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Court of Criminal Appeal 5 December 2025

Shortland v R

[2025] NSWCCA 206

Fraud & dishonestyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE OBTAIN FINANCIAL ADVANTAGE BY DECEPTION THREATEN WITNESS MANIFEST EXCESS

Citation: Shortland v R [2025] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 5 December 2025
Judges: Payne JA, Sweeney J, Coleman J (Coleman J delivering the principal judgment)

Background

The applicant, a self-represented prisoner, had pleaded guilty to three counts of dishonestly obtaining a financial advantage by deception and one count of threatening a witness with intent to influence that witness. Nineteen additional offences were taken into account on three Form 1s. The fraud offences involved exploiting long-standing personal relationships to deceive three victims into handing over funds totalling more than $750,000, with the applicant falsely presenting himself as a successful futures trader associated with Bell Potter.

The applicant was first sentenced in July 2022 to an aggregate term of 8 years and 9 months imprisonment. He successfully appealed that sentence in Shortland v R [2024] NSWCCA 174, where the Court identified errors relating to a 17-day orphan period of pre-sentence custody and the failure to place psychological evidence before the sentencing judge. The matter was remitted for resentencing.

On resentencing in December 2024, Harris DCJ imposed an aggregate sentence of 7 years and 4 months imprisonment, commencing 31 May 2021 and expiring 30 September 2028, with a non-parole period of 4 years and 8 months. The applicant then sought leave to appeal against that resentence.

  • Whether the 2024 resentence was manifestly excessive
  • Whether the sentencing judge erred by failing to backdate the sentence commencement date to account for approximately three months of custody the applicant had served in respect of unrelated offences (two driving whilst disqualified offences the subject of a revoked Intensive Correction Order)
  • Whether leave to appeal out of time should be granted, given the Notice of Appeal was filed well outside the 28-day time limit

Decision

On the extension of time, the Court granted leave to file the Notice of Appeal out of time. The applicant had explained that he was unaware of the 28-day time limit until he contacted the Prisoners Legal Service, and had initially expected a delay over the holiday period. The Court proceeded in the interests of finality.

On manifest excess (Ground 1), the Court found no error in the resentence. The judgment does not reproduce the detailed reasoning on this ground in the extracted text, but the Court's conclusion was that the aggregate sentence of 7 years and 4 months was not manifestly excessive given the nature and extent of the offending.

On backdating (Ground 2), the Court found no error in the commencement date of 31 May 2021. That date had been agreed by all parties, including the applicant's counsel, at the resentencing hearing. The Court held that a party is ordinarily bound by the conduct of their legal representatives below, a principle that applies equally to sentence appeals. Separately, the Crown's analysis of custodial records showed that the applicant had, in practical terms, already benefited from a substantial degree of concurrency between the index sentence and the period he served for the revoked ICO relating to the driving offences. No demonstrable error was established in the sentencing judge's exercise of discretion.

Orders Made

  • Time for filing the Notice of Appeal extended to 18 August 2025
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A self-represented applicant seeking to depart on appeal from a position taken by their counsel at the sentencing hearing faces a significant hurdle: the Court of Criminal Appeal confirmed the ordinary rule from R v Birks (1990) that a party is bound by the conduct of counsel below, and that rule applies to sentence appeals as well as conviction appeals.

  • Where all parties agreed on a sentence commencement date at the resentencing hearing, an applicant cannot subsequently argue on appeal that a different, earlier date should have been used, absent demonstrable error.

  • Backdating a sentence to create concurrency with unrelated offending is not a matter of entitlement. In dismissing Ground 2, the Court noted there was already a practical degree of concurrency between the index sentence and the period served for the revoked ICO, so no error was established.

  • The interests of finality are a relevant consideration when a court exercises its discretion to extend the time for filing a notice of appeal, alongside the prospects of success and the explanation for the delay: Kentwell v The Queen (2014) 252 CLR 601.

  • Resentencing on identical facts to the original sentencing does not in itself generate appealable error. The Court found the reduced aggregate sentence following the successful first appeal was within the proper range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(b), 322(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3), 10(1)(b)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases:
- Shortland v R [2024] NSWCCA 174
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Birks (1990) 19 NSWLR 677
- Khoury v R [2011] NSWCCA 118
- Baladjam v R [2018] NSWCCA 304
- GE v R [2025] NSWCCA 168
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Lawavou v R [2025] NSWCCA 35
- Nair v R [2025] NSWCCA 136
- O'Hanlon v R (Cth) [2025] NSWCCA 118
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Elemes [2000] NSWCCA 235
- R v White [2025] NSWCCA 111
- TH v R [2025] NSWCCA 121