R v Mark Leo O'Brien; R v Therese O'Brien

[2021] NSWDC 67

District Court

New South Wales

Medium Neutral Citation:

R v Mark Leo O’Brien; R v Therese O’Brien [2021] NSWDC 67

Hearing dates:

19 November 2020; 17 December 2020

Date of orders:

16 March 2021

Decision date:

16 March 2021

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Mark Leo O’Brien: aggregate sentence of 10 years imprisonment with a 6 year non-parole period (indicatives sentences detailed at [214])

Therese O’Brien: aggregate sentence of 3 years to be served by way of intensive correction order. (indicative sentences detailed at [217])

Catchwords:

CRIME — Fraud — Dishonestly obtain financial advantage by deception — White-collar crime — Fraud by solicitor — Misappropriation of funds intended for charity — Restitution capable due to retention and investment of funds — Knowingly deal with proceeds of fraud — Gross abuse of trust — Moral conundrum of wife — Misprision of felony — Moral culpability of wife in acquiescence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Council of the Law Society of NSW v O’Brien [2019] NSWSC 1879

Council of the Law Society of NSW v O’Brien [2019] NSWSC 383

De Angelis v R [2015] NSWCCA 197

McLaren v R [2021] NSWCCA 12

Nahlous v R [2010] NSWCCA 58; 201 A Crim R 150

R v Burke [2002] NSWCCA 353

R v Clarke [2019] NSWDC 2

R v Cole (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, McClemens J, 10 May 1974)

R v David Charles Hawkins (1989) 45 A Crim R 430

R v Dimitri De Angelis [2013] NSWDC 79

R v Duncan [2019] NSWDC 852

R v Ellis (1986) 6 NSWLR 603

R v Eugene William Daley (1983) 8 A Crim R 433

R v Hunter (1984) 36 SASR 101

R v Jafari [2017] NSWCCA 152

R v Van Tung Luu (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Street CJ, Lusher and Roden JJ, 7 December 1984)

Thorn v R [2009] NSWCCA 294

Category:

Principal judgment

Parties:

Regina (Crown)
Mark Leo O’Brien (Principal offender)
Therese O’Brien (Co-offender)

Representation:

Counsel:
Mr D. Robinson (Crown)
Mr C. Watson (For Mark O’Brien)
Mr J. Davidson (For Therese O’Brien)

Solicitors:
ODPP (Crown)
Mitchell Lawyers (For Mark O’Brien)
Herring and Associates Lawyers (For Therese O’Brien)

File Number(s):

2019/00368261; 2019/00388998

Publication restriction:

Nil

Judgment

Introduction

1. Mark O’Brien, who I will refer to as the principal offender, appears for sentence with respect to a number of different offences arising from his fraudulent misappropriation of some $6.178 million. In total there are ten separate substantive charges to which he has pleaded guilty. I will deal with the detail of the individual charges in the course of outlining the factual background giving rise to the offences.

2. The principal offender’s wife, Therese O’Brien, also appears for sentence in relation to two offences of knowingly dealing with the proceeds of crime in respect of which she has similarly pleaded guilty. These two offences involved a proportion of the very substantial sums of money which had been misappropriated by her husband. I will deal with the detail of those charges also in the course of outlining the factual background.

Factual background and offences

3. The principal offender, who is now 64 years of age, was for many years a solicitor of the Supreme Court of New South Wales. He met his wife, who is now aged 63, when they were both students at the University of Sydney. Whilst I will refer in more detail to their personal backgrounds in dealing with their subjective cases, it is to be noted that they were married, whilst still at university, in 1979. At the time of the initial offending by Mr O’Brien, they had been married for approximately 36 years.

4. Following his admission as a solicitor, Mark O’Brien worked for a number of different firms of solicitors. In 1985 he joined a small firm in the city, Harrington Maguire and Company, which had a mixed commercial and general practice. Following the retirement of one of the two principals, Mr Peter Harrington, O’Brien became a partner, together with Mr John Maguire, in 1996. The firm changed its name to Harrington, Maguire and O’Brien.

5. Evidence was led during the sentence hearing that following the loss of a major client, the small firm struggled to some extent financially. Whilst I have not been provided with any financial documentation or tax returns, there is a consistent suggestion, predominantly from the principal offender, that the practice did not enjoy the financial success of many other firms of solicitors.

6. In about 2013 the law practice moved from York Street in the city to the Edgecliff Centre.

7. By 2015 a proportion of the offender’s legal practice involved matters relating to probate and the settling of estates of deceased persons. He was at that time, to all external appearances, a respected and reputable small firm solicitor.

8. In January 2015 one of Mr O’Brien’s clients, Mrs Margaret Rafferty, passed away. She left an estate valued at more than $2.8 million. She had appointed her nephew as the executor of her estate. He, in turn, retained the offender as the solicitor to assist in administering and settling the estate.

9. In her will Mrs Rafferty had bequeathed not insubstantial sums of money to a number of charitable organisations. She left the sum of $100,000 to the St Vincent de Paul Society and a further $100,000 by way of legacy to the South-Eastern Sydney Local Area Health District. This amount was specifically intended to benefit the Prince of Wales Hospital She also left an amount in excess of $1.3 million to be divided equally between two charities – the Paraplegic and Quadriplegic Association of NSW (Paraquad) and the Royal Australian and New Zealand College of Ophthalmologists’ Eye Foundation (RANZCO).

10. In the course of purportedly giving effect to Mrs Rafferty’s intentions, the principal offender initially misappropriated the funds which had been intended to be paid to St Vincent de Paul and to the South-Eastern Sydney Local Area Health District. On 31 August 2015 he drew two separate cheques payable to himself from the trust account funds relating to the Rafferty estate, each in the amount of $100,000. He deposited the total sum of $200,000 into his personal bank account. He then sought to cover up his fraudulent and deceptive conduct by making false entries into the solicitor’s firm trust ledger. Those ledger entries falsely recorded that the money had gone to the intended beneficiaries, namely the St Vincent de Paul Society and the South-Eastern Sydney Local Area Health District for the Prince of Wales Hospital.

11. The material before me does not reveal the detail of the ultimate disposition of this initial defalcation, other than the fact that it was deposited into the principal offender’s personal bank account. His conduct in relation to the fraudulent obtaining of this amount of $200,000 is the basis for the first count in the charges before me. This dishonest obtaining of a financial advantage of $200,000 by deception was a contravention of section 192E(1)(b) of the Crimes Act 1900. Such an offence carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period.

12. Some weeks before this initial defrauding of Mrs Rafferty’s estate, the principal offender, on 11 August 2015, had opened a new joint bank account, together with his wife, at the St George Bank. This account was deliberately opened for the purpose of receiving future fraudulently obtained funds. The evidence does not permit me to be satisfied beyond reasonable doubt that Mrs O’Brien knew that this was her husband’s intention at the time. Her sworn evidence before me was that he told her at the time that it was a savings account into which they would put any excess money towards a travel fund.

13. On 18 September 2015 Mr O’Brien drew two further trust account cheques from the remaining funds of Mrs Rafferty’s estate. Each of these two cheques was made payable to “T. O’Brien”. The cheques were in equal amounts of $654,956.05, representing the equal amounts which had been intended to be distributed to the Paraquad organisation and also to the RANZCO Eye Foundation. The total amount of $1,309,912.10 was then deposited into the joint bank account which had been opened in his and his wife’s name at the St George Bank on 11 August 2015. Prior to the deposit of these two cheques the amount in the joint account was a token amount of only just over $200.

14. This second fraudulent acquisition of funds which had been intended for the nominated charitable organisations revealed a degree of pre-planning and some level of sophistication and refinement in the steps taken to conceal the crime from ready disclosure or discovery. The joint bank account into which the funds were paid was the new account that had been recently opened in the offender’s name and his wife’s name. Despite what he apparently told his wife, he admitted to police subsequently that the account was deliberately opened with the intention of becoming a repository for fraudulently obtained funds. The principal offender drew the cheques in a name other than his own, by his own account so as to reduce suspicion from writing cheques in just his own name. He made false entries in the trust account ledger and prepared forged documents which purported to reflect, on their face, that the funds had gone to the originally intended beneficiaries.

15. In the case of Paraquad, he gave them a small donation in order to obtain a Donation Receipt. He then used the letterhead on that receipt to create a forged letter purportedly from the Chief Executive Officer of Paraquad dated 18 September 2015 which, on its face, appeared to acknowledge receipt of the money. This forgery was placed on the file in support of the ledger entry. It had the undoubted capacity to mislead any prospective audit of the trust account by the Law Society. In due course it undoubtedly helped to achieve that very objective.

16. With respect to the second cheque relating to the funds which ought to have gone to RANZCO, the principal offender similarly sought to cover his tracks by falsifying the Trust Account ledger and creating a forged letter purporting to have come from the charity and acknowledging receipt of the bequest. He prepared this particular forgery by using the letterhead of a genuine letter from RANZCO as a template.

17. This dishonest obtaining of the two amounts by the principal offender, in total slightly over $1.3 million, is the subject of the second substantive offence before me. It similarly is an offence against section 192E(1)(b) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment.

18. At the time of the fraudulent obtaining of the funds of approximately $1.3 million which he deposited into the joint account, the principal offender had two mortgages which were secured over the residential property in which he lived with his wife. This was a townhouse in Old South Head Road at North Bondi. As at September 2015 the two home loan mortgages came to a total of approximately $220,000.

19. On 23 September 2015 the offender drew two separate cheques, one of approximately $160,000 and the other of approximately $60,000 in order to pay off each of the two mortgages in respect of his home property. The total actual payment of $220,787.35 is the subject of the third substantive charge before me, namely knowingly dealing with the proceeds of crime. Such an offence contravenes section 193B(2) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment. There is no standard non-parole period.

20. In December 2015 the joint St George Bank account which had been opened in August 2015 had a balance of approximately $1.2 million. The Agreed Facts indicate that an amount of about $1.036 million was directly attributed to the funds which had been that misappropriated. The source of the additional amount of approximately $164,000 is not apparent on the evidence before me.

21. The material before me does not disclose the precise date on which a self-managed superannuation fund was set up for both offenders. It was certainly in existence by the end of 2015.

22. On 18 December 2015 the principal offender withdrew $1 million from the joint St George account in two separate amounts of $500,000. Each of the two cheques were deposited into the Equity Case Management Trust Account conducted by the self-managed superannuation fund which he had set up, namely the ‘Obiwill Superannuation Fund’. As noted earlier, both the principal offender and also his wife were the beneficiaries of this superannuation fund.

23. The fourth charge against Mr O’Brien relates to these particular transactions and constitutes an offence of knowingly dealing with the proceeds of crime contrary to the provisions of section 193B(2) of the Crimes Act 1900. As with the third count, this offence carries a maximum penalty of 15 years imprisonment.

24. Mrs Therese O’Brien is similarly charged with the same offence regarding this transaction, that is, an offence of knowingly dealing with the proceeds of crime, namely $1 million on 18 December 2015. This, of course, was the date on which her husband had withdrawn the two amounts of $500,000 from the joint account and deposited the full amount of $1 million into the superannuation fund account. Mrs O’Brien subsequently admitted that she knew that she “was involved in it” and that she had “a half share of it”. There is no actual evidence of Mrs O’Brien taking any physical step to “deal with” these proceeds of crime. However the definition in section 193A of the Crimes Act 1900 includes “conceal” or “engage directly or indirectly in a transaction.” Her acquiescence in the knowledge of her husband’s misappropriation, falls within the definition of knowingly dealing.

25. As already indicated, knowingly dealing with the proceeds of crime constitutes an offence contrary section 193B(2) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment.

26. The total amount of money misappropriated from Mrs Rafferty’s estate by the principal offender was in excess of $1.5 million. Having successfully put $1 million into the superannuation fund, and having discharged the two mortgages over the townhouse in which he resided with his wife (as I have indicated earlier in an amount of approximately $220,000) the offender would appear to have settled back into a law-abiding existence as a solicitor in the suburban firm where he continued as a partner.

27. Other funds from the total amount misappropriated in 2015 were obviously disbursed including the leasing of a BMW motor vehicle; a gift of $50,000 to one of the O’Brien children; and the creation of a separate account in Mr O’Brien’s own name on which he operated a credit card which was utilised for, inter alia, payment of monies otherwise liable to be paid by the law practice. The precise details of these various disbursements are not before me in any documentation but were referred to in the course of the principal offender’s testimony during the sentence proceedings. Of passing significance, the existence of this separate account and credit card was not known by Mrs O’Brien.

28. However, some two years later in late 2017, with his self-confidence undoubtedly buoyed by the fact that the earlier misappropriations had not been discovered and that his forged entries in the trust account ledger and elsewhere had remained undetected despite Law Society trust account audits, the principal offender determined to try his hand at fraudulent misappropriation yet again. At this time he was giving consideration to retirement.

29. One of his clients, a Ms Aileen Delaney, had signed her last Will and Testament in May 2015. She had appointed the offender as the executor and trustee of her estate. She had given her solicitor, the offender, an enduring Power of Attorney. This power of attorney included an ability to operate her bank accounts.

30. On 27 November 2017 the offender, perchance by way of a preliminary ‘tester’, transferred $5000 from a bank account of Ms Delaney into his own personal account. That offence of dishonestly obtaining a financial advantage by deception contrary to the provisions of section 192E(1)(b) of the Crimes Act 1900 has been placed on a Form 1. I am asked to take it into account in passing sentence with respect to a separate misappropriation of money from Ms Delaney’s account which occurred the following month.

31. Having successfully abused his position of trust as Ms Delaney’s solicitor in the exercise and misuse of the power which he held under the enduring Power of Attorney, the principal offender next, on 15 December 2017, transferred $100,000 from his client’s account into the joint bank account which he shared with his wife at the St George Bank. In a subsequent record of interview with police, Mr O’Brien claimed that his legal firm was in chronic financial distress. He told police that he wanted to have some money in reserve in case the firm needed some funds to be injected into the practice through the course of the following year. He told police that he did not tell his partner Mr Maguire and that he put the money into his own account rather than the firm’s account because it would permit him to tell Maguire that he was contributing to the running of the firm from his personal account and hence hide his actions in having dishonestly obtained the funds.

32. This misappropriation has similarly been charged as a substantive offence of dishonestly obtaining a financial advantage by deception. It is again a contravention of section 192E(1)(b) of the Crimes Act 1900 and is the fifth substantive charge before me. The Form 1 offence will be taken into account in determining an appropriate sentence on this count.

33. I should observe that the Court is left in a state of uncertainty with regard to the assertion of the law practice being in “chronic financial distress” in 2017. The evidence with respect to the first defalcation in 2015 is that the mortgages on the O’Brien family home were completely discharged. This presumably had the effect of repaying at least those amounts that specifically related to the partnership debt. Mr O’Brien also gave evidence of having contributed some $200,000 towards firm expenses at that time and having a credit card, to which I have referred earlier, that he utilised for such purpose. No documentation regarding the firm’s financial position in 2017 has been provided during this hearing.

34. Some four days after the transfer of $100,000, on 19 December 2017, the offender transferred an additional sum of $50,000 from Ms Delaney’s account into his superannuation fund. His asserted explanation for this transfer, in his interview with police, was that it related to advice from his accountant. He claimed that there was a facility with the superannuation fund whereby $50,000 could be put into the fund and taken straight back out again. I am unaware and there is no evidence as to whether such a transaction may have attracted some taxation advantage. The offender said that instead of taking the $50,000 out of his own money he took it out of his client’s bank account. There is no evidence before me as to whether the $50,000 deposited into the superannuation fund was, or was not, immediately removed. Other than having been deposited into the superannuation fund I have no evidence as to its ultimate disposition.

35. This further misappropriation of $50,000 on 19 December 2017 is the sixth substantive charge before me. It is, yet again, an offence under section 192E(1)(b) of the Crimes Act 1900.

36. On 7 January 2018, Ms Aileen Delaney died. On 5 April 2018 probate was granted with respect to her estate. The estate had a total value in excess of $6.6 million. Similarly to the late Mrs Rafferty, from whose estate the offender had misappropriated the earlier amounts in 2015, Ms Delaney had also bequeathed very substantial amounts of money to a number of charitable organisations.

3. Part of Ms Delaney’s estate included an amount of almost $1.78 million which was a refundable deposit from the aged-care facility in which she had resided in Vaucluse. That very substantial refundable deposit had been paid when she had entered into the facility. Following her death, $1,773,486.23 was refunded by the aged-care facility. It was deposited into the trust account for Ms Delaney’s estate on 21 May 2018.

4. Three days later, on 24 May 2018, the principal offender drew a trust account cheque in the full amount of the refund and made it out to his wife. The cheque included the notation “please pay cash”. Both the deposit of the cheque from the aged-care facility and its subsequent withdrawal were recorded in the trust account ledger fraudulently.

5. A separate trust account ledger in the name of “Therese O’Brien” was opened by the principal offender and the entry was recorded as a deposit from “Proceeds of Estate” in her name. I would infer that these fraudulent entries were intended to create the false impression that Mrs O’Brien had been the beneficiary of an estate which had been left to her.

6. I do note that when queries were raised, in due course, by his partner in the legal practice as to the source of funds being used by Mr O’Brien and his wife, O’Brien claimed at that time that his wife had in fact been the beneficiary under a deceased estate. The creation of the trust account ledger in his wife’s name would appear to have been a carefully thought out intended subterfuge for this particular misappropriation.

7. The cheque in the full amount of approximately $1.8 million was, in due course, deposited by the principal offender into the joint bank account held by him and his wife at the St George Bank.

8. This particular transaction constitutes the seventh substantive charge before me and again contravenes section 192E(1)(b) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment.

9. Shortly before the next substantial misappropriation of more than $2.7 million, the principal offender and his wife entered into a contract to purchase a house at 36 Woodstock Street, Bondi Junction. The purchase price was $3.425 million and on 11 July 2018 the deposit, in an amount of $342,500, was paid from funds drawn from the joint account held by the offender and his wife at the St George Bank.

10. On 16 July 2018 the offender withdrew a further amount from the joint account in the amount of $180,260. This money was paid to the office of State Revenue for the stamp duty with respect to the purchase of the house in Woodstock Street.

11. One of the very substantial charitable bequests which were made by the late Ms Delaney was a bequest to the St Vincent de Paul Society for an amount in excess of $2.7 million. I am unaware as to the precise calculation giving rise to the specific amount of the bequest. However, on the same day that he paid the stamp duty on the new house, namely 16 July 2018, the principal offender drew a trust account cheque from the funds of Ms Delaney’s estate for the amount of the intended bequest, namely $2,740,288.12. The cheque was made payable to Mrs O’Brien and was subsequently deposited by Mr O’Brien into the joint bank account held with the St George Bank.

12. Utilising the same modus operandi that he had used almost three years earlier with Mrs Rafferty’s estate, the offender created a false entry in the Trust Account ledger as well as a forged letter, purportedly from the St Vincent de Paul Society, which acknowledged receipt of the money. That document had the appearance of being on genuine St Vincent de Paul letterhead and to be under the hand of the Executive Director of the Fundraising and Communications section of the St Vincent de Paul Society. It was, in fact, a forgery which had been created by the offender, again in colloquial terms to “cover his tracks”. It would appear that he followed the procedure of making a small donation and then utilising the letterhead on the receipt as a template for his more substantial forgery of an actual letter purporting to be from the charity as part of a not unsophisticated subterfuge. This defalcation of more than $2.7 million forms the basis for the eighth substantive charge before me. It is again a contravention of section 192E(1)(b) of the Crimes Act 1900.

13. On 10 August 2018 the offender drew a cheque from the joint St George Bank account in the amount of $3.06 million. This amount settled the purchase of the property at Woodstock Street, Bondi Junction. The various payments with respect to the deposit, stamp duty and the amount on settlement of the purchase of the home in Bondi was a total amount of $3,608,760.

14. The offence of knowingly dealing with the proceeds of crime in that amount between 11 July and 10 August 2018 forms the basis for the ninth count in the substantive charges before me relating to Mr O’Brien. That offence is again a contravention of section 193B(2) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment.

15. The Agreed Facts indicate that following the settlement of the purchase price, the offender and his wife spent some three months renovating the property at 36 Woodstock Street. The renovations are said to have cost approximately $250,000. That expenditure is not the subject of any separate charge with respect to dealing with the proceeds of crime. It is, however, included in the Agreed Facts presumably by way of context and explanation as to the disposition of some of the funds which had been fraudulently obtained.

16. Following settlement of the purchase of the premises at 36 Woodstock Street in August 2018 the principal offender and his wife spent various sums of money drawn from their joint bank account on furnishings and furniture for their new home. Eleven comparatively minor withdrawals of the funds from the joint bank account were, in due course, identified as being expenditure of this type. Three of those purchases were in the name of Mrs O’Brien and the total amount identified as being spent in this general fashion was $53,499. An offence of knowingly dealing with the proceeds of crime in that amount constitutes the tenth and final substantive charge before me with respect to the principal offender, Mr Mark O’Brien. It is yet again a contravention of section 193B(2) of the Crimes Act 1900.

17. The second substantive offence to which Mrs Therese O’Brien has entered a plea of guilty is, in effect, a single rolled-up count of knowingly dealing with the proceeds of crime which reflects the total amounts paid for the purchase of the house, including stamp duty, together with the additional sum of $53,499 which has been charged separately against her husband as the tenth count against him to which I have just referred. The total of the amount said to have been knowingly dealt with relating to this second count against Mrs O’Brien was a total of $3,662,259.

18. I am unaware from the evidence as to whether the house was purchased in joint names, although I infer that it was. In such circumstance, presumably Mrs O’Brien would have been required to sign the contract for purchase. The Agreed Facts are silent with respect to whether any such action was in fact taken by her. However, her actions, or at least inaction, clearly fall within the definition of dealing with the proceeds of crime, as I have noted earlier. Such an offence is a contravention of s.193B(2) of the Crimes Act 1900 and, as noted previously, carries a maximum penalty of 15 years imprisonment.

Discovery of the offending

53. The chronology tendered in the sentence hearing on behalf of Mrs O’Brien indicates that the North Bondi townhouse was sold for $1,495,000 in November 2018. That chronology suggests that a mortgage was discharged on the sale. It is unclear whether or not that was so, or whether it merely reflects Mrs O’Brien’s belief, given that the mortgages on that property had been discharged with funds misappropriated from Mrs Rafferty’s estate in 2015. The Agreed Facts state that Mr John Maguire, being aware of the purchase price of the premises at Woodstock Street and the sale price of the old property became suspicious as to the source of funds for the new house.

54. At some time, which I infer was likely to be in about January 2019, Maguire asked Mr O’Brien where he had obtained the funds to purchase the Woodstock property for almost $3.5 million, given the sale price of the North Bondi townhouse, at less than $1.5 million. The offender indicated that the funds had been acquired through a grant of probate in which his wife was a beneficiary. Mr Maguire demanded that the source of the probate grant be disclosed. Mr O’Brien subsequently provided a written letter to his business partner in the legal practice on 14 February 2019. That letter asserted that Mrs O’Brien had taken independent advice herself and that Mr Maguire had no right to any information as to her personal financial affairs. The letter made reference to the possibility of discussions with the Law Society or police and Mr O’Brien requested that Mr Maguire should have enough faith in his integrity to accept the explanation as to the steps which had been taken to preserve Mrs O’Brien’s confidentiality.

55. Mr Maguire, however, called in an accountant to audit the firm’s trust accounts. That audit located the trust account ledger in the name of “Therese O’Brien” which recorded the payment of the $1.78 million which had come originally from the reimbursement of Ms Delaney’s aged-care facility deposit.

56. By 19 February 2019 Mr Maguire had ascertained the misappropriation of the aged-care facility refund and confronted Mr O’Brien. Later that same day John Maguire reported the matter to the Law Society of New South Wales.

57. On 21 February Mr Maguire had a further conversation with the offender which included an observation by Maguire that the “…stealing of this money cannot be characterised as something done on the spur of the moment. It must have been long-planned.” The offender replied, “yes, that is right.”

58. I will refer to the detail of the subsequent admissions by both offenders and their ultimate pleas of guilty to the charges before me later in these remarks.

Objective seriousness

59. Despite the absence of a standard non-parole period, it is appropriate that I make a finding with respect to the objective gravity of the offending. I do not propose to make separate findings with respect to each of the substantive charges which have been preferred against the principal offender. It suffices to observe, by reference particularly to the abuse of his trusted position as a solicitor, having regard to the steps that were taken to successfully disguise the initial defalcations, which had to a considerable degree been repeated in the later offending, and taking into account the inordinately large amounts which were obtained, that his offending falls above any identifiable mid-range of objective seriousness.

60. The objective seriousness of the two substantive charges against Mrs O’Brien, although reflecting egregious criminal conduct, derive, at least initially, from what might be perceived as, effectively, a misprision of felony. She, as I will indicate later in these remarks, initially told her husband to return the money when she became aware of his actions in 2015. However, she ultimately acquiesced in his decision to put $1 million into the joint superannuation fund. She did not report him to police. Some years later she again acquiesced and then cooperated in the purchase of the new house in Woodstock Street. She ultimately, however, played an active role in the purchasing of some of the items included in the $53,000 which was spent on furniture and furnishings. However viewed, her criminal conduct was very substantially less objectively serious than that of her husband.

Subjective features relating to both offenders

61. On behalf of each of the offenders, a number of expert reports setting out reference to each of their personal histories as well as character references were tendered. In addition, each of them gave sworn evidence during the sentence hearing.

62. Mark O’Brien was born in Sydney on 2 June 1956. The first group of offences occurred in 2015 when he was 59 years of age. The second group of offences occurred in 2017 and 2018 when he was respectively 61 and 62 years of age. He is now aged 64.

63. He was the youngest of three siblings. He grew up in Double Bay where his father conducted a business. His father died when he was three years of age and he grew up in the care of his mother who never remarried. The family were able to live off income which had been derived from his father’s business and investment properties although his mother eventually undertook part-time work. His older sister was 18 years his senior and his brother was 14 years older than him. They respectively helped looking after him prior to their leaving the family home and marrying.

64. The offender attended Waverly College from Year 6 to Year 12. He was Vice Captain of the school and on graduation, in 1974, was selected to give the Valedictory speech rather than the School Captain which would otherwise have been customary. He was described as a popular student. He matriculated and attended the University of Sydney where he studied a combined Economics/Law degree.

65. Mrs Therese O’Brien, on 17 November 1957, was similarly born in Sydney. She attended St Charles’ Catholic Primary School at Waverley and then high school at St Clare’s College, Waverley. After completing the Higher School Certificate in 1975, she enrolled in a Bachelor of Science degree studying pharmacology at the University of Sydney.

66. In 1977, at the age of 19, Therese Williams, as she then was, met and started going out with Mark O’Brien. In January 1979 she discovered that she was pregnant. She gave evidence in the sentence proceedings that she was very concerned about her future life. She said, “it was a bit of a bad time for me”. Mark O’Brien said that he would marry her which she said “was great, a good relief for me at the time”. She told the Court, as she told her psychologist, that she was really grateful for the fact that he decided to marry her.

67. Mrs O’Brien described that sense of gratitude as having had an ongoing effect on their relationship. She described herself as being very loyal. She described her ongoing connection in the relationship as being, “a mixture of that loyalty to Mark and it was – I married him for better or worse and I was grateful to him, so yes, all of those things”.

68. Mrs O’Brien, who was most of the way through her science degree specialising in pharmacology, abandoned her degree as a consequence of her pregnancy. She and Mr O’Brien married during 1979. She gave birth to their first child, a son, in September 1979. She never resumed her studies nor did she ever pursue her professional aspirations.

69. Mr O’Brien graduated from the University of Sydney and was admitted to practice as a solicitor in 1980. He obtained employment as a solicitor at Abbott Tout Creer and Wilkinson. He worked in the Third Party section of that firm, which was retained by the NRMA.

70. In November 1981 Mrs O’Brien gave birth to their second son.

71. In 1983 Mr O’Brien changed firms and moved to the GIO. He worked in the Third Party personal injury section for approximately three years.

72. The GIO provided an opportunity for the obtaining of home loans at a discounted interest rate for its employees. In February 1984 the offender and his wife purchased a home at Concord for $64,000.

73. In June 1985 their third child, a daughter, was born. In November 1985 Mr O’Brien commenced employment, as an employed solicitor, with Harrington, Maguire and Company. As I have already noted earlier in these remarks he remained as an employed solicitor with that firm for approximately 10 years.

74. In 1988 the family sold the house at Concord and purchased a house at Mortdale for $173,000. Mr and Mrs O’Brien and their three young children moved into that property in May 1988.

75. In 1992, after her daughter had started school, Mrs O’Brien undertook and completed an administration/bookkeeping course with NSW TAFE. She subsequently obtained part-time employment during school hours as an administration bookkeeper at the Occidental Hotel in the city.

76. The three O’Brien children attended Catholic Parish schools in the local area where they lived near Mortdale.

77. In about 1996 or 1997 one of the two partners at the solicitor’s firm, Peter Harrington, retired. Mr O’Brien became an equity partner in his place and took over his practice. The firm apparently conducted its business with an overdraft and some level of security was taken over the O’Brien family home as security for him assuming responsibility for part of the firm’s debt.

78. Although no evidence was called from the other partner John Maguire and no documentation with respect to the firm’s finances has been tendered, the evidence given by Mark O’Brien described, in effect, a small firm which was in debt from the time Mr O’Brien went into partnership. His evidence was suggestive, without precise figures, of the practice being able to pay its partners a modest income, but apparently never clearing its indebtedness.

79. Mrs O’Brien apparently remained in her part-time employment until 2001 and she took employment as an office manager at an air-conditioning firm. I am unaware as to whether that position was full-time or part-time. By 2001, the two older boys were approximately 23 and 20 years of age and the youngest, their daughter, was about 16. Mrs O’Brien remained in this employment until 2009.

80. In 2004, both offenders were ordained as secular, or Third Order Franciscans. This is a lay order in the Roman Catholic Church which follows the teachings of St Francis and St Clare of Assisi. Mrs O’Brien gave evidence that they did a lot of volunteer work helping the marginalised and working with the poor, the homeless and other persons in need. They attended fraternity meetings monthly and were both on the relevant committee. Apparently Mr O’Brien was president of that committee.

81. In 2009, by which stage the children were approximately 30, 27 and 24, Mr and Mrs O’Brien purchased a townhouse at North Bondi for $780,000. The property was said to have a mortgage, in an amount of approximately $300,000 according to the recollection of both offenders.

82. In 2012 the bank facility which financed the law partnership’s ongoing debt was withdrawn by the National Australia Bank. Mr O’Brien gave evidence in the sentence hearing that in their most recent application for refinancing, his partner Mr McGuire had not disclosed a significant debt which he owed to the Australian Taxation Office. The partners consequently had to refinance with an alternative bank.

83. In December 2012 the offender’s home in Old South Head Road, North Bondi was refinanced and mortgaged with the Commonwealth Bank. The evidence regarding the size of the partnership debt was somewhat amorphous. It is not clear how much of the original mortgage of $300,000 related to the partnership debt. Nor is it clear whether there was merely one mortgage or two at that stage.

84. In February 2013 the office of the law firm, Harrington Maguire and O’Brien moved from York Street in the city to an office at the Edgecliff Centre. The principal offender said in his evidence that the move enabled the practice to save a substantial amount of rent.

85. By this time, it would appear that Mrs O’Brien had stopped working. Their children had variously married, some of them had children, and both boys were divorced. Mr O’Brien continued with the practice at Edgecliff until the first of the misappropriations in 2015.

Reports and references regarding Mark O’Brien

86. On behalf of Mr O’Brien, a medicolegal report from a Consultant General and Forensic Psychiatrist, Dr Gerald Chew, was tendered. Dr Chew received a letter of instruction from Mr O’Brien’s solicitors and conducted a psychiatric assessment by a video conference on 29 September 2020. In his report dated 15 October 2020 he set out the background and history provided to him by the principal offender. He noted that Mr O’Brien was being treated for major depression and had been on antidepressant medication since September 2019. He noted the offender’s attendance upon a psychologist at Edgecliff as well as consultations with a psychiatrist, Dr Anthony Levine at St Leonards, who was said to be seeing the offender every six weeks.

86. Dr Chew took a history of depressive symptoms dating from around 2006. The offender told him of chronic feelings of emptiness and hopelessness and described fatigue and low energy on most days. He described to the psychiatrist a perceived need to metaphorically wear a “mask” when interacting with his wife or with his former partner of the law firm, as well as with clients. Mr O’Brien described these symptoms as having worsened over the years. He described living from day-to-day with no hope or concern for the future.

87. Dr Chew noted a history of a less than satisfactory relationship between Mr O’Brien and his partner in the legal practice, Mr Maguire. The offender described having clashed with Mr Maguire about a variety of work practices, mostly about billing and financial practices. Mr O’Brien told the psychiatrist that he had been extremely worried that the business would fail. He described his commission of the offences as having become despondent about his future. He told the psychiatrist: “I was 58 with business difficulties meaning poor earning capacity, no superannuation and a $250,000 mortgage.”

88. The psychiatrist took a medical history which included a variety of medical conditions, all of which would appear to be being treated appropriately and most of which would appear to be consistent with the offender’s chronological age.

89. Based upon the history given to him and his assessment in the video conference, Dr Chew opined: “His psychiatric diagnoses (sic) is a ‘mental illness’ as defined by the Mental Health (Forensic Provisions) Act 1990, being a severe disturbance of mood.”

90. I observe in passing that there is no definition, as such, of “mental illness” in the Mental Health (Forensic Provisions) Act 1990. Rather, the definition of “mental illness” is found in the Mental Health Act. Dr Chew acknowledged that this was an error in his report and described it, in his oral testimony during the sentence proceedings, as “trying to appear more clever than I am maybe.”

91. The ultimate thrust of Dr Chew’s opinion was, based upon the history given to him by the offender, that he believed that Mr O’Brien had been suffering a major depressive disorder for many years and that it was of such a severity as to be defined as a “mental illness”. Based on the history given to him he was of the opinion that the mental illness “may have contributed directly to the commission of the offending behaviour. His major depression with low mood and hopelessness with a day-to-day focus may have contributed to his inability to realise the significance of his actions at the time.”

92. In addition to his opinion that there may have been a causal connection to the commission of the offending behaviour, Dr Chew also expressed the opinion that the presence of the major depressive disorder would make the serving of a sentence in custody more harsh. Dr Chew thought that custody may perpetuate the mental illness and that it would be more difficult to obtain treatment in an optimal manner in custody. Dr Chew also expressed the opinion that the offender’s “socio-demographic background” may contribute to difficulty “fitting in” in the custodial environment, thereby perpetuating his illness.

93. The Crown required Dr Chew for cross-examination and sought to challenge some of his opinions.

94. In evidence-in-chief the doctor expanded on his opinion that there “may have” been a causal connection with the offending and said that it was more likely than not that the offender did have a major depression during the relevant period and that it was more likely than not that this major depression “would have had some impact on his behaviour at the time”.

95. The Crown, in cross-examination, pointed out that the offending conduct covered a period of close to three and a half years. It was put to the psychiatrist that during the entire period the offender was functioning as a partner in a law firm and carrying out the duties of a solicitor and partner in the firm. The doctor was asked to assume that there were no complaints made to the Law Society about the conduct or work of the offender during that period.

96. The psychiatrist said that those facts were “not necessarily inconsistent” with someone suffering from a major depressive disorder but that if there had been complaints “then that would be more consistent with someone suffering from a major depressive disorder.” The doctor said that it was possible that there could have been some kind of decline in function in the work setting which would not necessarily have to reach the point of complaint to the Law Society.

97. I should interpolate that there is no evidence before me of a decline of function in the workplace during the period of the offending.

98. The Crown asked whether or not it would be obvious to anybody in the workplace that the offender was struggling from a major depressive disorder during the period of offending. Dr Chew responded that in some cases that would be a correct proposition although while some people with major depressive disorder can be very obvious, with other such as Mr O’Brien “it may not be necessarily as obvious”. Dr Chew ultimately agreed that “people that work with someone closely for a long period of time, it would lend more weight to the diagnosis if there had been reports at work, but I don’t think it’s necessarily inconsistent.”

99. Dr Chew went on to express the opinion that the depressive disorder which he diagnosed pursuant to the criteria in DSM-V led him to conclude that it was “moderate” in its severity. The Crown put to the psychiatrist the detail of the planning and the sophistication of the steps taken to cover up the criminal offending by the offender. The doctor was asked whether such detailed and planned behaviour was consistent with someone suffering from a moderate major depressive disorder. Dr Chew responded, “I don’t think it’s necessarily inconsistent. It does show that obviously he had some degree of cognitive capacity and planning.” The psychiatrist agreed that it went further than illustrating cognitive ability and that it may go to an understanding by the offender of the wrongfulness of his actions. Dr Chew agreed that the summary of facts that he was asked to assume did “sound like there was systematic planning over a number of years.”

100. In re-examination Dr Chew said that his opinion that the mental illness “may have contributed directly to the commission of the offending behaviour” was still held by him.

101. The question of a causal connection between a psychiatric condition and the commission of an offence is a vexed area. The factors pointed out by the Crown in cross-examination of Dr Chew bear upon the ultimate assessment that this Court is called upon to determine. Whether or not the offender was labouring under an undiagnosed mental illness as defined during the period, according to Dr Chew, from about 2010 onwards, or earlier, requires a degree of speculation and an acceptance of the descriptive history provided by the offender to Dr Chew.

102. I am not persuaded on the balance of probabilities to an acceptance of the very qualified opinion of Dr Chew regarding a causal connection between the offending and a continuing major depressive disorder.

103. A report was also tendered from Dr Roy Sugarman, a clinical psychologist and neuropsychologist. That report, dated 25 October 2020, bears a note on it: “this is a treating clinical psychologist’s report and should not be considered an expert witness report, but rather a witness to fact.”

104. Dr Sugarman was Mr O’Brien’s treating psychologist following his disclosure of his criminal offending in 2019. As at the date of the report he had most recently seen the offender some three and a half months earlier in July 2020. The treating psychologist had obtained a history that Mr O’Brien had struggled from an early age with difficult adjustments to his home, school and work environments. He was said to have developed signs of significant anxiety and mood disorders since childhood. Dr Sugarman described a picture of what would appear to have been a life-long level of depression and melancholia. His actual terminology was a “life-long grumbling dysthymia”. The psychologist described “learned helplessness and a lack of assertion in a career that punishes both traits, and the exigencies of a lacklustre career” as having left the offender “a sad and depleted middle-aged man who should have been treated from 1997, if not from 1979, for anxiety and mood issues.”

105. Doctor Sugarman made reference to a number of symptomatic indications of what he believed was significant and untreated, chronic major depressive disorder. He had first seen Mr O’Brien following the discovery of his criminal offending. Mr O’Brien had subsequently attended therapy since March 2019. There is no indication as to how many sessions had actually been attended although it was described as “serially”. He had last seen the psychologist in July 2020. Mr O’Brien was said to have developed:

“… significant insight into the family processes that have dominated his life, and the learned helplessness that led to his loss of perspective in his work and home life. He understands why his life has been dominated by a black mood that has consumed him and robbed him of his happiness.”

107. The psychologist expressed a concerned that he may suffer a deterioration in his mental health, which had improved considerably with treatment, in the event of his incarceration. The psychologist also made reference to the offender’s low mood appearing “to have reflected in his children’s own psychological and relational issues”. Other than noting the fact that two of Mr O’Brien’s adult children are divorced, there is no material before the Court to illuminate this somewhat opaque reference.

108. An additional psychological report dated 29 October 2020 was also tendered on Mr O’Brien’s behalf. That report is from the clinical psychologist, Amanda Gordon. Her short report indicates that she had initially consulted with Mrs O’Brien who had been referred to Ms Gordon by her general practitioner. On one occasion in 2019 Ms Gordon met Mr O’Brien together with his wife. He was receiving psychological care from another psychologist but was said to be still depressed. I infer that the other psychologist was likely to have been Dr Sugarman, who as I noted earlier thought that the treatment had been successful. Ms Gordon thought there was no doubt in that one session that Mr O’Brien appeared to be significantly clinically depressed at that time.

109. In September 2020 Mr O’Brien was referred to Amanda Gordon by his GP “to assist him in his emotional preparation for sentencing and likely incarceration”. She saw him on six occasions. She said that “by September” (sic) there was no evidence of depression and Mr O’Brien was amazed how he felt less distressed than he had for many years. Whilst I am uncertain as to the reference to dates, the letter from Ms Gordon appears to imply that the consultations with her had facilitated the lifting of the depression.

110. She described Mr O’Brien as now expressing extreme remorse for his behaviour. She described that he remained puzzled that he, as a member of a lay Franciscan order who viewed himself as a moral creature, could have behaved as he had done. She noted that Mr O’Brien had friendships with people who he had known since University days and that he feels well supported by them. She described him as having focused on strategies for managing his mood during a term of incarceration. She expressed the opinion that if he was able to do something meaningful during such a term “he is unlikely to suffer significant emotional consequences”.

111. Mr O’Brien’s solicitors also obtained a medicolegal report from a further clinical psychologist, Ms Anita Duffy. She interviewed and assessed Mr O’Brien on 27 July 2020.

112. Ms Duffy took a detailed history from the offender regarding his family background, education and subsequent employment. She also recorded an account of his medical history and the detail of mental health consultations and treatment following the disclosure of his offending behaviour. She described the consultations with the psychologist Dr Sugarman and also the consultations with the psychiatrist Dr Tony Levine at St Leonards for treatment. She noted that the offender presumed that both Dr Sugarman and Dr Levine would present their reports concerning their diagnosis and treatment to the Court. I should note in passing that no report from Dr Levine has been tendered.

113. Ms Duffy also took a detailed history of Mr O’Brien’s account regarding his offending behaviour. That overall account focused, as did his evidence before me, on the asserted financial stressors from the legal practice. Some of the detail regarding the disbursement of the misappropriated funds differs, to some degree, from the evidence given during the sentence proceedings. By way of example, the account given to Ms Duffy is that the offender lent each of his 3 adult children $250,000 interest free.

114. However, his evidence on oath during the sentence hearing before me (and in accord with evidence tendered in the Supreme Court proceedings to which I will refer shortly) was that he provided $400,000 to each of his children and that one of his sons had not returned $300,000 of the sum he had received.

115. Ms Duffy undertook an assessment of the offender utilising the Personality Assessment Inventory. The profile from that assessment reflected some difficulties with depressive symptoms. The offender appeared to be pessimistic and dwelled on thoughts of worthlessness, hopelessness and personal failure. Ms Duffy thought that a possible diagnosis was Adjustment Disorder with Depressed Mood. She described that his decisions to misappropriate funds to bolster his finances had occurred during a lengthy period where he had experienced persistent worry about financial security. She recorded that his stated reasons for taking the funds included his perceived “need to do so” and to find a solution to their financial problems. Ms Duffy referred to detailed literature regarding the motivations of white collar criminals which suggested three conditions: incentives and pressures; opportunities; and attitudes and rationalisation. She also noted that the commission of an offence can enable avoidance of personal or business threats. In Ms Duffy’s opinion:

“Mr O’Brien’s continuous financial crisis gave him the incentive to commit the offences; he had opportunity to misappropriate the funds from client’s legacies held in the business trust funds and avoid threats to his future security.”

116. Ms Duffy expressed her professional opinion that the “...offences were directly related to the need for, and availability of funds through his profession as a lawyer. There is little risk of reoffending in such a manner in the future.”

117. I am constrained to observe that the Law Society of NSW is hardly likely to permit Mr O’Brien to operate in such a position of trust in the future.

118. In addition to the above professional reports, a number of testimonials were also tendered. A short reference from a Mrs Barbara Davis dated 5 August 2020 indicated that she had been a client of the principal offender. She had retained Mr O’Brien as a solicitor following the loss of her husband in August 2006. She described him as at all times acting with integrity and professionalism. She said that he went far above the call of duty in helping her to deal with some difficult and unhelpful trustees. He had also helped her with conveyancing and the transfer of her late husband’s shares into her name.

119. A reference was also tendered from Monsignor Tony Doherty AM. Monsignor Doherty had known the offender and Mrs O’Brien for a period of 15 years. Initially he was their parish priest. He described, however, that this basic relationship had grown into a far deeper appreciation of the breadth of the personal lives of Mr and Mrs O’Brien. He described both Mr and Mrs O’Brien as having been exceptional members of St Mary Magdalene’s parish at Rose Bay. He described Mr O’Brien as having been an integral member of the parish and having been involved in prosecuting the goals of the parish such as building community; reaching out to the marginalised and the lonely; and offering welcome and hospitality to newcomers. The Monsignor stated that Mr O’Brien had earned the respect of many other parish members. He had contributed to what was described as “the very adult discussion of how the parish might move forward in the light of the widespread incidents of sexual abuse.” Monsignor Doherty further stated: “Mark has always convinced me that he is a responsible, concerned and thoughtful members of our society.” The Monsignor also indicated that the offender had offered “a sense of genuine contrition for the serious crime he has committed.”

120. An additional reference was also tendered from Barry Mahoney QC. Mr Mahoney, of course, is well known as a former Judge of this Court. Mr Mahoney has provided a detailed and extensive reference dated 4 November 2020. He has known the offender since before the marriage of Mr and Mrs O’Brien in 1979. Indeed, Mr Mahoney attended the wedding. That is hardly a surprise in circumstances where Mrs Therese O’Brien is in fact the niece of Mr Mahoney.

121. Mr Mahoney indicates that he had remained in contact with Mr and Mrs O’Brien throughout the years of their marriage, albeit not on a regular basis. He described his familiarity and close contact with them including the providing of an unsecured loan to help facilitate their initial purchase of a home. Such a close connection arose because Therese O’Brien had been the first grandchild of Mr Mahoney’s own father.

122. In his testimonial Mr Mahoney refers to discussions that he had with Mark O’Brien with respect to his professional employment as a solicitor. He described the opinion that he held at that time that with Mr O’Brien’s “personality and competence” he could do better professionally if he was elsewhere than the Government Insurance Office (GIO) where he was then working.

123. At that time, one of the private firms which briefed Mahoney QC was Harrington Maguire and Company. Mr Mahoney expressed the view that this was probably because his then wife was the oldest sister of John Maguire. Be that as it may, Mr Mahoney was instrumental in introducing Mr O’Brien to John Maguire. Mark O’Brien was consequently employed by Harrington Maguire and Company which firm continued to brief Mahoney QC. Mr Mahoney has expressed the opinion, “whenever Mark was their solicitor instructing me I was very impressed by his diligence and knowledge of the relevant law.”

124. Mr Mahoney described in his reference that after what he considered to be an adequate settling in period for Mark he asked John Maguire whether he was satisfied with Mark’s performance in the firm. John gave Mark a glowing assessment and in due course Mark O’Brien became a partner in the firm. Its name was changed to Harrington, Maguire and O’Brien. I should note in passing that Mr O’Brien commenced as an employed solicitor in 1985. In 1986 Mahoney QC was appointed to the bench of the District Court. Mr O’Brien became a partner at the firm in 1996.

125. Mr Mahoney’s reference also sets out the circumstances of him having recommended Mr O’Brien to handle a piece of interstate litigation. He describes Mr O’Brien as having won the case and Mr Mahoney receiving thanks for having provided the recommendation. Mr Mahoney also described that client’s admiration for Mr O’Brien’s “skill and efficiency”.

126. Against the detailed background which he had set out, Mr Mahoney said that he felt adequately qualified to express a valid opinion of Mark O’Brien as a person. He described him as a quiet, even tempered and reliable gentleman. He said that he knew him to be a quiet, intelligent, very well read person who was devoted to his wife and his three children.

Specific factors relevant to the offending of Mrs Therese O’Brien

207. As pointed out in the helpful written submissions of Mr Davidson of counsel who appears on behalf of the offender, in contrast to her co-offender, Therese O’Brien neither planned nor executed the misappropriation of funds. The evidence, which I accept, is that when she first became aware that her husband had misappropriated funds in 2015 she initially told him, in forceful terms, to give the money back. His refusal placed her in a moral conundrum whereby she thereafter acquiesced in the actions which he subsequently took.

208. I have already indicated that I accept that Mrs O’Brien played a passive role in their longstanding marriage. Financial responsibilities and decisions would appear to have essentially been under the control of the principal offender, Mr O’Brien.

209. Society has moved a long way from the situation in which the common law recognised what used to be described as “marital coercion”. Such concepts, which made their way in due course into NSW statute law, were abolished decades ago as an anachronism.

210. However, the position in which Mrs O’Brien found herself in 2015, whilst not absolving her from criminal complicity, plays a relevant part in an understanding of the situation in which her husband’s actions had placed her.

211. In the course of discussion during the sentence hearing, I expressed a view that her silence and inaction in failing to report her husband might be construed, in effect, as a misprision of felony. I observe that she was initially charged, amongst other offences with the statutory equivalent of this offence.

212. As I have remarked earlier, her criminality in respect of knowingly dealing with the proceeds of crime is caught within a definition that includes concealing and engaging, directly or indirectly, in a transaction. The two relevant transactions were the deposit of the funds in 2015 into the self-managed superannuation fund that Mr O’Brien had set up and secondly engaging in the transactions including the acquisition of the home in Woodstock Street and the subsequence expenditure of various sums of money for furniture and furnishings. With respect to her actual actions in the expenditure of the $53,000 which was the subject of a separate count against Mr O’Brien and which has been rolled into the second count against her, the purchases which she is specifically identified as making would appear to relate to an amount approximately either $6,000 or $8,000.

213. With the exception of her active role in this comparatively modest expenditure, on all of the evidence she was otherwise subservient to decisions made and put into effect by her husband.

Determination with regard to Mr O’Brien

214. As I have already indicated, I propose to deal with the principal offender by way of an aggregate sentence. I am required to identify the indicative sentences which would otherwise have been imposed for the individual offences. I should make it clear that the allowance for a 25% discount applies to both the indicative sentences and also to the ultimate aggregate sentence. I will refer to each of the offences in summary form by reference to the amount involved I will also advert to the source and disposition of the funds.

Count	Offence	Indicative sentence
1	Dishonestly obtain $200,000.00 (St Vincent de Paul and South-Eastern District Health Service (Prince of Wales)	3 years
2	Dishonestly obtain $1,390,912.10 (Paraquad and RANZCO Eye Foundation)	6 years
3	Deal with proceeds $220,787.35 (Mortgages on North Bondi)	3 years
4	Deal with proceeds $1,000,000.00 (self-managed superannuation fund)	6 years
5	Dishonestly obtain $100,000.00 (Taking into account Form 1 dishonestly obtain $5,000) (Delaney Power of Attorney)	3 years
6	Dishonestly obtain $50,000.00 (Delaney Power of Attorney)	2 years 4 months
7	Dishonestly obtain $1,773,486.23 (Aged-care refundable deposit)	6 years
8	Dishonestly obtain $2,740,288.12 (St Vincent de Paul)	6 years 3 months
9	Deal with proceeds $3,608,760.00 (purchase at Woodstock Street)	6 years 3 months
10	Deal with proceeds $53,499.00 (furniture and furnishings expenditure)	12 months

215. You are convicted, I sentence you to a minimum term of 6 years and an additional term of 4 years. That is a head sentence of 10 years and non-parole period of 6 years. This sentence will commence on today’s date, 16 March 2021. Accordingly, the non-parole period will expire on 15 March 2027 and the additional term will expire on 15 March 2031.

Determination with regard to Mrs Therese O’Brien

216. With respect to Mrs Therese O’Brien, I find that the section 5 threshold has been crossed. I propose to proceed by way of an aggregate sentence.

217. I record the following indicative sentences:

Count	Offence	Indicative
1	Deal with proceeds - $1,000,000.00 (Superannuation fund)	1 year 9 months
2	Deal with proceeds - $3,662,259.00 (Woodstock property)	2 years 4 months

218. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of 3 years.

219. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an intensive correction order. The sentence will commence on today’s date, 16 March 2021.

220. You must report to the Community Corrections Office at the City office as soon as practicable but no later than 7 days from today’s date.

221. The standard conditions of the order apply:

1. You must not commit any offence; and

2. You must submit to supervision by a community corrections officer.

222. The following additional condition applies:

1. A community service work condition requiring the performance of community service work for 500 hours.

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Decision last updated: 17 March 2021