O'Dwyer v The King - [2025] NSWCCA 95

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O’Dwyer v R [2025] NSWCCA 95
Hearing dates: 11 April 2025
Decision date: 23 June 2025
Before: Mitchelmore JA at [1];
Rothman J at [62];
Yehia J at [63].
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – dishonestly obtain financial advantage by deception – contravention of section 192E(1)(b) Crimes Act 1900 (NSW) – whether breach of De Simoni principle – where advantage particularised was the obtaining of loan facilities – where sentencing judge assessed objective seriousness by reference to quantum and period of drawdowns of facilities – whether objective seriousness assessed by reference to criminality comprising a more serious offence
CRIME – appeals – appeal against sentence – whether sentencing judge failed to take into account “risk management” – whether sentencing judge failed to take into account absence of loss – where applicant sought to rely on loan facilities as security for the amount drawn down
CRIME – appeals – appeal against sentence –whether sentence manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW), ss 192E, 193B
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited:
R v Todorovic [2008] NSWCCA 49
R v Woodman [2001] NSWCCA 310
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Turkmani v The Queen [2014] NSWCCA 186; 244 A Crim R 402

Category: Principal judgment
Parties: William O’Dwyer (Applicant)
Commonwealth Director for Public Prosecutions (Respondent)
Representation:
Counsel:
A Francis, I Hogan (Applicant)
D New (Respondent)
Solicitors:
One Group Legal (Applicant)
Commonwealth Director for Public Prosecutions (Respondent)

File Number(s): 2023/00205738
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

NSW

Citation:

[2024] NSWDC 11

Date of Decision:

02 February 2024

Before:

Anderson SC DCJ

File Number(s):

2023/205738

HEADNOTE

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

The applicant, William O’Dwyer, sought leave to appeal against the sentence imposed on him in the District Court by Anderson SC DCJ in relation to six counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) to which he pleaded guilty. The sentencing judge imposed an aggregate term of imprisonment of 4 years, commencing on 2 February 2024 and expiring on 1 February 2028, with a non-parole period of 2 years and 4 months expiring on 1 June 2026.

The offences involved conduct on the part of the applicant in obtaining loan facilities from St George Bank Ltd and Wingate Pty Ltd (the Lenders) on behalf of three development companies of which he was the sole director, in order for those companies to carry out separate residential development projects. The applicant deceived the Lenders into believing that pre-sale deposits received from purchasers of off-the-plan units in the development projects were held by the development companies in trust accounts and were not the subject of any side agreements. He also deliberately concealed the true…

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.

Continue reading O'Dwyer v The King

Details

AGLC: O'Dwyer v The King [2025] NSWCCA 95
Case: [2025] NSWCCA 95
Decision Date: 23 June 2025

CaseChat Overview and Summary

In the case of O'Dwyer v The King, the appellant, O'Dwyer, appealed against his sentence for obtaining a financial advantage by deception in contravention of section 192E(1)(b) of the Crimes Act 1900 (NSW). The sentencing judge had assessed the objective seriousness of the offence by reference to the quantum and period of drawdowns of the loan facilities obtained through deception. O'Dwyer contended that the assessment of objective seriousness should have been by reference to the criminality comprising a more serious offence. Additionally, he argued that the sentencing judge failed to take into account the risk management and the absence of loss, as he had sought to rely on the loan facilities as security for the amount drawn down. O'Dwyer also contended that the sentence was manifestly excessive.

The legal issues before the court were whether the sentencing judge breached the De Simoni principle by assessing the objective seriousness of the offence by reference to the quantum and period of drawdowns of the loan facilities, whether the sentencing judge failed to take into account the risk management and absence of loss, and whether the sentence was manifestly excessive. The court considered the arguments made by O'Dwyer and assessed the sentence imposed by the sentencing judge.

The court held that the sentencing judge did not breach the De Simoni principle by assessing the objective seriousness of the offence by reference to the quantum and period of drawdowns of the loan facilities. The court found that the sentencing judge had considered the criminality comprising a more serious offence and had appropriately assessed the objective seriousness of the offence. The court also found that the sentencing judge had taken into account the risk management and absence of loss, as O'Dwyer had sought to rely on the loan facilities as security for the amount drawn down. Finally, the court held that the sentence was not manifestly excessive, and dismissed the appeal.

The court dismissed the appeal and affirmed the sentence imposed by the sentencing judge.

Orders