SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  In this matter I have read the reasons for judgment and order proposed by Holmes JA and respectfully agree with those reasons and order.

[2]  HOLMES JA:  The applicant for leave to appeal against sentence was convicted of five offences of violence: disabling to commit an indictable offence, torture, assault occasioning bodily harm in company, deprivation of liberty and manslaughter.  In respect of the first three offences, he was sentenced to four years imprisonment and in respect of the fourth, two years imprisonment. Those sentences were concurrent, but cumulative upon a sentence of 12 years imprisonment imposed on the fifth count, manslaughter.  All offences were declared to be serious violent offences, with the result that the applicant must serve 80 per cent of the 16 year total before he becomes eligible for parole.

The manslaughter charge

[3] The manslaughter charge related to the killing of Linda Roberts.  The applicant and his co-accused, Amy Maher, had gone to trial on a charge of murdering Ms Roberts.  Each, while accepting that she had visited the house they were living in on the day she died, 18 August 2001, denied any involvement in her death.  Her naked body was found in bushland in November 2001, badly decomposed, with a rope noose and some plastic near it.  On the third day of the trial, Ms Maher made an admission inconsistent with her previous denial of knowledge of what had happened to Ms Roberts. Because of that development, on the fourth day of the trial the applicant pleaded guilty to manslaughter, but the Crown did not accept the plea.

[4] In the ensuing murder trial, the applicant gave evidence to the effect that on the day of her death, Ms Roberts had come to the house he shared with Ms Maher so that he could show her some bondage techniques. (He had some experience: he had engaged in bondage practices with his sexual partners, tying them up and being tied up.) When Ms Roberts first arrived, he and she had engaged in some play wrestling. In the course of it, she had sustained a laceration to her head, which bled a little, and he had received a scratch on his temple.  Then he showed her various ties and knots, culminating in his tying a rope around her neck, while she knelt on the floor, and attaching the other end of the rope to a curtain rail.  The applicant, on his evidence, left her in that position, with her elbows tied behind her back, in order to go and get some drinks.  When he returned, he found her slumped forward with her weight against the rope.  He released her and attempted to revive her, but realised she was dead. He took her body into the bathroom and removed her clothes.  There, for some unexplained reason, he made a cut on one of her legs.  He washed the body; he accepted that he might have told Ms Maher he had done so in order to remove any of his hairs from it. 

[5] The applicant placed Ms Roberts’ body in a suitcase.  He and Ms Maher used Ms Roberts’ car to take the body to bushland, where they carried it some distance from the road and left it, to be found some three months later.  The applicant removed the rope and some gladwrap he had wrapped around the cut he had made to the leg, leaving those articles and the suitcase elsewhere in the bush.  He and Ms Maher then drove the car to a video store from which Ms Roberts had borrowed a video earlier that night.  They left the vehicle, with the video tape in it, outside the store so that it would look as if she had gone missing there.  The applicant threw Ms Roberts’ keys and purse in a nearby industrial bin.  He and Ms Maher returned to their home, changed and went out again by car at about 2 am, stopping at a nearby service station to make some purchases so that the time of their being there would be recorded as some form of alibi evidence. Then they drove about, disposing in various places of Ms Roberts’ clothes and jewellery and the clothes the applicant had been wearing.

[6] On their eventual return home, at about 5 am, the applicant used a programme to alter files on his computer to make it seem as though he had been home earlier the preceding night. The next day he went back to where he had left the suitcase, retrieved it, and took it to another location.  On that day he also sent text messages to Ms Roberts’ mobile telephone about some supposedly forgotten sunglasses, to create the impression that he was unaware of her disappearance.  Later he took part in searching with her family and friends for her body, and he attended a memorial service for her. When interviewed by the police he gave an account of Ms Roberts visiting the house and departing unscathed at about 11 pm. All of those acts of concealment and deception were done, the applicant claimed, out of an apprehension that he would not be believed as to the manner in which Ms Roberts had met her death.

The disabling, torture, assault and deprivation of liberty charges

[7] After the applicant and Ms Maher were arrested for Ms Roberts’ murder, another young woman, Melissa Gazsik, came forward and gave an account of an experience she had had a year earlier at the applicant’s hands.  She had met the applicant in 1999, when they were both students at a Brisbane university, and they had become friends, although he was considerably older. (She was 18 years old, he 31.)  In May 2000, the applicant told her that he and Ms Maher had a surprise for her to cheer her up and arranged to meet her for that purpose.  He took her on his motor bike to bushland near Capalaba, where they found Ms Maher waiting for them.  On seeing Ms Maher, Ms Gazsik went to hug her. While she was doing so, the applicant grabbed her from behind, using an arm round her neck to choke her.  She resisted, kicking and scratching; he lost his grip but then got a one-hand hold on her neck from the front, and applied pressure, causing her difficulty in breathing.  She managed to push him away but fell, face down, to the ground.  The applicant straddled her, and again used a one-handed grip to choke her from behind while Ms Maher sat on her legs.  Then she was rolled over and the applicant sat on her chest, pinning her arms, and continued to choke her while Ms Maher held her legs down.  She struggled for breath and passed out. 

[8] When Ms Gazsik came to, the applicant was no longer applying pressure to her throat.  He put a plastic bag rolled into a ball into her mouth and gagged her with some other object. Her arms were tied behind her back with Velcro strips while other strips were placed around her shins and thighs.  The applicant and Ms Maher laid her down, thus restrained, under a tree while they went through her belongings.  Ms Gazsik began to experience what she described as shock.  The applicant and Ms Maher covered her with their jackets and lay on her to keep her warm.  Then they removed the leg restraints, got her up and took her to where there was a sheet on the ground between two trees. Above it was a rope attached to some sort of pulley system. The applicant put a noose over Ms Gazsik’s head and tied it, then used the pulley system to raise the rope, and her neck with it.  He took the gag out of her mouth and told her that if she said anything or tried to escape, he would pull the rope tighter and strangle her. 

[9] After some 15 minutes had passed, the applicant informed Ms Gazsik that he had done these things because he loved her and needed to teach her a lesson. After she had promised that she would not tell anyone about what had happened, he took the noose off. The three of them embraced each other.  The applicant invited Ms Gazsik to join him and Ms Maher in a threesome, an offer which she declined.  Ms Maher presented her with a teddy bear with a card reading “We love you and we’ll always be there for you”. 

[10]  Not surprisingly, Ms Gazsik said that during these events she feared for her life and for about 24 hours afterwards she continued to fear that she was in danger of dying. In terms of physical injury she was left with bruising, some cuts, and pain in her throat and arms, for which she obtained medical attention the next day.  In a victim impact statement she said, and the learned judge accepted, that she had suffered ongoing emotional harm from the attack, including a loss of self confidence which had caused her to change her career path. Nonetheless, when she was giving evidence at the committal proceedings, Ms Gazsik said she accepted that the intentions of the applicant and Ms Maher were not malicious; they had acted out of concern for her.

The judge’s findings and the applicant’s submissions on them

[11]  The applicant was convicted of murder at trial, but that verdict was set aside on appeal and a verdict of manslaughter substituted.  Later he pleaded guilty to the offences against Ms Gazsik and was sentenced in respect of those offences and the manslaughter at the same time. The learned sentencing judge had before him, among other things, submissions made on an earlier, adjourned sentence hearing; the transcript of the applicant’s evidence at his trial for murder; the applicant’s statement to police; and the judgment of the Court of Appeal.  He made a number of findings adverse to the applicant. 

[12]  In particular, in respect of the four counts involving Ms Gazsik, the learned judge found that, although Ms Gazsik accepted that the applicant and Ms Maher were motivated by a desire to help her, because she had been told that by the applicant, there was

“no reason why Huebner should be believed on this or any other aspect of his evidence which is not against … his own interests”.

Instead, he found that “the more probable explanation” for the assaults on Ms Gazsik was the applicant's

“pursuit … of his interest in bondage and, in particular, bondage taken to a point at which there was a risk of death or at least such a risk that the person subjected to the bondage had a real fear of death”. 

The apology that the applicant offered Ms Gazsik was likely to have been an attempt to placate her so that she would not complain to the authorities, rather than any expression of remorse.

[13]  Mr Glynn SC, the applicant’s counsel on the appeal, challenged those findings, arguing that although it was open to the learned sentencing judge to reject the applicant’s evidence generally, that was not a proper approach where his evidence was corroborated.  The applicant’s claim to have acted out of concern for Ms Gazsik was supported by her stated perception of the applicant’s motives and by the presentation to her of the teddy bear and card. It was improbable, if the applicant were engaging in bondage and torture for its own sake, that he would suppose he could appease the victim with a teddy bear and a card.  If it were accepted that the motive for the assaults was a benevolent one, and allowing for the applicant's plea of guilty, a sentence of 18 months to two years was appropriate, reflecting criminality stemming from poor judgment rather than any desire to harm.  Even if the learned trial judge’s findings were accepted, allowing for the totality principle, four years was too high a starting point; a sentence of two to three years would have been appropriate.

[14]  As to the killing of Ms Roberts, the learned sentencing judge again rejected the applicant’s version, for a number of reasons: because it was diametrically opposed to his account to the police; because his conduct in many respects, including his failure to seek help for Ms Roberts, his disposal of her body and his attempts to escape detection, demonstrated his determination to preserve his own interests by any means; and because his version was inherently improbable. His Honour did not accept that Ms Roberts had gone to the applicant’s residence to be shown bondage techniques.  Having looked at the e-mails which had passed between them, he concluded that Ms Roberts expected a quiet evening with the applicant and Ms Maher, but it was probable that the applicant “taking advantage of the deceased’s trust in him and, without her consent, placed her in a position in which her life was in real danger”.

[15]  The sentencing judge thought it likely that the applicant’s account of a wrestling incident was a concoction in order to explain the scratch to the applicant’s face and some blood stains in the room where Ms Roberts was killed. The applicant's conduct was “the abuse of a relationship of trust and confidence by an older man so as to place a young woman in jeopardy through pursuit of his deviant interests”.  His plea of guilty did not reflect remorse, although he was entitled to some credit for having expedited the administration of justice. The learned judge said that, but for the applicant’s plea of guilty and the need to have regard to the totality principle, he would have imposed a significantly higher sentence than 12 years imprisonment.

[16]  It was argued for the applicant that the learned sentencing judge’s findings as to the killing of Ms Roberts amounted to findings of criminally negligent killing arising out of a breach of trust for the applicant’s “deviant” purposes. Those findings did not entail reckless disregard by the applicant of Ms Roberts’ interests; rather the conclusion was that he had exposed her to serious danger without any intention that she be harmed in any way. On that basis, it was contended, the only really comparable case was Streatfield[1]. The applicant there had been charged with murder but was convicted of manslaughter. In what was described as “theatrical” behaviour, he had pointed a gun at his pregnant de facto wife, believing it to be unloaded, and pulled the trigger, shooting her.  He had no intention to harm, and was grieved and remorseful. 

[17]  Streatfield was sentenced at first instance to nine years imprisonment (having already spent six and a half months in custody); but that sentence was set aside on appeal and a sentence of five years imprisonment, with a recommendation for parole after 18 months, substituted.  Thomas J stressed the lack of intention to harm as the most important factor in assessing the quality of Streatfield’s act: malice was absent, stupidity the predominant feature.  Relying on Streatfield, and accepting that the breach of trust entailed in exposing Ms Roberts to risk justified a greater punishment, the applicant argued that a sentence of eight to nine years was appropriate here.

The judge’s findings in relation to the Gazsik offences

[18]  The learned sentencing judge was entitled to make the findings he did in relation to the events involving Ms Gazsik.  He was not obliged to accept her assessment of the applicant’s motives. It would require an uncommonly charitable (and perhaps credulous) approach to conclude that the experience inflicted on her, was for her own good. At any rate, having had access to the evidence of the applicant’s callous and calculated conduct after the death of Ms Roberts, the sentencing judge had a proper basis for taking a far less favourable view than Ms Gazsik, who had only, to the point at which she was assaulted, known the applicant as a friend.  The judge was perfectly entitled to arrive, instead, at the conclusion that the applicant was inspired by his enjoyment of bondage involving the instilling of terror in the subject, and that the gift of the teddy bear with the conciliatory card was no more than a cheap attempt at placating a humiliated, terrified young woman. There was plenty of evidence to suggest that the applicant was capable of planning the gift as part of the process of manipulating Ms Gazsik into thinking that the whole activity was really a genuine, if misguided, attempt to help her. His conduct in the period after Ms Roberts’ death - his involvement of Ms Maher in the disposal of the body, his elaborate deception of the police and Ms Roberts’ family - certainly suggests a disposition to seek to convince and manipulate others and a strong belief in his own power to do so.  On that view, that Ms Gazsik was used and harmed for the applicant’s enjoyment, a sentence of four years imprisonment was undoubtedly open.

The basis for sentencing on manslaughter

[19]  There are two important aspects of the learned judge’s sentencing remarks in relation to the killing of Ms Roberts.  The first is his choice of words when he speaks of the applicant’s abuse of the relationship of trust with Ms Roberts so as to put her in jeopardy through the pursuit of his deviant interests.  That indicates a view that the disregard for her welfare was deliberate, not some unthinking carelessness. That he should have taken that view is not surprising.  The applicant’s activities were planned and purposeful; one can infer he knew from the experiment with Ms Gazsik that he knew that the activity of tying the subject in a noose was, at the least, likely to cause real suffering and terror. The desire to cause such suffering and terror was what his Honour referred to as the applicant’s “deviant interests”.  The second important aspect of the remarks is the finding that Ms Roberts was put in a position of danger - with the rope placed around her neck - without her consent.

[20]  Those findings take this case out of the realm of criminal negligence.  It bears no resemblance to Streatfield.  The applicant's acts have nothing of the inadvertent or spontaneous about them. His Honour’s conclusion was that the applicant used Ms Roberts for his own amusement without her consent and with a cynical disregard for her safety. In sharp contrast to Streatfield, who, it was found, experienced real and considerable remorse, the applicant set about concealing what he had done and posed as a grieved friend in searching for her and attending her memorial service.  Accepting that those acts were done out of self preservation, they nonetheless contributed to the anguish of Ms Roberts’ family and were appropriately taken into account on sentence.

Other manslaughter sentences

[21]  The respondent Crown relied on three cases to support the sentence.  The first was R v Clarke; ex parte A-G[2]. The respondent there had been found guilty of manslaughter, having previously offered to plead guilty to that offence, after a murder trial.  In the early hours of the morning, he had left a night club with a young woman he met there.  A couple of days later her body was found floating in the river with a large block of wood attached to it. The respondent was 24 years old with a minor criminal history.  All that could be said about the offence was that he had either assaulted the deceased, killed her, and then thrown her body in the river, or had put her, unconscious, in the river to drown. On the Attorney-General’s appeal, a sentence of 11 years imprisonment was upheld, but a recommendation for consideration for eligibility for parole after four and a half years imprisonment was removed. 

[22]  In R v Sutherland,[3] the deceased woman had been asphyxiated and her body left in a canefield.  The appellant claimed that her death was an accident in a sexual bondage situation; but there were a number of reasons not to believe him, and the jury by its manslaughter verdict excluded accidental killing.  The appellant had a substantial criminal history for dishonesty and arson.  His application for leave to appeal against his sentence of 11 years imprisonment (an effective sentence of more than 12 years, because he had served 10 months on remand) was dismissed. For the Crown, Mr Rafter SC pointed out that Sutherland was decided in 1991, predating the 1997 amendments of the Penalties and Sentences Act 1992 (Qld) which introduced the serious violent offence provisions.  He submitted that the courts’ attitude to crimes of violence had hardened considerably in the time since.

[23]  In R v Baggott,[4] the applicant for leave to appeal against sentence had been sentenced to 11 years imprisonment for the manslaughter of his ex-wife.  Her body was never found, but the applicant said that in the course of an argument he had hit her, she had fallen and struck her head and died, and he had put her body in a river.  The deceased left a 10 year old daughter (not the child of the applicant) whose sole parent she had been. The applicant was sentenced on the basis that he had meant to do his ex-wife some injury short of an intention to kill or do grievous bodily harm. He had no criminal history.  He had offered to plead guilty to manslaughter before the trial, but had not shown any sign of remorse.  The trial judge, when he came to sentence, said that he regarded the applicant as untruthful.  The Court of Appeal observed that the judge was not bound to accept the view of the events most favourable to the applicant. An aggravating feature was the disposition of the body in such a way as to make it impossible to determine what the cause of death was. A sentence of 11 years was within the range for manslaughter sentencing.

[24]  In R v Ogborne[5] the applicant had been sentenced to 14 years imprisonment for manslaughter, cumulative upon a term of four years and nine months for grievous bodily harm; the grievous bodily harm was a severe assault causing serious organ damage to the victim. The manslaughter, committed on bail, involved beating the deceased to death. His body was disposed of in bushland.  The applicant had pleaded guilty to manslaughter, but it was a late plea and regarded as of little significance; it resulted, at first instance, in the sentence being reduced from 16 years to 14.  The Court of Appeal referred to the callousness in dumping the body, causing additional distress to the deceased’s family, as a relevant factor. The sentence, although described by two members of the court as at the high end of the appropriate range, was upheld.

Conclusions

[25]  The learned sentencing judge made the point, in my respectful opinion entirely validly, that manslaughter offences were so variable that it was difficult to generalise about appropriate sentences or compare sets of facts one against the other. Nonetheless, the cases pointed to by the Crown do not suggest that 12 years imprisonment was, in all the circumstances, remarkable.  The real question is whether the total sentence of 16 years imprisonment for all offences was, having regard to the totality principle, excessive. Mr Glynn argued that if the learned sentencing judge had borne that principle in mind, the 12 year sentence imposed for the manslaughter implied a starting point for it of 14 years. That accords with the sentencing judge’s comments; but a starting point of 14 years for this manslaughter was not, in my view, beyond a proper exercise of discretion.  It would certainly fall at the higher end of any range, but the applicant’s callousness, in putting Ms Roberts in harm’s way, in failing to seek any help for her and in the course of concealment he adopted afterwards, was such as to make it supportable.

[26]  The events involving Ms Gazsik and the killing of Ms Roberts were entirely distinct events, so that cumulative sentencing was, in principle, appropriate. The offences themselves were of a kind, with the distinction that one proved fatal.  Both sets of offending were, as the sentencing judge found, driven by the applicant’s enjoyment of inflicting pain and fear through bondage, both with an unwilling victim made to suffer for his amusement.  Having regard to the criminality involved, the end result of 16 years imprisonment is not, in my view, beyond a proper exercise of sentencing discretion.  I would dismiss the application for leave to appeal.

[27]  CULLINANE J:  I have read the reasons of Holmes JA and agree, from the reasons she has given, that the application should be refused.