indictment charging murder because of doubt as to the reliability of Hoare as a witness.

[12] There was particular need for deterrence in the case of this applicant, in light of his previous record, and especially the offence for which he had been sentenced in the District Court. It is significant that he committed this further offence of extreme violence while on bail for the offence of doing grievous bodily harm. See, generally, Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477.

[13] Bates was, on appeal, sentenced to 18 years imprisonment for a vicious assault. Williams JA called it "a home invasion of the worst kind". His Honour considered life imprisonment appropriate, save for the guilty plea, which led to the determinate term of 18 years. Bates was, at the time of the manslaughter, on probation for an offence of assault occasioning bodily harm. His plea of guilty was late and not indicative of remorse.

[14] Unlike the present applicant, Bates' significant prior history was confined to the assault which led to the probation. Another point of distinction is that when he committed the manslaughter, Bates was only 19 years of age: this applicant was aged 42 years at the time of his offence.

[15] Mr Martin pointed to what he called a constellation of aggravating features: the applicant's bad history, that he committed this offence while on bail for the other, the brutality of the killing, his elaborate steps to conceal it, and the death threats administered to Hoare to induce his help.

[16] There is of course no explanation for the offence - no suggestion, for example, of provocation or self-defence or past antagonisms.

[17] The applicant fell to be sentenced for a brutal killing committed by a remorseless offender with a substantial relevant prior history, including a very serious offence of doing grievous bodily harm committed only about 12 months before this killing - in which he came close to killing his then victim. As to the absence of any explanation, only the applicant could provide it. That said, he was entitled to some credit for his plea of guilty, but there is no other identified mitigating feature.

[18] In R v Corry [2006] QCA 203, it was on 9 June 2006 affirmed, in the context of Bates, that the most serious cases of manslaughter justify a range of 15 to 18 years imprisonment "even where the offender has pleaded guilty". It would be unduly subtle to exclude this case from that category.

[19] Mr Rafter referred particularly to R v Kelly [1998] QCA 340, where the Court of Appeal imposed nine years imprisonment for a killing through the application of severe force to the skull. Kelly and that deceased had been in a relationship. It seems many years earlier, Kelly had been convicted of doing grievous bodily harm with intent, and sentenced to 10 years imprisonment. It is important to note that Kelly's manslaughter was committed prior to the 1997 amendments to the Criminal Code 1899 (Qld) in relation to offences of personal violence.

[20] The learned Judge was right to rely on the recent decision in Bates, which as I have mentioned bears resemblance to this case. On that basis, I consider the starting point, after allowing for the plea of guilty, was actually the range of 17 to 18 years, not 16 years as adopted by his Honour. Adding the sentences to which he has been subjected, four years nine months imposed in the District Court and 14 years for this offence, produces 18 years nine months. (We were informed his full time release date is 25 April 2021, and he will be entitled to apply for post-prison community based release on 24 October 2016.) I cannot regard that as inappropriate for two separate brutal attacks, one inflicting grievous bodily harm and the other causing death. I agree with the second sentencing Judge that the circumstances disclosed a clear need for a severe penalty which appropriately reflected the considerations of denunciation, deterrence and community protection.

[21] In all the circumstance it cannot be said that the sentence imposed was manifestly excessive.

[23] McMURDO P: The applicant, Ogborne, was originally committed for trial on murder. He pleaded not guilty. On 1 March 2005 he was ordered to be tried separately from Leanne Shales who had been charged on the same indictment with accessory after the fact to murder. His murder trial was to proceed on 2 March 2005. On that day he pleaded guilty to manslaughter, a plea accepted by the prosecution in satisfaction of the indictment. The allocutus was administered. He was remanded in custody and his sentence was adjourned to a date to be fixed. The matter was mentioned again on 12 August 2005 and leave was given to Ogborne's legal representatives to withdraw from the court record. Ogborne was then self-represented. He was sentenced to 14 years imprisonment to be served cumulatively upon the effective sentence of four years and nine months imprisonment imposed in the District Court on 20 September 2002 for the offences of burglary and doing grievous bodily harm. Ogborne has unsuccessfully applied to this Court for an extension of time to appeal against his conviction: see R v Ogborne.[1] He now contends through his counsel, Mr A J Rafter SC, that his sentence was manifestly excessive.

[24] The prosecutor at sentence outlined the following facts on which the prosecution relied. The deceased, Gary Allan Rieck, disappeared on 10 April 2002. That day he had spent some time with Paul Reid, the son of his landlady. He and Mr Reid drank at Murphy's Hotel, Ipswich. Mr Rieck there spoke by telephone to someone called "Leanne". Mr Rieck was not seen again. His landlady became concerned when he did not return home. She notified Mr Rieck's mother who in turn reported Mr Rieck to the police as a missing person. Police subsequently ascertained that Mr Rieck had telephoned Leanne Shales on 10 April 2002 from Murphy's Hotel.

[25] The deceased's body was found in bushland outside Ipswich on 11 September 2002. By that time the body was but skeletal remains. It was wrapped in carpet and a rug from Shales' house. Post-mortem examination revealed a linear fracture to the deceased's skull extending from the lateral aspect of the orbit and across the right temporal bone. At the base of the skull on the right side there was another linear fracture. The state of the facial skeleton suggested that facial trauma was a likely cause of injury although animal attack after death was possible. Moderate to severe force was required to cause the injuries, perhaps with a blunt object. Alternatively the skull fracture could have been caused by a stabbing but this was unlikely.

[26] Leanne Shales pleaded guilty on 3 March 2005 to accessory after the fact to manslaughter and was sentenced to 18 months imprisonment. Police officers spoke with Shales on 24 May 2002. She claimed that Mr Rieck had left her home unharmed. She was charged with Mr Rieck's murder on 22 November 2002. She contacted police on 10 March 2003 and gave police the following version of events. She shared a house with Ogborne. The deceased returned to her house where he and Ogborne had a fight. Ogborne asked Mr Rieck to leave. He left but later returned and asked to stay the night. He was given permission to stay and went to sleep. Ogborne and Shales were in the lounge room. Ogborne left the lounge room and returned five or 10 minutes later. He told Shales that he had stabbed Rieck. Another protagonist, Ronald Hoare, helped Ogborne clean the room and dispose of the body.

[27] The primary judge's sentencing remarks in respect of Shales and this Court's decision in her unsuccessful application for leave to appeal against sentence (R v Shales[2]) were tendered as exhibits in Ogborne's sentencing proceeding.

[28] Hoare, who was originally charged with being an accessory after the fact to murder, was to be an indemnified prosecution witness at Ogborne's murder trial. Hoare told police that he followed Ogborne to his home in the course of them together planning a break and enter. Ogborne produced a knife, took him to a bedroom and said "I think I've killed this bloke." Hoare saw the deceased lying on the bed with his face covered with blood. The walls and window were also splattered with blood. Ogborne said "You're going to help me or I'm going to kill you." Hoare said the deceased's top row of teeth and nose were pushed in and his lower jaw was dropped. Hoare assisted Ogborne to drag the body from the bed onto a carpet. The body was rolled in the carpet and lifted into Shales' Tarago van. They drove to bushland where they left the body. They returned to the house and cleaned the bedroom. Hoare claimed that Ogborne told him not to tell anyone or he would be killed.

[29] The deceased's mother, Mrs Dawn Rieck, provided a victim impact statement which set out the dreadful effect of his death on her and on the deceased's two children aged 12 and 11. She is now 73 years old and has been forced to become the primary carer for the deceased's 12 year old daughter.

[30] The prosecutor submitted that Ogborne had committed a very severe assault on the deceased causing his death. There was no evidence of justification or excuse. Ogborne did not receive any injuries. It seems the prosecution accepted the plea of guilty to manslaughter when it was first raised by Ogborne through his barrister in March 2005 because of the unreliability of the prosecution witnesses to be called at trial, Shales and Hoare.

[31] Ogborne, who was by now self-representing, submitted that he was not responsible for killing the deceased; his involvement was limited to helping in disposing of the body. He asked for leniency. He said he was sorry the man lost his life.

[32] Ogborne was 46 years old at sentence. He had an extensive criminal history. It commenced in 1977 with minor street offences, traffic offences, drug offences, assaults and property offences for which he was sentenced to community-based orders. In 1995 he was convicted of an assortment of property offences in the Inala Magistrates Court and sentenced to an effective term of eight months imprisonment. In 1996 he was convicted of two charges of serious assault on a police officer and breach of a domestic violence order and fined $1,500. In December 1996 he was again convicted of breaching a domestic violence order and fined $600. In 1997 he was convicted of yet a further breach of a domestic violence order and sentenced to two months imprisonment wholly suspended for two years. In February 1998 he was convicted of breaching bail and sentenced to four months imprisonment suspended for two years. In 2001 he was convicted of nine charges of breaching bail and fined. Of more relevance, on 20 September 2002 he was convicted after a three day trial in the Brisbane District Court of one count of burglary and one count of doing grievous bodily harm. The circumstances of those offences were as follows. On 21 March 2001 Ogborne found that his bicycle, which had earlier been stolen, was in the possession of the complainant with whom he had been drinking earlier that day. He went to the complainant's home and assaulted him causing fractures and life-threatening pancreatitis; the complainant lost one kidney from artery damage. Ogborne was sentenced to an effective term of four years and nine months imprisonment. The present offence of manslaughter was committed whilst on bail for those offences and Ogborne was serving his sentence for the 2002 offences when sentenced for manslaughter.

[33] A difficulty for the sentencing judge here was to determine the basis of the plea of guilty to the offence of manslaughter. The judge considered it a serious case of manslaughter. His Honour noted that Mr Rieck's death was very violent and that Ogborne had gone to elaborate lengths to conceal his crime. He threatened Hoare with death if he told police of Ogborne's involvement. Ogborne did not co-operate with the police investigation. Although Ogborne had pleaded guilty and the sentence must take account of this, the plea was late. He had a significant criminal history and was on bail for the offences of burglary and grievous bodily harm when he committed this offence. He was arrested on those offences on 15 April 2003 and had been in custody since. His Honour would have sentenced Ogborne to 16 years imprisonment but, because he was imposing a cumulative sentence, reduced that term to 14 years imprisonment.

[34] This has the effect that Ogborne is now subject to a continuous period of imprisonment of 18 years and nine months imprisonment for the combination of this offence and the September 2002 convictions.

[35] Mr Rafter contends that the learned sentencing judge gave insufficient weight to the plea of guilty. Ogborne pleaded guilty to manslaughter as soon as the prosecution offered to accept that plea in satisfaction of the murder charge. In effect, the plea of guilty was made at the first opportunity and although not accompanied by remorse should have been given more weight in mitigating the sentence. Ogborne's full time discharge date on the combined sentences is presently calculated as being 25 April 2021. He will be eligible to apply for parole on 24 October 2016 by which time he will have served over 13½ years imprisonment. Had he been sentenced to life imprisonment he would be eligible for parole after 15 years.[3]

[36] Mr Rafter relies on a number of cases which he contends are comparable to support his submission that the sentence imposed here was manifestly excessive: R v Kelly;[4] R v Smith;[5] R v Simeon;[6] R v Duong & Ors[7]and R v George; ex parte A-G (Qld).[8]

[37] One difficulty in finding comparable cases is that, because of Ogborne's conduct in successfully concealing the body for such a long period and in not providing any version of events to the sentencing court, it is impossible to accurately determine the complete factual matrix surrounding the killing. The acceptance of his plea of guilty to manslaughter means that he cannot be sentenced as though he committed murder. He must be sentenced on the basis that he unlawfully killed the deceased with no intention to kill or to do grievous bodily harm and not in circumstances amounting to murder under s 302(1)(b) Criminal Code 1899 (Qld). This was not a case of manslaughter by way of diminished responsibility under s 304A Criminal Code, nor was the plea accepted on the basis of provocation under s 304 Criminal Code.

[38] The following aggravating factors are, however, established on the evidence. Ogborne was a mature man. The judge was entitled to conclude that the killing was very violent, most probably through multiple blows with a blunt instrument. Ogborne concealed the body, increasing the distress suffered by the deceased's family. There was no evidence of any mitigating circumstances. Ogborne had a significant criminal history and a recent conviction for an offence of serious violence for which he was on bail when he committed this offence. His plea of guilty was not timely. His limited co-operation with the administration of justice, though a relevant mitigating factor, was diminished by his subsequent denials of guilt and attempts over numerous appearances in this Court to withdraw his guilty plea.

[39] In all the circumstances, the imposition of a cumulative sentence was appropriate but as the primary judge recognized, the sentence then required moderation to maintain proportionality. The effective total sentence for Ogborne's offences of burglary and grievous bodily harm and the subsequent offence of manslaughter was 18 years and nine months imprisonment with parole eligibility after about 13 years and six months.

[40] Of the cases referred to by Mr Rafter, Kelly is of no real assistance because it pre-dated the 1997 amendments to the Penalties and Sentences Act 1992 (Qld). This Court has often commented on the difficulty in comparing sentences for manslaughter cases which reflect facts as infinitely variable as the foibles of human nature. The facts in Smith, Simeon and George are less serious than the present case. The degree of violence used in Duong is, perhaps, more comparable. The principal offenders there were sentenced to 12 years imprisonment but they were youthful and heroin addicts without prior convictions for violence, although there was the exacerbating factor, not apparently present here, of a gang attack. Duong was not an Attorney's appeal and this Court's rejection of his contention that his 12 year sentence was manifestly excessive does not demonstrate that the sentence imposed here was outside the range.

[41] Two recent cases tend to support Ogborne's sentence. The first is R v Bates; R v Baker.[9] Bates was not quite 20 years old and Baker (Bates' former de factor partner) not quite 17 years old when they killed their unfortunate victim and committed an assault occasioning bodily harm on a 14 year old youth. Each pleaded guilty at a late stage to manslaughter. Bates was originally sentenced to life and Baker to 12 years imprisonment. Bates had a significant criminal history including a prior conviction for assault occasioning bodily harm for which he was on probation at the time of the killing. Baker had no prior criminal history. Bates was at the time of the offence subject to a domestic violence prevention order in respect of Baker. She telephoned him to seek retribution on the victims who had called her a "slut" when she refused to pay for the repair of scratches she caused to the bonnet of a car. The victims returned in fear to their home which they attempted to secure. Bates and Baker entered the home and assaulted both victims, viciously battering the deceased who offered no resistance. Baker urged on Bates by saying "Go my Rambo". While the deceased lay on the floor Bates kicked and punched him. When he stumbled towards the bathroom Bates kicked him to the head and when he fell to the floor resumed his attack. Baker stomped on the deceased's head with such force that she left the imprint of her footwear. The deceased died as a result of head injuries. When Bates heard of the death he threatened with death anyone who revealed his involvement. They were both unco-operative and actively dishonest when questioned by police. Their first trial for murder resulted in a mistrial. Pleas of guilty to manslaughter were accepted at the commencement of the second murder trial. On appeal Bates' sentence for manslaughter was reduced to 18 years imprisonment but Baker's sentence of 12 years imprisonment was undisturbed.

[42] The second case is R v Corry.[10] Corry was convicted after a trial of manslaughter and was sentenced to 17½ years imprisonment. He contended in this Court that the sentence was manifestly excessive and that a sentence of 12 years imprisonment was appropriate. Corry was in the deceased's home armed with a carving knife and a meat cleaver with which he killed the deceased. The evidence suggested he was motivated to avenge a perceived insult of someone who had briefly been his girlfriend and who had previously been in a relationship with the deceased. Keane JA, with whom the other members of the Court agreed, likened the case to Bates noting that Bates established that in the most serious cases of manslaughter the appropriate sentencing range, even where the offender has pleaded guilty, is 15 to 18 years imprisonment. The Court was satisfied that Corry's sentence of 18 years imprisonment was appropriate.

[43] As the sentencing judge (who was also the sentencing judge in Bates) recognized, the evidence here did not disclose the serious persistent violence that featured in Bates. On the other hand, Bates was much younger than Ogborne. Corry was also more serious than the present case in that it involved a home invasion, the use of a knife and absolutely no remorse nor co-operation with the administration of justice. The evidence established that Ogborne killed the deceased with a great deal of violence using a blunt instrument without any mitigating circumstances. Although he pleaded guilty to manslaughter as soon as the prosecution indicated they would accept that plea, his previous and subsequent conduct has demonstrated neither significant co-operation with the administration of justice nor remorse. He has a serious and concerning recent history of violence. Ogborne's sentence was less than that in Bates and Corry and was further mitigated because of its cumulative nature. The cases to which I have referred suggest that the appropriate range of cumulative sentence in Ogborne's case was between 11 and 14 years imprisonment. The sentence imposed, whilst at the high end of that range, has not been demonstrated to be manifestly excessive.

[44] For these reasons I would refuse the application for leave to appeal against sentence.

[45] KEANE JA: I agree with the reasons of the Chief Justice, and the order proposed by his Honour.

[1] [2006] QCA 161; CA No 233 of 2005, 17 May 2006.

[2] [2005] QCA 192; CA No 62 of 2005, 7 June 2005.

[3] Corrective Services Act 2000 (Qld), s 135(2)(c).

[4] [1998] QCA 340; CA No 167 of 1998, 6 August 1998.

[5] [2000] QCA 169; CA No 409 of 1999, 9 May 2000.

[6] [2000] QCA 470; CA No 167 of 2000, 21 November 2000.

[7] [2002] QCA 151; CA Nos 343, 338, 336, 344 of 2001, 30 April 2002.

[8] [2004] QCA 450; CA No 316 of 2004, 26 November 2004.

[9] [2002] QCA 174; CA No 295 and CA No 329 of 2001, 17 May 2002.

[10] [2006] QCA 203; CA No 263 of 2005, 9 June 2006.

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