O'Brien v R

Determination of leave application

Two proposed grounds of appeal were notified: 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: 1. Finding that the evidence adduced in the applicant's case did not establish hardship to third parties different to that which would be expected normally; and 2. Assessing the relevance of any hardship to third parties disclosed by the evidence adduced in the applicant's case on the basis that such hardship needed to be exceptional to be taken into account. 1. The sentence imposed was manifestly excessive.
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.
There are three aspects of this ground that, in my opinion, make it untenable.
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.
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.
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.
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.
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.
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.
In short: there was no evidence before the sentencing judge that the incarceration of the applicant occasioned exceptional hardship to his family.
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.
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".
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.
Secondly, at pages 41-42 of the proceedings on sentence, the following exchange occurred: "HIS HONOUR: …I'll hear from [defence counsel] but my impression was that what I was being urged to do was to treat the various matters in the subjective case as all part of the background factual matrix relevant to the sentence but no submission has explicitly been made, as I understand it that this is a case that falls into the exceptional category of third party hardship or impact on third party of the type the Court of Criminal Appeal has referred to Edwards v R for example. But I'm urged to take into account the nature and circumstances of the family situation concerning the child and the consequences for the mother having additional burdens placed on her to care for the child and the overarching concern that any father would have including this offender in relation to the wellbeing of his son and the demands that are placed on the family in relation to his proper treatment and the care that he needs to be provided with. But I didn't hear [defence counsel] to be saying to me that this is a case that falls within the exception to which the Court of Criminal Appeal has referred to in such cases as Edwards. Have I done any violence to your submissions [defence counsel]? [DEFENCE COUNSEL]: Your Honour has put it in a nutshell.
In other words, the proposition sought to be put forward in this Court was pellucidly eschewed at first instance.
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.
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:
At page 29 of the proceedings on sentence: "HIS HONOUR: …I take it from what I've read that where persons detained in custody who are referred to residing normally in Australia and whose family reside normally in Australia might be able to make telephone calls from custody which involve whatever the charges might be but they're domestic or local call charges. I'm correct in assuming am I that in order for your client to contact his family and relatives and friends overseas he's required to pay for that? DEFENCE COUNSEL: Yes your Honour. HIS HONOUR: And that's at whatever the international rates for such calls might be? DEFENCE COUNSEL: That's exactly right. HIS HONOUR: Yes I understand. DEFENCE COUNSEL: And he's been as I understand it, his account is topped up by his wife. HIS HONOUR: I understand. DEFENCE COUNSEL: And I don't think with the greatest respect anybody would cavil with the fact that Mr O'Brien would be as any father, struggling with his sons incapacities and worried about his future and worried about the fourth coming operation. I can't put it any higher than that but I would think you would be less than human to discount that. HIS HONOUR: I would think it needs no more than to be said that this is the child's dilemma. It's obviously a condition of long standing. Accordingly the offender must understand how important the procedure is and all of those matters would bear heavily upon the shoulders of any father.
In the remarks on sentence at pages 73-4, his Honour made the following observation: "Despite the magnitude of the child's medical and other difficulties, as well as the impact of them upon the offender's wife and family, it has not been submitted that this is a case in which hardship to third parties falls within the ambit of the principles referred to in R v Edwards (1996) 90 A Crim R 510. Rather, the submission has been made on behalf of the offender that the present is a case in which the medical situation of J, as well as the pressures and other difficulties that they cause for other members of the family, including his mother and the offender, are all an important part of the factual matrix relevant to the sentencing of the offender. The Court is satisfied that in all the circumstances the medical condition of J and the consequences for the offender's wife and other family members are indeed factors that should be taken into account as part of the factual matrix of the subjective circumstances of the offender. For those reasons, the Court will so proceed to take those factors into account in the synthesis of the index sentence."
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.
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.
For all of those reasons, I consider that leave should be refused to argue this ground.
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.
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.
I respectfully believe that the question of leave to do with this ground is also capable of resolution without deep analysis, as follows.
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.

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