O'Hanlon v R (Cth) - [2025] NSWCCA 118

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: O’Hanlon v R (Cth) [2025] NSWCCA 118
Hearing dates: 6 June 2025
Date of orders: 11 August 2025
Decision date: 11 August 2025
Before: Mitchelmore JA at [1];
Ierace J at [2];
Coleman J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Set aside the sentences of imprisonment imposed on 27 November 2024 in the District Court of NSW and in lieu thereof impose the following sentences:
(i) For sequence 1 a term of imprisonment after the 25% discount of 9 months commencing on 27 November 2024 and expiring 26 August 2025.
(ii) For sequence 4 a term of imprisonment after the 25% discount of 9 months commencing 26 May 2025 and expiring 25 February 2026.
(iii) For sequence 16 a term of imprisonment after the 25% discount of 5 months commencing 26 August 2025 and expiring 25 January 2026.
(iv) For sequence 31 a term of imprisonment after the 25% discount of 5 months commencing 27 December 2025 and expiring 25 May 2026.
(4) Direct that the applicant be released forthwith upon entering into a recognizance, without security, in the sum of $500 and to comply with the following conditions for a period of 12 months from the date of these orders:
(i) To be of good behaviour.
(ii) To be supervised by Community Corrections for so long as that service deems it necessary and to obey all reasonable directions given by that service; and
(iii) To participate and maintain his participation in any programs for treatment required and/or facilitated by Community Corrections for alcohol and other drugs and/or mental health for as long as that service deems necessary.
(5) For sequence 21 the Community Corrections order made by Smith DCJ on 27 November 2024, commencing on that day and expiring on 26 November 2025 remains in place.
(6) Pursuant to s 21B of the Crimes Act the applicant make reparation to the Commonwealth in the sum of $16,226.89.
(7) Direct that within 48 hours of his release the applicant is to report to the Community Corrections Office at Orange, or such other location as agreed with Community Corrections.

Catchwords:
CRIME – SENTENCE – appeal against sentence - dishonestly obtaining a financial advantage by deception – services Australia – relief payments - failure to place evidence before the court relevant to the applicant’s subjective circumstances – where sentencing judge only has a sentencing assessment report before them – where new material goes to the applicant’s attempt to seek rehabilitation – background of disadvantage – Bugmy principles – sentence quashed – resentence - Recognizance Release Order

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code 1995 (Cth)

Cases Cited:
AM v R [2024] NSWCCA 26
Barker v R [2024] NSWCCA 227
Bugmy v The Queen (2013) 249 CLR 531; (2013) HCA 37
DPP v De La Rosa (2010) 79…

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: [2025] NSWCCA 118
Decision Date: 11 August 2025

CaseChat Overview and Summary

The matter of O'Hanlon v R (Cth) involved the appellant who was convicted of charges related to the dishonest acquisition of financial advantage through deception. The case was heard in the High Court of Australia, which was asked to review the sentence imposed by the lower court. The appellant had been found guilty of obtaining Centrelink payments to which he was not entitled. The primary issue before the court was whether the sentence imposed was manifestly excessive or inappropriate, particularly given that the sentencing judge did not have before them certain evidence relevant to the appellant’s subjective circumstances.

The court examined whether the sentencing judge's failure to consider evidence pertinent to the appellant’s background, including his disadvantaged circumstances, constituted a significant error. This consideration was crucial in determining whether the sentence was fair and just under the principles set out in Bugmy v R. The appellant argued that the omission of this evidence led to an inadequate understanding of his personal circumstances and his potential for rehabilitation. The court held that the sentencing judge’s decision to not consider this evidence resulted in a significant procedural error. As a result, the sentence was deemed to be manifestly excessive and inappropriate.

The High Court, therefore, quashed the sentence and ordered a resentencing of the appellant. The court recognised the importance of ensuring that all relevant information is considered in the sentencing process, particularly when it relates to the individual's background and the potential for rehabilitation. The final orders included a Recognizance Release Order, allowing the appellant to be released on bail pending the resentencing.

Orders