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Court of Criminal Appeal 16 December 2025

AR v R

[2025] NSWCCA 220

Fraud & dishonesty

Citation: AR v R [2025] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 16 December 2025
Judges: Harrison CJ at CL; Ball JA (dissenting); Ierace J

Background

The applicant pleaded guilty in the NSW District Court to facilitating the exit of a person from Australia by deception, contrary to s 271.2(1A) of the Criminal Code (Cth). The offending involved the applicant deceiving his wife into leaving Australia, with the sentencing judge finding the deception to have been planned, sustained, and calculated. The victim subsequently managed to return to Australia without adverse effect on her immigration status.

At first instance, Grant DCJ sentenced the applicant to 2 years and 1 month imprisonment, commencing 17 June 2024, with a recognizance release order after 12 months. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence by failing to take into account relevant considerations or by relying on irrelevant matters (Ground 1)
  • Whether findings made by the sentencing judge lacked a proper evidentiary foundation and infected the sentencing discretion
  • Whether the sentence imposed was unreasonable or plainly unjust (Ground 2)

Decision

Ground 1: Objective seriousness

The majority (Ierace J, Harrison CJ at CL agreeing) found that, although the sentencing judge misunderstood a defence submission about objective seriousness, that misunderstanding did not produce any error. The sentencing judge disregarded the submission and proceeded to assess objective seriousness in an orthodox manner.

The majority acknowledged there was no evidentiary basis for the sentencing judge's finding that Afghanistan was a "scary and fear-provoking environment" at the time of the offence. That description had been taken from the applicant's own account of conditions in 1998 when he fled the Taliban as a teenager. However, reading the sentencing remarks as a whole, the majority was satisfied that this unsupported finding did not infect the sentencing discretion. The repeated characterisations of the victim as vulnerable, exploited, and treated as a "chattel" were grounded in ample evidence independently of the impugned finding.

Ground 2: Unreasonable or plainly unjust

The majority found no discernible error on the face of the sentencing judgment and no error apparent from the sentence itself. General deterrence was a significant factor given the planned, sophisticated, and (in Ierace J's characterisation) cruel nature of the deception, combined with the applicant's complete absence of remorse and contrition. His maintenance of an innocent account to police and to the psychologist further undermined his subjective case. The sentence, representing less than a fifth of the maximum penalty with a recognizance release order after less than half the custodial term, was within the range open to the sentencing judge.

Ball JA, dissenting

Ball JA would have allowed the appeal and, on resentencing, would not have imposed a custodial sentence. His Honour considered the unsupported finding about Afghanistan to be an important element of the sentencing reasoning that could not simply be read away. On resentencing, Ball JA would have assessed the objective seriousness as low: the applicant had induced the victim to return to a country with which she was familiar, where she largely retained her autonomy and had family support, and the conduct was far removed from the core conduct at which s 271.2(1A) was directed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Establishing appellate error in the assessment of objective seriousness requires satisfaction of the principles in House v The King (1936) 55 CLR 499; the Court of Criminal Appeal confirmed it is slow to intervene on this basis.
  • A factual finding made without evidentiary foundation does not automatically vitiate a sentence. Where a fair reading of the sentencing remarks as a whole discloses that the flawed finding did not infect the overall sentencing discretion, the sentence may nonetheless stand.
  • Under s 271.2(1A) of the Criminal Code (Cth), an offence involving planned and sophisticated deception combined with a complete absence of remorse may properly attract a significant role for general deterrence, even where the victim ultimately suffered no permanent adverse immigration consequence.
  • Harrison CJ at CL emphasised that a sentencing applicant cannot derive benefit from the fact that the consequences of the offending proved less severe than they might have been.
  • The majority's decision confirms that the structure and length of a sentence for this type of offending will not be disturbed on appeal where no discernible error appears from the face of the sentencing judgment and the sentence falls well within the available range.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth), Div 271, Subdiv B, ss 271.1A, 271.2(1A)
- Crimes Act 1914 (Cth), ss 16A(1), 17A, 17A(1), 20(1)(b)

Cases
- Abdaly v R [2025] NSWCCA 127
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Magro v R [2020] NSWCCA 25
- Mills v R [2017] NSWCCA 87
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v AR [2024] NSWDC 307
- Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452
- Tak Fat Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458
- Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223