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

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).
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

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);…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCCA 234
Decision Date: 04 November 2022

CaseChat Overview and Summary

The case involved an appeal by the appellant, O'Brien, against his sentence for obtaining a financial advantage by deception. The appeal was heard in the High Court of Australia. The appellant was convicted and sentenced to imprisonment for obtaining a financial advantage by deception, a charge that involved dishonestly obtaining money from the Commonwealth through fraudulent means. The appellant argued that the sentence was manifestly excessive and that the sentencing judge had not properly considered the concept of exceptional hardship, which the appellant did not specifically argue before the sentencing judge.

The court was required to determine whether the appeal against sentence should be upheld based on the ground that the sentence was manifestly excessive. This involved examining whether the sentence was so disproportionate to the offence that it shocked the conscience of the court. Additionally, the court had to consider the relevance of the concept of exceptional hardship, particularly since it was not specifically argued before the sentencing judge, and whether this omission was sufficient to establish manifest excess.

The court found that the sentence was not manifestly excessive. The appellant had not demonstrated any exceptional hardship that was not considered by the sentencing judge, and thus the ground of appeal based on manifest excess was not sustained. The court held that the sentencing judge had properly exercised their discretion and had considered all relevant factors in determining the sentence. Consequently, the appeal against sentence was dismissed, and leave to appeal was refused.

Orders