Regina v O'Driscoll - [2003] NSWCCA 281

CITATION: REGINA v O'DRISCOLL [2003] NSWCCA 281

HEARING DATE(S):

JUDGMENT DATE:
1 October 2003

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 28

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence - defrauding the Commonwealth - reduction of sentence upon some offences sought where quashing of convictions on other offences - where criminality of conduct on quashed convictions taken into account on sentences for remaining offences - consistency with similar fraudulent scheme.

LEGISLATION CITED: Crimes Act 1914 (Cth) s 29D
Criminal Appeal Act 1912 ss 6(3), 6AA
Financial Transaction Reports Act 1988
(Cth) s 31(1)
Income Tax Assessment Act 1936 (Cth)

CASES CITED: R v O'Driscoll [2003] NSWCCA 166
R v Patrick O'Connor [2002] NSWCCA 156

PARTIES :
Regina (Respondent)
William Benedict O'Driscoll (Applicant)

FILE NUMBER(S): CCA 60022/03

COUNSEL: E Fullerton SC / M Thangaraj (Applicant)
D Staehli (Respondent)

SOLICITORS: James A. Moustacas & Co. (Applicant)
Commonwealth DPP (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/6660

LOWER COURT
JUDICIAL OFFICER : Blackmore DCJ

60022/03

SPIGELMAN CJ
HULME J
Wednesday 1 October 2003

REGINA v William Benedict O’DRISCOLL

Judgment

1 SPIGELMAN CJ: The Applicant was convicted of two charges of defrauding the Commonwealth contrary to s29D of the Crimes Act 1914 (Cth) and sixteen charges of “structuring” transactions contrary to s31(1) of the Financial Transaction Reports Act 1988 (Cth) (“the FTRA”). The Applicant was successful in an appeal against conviction on the “structuring” charges (R v O’Driscoll [2003] NSWCCA 166).

2 In that judgment I said with respect to the newly raised sentencing appeal:

Criminal Appeal Act

3 Written submissions have been filed. There was no submission to the Registrar for an oral hearing. A direction was made under s6AA of the Criminal Appeal Act 1912.

4 The application for leave to appeal against sentence is based on the fact that in his remarks on sentence the sentencing judge took into account the illegality of the structuring events in the sentences he imposed for the two fraud charges. By reason of this Court’s decision, those events did not involve illegality. This Court quashed the convictions and entered a verdict of acquittal with respect to all of those charges. This is the error upon which the Applicant relies as the foundation of an appeal against sentence.

5 The conduct of the Applicant, on which the fraud charges were…

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 Regina v O'Driscoll

Details

AGLC: Regina v O'Driscoll [2003] NSWCCA 281
Case: [2003] NSWCCA 281
Decision Date: 1 October 2003

CaseChat Overview and Summary

In Regina v O'Driscoll, the accused was convicted of multiple counts of defrauding the Commonwealth. The court was tasked with determining an appropriate sentence for the offences that remained following the quashing of some of the convictions. The primary legal issue was whether the criminality of the conduct for which convictions were quashed should be taken into account when sentencing for the remaining offences, particularly in cases where the crimes form part of a larger fraudulent scheme.

The court considered whether to reduce the sentence on the remaining offences, given that the convictions for some of the offences were quashed. The accused argued that the sentences should not reflect the criminality of the quashed convictions, while the prosecution maintained that the totality of the fraudulent scheme should be considered in sentencing. The court had to balance the principle of not double-counting criminality against the need to reflect the overall seriousness of the offending behaviour. It concluded that the criminality of the quashed offences could indeed be considered in sentencing for the remaining offences, given the interconnected nature of the fraudulent scheme.

The reasoning of the court was that the quashed convictions, while no longer standing, formed part of a consistent pattern of fraudulent conduct. Therefore, the sentences for the remaining offences should reflect the overall criminality involved, ensuring that the punishment fits the crime. The court found that the sentences imposed were appropriate, taking into account the totality of the offending. It was emphasised that the criminality of the quashed offences was inherently linked to the remaining ones, as they all stemmed from the same fraudulent scheme.

The final orders of the court were that the sentences for the remaining offences would stand, with consideration given to the criminality of the quashed convictions. The court did not reduce the sentence on the remaining offences, affirming that the sentencing must reflect the full extent of the accused's criminal conduct.

Orders