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Court of Criminal Appeal 3 August 2005

O'Connell v R

[2005] NSWCCA 265

Fraud & dishonestyTheft & property
SENTENCE. NO QUESTION OF PRINCIPLE.

Citation: R v O'Connell [2005] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 3 August 2005
Judge(s): Brownie AJA; Buddin J; Latham J

Background

The respondent was a former council health surveyor in the Orange area who, over a period of more than two years, used his professional access to residential and rural properties to steal a large volume of goods. Items stolen included power tools, farm equipment, jewellery, electronics, and household fittings. Much of the stolen property was hoarded rather than sold or used.

The respondent pleaded guilty to nine charges of stealing from a dwelling, eight charges of larceny, two charges of receiving stolen goods, and one firearms offence, with a further sixteen matters taken into account on Forms 1. He had virtually no prior criminal history and had suffered from major depression, alcohol dependency, and kleptomania for many years.

District Court Judge Finnane QC imposed suspended sentences combined with good behaviour bonds and ordered compensation of $16,000, rather than immediate full-time custody. The Crown appealed, arguing the sentences were manifestly inadequate.

  • Whether the sentencing judge erred by structuring the sentences so they could be suspended under the Crimes (Sentencing Procedure) Act 1999 s 12
  • Whether the imposition of concurrent suspended sentences was an error in principle
  • Whether the sentencing judge wrongly applied the same degree of criminality across offences with different maximum penalties and different Forms 1
  • Whether the sentencing judge erred by declining to find that the respondent's conduct constituted an abuse of a position of trust under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999

Decision

On the question of manifest inadequacy arising from the decision to suspend sentences, the Court accepted that, in principle, a sentence should not be reverse-engineered to achieve suspension. However, Brownie AJA found that Judge Finnane had not committed that error. His Honour had considered the mitigating circumstances genuinely and independently, and the suspended sentences reflected a proper weighing of those circumstances rather than an improper structural choice.

On the concurrency ground, the Court acknowledged the prima facie case for cumulation given the volume and duration of offending. However, it held that the offences formed one long but essentially indivisible course of conduct, driven by the respondent's psychiatric condition. Treating them as a group and forming an overall view of criminality was appropriate in those circumstances, consistent with the approach in R v Hammoud, R v Bahsa, and R v Scott.

On the third ground, the Court found no practical difference in the degree of criminality between the stealing and receiving charges. The distinction arose only from whether particular victims could be identified by police, not from any difference in the respondent's conduct.

On the trust ground, the Court upheld Judge Finnane's finding that the respondent had not abused a "position of trust" in the statutory sense. While victims may have permitted him access to their properties, the relationship was not the kind of formal or fiduciary trust contemplated by s 21A(2)(k), and his role was not comparable to that of a solicitor or bank manager handling funds.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge does not err merely because the sentence imposed happens to be one that can be suspended, provided the judge's process of reasoning is genuinely independent and not reverse-engineered to achieve that outcome.
  • Where multiple offences form a single, continuous course of conduct driven by a psychiatric condition, it is permissible to assess the criminality of the offences collectively rather than strictly individually, following R v Hammoud, R v Bahsa, and R v Scott.
  • The "abuse of a position of trust" aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 does not apply simply because a victim permitted entry to their property. A more formal or fiduciary relationship is required, consistent with the approach in R v Stanbouli.
  • No appealable error was established, and the Court went further, describing the sentences imposed by the District Court as "proper ones."
  • Significant mitigating circumstances, including diagnosed kleptomania, major depression, alcohol dependency, a near-clean prior record, and cooperative conduct, can justify non-custodial outcomes even where the volume and duration of offending would otherwise suggest full-time custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 117, 148, 188, 527C
- Firearms Act 1996 (NSW) s 36
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 9, 12, 21A(2)
- Evidence Act 1995 (NSW) s 191

Cases:
- R v Zamagias [2002] NSWCCA 17
- Dinsdale v The Queen (2002) 202 CLR 321
- Pearce v The Queen (1998) 194 CLR 610
- R v Hammoud [2004] NSWCCA 540, 118 A Crim R 66
- R v Bahsa [2003] NSWCCA 36
- R v Scott [2005] NSWCCA 152
- R v Stanbouli [2003] NSWCCA 315, 141 A Crim R 531