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
Category: Principal judgment Parties: William O’Dwyer (Applicant)
Commonwealth Director for Public Prosecutions (Respondent)Representation: Counsel:
Solicitors:
A Francis, I Hogan (Applicant)
D New (Respondent)
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:
- 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…
Continue reading O'Dwyer v The King
Sign in free to access the full text
- AGLC
- O'Dwyer v The King [2025] NSWCCA 95
- Case
- [2025] NSWCCA 95
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.