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Court of Criminal Appeal 11 August 2025

O’Hanlon v R (Cth)

[2025] NSWCCA 118

Fraud & dishonesty
CRIME SENTENCE APPEAL AGAINST SENTENCE SERVICES AUSTRALIA RELIEF PAYMENTS BACKGROUND OF DISADVANTAGE

Citation: O'Hanlon v R (Cth) [2025] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 11 August 2025
Judges: Mitchelmore JA; Ierace J; Coleman J (judgment delivered by Coleman J, with whom Mitchelmore JA and Ierace J agreed)

Background

The applicant pleaded guilty in the District Court at Albury to five offences under the Criminal Code (Cth): two counts of dishonestly obtaining a financial advantage by deception (totalling $18,000) and three counts of attempting to do so (totalling $55,642.70). The offending involved 70 fraudulent claims made to Services Australia over approximately four and a half months in 2022, targeting disaster relief and pandemic payment schemes using false identities and fabricated circumstances.

On 27 November 2024, the sentencing judge imposed an aggregate term of 26 months' imprisonment (with release after 12 months on a recognizance) and a 12-month Community Corrections Order for one of the sequences. The applicant was also ordered to pay reparations of $16,266.89 to the Commonwealth.

The applicant sought leave to appeal on two grounds: that his then solicitor had failed to place any substantive evidence about his subjective circumstances before the sentencing judge, resulting in a miscarriage of justice; and that the sentencing judge erred in his consideration of whether to impose an Intensive Corrections Order (ICO).

  • Whether the failure to tender evidence of the applicant's subjective circumstances at first instance (including his drug addiction, mental health background, efforts at rehabilitation, and progress in custody) constituted a miscarriage of justice warranting the reception of fresh evidence on appeal.
  • Whether, if ground 1 was established, the sentencing judge erred in his treatment of the ICO question.
  • Whether, on resentencing, a lesser sentence than that originally imposed was appropriate in law.

Decision

The Crown conceded that ground 1 was established, and the Court agreed. The material filed on appeal substantially exceeded what had been before the sentencing judge: it included evidence of the applicant's prior efforts to obtain counselling and drug treatment, his progress while in custody, and a psychological assessment. The Court held, applying Lawavou v R [2025] NSWCCA 35, that reception of this material was necessary to avoid a miscarriage of justice. Because ground 1 succeeded, the ICO ground fell away.

On resentencing, the Court accepted that the offending was serious, noting it was a deliberate and sustained course of fraudulent conduct over several months. However, the Court found that the applicant's substance addiction and mental health difficulties had driven the offending, and that those conditions should not be treated as matters of choice given the features of his difficult upbringing. That background of disadvantage enlivened the Bugmy principles, reducing the applicant's moral culpability.

The Court also found that the sentencing judge's assessment of the applicant's prospects of rehabilitation as "guarded" was, while understandable given what was then before the court, an understatement in light of the fresh material. The Court assessed those prospects as reasonable rather than guarded, and this finding, together with the reduced assessment of moral culpability, justified a lesser sentence.

The Court applied a 25% discount for the guilty pleas across the relevant sequences and resentenced the applicant to shorter, partially concurrent terms of imprisonment. It directed his immediate release upon entry into a recognizance (without security) of $500, subject to 12 months of conditions including good behaviour, supervision by Community Corrections, and participation in drug, alcohol, and mental health treatment programs.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentences of imprisonment set aside and replaced as follows:
  • Sequence 1: 9 months' imprisonment (after 25% discount), commencing 27 November 2024, expiring 26 August 2025.
  • Sequence 4: 9 months' imprisonment (after 25% discount), commencing 26 May 2025, expiring 25 February 2026.
  • Sequence 16: 5 months' imprisonment (after 25% discount), commencing 26 August 2025, expiring 25 January 2026.
  • Sequence 31: 5 months' imprisonment (after 25% discount), commencing 27 December 2025, expiring 25 May 2026.
  • Applicant to be released forthwith upon entering into a recognizance (without security) of $500, subject to 12 months of conditions: good behaviour; supervision by Community Corrections as directed; and participation in alcohol, drug, and mental health treatment programs as required by Community Corrections.
  • The Community Corrections Order for sequence 21 (commencing 27 November 2024, expiring 26 November 2025) remains in place.
  • Reparation order in favour of the Commonwealth in the sum of $16,226.89 maintained.
  • Applicant directed to report to the Community Corrections Office at Orange (or agreed alternative location) within 48 hours of release.

Key Takeaways

  • Where an applicant's solicitor fails to place substantive subjective evidence before a sentencing court, and fresh material filed on appeal would have been relevant to mitigation, the Court of Criminal Appeal may receive that material to avoid a miscarriage of justice, consistent with Lawavou v R [2025] NSWCCA 35.
  • A sentencing court's assessment of rehabilitation prospects can be disturbed on appeal when fresh evidence, not available at first instance due to the solicitor's omission, materially alters the picture of the offender's circumstances and progress.
  • Under the Bugmy principles, a background of disadvantage and deprivation can reduce an offender's moral culpability, and substance addiction arising from such a background is not to be treated simply as a matter of personal choice.
  • The Crown's concession that ground 1 was established did not automatically result in a lesser sentence: the Crown maintained that no lesser sentence was appropriate in law, and the Court only substituted a reduced sentence after independently assessing the fresh material on resentencing.
  • In resentencing, the Court applied a 25% guilty plea discount, imposed shorter partially concurrent terms, and structured release conditions around supervision and treatment programs, reflecting the offender's reasonable (rather than guarded) prospects of rehabilitation.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.1, 134.2(1)
- Crimes Act 1914 (Cth), s 21B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Bugmy v The Queen (2013) 249 CLR 531; [2013] HCA 37
- Lawavou v R [2025] NSWCCA 35
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Boyd [2022] NSWCCA 120
- AM v R [2024] NSWCCA 26
- Barker v R [2024] NSWCCA 227
- McGregor v R [2024] NSWCCA 200
- Vamadevan v The King [2024] NSWCCA 223
- Mandranis v R [2021] NSWCCA 97
- Zaky v R (Cth) [2017] NSWCCA 141