O’Brien v R

1. [1]

   MITCHELMORE JA: I agree with Button J.

2. [2]

   BUTTON J:

Introduction

1. [3]

   The applicant pleaded guilty to three substantive counts of dishonestly obtaining a financial advantage by deception. Each of those offences was committed contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), which features a maximum penalty of imprisonment for 10 years, and no standard non-parole period. There were four further similar offences to be found on two Form 1 documents.

2. [4]

   The learned sentencing judge ultimately imposed an aggregate head sentence of imprisonment for 5 years 6 months, to commence on 25 May 2020, with a non-parole period of 3 years 6 months, which will expire on 24 November 2023. A diagram setting out the details of that sentence and the indicative sentences that underpinned it is to be found at the conclusion of this judgment.

3. [5]

   As for the objective features, the applicant had presented himself as a qualified tradesman on a website designed to put tradespeople in touch with customers needing their help. In fact, he was no such thing. He purported to complete home repairs and renovations that were, in truth, seriously defective; indeed, in some cases, rectification works themselves cost hundreds of thousands of dollars.

4. [6]

   In total, there was seven victims, most of them elderly and vulnerable, and some of them very elderly. In one case, a victim lost her home because of the financial ruin visited upon her by the crime of the applicant.

5. [7]

   The particularised amount dishonestly obtained in count 4 was $30,000; in count 2 it was $276,300; and in count 3 it was $438,180. The total sum spoken of in the three substantive counts and the further four charges approached $800,000.

6. [8]

   Having said that, it was accepted by the Crown and the sentencing judge that the applicant should be sentenced on the basis that he did not receive all of the sums involved, and was merely part of a team of criminals.

7. [9]

   Subjectively, the applicant had pleaded guilty at a late stage and received a discount of 5% percent on each indicative sentence, about which there is no complaint. A man in his late 30s, he had grown up in Ireland in deprived circumstances, and arrived in Australia in 2018 on a tourist visa with his family.

8. [10]

   Very sadly, his young son suffers from multiple disabilities and conditions, including spina bifida, which I understand to be an extremely grave developmental defect in which a portion of the spinal cord of a newborn baby is exposed, with many profoundly adverse consequences. The child was also born with significant heart problems, hydrocephalus (excess fluid in the brain) and an intellectual impairment. Most recently, while hospitalised, he contracted meningitis, which has rendered him permanently blind, adding to the tragic burdens with which he must live, and which his family must also bear.

9. [11]

   In short, it is indisputable that the son of the applicant, aged thirteen as at the date of sentence, is severely disabled; he will require 24 hour care into the foreseeable future; and the whole situation must surely be a source of ongoing and severe distress to those who love him, including, of course, the applicant.

10. [12]

    At the time of the offending, the applicant suffered from a serious problem with alcohol and cocaine, and there was evidence that, when not committing the offences, he spent quite a deal of his time in hotels. By the time of his arrest on 25 May 2020, his family had departed this country and returned to Ireland approximately 4 months beforehand.

11. [13]

    A significant subjective feature was that, although the applicant possessed no criminal record in this country, he had been sentenced to significant terms of imprisonment in Ireland and the Netherlands for offences of a similar kind.

Determination of leave application

1. [14]

   Two proposed grounds of appeal were notified:

   1. (1)

      The learned sentencing Judge erred in assessing the probable effect that the sentence under consideration would have on the applicant’s family or dependents by:

   2. (2)

      The sentence imposed was manifestly excessive.

2. [15]

   Turning to the first ground, counsel on the application accepted that the import of the ground was contrary to a concession that had been made explicitly on behalf of the applicant at first instance. But she submitted that the severe disability suffered by the young son of the applicant meant that the question could and should be revisited, and the incarceration of the applicant in New South Wales should indeed be seen as giving rise to exceptional hardship to his family.

3. [16]

   There are three aspects of this ground that, in my opinion, make it untenable.

4. [17]

   The first aspect is that counsel did not seek to revisit the longstanding proposition that, with regard to State offences, such hardship needs to be demonstrated. I appreciate that the position has altered with regard to federal offences, on the basis of statutory interpretation of s 16A(2)(p) of the Crimes Act 1914 (Cth); as to which, see the decision of this Court in Totaan v R [2022] NSWCCA 75. But for the purposes of this question of leave, I accept the implicit concession of counsel for the applicant that it is incumbent upon him not just to show a measure of hardship to his family, but indeed exceptional hardship.

5. [18]

   In that regard, analysing the material placed before the sentencing judge, there was no such evidence. The evidence was that, in fact, before the incarceration of the applicant, his wife was the primary carer of the son. Indeed, as I have said, the subjective case for the applicant was that he had a serious, criminogenic problem with alcohol and prohibited drugs. There was no evidence that the applicant had played any particularly important role in caring for his son.

6. [19]

   Furthermore, to reiterate: by the time the applicant was arrested in May 2020, his family had left this country some months previously, and he was therefore, as a matter of simple geography, in no position to provide direct care to his son, or any other of his three children.

7. [20]

   As to indirect support, it was submitted that he had stayed in Australia to obtain medical records of his son necessary to pursue legal action, and as I understand it this was not bitterly resisted by the Crown on appeal. But as a matter of practical reality, the applicant was not in a position to provide assistance to his family in the care of his son.

8. [21]

   Furthermore, it was acknowledged by counsel for applicant that he struggled to obtain legitimate employment, and had struggled to support his family with the abilities and resources he had. There was no evidence of the legitimate work prospects of the applicant, except for an unskilled position on a relative’s farm in Ireland.

9. [22]

   Finally, although one can readily infer that some of the money that the applicant obtained from his offending went towards the support of his family, as the Crown prosecutor submitted before this Court, it would make a mockery of the criminal law if the cutting off of his ill-gotten gains to the detriment of his family could be relied upon as a mitigating factor on sentence.

10. [23]

    In short: there was no evidence before the sentencing judge that the incarceration of the applicant occasioned exceptional hardship to his family.

11. [24]

    The second adverse aspect of the ground is that it is directly contrary to a concession that was advisedly made by counsel at first instance. The following extracts from the proceedings on sentence conclusively demonstrate that fact.

12. [25]

    In the written submissions of defence counsel at first instance, emphasis was placed upon the severe disability of the son of the applicant. It was said to impose “severe emotional, physical, and financial” burdens on the wife of the applicant, who was said to be the primary carer. All of that, combined with the physical separation between the incarcerated applicant and his family, and his inability to assist in their care, was said undoubtedly to cause the applicant “significant emotional distress and trauma”. And that, amongst other factors, was said to “give rise to at least a finding of special circumstances”.

13. [26]

    In other words, in written submissions prepared by counsel almost a year ago, it was never asserted that the incarceration of the applicant would cause exceptional hardship to his family; indeed, the focus was upon hardship to himself.

14. [27]

    Secondly, at pages 41-42 of the proceedings on sentence, the following exchange occurred:

15. [28]

    In other words, the proposition sought to be put forward in this Court was pellucidly eschewed at first instance.

16. [29]

    To summarise the second adverse aspect: that state of affairs argues very strongly against a grant of leave, especially bearing in mind that there is no allegation now made of incompetence.

17. [30]

    The third aspect is that things said by the sentencing judge in the proceedings on sentence and remarks on sentence generally demonstrate that hardship arising to the applicant and his family as a result of his incarceration was taken into account as part of the instinctive synthesis on sentence. In other words, the sentencing judge did exactly what he was asked to do, and the factor was taken into account in a generally mitigating way. The important extracts are as follows:

18. [31]

    At page 29 of the proceedings on sentence:

19. [32]

    In the remarks on sentence at pages 73-4, his Honour made the following observation:

20. [33]

    In other words, the whole topic of the separation of the applicant from his family in general and his very disabled son in particular was not disregarded or discounted by the sentencing judge. On the contrary, it was given significant weight. What the sentencing judge did not do is take into account the argument now sought to be made that founds the first ground. And his Honour did not do that entirely in accordance with the submissions then made on behalf of the applicant.

21. [34]

    In short, the proposed ground is directly contrary to a concession that was made more than once by counsel at first instance. That concession was soundly based, because there was no evidence of exceptional hardship arising to the family from the incarceration of the applicant in any event, not least because by that stage they were living overseas, and he was not a significant caregiver with regard to any of his children. Finally, the judge amply took into account the subjective and emotional hardship that accrued to the applicant and his family in a general way as part of the sentencing exercise.

22. [35]

    For all of those reasons, I consider that leave should be refused to argue this ground.

23. [36]

    The second proposed ground asserts that the aggregate sentence is manifestly excessive, in the sense of being patently unreasonable, and beyond the sentencing discretion reposed in Judge Ingram.

24. [37]

    The submissions in this Court were that one can come to that view because of a combination of factors, including the exceptionally sad circumstances of his family, the exacerbated difficulties of incarceration during the COVID-19 pandemic, and the emotional hardship of being so removed from his family in Ireland. No reliance was placed upon comparative cases or statistics.

25. [38]

    I respectfully believe that the question of leave to do with this ground is also capable of resolution without deep analysis, as follows.

26. [39]

    In light of the multiple victims; the substantial sums involved in two of the counts; the very substantial sum involved as a whole; the severe consequences of the offending to some of the victims; the heartlessness of the criminal enterprise generally; and the significant criminal antecedents of the applicant, it is impossible to be satisfied that any attribute of the aggregate sentence is manifestly excessive.

Orders

1. [40]

   For the foregoing reasons, I consider that the appropriate order for this Court to make is:

   1. (1)

      Leave to appeal against sentence refused.

2. [41]

   WRIGHT J: I agree with Button J. O'Brien v R Sentencing Diagram (2582, pdf)