Citation: O'Brien v R [2022] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 4 November 2022
Judges: Mitchelmore JA, Button J (primary judgment), Wright J
Background
The applicant pleaded guilty in the District Court to three counts of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW), with four further similar offences noted on Form 1 documents. The offending involved the applicant presenting himself on a tradesperson-matching website as a qualified tradesman, then carrying out seriously defective home repair and renovation works for seven victims, most of them elderly. Total losses across all counts approached $800,000, though the applicant was sentenced on the basis that he received only a share of those proceeds as part of a criminal team.
Judge Ingram SC imposed an aggregate head sentence of 5 years 6 months with a non-parole period of 3 years 6 months. Subjectively, the applicant had relevant overseas criminal history (including prior imprisonment in Ireland and the Netherlands for similar offending), a history of alcohol and cocaine use, and a severely disabled son requiring around-the-clock care.
The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: first, that the sentencing judge had mishandled the question of hardship to his family arising from his incarceration; and second, that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in assessing the effect of incarceration on the applicant's family, particularly given the severe disabilities of his young son.
- Whether the aggregate sentence of 5 years 6 months was manifestly excessive in all the circumstances.
Decision
On the first ground, Button J identified three reasons why the argument was untenable. For New South Wales State offences, it remains the offender's burden to positively demonstrate that incarceration gives rise to exceptional hardship to third parties (a position distinguished from federal sentencing under s 16A(2)(p) of the Crimes Act 1914 (Cth), as discussed in Totaan v R [2022] NSWCCA 75). Critically, counsel for the applicant had conceded at first instance, more than once, that exceptional hardship did not exist. The Court of Criminal Appeal held that this concession was properly made.
The Court further found the concession was well-founded on the evidence. The applicant's wife was the primary carer for the disabled son. There was no evidence the applicant played a significant caregiving role. His family had left Australia roughly four months before his arrest, so he was already geographically unable to provide direct care. Button J also dismissed the argument that money derived from the criminal activity, which may have supported the family but was no longer available, could itself constitute hardship to them. His Honour described that proposition as absurd.
On the second ground, the Court found that the aggregate sentence could not be characterised as manifestly excessive. Button J pointed to the multiplicity of victims, the substantial sums involved, the severe consequences for at least one victim (who lost her home), the heartless nature of the criminal enterprise, and the applicant's significant and similar criminal antecedents. No comparative cases or statistics were placed before the Court in support of this ground, and the Court found it incapable of being sustained.
The emotional and personal hardship to the applicant and his family, including the profound circumstances surrounding his son's disabilities, was not disregarded. The sentencing judge had given those matters significant weight as part of the general sentencing exercise. The Court found no error in how those factors were treated.
Orders Made
- Leave to appeal against sentence refused.
Key Takeaways
- For State offences in NSW, the burden remains on an offender to positively establish that incarceration gives rise to exceptional hardship to third parties before that factor can be taken into account in mitigation. This is distinct from the position under federal sentencing legislation as clarified in Totaan v R [2022] NSWCCA 75.
- A concession made expressly and repeatedly by counsel at first instance that exceptional hardship did not exist will be held against an applicant on appeal. The Court of Criminal Appeal confirmed it will not permit such concessions to be resiled from where they were soundly based on the evidence.
- The proposition that funds obtained through criminal activity, which may have supported a family but are no longer available, could themselves constitute hardship to that family was rejected as untenable.
- Where a family member was not a primary or significant caregiver, and where the family had departed the jurisdiction before the applicant's arrest, the incarceration of that applicant does not readily give rise to exceptional hardship in respect of a disabled child.
- In dismissing the manifest excess ground, the Court reinforced that objective seriousness, victim vulnerability, severity of consequences, and comparable criminal antecedents are significant counterweights to subjective hardship factors at the appellate review stage.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes Act 1914 (Cth), s 16A(2)(p)
Cases
- Totaan v R [2022] NSWCCA 75
- R v Edwards (1996) 90 A Crim R 510