O'Brien v The The King

[2022] NSWCCA 234

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

O’Brien v R [2022] NSWCCA 234

Hearing dates:

7 September 2022

Decision date:

04 November 2022

Before:

Mitchelmore JA at [1];
Button J at [2];
Wright J at [41]

Decision:

(1) Leave to appeal against sentence refused.

Catchwords:

CRIME – Appeals – Appeal against sentence – Dishonestly obtain financial advantage – Manifest excess – Where “exceptional hardship” specifically conceded not to exist before sentencing judge – Manifest excess ground not sustained – Leave to appeal refused

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Cases Cited:

R v Edwards (1996) 90 A Crim R 510

Totaan v R [2022] NSWCCA 75

Category:

Principal judgment

Parties:

Patrick O’Brien (Applicant)
Rex (Crown)

Representation:

Counsel:
S Kluss (Applicant)
E Wilkins SC (Crown)

Solicitors:
Ross Hill and Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2020/155965; 2020/177699; 2020/194339; 2020/198790; 2020/147279; 2020/215291

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 December 2021

Before:

Ingram SC DCJ

File Number(s):

2020/155965; 2020/177699; 2020/194339; 2020/198790; 2020/147279; 2020/215291

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal against an aggregate sentence imposed on him on 17 December 2021 by Judge Ingram SC in the District Court for three counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). Four further similar offences were taken into account on a Form 1. The applicant received an aggregate head sentence of 5 years 6 months, with a non-parole period of 3 years 6 months.

The applicant pressed two substantive grounds of appeal. First, that the sentencing judge had erred in assessing the hardship accruing to the family of the applicant from his incarceration, specifically in light of the severe disabilities of his young son. Secondly, that the aggregate sentence was manifestly excessive.

The Court held, in refusing leave to appeal against sentence (per Button J, Mitchelmore JA and Wright J agreeing):

As to ground 1

1. With regard to state offences, it is for the offender in proceedings on sentence, and for any applicant on re-sentence, to positively demonstrate hardship to third parties. There was no evidence of the applicant playing a significant role in caring for his family in general, or the child in particular: [17]-[18] (Button J); [1] (Mitchelmore JA); [41] (Wright J).

2. It would be absurd to suggest that money obtained from criminal activity, that may have been used to support the applicant’s family (but was no longer available), could be taken into account as hardship to them: [22] (Button J); [1] (Mitchelmore JA); [41] (Wright J).

As to ground 2

1. Factors including the objective seriousness of the offending, the vulnerability of the victims, and the significant and similar criminal antecedents of the offender meant the head sentence could not be said to be manifestly excessive: [39] (Button J); [1] (Mitchelmore JA); [41] (Wright J).

JUDGMENT

1. MITCHELMORE JA: I agree with Button J.

2. BUTTON J:

Introduction

Mr Patrick Michael O’Brien (the applicant) has applied for leave to appeal against an aggregate sentence imposed by Judge Ingram SC on 17 December 2021 in the District Court at Campbelltown. In light of the order that I consider appropriate, I shall be succinct in my discussion of the background of the matter, its objective and subjective features, and the resolution of the application.

3. The applicant pleaded guilty to three substantive counts of dishonestly obtaining a financial advantage by deception. Each of those offences was committed contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), which features a maximum penalty of imprisonment for 10 years, and no standard non-parole period. There were four further similar offences to be found on two Form 1 documents.

4. The learned sentencing judge ultimately imposed an aggregate head sentence of imprisonment for 5 years 6 months, to commence on 25 May 2020, with a non-parole period of 3 years 6 months, which will expire on 24 November 2023. A diagram setting out the details of that sentence and the indicative sentences that underpinned it is to be found at the conclusion of this judgment.

5. As for the objective features, the applicant had presented himself as a qualified tradesman on a website designed to put tradespeople in touch with customers needing their help. In fact, he was no such thing. He purported to complete home repairs and renovations that were, in truth, seriously defective; indeed, in some cases, rectification works themselves cost hundreds of thousands of dollars.

6. In total, there was seven victims, most of them elderly and vulnerable, and some of them very elderly. In one case, a victim lost her home because of the financial ruin visited upon her by the crime of the applicant.

7. The particularised amount dishonestly obtained in count 4 was $30,000; in count 2 it was $276,300; and in count 3 it was $438,180. The total sum spoken of in the three substantive counts and the further four charges approached $800,000.

8. Having said that, it was accepted by the Crown and the sentencing judge that the applicant should be sentenced on the basis that he did not receive all of the sums involved, and was merely part of a team of criminals.

9. Subjectively, the applicant had pleaded guilty at a late stage and received a discount of 5% percent on each indicative sentence, about which there is no complaint. A man in his late 30s, he had grown up in Ireland in deprived circumstances, and arrived in Australia in 2018 on a tourist visa with his family.

10. Very sadly, his young son suffers from multiple disabilities and conditions, including spina bifida, which I understand to be an extremely grave developmental defect in which a portion of the spinal cord of a newborn baby is exposed, with many profoundly adverse consequences. The child was also born with significant heart problems, hydrocephalus (excess fluid in the brain) and an intellectual impairment. Most recently, while hospitalised, he contracted meningitis, which has rendered him permanently blind, adding to the tragic burdens with which he must live, and which his family must also bear.

11. In short, it is indisputable that the son of the applicant, aged thirteen as at the date of sentence, is severely disabled; he will require 24 hour care into the foreseeable future; and the whole situation must surely be a source of ongoing and severe distress to those who love him, including, of course, the applicant.

12. At the time of the offending, the applicant suffered from a serious problem with alcohol and cocaine, and there was evidence that, when not committing the offences, he spent quite a deal of his time in hotels. By the time of his arrest on 25 May 2020, his family had departed this country and returned to Ireland approximately 4 months beforehand.

13. A significant subjective feature was that, although the applicant possessed no criminal record in this country, he had been sentenced to significant terms of imprisonment in Ireland and the Netherlands for offences of a similar kind.

Determination of leave application

14. Two proposed grounds of appeal were notified:

1. The learned sentencing Judge erred in assessing the probable effect that the sentence under consideration would have on the applicant’s family or dependents by:

1. Finding that the evidence adduced in the applicant’s case did not establish hardship to third parties different to that which would be expected normally; and

2. Assessing the relevance of any hardship to third parties disclosed by the evidence adduced in the applicant’s case on the basis that such hardship needed to be exceptional to be taken into account.

2. The sentence imposed was manifestly excessive.

15. Turning to the first ground, counsel on the application accepted that the import of the ground was contrary to a concession that had been made explicitly on behalf of the applicant at first instance. But she submitted that the severe disability suffered by the young son of the applicant meant that the question could and should be revisited, and the incarceration of the applicant in New South Wales should indeed be seen as giving rise to exceptional hardship to his family.

16. There are three aspects of this ground that, in my opinion, make it untenable.

17. The first aspect is that counsel did not seek to revisit the longstanding proposition that, with regard to State offences, such hardship needs to be demonstrated. I appreciate that the position has altered with regard to federal offences, on the basis of statutory interpretation of s 16A(2)(p) of the Crimes Act 1914 (Cth); as to which, see the decision of this Court in Totaan v R [2022] NSWCCA 75. But for the purposes of this question of leave, I accept the implicit concession of counsel for the applicant that it is incumbent upon him not just to show a measure of hardship to his family, but indeed exceptional hardship.

18. In that regard, analysing the material placed before the sentencing judge, there was no such evidence. The evidence was that, in fact, before the incarceration of the applicant, his wife was the primary carer of the son. Indeed, as I have said, the subjective case for the applicant was that he had a serious, criminogenic problem with alcohol and prohibited drugs. There was no evidence that the applicant had played any particularly important role in caring for his son.

19. Furthermore, to reiterate: by the time the applicant was arrested in May 2020, his family had left this country some months previously, and he was therefore, as a matter of simple geography, in no position to provide direct care to his son, or any other of his three children.

20. As to indirect support, it was submitted that he had stayed in Australia to obtain medical records of his son necessary to pursue legal action, and as I understand it this was not bitterly resisted by the Crown on appeal. But as a matter of practical reality, the applicant was not in a position to provide assistance to his family in the care of his son.

21. Furthermore, it was acknowledged by counsel for applicant that he struggled to obtain legitimate employment, and had struggled to support his family with the abilities and resources he had. There was no evidence of the legitimate work prospects of the applicant, except for an unskilled position on a relative’s farm in Ireland.

22. Finally, although one can readily infer that some of the money that the applicant obtained from his offending went towards the support of his family, as the Crown prosecutor submitted before this Court, it would make a mockery of the criminal law if the cutting off of his ill-gotten gains to the detriment of his family could be relied upon as a mitigating factor on sentence.

23. In short: there was no evidence before the sentencing judge that the incarceration of the applicant occasioned exceptional hardship to his family.

24. The second adverse aspect of the ground is that it is directly contrary to a concession that was advisedly made by counsel at first instance. The following extracts from the proceedings on sentence conclusively demonstrate that fact.

25. In the written submissions of defence counsel at first instance, emphasis was placed upon the severe disability of the son of the applicant. It was said to impose “severe emotional, physical, and financial” burdens on the wife of the applicant, who was said to be the primary carer. All of that, combined with the physical separation between the incarcerated applicant and his family, and his inability to assist in their care, was said undoubtedly to cause the applicant “significant emotional distress and trauma”. And that, amongst other factors, was said to “give rise to at least a finding of special circumstances”.

26. In other words, in written submissions prepared by counsel almost a year ago, it was never asserted that the incarceration of the applicant would cause exceptional hardship to his family; indeed, the focus was upon hardship to himself.

27. Secondly, at pages 41-42 of the proceedings on sentence, the following exchange occurred:

“HIS HONOUR: …I’ll hear from [defence counsel] but my impression was that what I was being urged to do was to treat the various matters in the subjective case as all part of the background factual matrix relevant to the sentence but no submission has explicitly been made, as I understand it that this is a case that falls into the exceptional category of third party hardship or impact on third party of the type the Court of Criminal Appeal has referred to Edwards v R for example. But I’m urged to take into account the nature and circumstances of the family situation concerning the child and the consequences for the mother having additional burdens placed on her to care for the child and the overarching concern that any father would have including this offender in relation to the wellbeing of his son and the demands that are placed on the family in relation to his proper treatment and the care that he needs to be provided with. But I didn’t hear [defence counsel] to be saying to me that this is a case that falls within the exception to which the Court of Criminal Appeal has referred to in such cases as Edwards. Have I done any violence to your submissions [defence counsel]?

[DEFENCE COUNSEL]: Your Honour has put it in a nutshell.

28. In other words, the proposition sought to be put forward in this Court was pellucidly eschewed at first instance.

29. To summarise the second adverse aspect: that state of affairs argues very strongly against a grant of leave, especially bearing in mind that there is no allegation now made of incompetence.

30. The third aspect is that things said by the sentencing judge in the proceedings on sentence and remarks on sentence generally demonstrate that hardship arising to the applicant and his family as a result of his incarceration was taken into account as part of the instinctive synthesis on sentence. In other words, the sentencing judge did exactly what he was asked to do, and the factor was taken into account in a generally mitigating way. The important extracts are as follows:

31. At page 29 of the proceedings on sentence:

“HIS HONOUR: …I take it from what I’ve read that where persons detained in custody who are referred to residing normally in Australia and whose family reside normally in Australia might be able to make telephone calls from custody which involve whatever the charges might be but they’re domestic or local call charges. I’m correct in assuming am I that in order for your client to contact his family and relatives and friends overseas he’s required to pay for that?

DEFENCE COUNSEL: Yes your Honour.

HIS HONOUR: And that’s at whatever the international rates for such calls might be?

DEFENCE COUNSEL: That’s exactly right.

HIS HONOUR: Yes I understand.

DEFENCE COUNSEL: And he’s been as I understand it, his account is topped up by his wife.

HIS HONOUR: I understand.

DEFENCE COUNSEL: And I don’t think with the greatest respect anybody would cavil with the fact that Mr O’Brien would be as any father, struggling with his sons incapacities and worried about his future and worried about the fourth coming operation. I can’t put it any higher than that but I would think you would be less than human to discount that.

HIS HONOUR: I would think it needs no more than to be said that this is the child’s dilemma. It’s obviously a condition of long standing. Accordingly the offender must understand how important the procedure is and all of those matters would bear heavily upon the shoulders of any father.

32. In the remarks on sentence at pages 73-4, his Honour made the following observation:

“Despite the magnitude of the child's medical and other difficulties, as well as the impact of them upon the offender's wife and family, it has not been submitted that this is a case in which hardship to third parties falls within the ambit of the principles referred to in R v Edwards (1996) 90 A Crim R 510.

Rather, the submission has been made on behalf of the offender that the present is a case in which the medical situation of J, as well as the pressures and other difficulties that they cause for other members of the family, including his mother and the offender, are all an important part of the factual matrix relevant to the sentencing of the offender.

The Court is satisfied that in all the circumstances the medical condition of J and the consequences for the offender's wife and other family members are indeed factors that should be taken into account as part of the factual matrix of the subjective circumstances of the offender.

For those reasons, the Court will so proceed to take those factors into account in the synthesis of the index sentence.”

33. In other words, the whole topic of the separation of the applicant from his family in general and his very disabled son in particular was not disregarded or discounted by the sentencing judge. On the contrary, it was given significant weight. What the sentencing judge did not do is take into account the argument now sought to be made that founds the first ground. And his Honour did not do that entirely in accordance with the submissions then made on behalf of the applicant.

34. In short, the proposed ground is directly contrary to a concession that was made more than once by counsel at first instance. That concession was soundly based, because there was no evidence of exceptional hardship arising to the family from the incarceration of the applicant in any event, not least because by that stage they were living overseas, and he was not a significant caregiver with regard to any of his children. Finally, the judge amply took into account the subjective and emotional hardship that accrued to the applicant and his family in a general way as part of the sentencing exercise.

35. For all of those reasons, I consider that leave should be refused to argue this ground.

36. The second proposed ground asserts that the aggregate sentence is manifestly excessive, in the sense of being patently unreasonable, and beyond the sentencing discretion reposed in Judge Ingram.

37. The submissions in this Court were that one can come to that view because of a combination of factors, including the exceptionally sad circumstances of his family, the exacerbated difficulties of incarceration during the COVID-19 pandemic, and the emotional hardship of being so removed from his family in Ireland. No reliance was placed upon comparative cases or statistics.

38. I respectfully believe that the question of leave to do with this ground is also capable of resolution without deep analysis, as follows.

39. In light of the multiple victims; the substantial sums involved in two of the counts; the very substantial sum involved as a whole; the severe consequences of the offending to some of the victims; the heartlessness of the criminal enterprise generally; and the significant criminal antecedents of the applicant, it is impossible to be satisfied that any attribute of the aggregate sentence is manifestly excessive.

Orders

40. For the foregoing reasons, I consider that the appropriate order for this Court to make is:

1. Leave to appeal against sentence refused.

41. WRIGHT J: I agree with Button J.
    O'Brien v R Sentencing Diagram (2582, pdf)

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Decision last updated: 04 November 2022