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[2025] NSWCCA 118
Court of Criminal Appeal (NSW)
2025-08-11
Mitchelmore JA at [1], Ierace J at [2], Coleman J at [3]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: O’Hanlon v R (Cth) [2025] NSWCCA 118
Hearing dates: 6 June 2025
Date of orders: 11 August 2025
Decision date: 11 August 2025
Before: Mitchelmore JA at [1];
Ierace J at [2];
Coleman J at [3]
Decision: (1) Leave to appeal granted.
(2) Appeal allowed.
(3) Set aside the sentences of imprisonment imposed on 27 November 2024 in the District Court of NSW and in lieu thereof impose the following sentences:
(i) For sequence 1 a term of imprisonment after the 25% discount of 9 months commencing on 27 November 2024 and expiring 26 August 2025.
(ii) For sequence 4 a term of imprisonment after the 25% discount of 9 months commencing 26 May 2025 and expiring 25 February 2026.
(iii) For sequence 16 a term of imprisonment after the 25% discount of 5 months commencing 26 August 2025 and expiring 25 January 2026.
(iv) For sequence 31 a term of imprisonment after the 25% discount of 5 months commencing 27 December 2025 and expiring 25 May 2026.
(4) Direct that the applicant be released forthwith upon entering into a recognizance, without security, in the sum of $500 and to comply with the following conditions for a period of 12 months from the date of these orders:
(i) To be of good behaviour.
(ii) To be supervised by Community Corrections for so long as that service deems it necessary and to obey all reasonable directions given by that service; and
(iii) To participate and maintain his participation in any programs for treatment required and/or facilitated by Community Corrections for alcohol and other drugs and/or mental health for as long as that service deems necessary.
(5) For sequence 21 the Community Corrections order made by Smith DCJ on 27 November 2024, commencing on that day and expiring on 26 November 2025 remains in place.
(6) Pursuant to s 21B of the Crimes Act the applicant make reparation to the Commonwealth in the sum of $16,226.89.
(7) Direct that within 48 hours of his release the applicant is to report to the Community Corrections Office at Orange, or such other location as agreed with Community Corrections.
Catchwords: CRIME – SENTENCE – appeal against sentence - dishonestly obtaining a financial advantage by deception – services Australia – relief payments - failure to place evidence before the court relevant to the applicant’s subjective circumstances – where sentencing judge only has a sentencing assessment report before them – where new material goes to the applicant’s attempt to seek rehabilitation – background of disadvantage – Bugmy principles – sentence quashed – resentence - Recognizance Release Order
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code 1995 (Cth)
Cases Cited: AM v R [2024] NSWCCA 26
Barker v R [2024] NSWCCA 227
Bugmy v The Queen (2013) 249 CLR 531; (2013) HCA 37
DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lawavou v R [2025] NSWCCA 35
Mandranis v R [2021] NSWCCA 97
McGregor v R [2024] NSWCCA 200
R v Boyd [2022] NSWCCA 120
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Vamadevan v The King [2024] NSWCCA 223
Zaky v R (Cth) [2017] NSWCCA 141
Category: Principal judgment
Parties: Brodie O’Hanlon (Applicant)
Solicitor for Public Prosecutions (Cth) (Respondent)
Representation: Counsel:
Taran Ramrakha (Appellant)
Danielle New (Respondent)
Solicitors:
Legal Aid New South Wales (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2024/00036423
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 27 November 2024, Brodie O’Hanlon (the applicant) was sentenced to 26-months imprisonment and a 12-month community corrections order by Smith SC DCJ. He pleaded guilty to two offences contrary s 134.2(1) of the Criminal Code (Cth) for dishonestly obtaining a financial advantage by deception (totalling a value of $18,000) and three offences under ss 11.1 and 134.2(1) of the Criminal Code for attempting to dishonestly obtain a financial advantage by deception (totalling a value of $55,642.70).
The offences arose out of the applicant making 70 fraudulent claims under various disaster relief schemes to Services Australia over a 4 ½ month period from March to July 2022.
At sentencing, the applicant’s then solicitor put no substantive material before the sentencing judge going to the applicant’s subjective circumstances. The only material in this regard was a Sentence Assessment Report.
Ground 1 of the applicant’s appeal was that there was a failure to place evidence before the Court relevant to the applicant’s subjective circumstances which resulted in a miscarriage of justice.
Ground 2 was that the sentencing judge erred in his consideration of whether to impose an Intensive Corrections Order.
The Court (Coleman J, Mitchelmore JA agreeing at [1] and Ierace J agreeing at [2]) held, granting leave to appeal and allowing the appeal:
As to ground 1
Lawavou v R [2025] NSWCCA 35 applied.
As to ground 2
As to resentencing
Bugmy v The Queen (2013) 249 CLR 531; (2013) HCA 37; DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; applied.
R v Henry [1999] NSWCCA 111; 46 NSWLR 346; R v Boyd [2022] NSWCCA 120; cited.
MITCHELMORE JA: I agree with Coleman J.
IERACE J: I agree with Coleman J.
COLEMAN J: Brodie O’Hanlon (“the applicant”) pleaded guilty to two offences contrary to s 134.2(1) of the Criminal Code (Cth) for dishonestly obtaining a financial advantage by deception (totalling a value of $18,000) (sequences 1 and 4). The applicant also pleaded guilty to three offences under ss 11.1 and 134.2(1) of the Criminal Code for attempting to dishonestly obtain a financial advantage by deception (totalling a value of $55,642.70) (sequences 16, 21 and 31).
On 27 November 2024 Smith SC DCJ sentenced the applicant in the District Court at Albury. In relation to sequences 1, 4, 16 and 31 the applicant was sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) to an aggregate sentence of imprisonment for 26 months, commencing 27 November 2024 and expiring 26 January 2027, with an order that he be released after serving 12 months of full-time custody upon entering into a recognizance of self-surety in the sum of $500. In relation to sequence 21, the applicant was sentenced to a Community Corrections Order (“CCO”) for 12 months, commencing 27 November 2024 and expiring 26 November 2025. He was also ordered to pay reparations to the Commonwealth in the amount of $16,266.89.
For the aggregate sentence his Honour indicated sentences of 13 months for each of sequences 1 and 4 and 10 months for each of sequences 16 and 31.
The applicant seeks leave to appeal against the aggregate sentence on the following grounds of appeal:
the failure to place evidence before the court relevant to the applicant’s subjective circumstances resulted in a miscarriage of justice; and
the sentencing judge erred in his consideration of whether to impose an Intensive Correction Order (“ICO”).
The Crown has conceded ground 1 is established and therefore ground 2 falls away. It concedes that it is therefore necessary to move to re-sentence the applicant, but it submits the appeal should be dismissed as no lesser sentence than that imposed by the sentencing judge is appropriate at law (s 6(3) Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35]).
For the reasons which follow, I would grant leave to appeal, allow the appeal and re-sentence the applicant.
Because the Crown says no other sentence should be imposed it is necessary to consider in some detail the sentencing judgment.
There is no challenge to the factual findings made by the sentencing judge. I will set out the relevant factual findings from his Honour’s remarks on sentence.
The offending took place over a four-and-a-half-month period from March to July 2022. In summary, it involved the applicant making 70 (fraudulent) claims to Services Australia for various payments under relief schemes, namely, the Australian Government Disaster Relief Payment (“AGDRP”), the Pandemic Leave Disaster Payment (“PLDP”) and the Disaster Recovery Allowance (“DRA”).
The claims involved the use of false identities as well as his own in the making of false claims. As a result of the offending, the applicant obtained payments of $18,000 constituted by 3 false claims totalling $9,000 under the AGDRP and 12 false claims under the PLDP totalling $9,000. The remaining claims (where the applicant attempted to obtain a total financial benefit of $55,642.70) were not paid, either because they were withdrawn by the applicant, or were determined to be fraudulent and rejected.
The first offence (sequence 1) consisted of three claims made between 15 March 2022 and 1 April 2022 for benefits under the AGDRP. This scheme provided the payments to Australian residents adversely affected by a major or widespread declared disaster. The payment was a single amount of $1000 per adult, however, residents of Lismore affected by the 2022 floods were eligible for two additional payments of $1000 each. The claims could be made online, and the claimants had to confirm the correctness of the information given. The applicant claimed, on each of the three occasions he made claims, that he lived in Lismore and had suffered loss in the floods. He in fact lived in Leeton. As noted, he was paid $3000 for each of the three claims.
The second offence (sequence 4) involved 12 claims under the PLDP which was a scheme designed to financially assist people in the event they, or the person they were caring for, had to isolate or quarantine due to Covid-19. The applicant used his own name and different false identities as well as making false claims about his employer. He received $750 for each claim.
The third offence (sequence 16) involved 14 claims from the ADGRP. The applicant used his own name and false identities. He did not receive any payments, either because he withdrew the applications, or they were rejected as fraudulent. The total amount he claimed, but was not paid, was $25,000.
The fourth offence (sequence 21) consisted of an attempt to claim the DRA in May 2022. That scheme provides short-term income support for eligible Australians who demonstrate they have suffered loss of income as a direct result of a declared major disaster. The applicant attempted to obtain payment of $642.70 by claiming that he had lived in Lismore and had lost his income. The claim was identified as fraudulent and rejected.
The fifth offence (sequence 31) consisted of 40 separate claims made between 3 March and 26 July 2022 for the PLDP. The applicant used his own name and nine different false identities. He declared falsely that he worked for certain employers, claiming a total of $30,000. Of the 40 claims, 33 were withdrawn by him and 7 were rejected as being fraudulent. He has repaid $1099.65 by way of withholdings from his Jobseeker payments.
His Honour found that the offending conduct could readily be regarded as being a relatively short, but consistent, course of conduct. He said that none of the offending was isolated, spontaneous or an aberration. He found each of the offences to have had similar characteristics: they were unsophisticated but involved some level of planning in many instances including the creation of names and details. Each was for a relatively small amount or constituted many claims of small amounts adding to a modest total.
With respect to the claims withdrawn by the applicant (which were not paid) his Honour said that he could not conclude on the facts that the withdrawal of those claims was part of a devised plan to ensure continued success with other claims, or whether it was from a pang of conscience. His Honour said that it was relevant, however, that the claims were not refused, just as it was relevant that the offending conduct ultimately ceased at the applicant’s own volition rather than because of any enforcement action.
His Honour found that the fourth offence was the least serious of all being a standalone attempt to claim a small amount of money. The seriousness of that offending, however, was increased given it was part of the longer course of conduct of offending. His Honour noted that the last offence lasted well over four months and was the longest of the conduct. It involved claims totalling $30,000, although, the vast majority were ultimately withdrawn by the applicant.
His Honour found that the amounts involved, duration of each offence, and the absence of any evidence of a lavish lifestyle prevented him from reaching the conclusion that the applicant’s motive was greed. His Honour said that the evidence suggested that it was rather to support his drug habit. His Honour said that this was not a mitigating factor but found that that motive was far less serious than a greed-driven offence.
As to subjective matters, there was very little material on which his Honour could make an informed assessment. The failure of the applicant’s solicitor to prepare and provide such material is the essence of ground 1 of the appeal.
His Honour noted that the applicant was 25 at the time of the offending and had a long history of offending for larceny, theft and goods in custody reasonably suspected of being stolen.
There was before his Honour a Sentencing Assessment Report (“SAR”) dated 30 October 2024. His Honour observed that the applicant had never received a custodial sentence. His Honour referred to a 2020 conviction of the applicant when he was sentenced to a CCO for 12 months with supervision by Community Corrections. The SAR indicated that the applicant’s response to supervision was satisfactory, and his supervision was thus suspended.
The author of the SAR recorded that the applicant told him that the index offending was solely instigated to fund his daily drug habit. Following the death of his mother, he began using up to 3.5 grams of methylamphetamine per day (costing him up to $1500 per day). The applicant also told the author of the SAR that he had ongoing struggles with mental health and claimed to have been engaging with local health services for assessment. The applicant’s solicitor also submitted that he had applied for various rehabilitation programs but that the waiting list was long. Unsurprisingly, his Honour said: “Unfortunately, there is no evidence of these attempts, and at best, his prospects of rehabilitation are uncertain”. [1]
The author of the SAR said that the applicant showed insight into his offending behaviour and expressed regret, identifying he was taking money away from those who need it. He was assessed as being at a medium-high risk of re-offending.
Based on the material that was before him, his Honour accepted that the applicant was remorseful and had some limited insight into his behaviour. He held that the risk of re-offending depended on his drug use and underlying mental health issues. His Honour found those prospects were guarded.
His Honour then dealt with the early guilty plea and assessed a 25% discount to be applicable. He also said that although the case against him was strong, the plea does reflect some willingness of the applicant to facilitate the course of justice and that too was a mitigating factor. On appeal, the Crown did not submit that his Honour’s conclusions on these matters were erroneous.
His Honour, referring to Zaky v R (Cth) [2017] NSWCCA 141 said that the offending was serious because the effect on the Commonwealth was far greater than the $18,000 paid to the applicant. [2] The loss affects taxpayers generally and those with legitimate claims may face additional roadblocks by reason of fraudulent claims which in turn increases the bureaucratic cost of administering the system. Loss is also suffered in the cost of detecting and investigating false claims.
After referring to the relevant principles under Part 1B of the Crimes Act (Cth) 1914 (“the Crimes Act”), his Honour concluded that, with the exception of the fourth offence, the only appropriate punishment was one of imprisonment. As to the fourth offence, he found that, although it was part of a course of conduct, the amount was so small that it did not warrant a sentence of imprisonment. Rather it called for a CCO for a period of 12 months with standard conditions.
His Honour imposed an aggregate sentence of 26 months imprisonment pursuant to s 53A of the CSPA. The indicative sentences, as reduced by the 25% discount, were 13 months for the first offence, 13 months for the second offence, 10 months for the third offence and 10 months for the fifth offence. It should be observed that the Crown accepted that the imposition of an aggregate sentence under the CSPA was open to his Honour. [3]
His Honour also appropriately considered whether the sentence should be served by way of full-time imprisonment, or in the community pursuant to an ICO. It is tolerably clear from his Honour’s remarks dealing with this issue that, as was an orthodox approach at the time and in dealing with the submissions made by counsel at the sentencing hearing, he considered this issue applying principles relevant to the application of the CSPA, particularly s 66 of that Act. In Vamadevan v The King [2024] NSWCCA 223, a decision of this Court handed down in December 2024 after the sentence was imposed by his Honour, it was held that for a Commonwealth offence, the question whether to impose an ICO must be determined by reference to s 16A of the Crimes Act and not s 66 of the CSPA. The decision in Vamadevan v The King gives rise to ground 2 on the appeal.
As the aggregate sentence imposed by his Honour was less than three years, he imposed a recognizance release order (see s 19AC of the Crimes Act) that the applicant be released after spending 12 months in custody, with a self-surety of $500 and a condition he be of good behaviour for 18 months, with supervision for that period.
Finally, his Honour made an order pursuant to s 21B of the Crimes Act that the applicant make a reparation to the Commonwealth of $16,226.89.
The Crown concession is appropriately made. The solicitor for the applicant did not place any, or any substantive, evidence going to the applicant’s subjective case before the sentencing judge. The only information his Honour was provided was from the SAR.
The applicant now seeks to put before the Court “new” or “fresh” evidence going to his subjective case.
In Lawavou v R [2025] NSWCCA 35, Yehia J (with whom Garling and Cavanagh JJ agreed), stated the following relevant and applicable principles at [110] and following:
110 It is well-established that a party is generally bound by the conduct of counsel at first instance, who has a wide discretion in conducting proceedings: R v Birks (1990) 48 A Crim R 385; (1990) 19 NSWLR 677 at 683, 685; R v Fordham (1997) 98 A Crim R 359 at 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals: Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 (‘Khoury’) at [104].
111 Moreover, an appeal to the Court of Criminal Appeal does not afford the applicant an opportunity to recast his or her case: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (“Betts”); Eden v R [2023] NSWCCA 31 (“Eden”) at [32]. Sentence appeals are reviews of a discretion and not a rehearing with different evidence: Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44 at [81] (Johnson J, McClellan CJ at CL and Rothman J agreeing). The rule is not absolute, and as noted by Simpson J (Davies J and Grove AJ agreeing) in Khoury, has been “diluted over the years”: at [105]. The rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King (1939) 61 CLR 167; [1939] HCA 4 per Latham CJ; Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 per Barwick CJ.
112 The characterisation of the additional evidence as “fresh” or “new” took on some significance in the appeal, no doubt because of statements to the effect that “fresh” evidence is more readily admitted than “new” evidence. In Barnes v R (2022) 299 A Crim R 483; [2022] NSWCCA 140 (“Barnes”), Hamill J (Gleeson JA and Ierace J agreeing) stated at [28]:
“The case law draws a distinction between “fresh” and “new” evidence… Fresh evidence is received more readily than new evidence.” (Emphasis added.)
See also Adanguidi v R [2024] NSWCCA 82; R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356; Khoury.
113 The issue must therefore be addressed and resolved, although, in my view, the distinction between “fresh” and “new” evidence is less significant on a sentence appeal where a court is of the view that the additional material may have had a real bearing on the sentencing outcome and that the absence of the material in the sentence proceedings resulted in a miscarriage of justice.
114 “Fresh” evidence has been defined (in the context of trial proceedings) by Mason J in Lawless v The Queen (1979) 142 CLR 659 at 675; [1979] HCA 49 as “... evidence of which the accused was unaware at the time of his trial and... evidence which he could not have discovered with reasonable diligence”. The clear distinction between the two kinds of evidence is explained in the following manner by Stephen J at 669:
“The concept of fresh evidence, as evolved in the cases and in particular in Ratten v. The Queen, a decision of this Court which was expressed as containing a definitive pronouncement of appropriate principle, requires that the evidence in question, not being before the jury at the trial, was not then available to be called by the defence. If. on the contrary, the defence, knowing of that evidence, elected not to tender it, it will not be fresh evidence. Again, if it is evidence of which the accused ‘bearing in mind his circumstances as an accused, …could reasonably have been expected to have become aware and which he could have been able to produce at the trial’ it will not be fresh evidence. However ‘great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial’, it being ‘probably only in an exceptional case’ that evidence not actually available to him is to be denied the quality of fresh evidence. So it is that it is evidence which is ‘actually or constructively available’ to the accused but is not called by him that is spoken of as lacking the quality of fresh evidence. These passages all appear in the judgment of the Chief Justice in Ratten's Case, with whose judgment three other members of the Court concurred.” (Citations omitted.)
115 In considering what evidence, by reasonable diligence, could have been available, “great latitude” ought to be extended to an accused: Ratten v The Queen per Barwick CJ at 517.
116 Evidence is “new” evidence, if it was available to be adduced at trial, either actually or constructively, but was not adduced: Adanguidi v R at [13] (Garling, Fagan and McNaughton JJ). This proposition is drawn from the decision in R v Abou-Chabake in which Kirby J (Mason P and Levine J agreeing) summarised the distinction between fresh and new evidence (again in the context of trial proceedings) in the following way at [63]:
“First, a distinction is made between ‘new evidence’ and ‘fresh evidence’. Fresh evidence is not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered or available at the trial by the exercise of due diligence.”
117 The distinction between “fresh” and “new” evidence (in the context of an appeal against sentence) was explained by Hamill J in Barnes (Gleeson JA and Ierace J agreeing). His Honour characterised the difference between the two forms of evidence in the following manner at [28]:
“…Evidence will constitute ‘fresh evidence’ if it was not available to a party, ‘could not have been discovered with the exercise of reasonable diligence’ at the time of sentence, and its admission will depend on whether it had the ‘capacity to affect the outcome of proceedings at first instance.’ ‘New’ evidence is material that was available but not used, or was discoverable with reasonable diligence at the time of sentence.” (Citations omitted.)
I respectfully agree with her Honour’s observation at [113] that the distinction between fresh and new evidence is less significant on a sentence appeal where the Court is of the view that the additional material may have had a real bearing on the sentencing outcome and that the absence of the material in the sentencing proceedings resulted in a miscarriage of justice. That is because, as her Honour says at [125], regardless of whether the additional evidence ought to be relied upon or categorised as “fresh” or “new” evidence, the test to be applied in considering whether that evidence ought to be admitted is whether the admission of the additional evidence would avoid a miscarriage of justice. In an application for leave to appeal against sentence, particularly where it is said that the additional material may be relevant to the question of mitigation of the sentence and the offender was deprived of the opportunity to have that material considered by the sentencing judge, it will usually be clear that receipt of that new evidence would avoid a miscarriage of justice. In any event, in this case, the distinction is not said to be relevant by the Crown. [4]
Additionally, in my opinion, it does not matter in this case whether a miscarriage of justice occurred by reason of incompetent or careless representation at the sentencing hearing. The fact is the applicant was deprived of the advantage of having additional material going to his subjective case which may go towards mitigation of the sentence put before the sentencing judge. This omission, in my opinion, resulted in a miscarriage of justice.
Ground 1 is made out.
Having reached this conclusion, and in light of the sentence I would impose, I agree that it is not necessary to deal in any further detail with ground 2.
(a) intentionally choke person without consent (DV), offence date 14 October 2024. He received a sentence of 12 months imprisonment commencing 14 October 2024 and expiring 13 October 2025 with a non-parole period of 7 months. He was eligible for release to parole on 13 May 2025; (b) police pursuit-not stop-drive recklessly, offence date 11 August 2024. He was sentenced to a community corrections order for 12 months commencing 31 January 2025 and disqualified from holding or obtaining a driver’s licence for 12 months; (c) not comply with licence conditions and display P plates, offence date 11 August 2024. A conviction was recorded and order made under s 10A of the CSPA; (d) not correctly fix numberplate to class A vehicle, offence date 11 August 2024. A conviction was recorded and an order made under s 10A of the CSPA; and (e) drive vehicle with illicit drug present in blood - second offence, offence date 11 August 2024. A conviction was recorded and an order made under s 10A of the CSPA. There was a further disqualification order from driving and obtaining a licence for a period of six months.
The applicant also details efforts he has made to obtain counselling treatment for his drug addiction. He deposes that he has suffered from that addiction since he was a teenager. He says that addiction is the underlying reason for his offending behaviour. He says the offences the subject of this appeal were committed to fund his drug use.
The applicant says that he has taken steps to try and obtain counselling and treatment for his addiction. In August 2024 he completed an assessment application to attend the Weigelli Rehabilitation Centre in Woodstock, New South Wales. He was placed on a waiting list and was told he would need to check-in every two weeks to stay on the list. He said he was checking in on a regular basis until around September 2024. He disputes the suggestion made in other evidence that he did not remain in contact with that rehabilitation centre.
He also deposes that in 2024 he self-referred to the Warriga-Dhaiyala alcohol and other drugs service run by the Orange Aboriginal Medical Service. He then attended that service on four occasions for intake interviews, a comprehensive assessment by one of the service’s doctors and a follow up review with that doctor. He then dropped out of contact with that service. He says this was partly because he relapsed into drug use and also because he was extremely stressed by having to travel between Orange and attend court using public transport in the company of his partner and children. He reconnected with that service in October 2024 and had a follow-up appointment booked. However, he was arrested and remanded in custody on the above-mentioned charges (unrelated to the charges the subject of the appeal) and was not able to go to the appointment. He said he had been prescribed some medication to help in detoxing off drugs, however, he did not have the prescriptions filled as he relapsed into drug use.
The applicant also sets out his dealings with his solicitor in the sentence hearing. In essence, he says that at no point did that solicitor take instructions from him about whether he wished to proceed with the sentence hearing in the absence of any evidence with respect to his engagement with counselling and treatment services or other subjective materials. He confirmed he has waived legal professional privilege in relation to his dealings with that solicitor. Noting that, as set out above, the reason why the material was not placed before the sentencing judge is not determinative where there is a resultant miscarriage of justice, I will not deal in any detail with this issue.
The applicant also deposes to his time in custody. He has been in custody since 14 October 2024. It is his first time in custody. He has remained abstinent from drugs, this being the longest period of time he has been drug-free since he was a teenager. He has attended Narcotics Anonymous most weeks. He has also begun to attend chapel. He has undertaken working in textiles, ground maintenance and as a farm hand whilst he has been at various correctional centres. He has had one in custody charge for which he was given a minor penalty. He is participating in courses to assist him on his release. He says when he is released from custody he wants to return to the Orange area. He intends to continue with treatment and counselling for his addiction. He wishes to obtain a place in a residential rehabilitation centre and maintain abstinence from drugs and alcohol. He hopes to obtain employment through a relative in a construction business in Bathurst. He wants to mend his relationship with his ex-partner and children.
Mr Siganto is the solicitor for the applicant.
He annexes to this affidavit the records from the Orange Aboriginal Medical Service which corroborate the statements of the applicant with respect to his engagement with that service in August 2024. The service confirmed that the applicant had lost contact with them in October 2024, despite multiple attempts by the service to re-engage.
Mr Siganto also annexes a psychological report of Julie Dombrowski dated 5 May 2025. I will set out the psychologist’s report in more detail below.
Mr Siganto annexes the applicant’s Corrective Services Case Management records from October 2024 to March 2025. Again, these notes confirm the statements made by the applicant with respect to his time in custody, the one charge he has incurred whilst in custody and the courses he has undertaken.
Finally, Mr Siganto attaches the copy of the records of the applicant’s former solicitor from the sentence proceedings. He confirms the applicant waives legal professional privilege with respect to these records.
In this affidavit Mr Siganto provides additional material with respect to the applicant’s engagement with the Orange Aboriginal Medical Service.
He also provides additional information into courses engaged in by the applicant whilst in custody.
The applicant was assessed by Ms Dombrowski via audio visual link. She recited the facts of the applicant’s offending for the index offences. She also referred to his criminal history having commenced when he was aged 15. As a juvenile he was convicted of assault, stalking/intimidation, contravention of a protection order, affray and offensive conduct together with breaches of bail. He had received community-based orders including suspended control orders.
She recorded that the applicant told her that at the time of the index offending, he was living with his partner and two children. He was unemployed but in receipt of the Jobkeeper allowance. He reported experiencing a depressed mood and grieving the loss of his mother who had died unexpectedly from a heart attack in September 2021, six months before the index offending commenced. He reported he was smoking up to 3.5 grams of methylamphetamine to manage his grief and depressed mood. He told the psychologist he committed the subject offences to fund that drug habit.
Ms Dombrowski reported that the applicant expressed regret for his decision-making and the index offending. He said he felt it was the easiest thing to do and was better than robbing someone. He expressed remorse for his actions and said he did not think about how other people actually needed the money or how his family and children were impacted by his incarceration.
The applicant reported to Ms Dombrowski that he had been in prison for the unrelated offending described above, and this was his first period of incarceration. He was presently working as a farm hand. He said that being incarcerated had actually helped him to achieve abstinence from his drug abuse.
The applicant reported to Ms Dombrowski a difficult childhood. He grew up living with his parents, three older sisters and three younger brothers in Cobar, New South Wales. Neither of his parents worked and the family was reliant on government allowances. He reported that his father used alcohol very heavily and was belligerent and verbally abusive when intoxicated. Regularly, his father would evict him, his mother and his siblings from the house during his drunken states. They lived with extended family for brief periods until they were allowed to return home. He denied any experience of physical abuse or neglect during his childhood. The applicant reported a single incident of non-penetrative child sexual abuse at the hands of one of his father’s peers.
He moved out of home age 13 to avoid his father’s volatile behaviour and lived with various friends throughout his adolescence. He described his mother as being loving and nurturing and having had a close bond with her. She died unexpectedly from a heart attack in 2021 when he was 24 years old. He described being devastated by her death and continuing to grieve the loss. He maintains regular contact with his siblings. He continues to hold significant animosity towards his father because of his ongoing use of alcohol and associated volatility, however, he maintains some contact with him.
In terms of schooling, the applicant attended school until year eight and completed two further years of school via distance education. He said he achieved below average grades in all subjects. He needs assistance to read a newspaper or complete complex forms. He has no tertiary or vocational training other than some preliminary induction training for the construction industry. He has never been employed. He has enjoyed working as a farmhand whilst in custody and hopes to obtain similar employment on his release.
The applicant identifies as having Aboriginal and Irish heritage. He does not know much of his indigenous heritage. Since his adolescence he has predominantly socialised with older antisocial peers. He does not have any friends without substance abuse or criminal histories. He is presently single with three children aged four, three and two years. He is currently subject to an Apprehended Violence Order that protects his former partner. His last contact with his children was in October 2024 before he went into custody.
The applicant reported a significant substance use history to Ms Dombrowski. He was consuming up to 4 litres of wine a day between the ages of 12 and 16. He stopped using alcohol when he commenced smoking methylamphetamine at age 16. From then until age 27 he was smoking up to 3.5 grams of methylamphetamine every day. He also reported using ecstasy, cannabis and other drugs. He said he uses drugs to conform with his friends and to manage negative thoughts and feelings that he would otherwise find overwhelming him including depression and grief. He reported that all of his prior offending had been committed under the influence of either alcohol or methylamphetamine and/or in order to fund the purchase of those substances. The applicant reported that he had attended a couple of counselling sessions at the Orange Aboriginal Medical Service and had made several unsuccessful attempts to access a residential drug rehabilitation centre in 2024. However, he was unable to abstain from drug use but has been clean from substances since his incarceration. He has regularly attended Narcotics Anonymous meetings in custody, which he finds helpful in achieving and maintaining abstinence.
As to his medical history, he reported having been diagnosed with depression in 2024. He described experiencing chronic depressed moods, suicidal ideation and other symptoms since childhood. On the symptoms described by him, and following admission of relevant psychometric assessments, Ms Dombrowski considered there was evidence of a severe personality pathology characterised by dramatic/erratic thoughts, feelings and behaviours (including defensiveness and suspiciousness) that have led to pervasive social and interpersonal difficulties. She opined that the applicant has a secondary depressive-masochistic-avoidant personality style. Such individuals tend to view themselves, their experiences and their future in negative terms.
Ms Dombrowski opined that the heavy use by the applicant of methylamphetamine very likely compromised his decision-making and judgement at the time of the offending. She said that his offending is best understood within the context of his developmental history including his history of disadvantage. This context included the tense home environment, paternal alcohol abuse and volatility with resultant housing instability. She referred to his being subject to sexual abuse at age 11. He had received little in the way of parental supervision or guidance in his adolescence to positively shape his social and moral development. Instead, he formed antisocial peer associations and commenced his offending. He has used alcohol and drugs to conform with those antisocial friends and to manage his negative thoughts and feelings.
Ms Dombrowski said:
The stressful and chronic nature of these experiences during his formative years and his early and heavy substance use during periods of critical neurological development (e.g., between age 12 and 25) have likely interfered with the normal development of the frontal areas of his brain (i.e., the area of the brain responsible for higher-level cognitive processes such as emotional and behavioural regulation and moral reasoning and judgement) and shaped the development of an unstable personality structure (i.e., the lens through which he perceives, relates to, thinks about the world and himself). Based on his history, presentation, and psychometric assessment…, his personality structure appears most in keeping with a Cluster B (Dramatic/Erratic) personality disorder with borderline features. His unstable personality structure makes him vulnerable to anxiety and depression, and he currently meets diagnostic criteria for a Major Depressive Disorder.… The subject offending (and much, if not all, of his prior offending) functions from his unstable personality structure (underpinned by attachment destruction) and his substance use.
The applicant submits that in the exercise of the sentencing discretion afresh by this Court, a lesser sentence is warranted at law: s 6(3) Criminal Appeal Act.
The applicant points to the following matters relevant under s 16A of the Crimes Act which he submits would result in a lesser sentence:
the offending was unsophisticated, and in his assessment, the sentencing judge described the methods as rudimentary. [5] The sentencing judge also found that the offending ended at the applicant's own volition and, having regard to its duration and the amounts involved, was not motivated by greed but, rather, to support his drug habit: s16A(2)(a);
the course of conduct of the offending was relatively short, not a sustained fraud over several years;
the offending did not involve any actual victims: s16A(2)(d) and (ea);
the benefit obtained, and loss caused, by the offending was not significant: s16A(2)(e);
the applicant has shown contrition and was found by the sentencing judge to be remorseful and to have some insight into his offending: s16A(2)(f);
the applicant pleaded guilty prior to the committal stage and the plea was found by the sentencing judge to be of significant utilitarian value: s16A(2)(g);
whilst general and specific deterrence have a role to play in social security fraud cases, the role of general deterrence in this case is reduced by reason of the applicant’s personal circumstances: s16A(2)(j) and (ja);
there is a need to ensure adequate punishment: s 16A(2)(k);
the personal circumstances of the applicant, including his modest criminal history, history of disadvantage, early exposure to alcohol and drugs and history of sexual abuse with the resulting mental health conditions enliven the application of Bugmy v The Queen (2013) 249 CLR 531; (2013) HCA 37 (“Bugmy”) and DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178]: s 16A(2)(m); and
the applicant has made attempts to address his drug use prior to sentence with the Orange Aboriginal Medical Service and the Weigelli Centre Aboriginal Corporation. This would have provided, and provides, a basis to conclude that the applicant’s prospects of rehabilitation are more than just guarded. This is evidenced by his progress since he was sentenced: s16A(2)(n).
The applicant submits that the Court should, applying the factors under s 16A, give consideration to imposing an ICO. If it does, the length of the ICO should take into account the time served by the applicant: Barker v R [2024] NSWCCA 227 at [56]; Mandranis v R [2021] NSWCCA 97 at [61]-[63]; AM v R [2024] NSWCCA 26 at [46].
The Crown submits that the sentence imposed by Smith SC DCJ was appropriate given it was commensurate with the level of criminality and accounted for the same subjective factors now presented on appeal. The Crown submits that the sentence imposed meets the requirement that the sentence be of a severity that is appropriate in all of the circumstances (s 16A(1)), having regard to the factors in s 16A(2) that are known and relevant.
The Crown submits that the offending was constituted by a simple and consistent course of conduct designed to exploit relief schemes. The only reasonable inference, the Crown submits, is that the deceptive conduct was intentional, and is therefore objectively more serious than recklessly deceptive conduct (s 16(A)(2)(a)).
The Crown characterised the financial advantage obtained as not significant within the spectrum of fraud offences, acknowledging however that the schemes themselves only allowed small payments (s 16A(2)(e)). With respect to the degree to which the applicant has shown contrition, the Crown acknowledged the utilitarian value of the guilty plea entered by the applicant (s 16A(2)(f)(g)).
The Crown submits the applicant has relevantly been convicted of larceny, theft, drug-related offences and dishonesty offences evincing a failure of past deterrents, which have come in the form of custody and community supervision (s 16A(2)(j)). Additionally, the Crown submits that general deterrence should be a significant consideration in sentencing given the nature of the Commonwealth schemes which were targeted (s 16A(2)(ja)).
Turning to subjective factors (s 16A(2)(m) and (p)), the Crown submits that Ms Dombrowski does not suggest that the applicant’s moral culpability for the fraud is reduced by his subjective factors. That the psychologist did not provide such an opinion is not surprising. That is not the role of an expert witness. The conclusion whether there ought to be a finding that there is a reduction of the offender’s moral culpability is one for the Court taking into account the whole of the evidence, including expert evidence, and any disadvantage suffered by an offender and any link (usually established by expert opinion) between an offender’s mental health condition and the offending conduct.
I consider that the evidence leads to a finding that the applicant’s drug and alcohol addictions which feature as a factor in all of his offending, including the index offending, result from his early exposure to drugs and alcohol and are linked to his mental health conditions such that they should not be considered as addictions of choice; R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [273] and [336]; R v Boyd [2022] NSWCCA 120 at [179].
In addition, I consider that the childhood disadvantage suffered by the applicant by reason of his early exposure to alcohol, his father’s behaviour when intoxicated, his early exposure to drugs and the sexual abuse he suffered must, in accordance with the principles in Bugmy, be given full weight in determining the sentence imposed having regard, in particular, to his moral culpability for the offending.
In oral submissions, Counsel for the Crown submitted that the evidence did not disclose that the requisite connection between the applicant’s mental impairment and the commission of the fraud existed. I do not accept this submission. I consider it clear from the opinion of Ms Dombrowski, in particular the passage of her report extracted at [68] above, that there is a material connection between the applicant’s mental health condition and his offending.
I therefore consider that the moral culpability of the applicant is reduced.
The Crown submits that the offending is objectively serious and that no other sentence other than one of imprisonment is appropriate. It accepts that a sentence greater than three years would be manifestly excessive. In oral submissions, despite special leave to appeal McGregor v R [2024] NSWCCA 200 (“McGregor”) having been granted, the Crown submitted that if otherwise thought appropriate, the Court could impose an aggregate sentence in accordance with s 53A of the CSPA. The Crown submitted, however, that an ICO would not be appropriate because the objective seriousness of the offending was not low, there was a significant need for general and specific deterrence and custody has provided stability to the applicant and has given him an opportunity to engage in rehabilitative courses and treatment.
The applicant engaged in a deliberate and dishonest course of conduct to defraud the Commonwealth. Whilst the amounts were not high, as the learned sentencing judge concluded, the loss cannot just be measured by the amount the applicant received. Objectively the criminality was serious.
I accept that the offending was undertaken to fund the applicant’s drug addiction. I have found that the addiction was not one of choice.
I have referred above to the parties’ submissions on the relevant and known circumstances that the Court must consider under s 16A(2). I accept the submissions of the applicant. I will not repeat them again.
As I have stated above, I do not accept the Crown’s position as to an absence of a link between the applicant’s mental health issues and the offending. I consider the evidence establishes such a link. I also accept the submissions of the applicant that his childhood disadvantage enlivens the application of the principles from Bugmy. I find that the applicant’s moral culpability for the offending is reduced such that general deterrence plays a lesser role in this sentencing exercise than it might otherwise have played. Whilst such criminal behaviour must also be denounced, by reason of the subjective factors now before the Court and not available to the sentencing judge, I consider that purpose of sentencing also plays a lesser role.
I consider that the sentencing judge’s assessment of the prospects of rehabilitation as being “guarded”, whilst understandable based on the very limited material placed before his Honour by the applicant’s then solicitor, understates those prospects. The applicant did take steps to engage with services to assist him with his drug addiction before he was incarcerated. Regrettably, he fell back into drug use. Since he has been in custody, he has been abstinent from drugs and alcohol and attends Narcotics Anonymous. He says he wants to remain abstinent. Of course, the path to his rehabilitation may not be straightforward once he is released and he may be subject to temptation and influence by anti-social peers. If he engages with services such as the Orange Aboriginal Medical Service and fulfils his stated desire to enter residential rehabilitation on release, I consider that his prospects of resisting such temptations and influence will be strengthened. If he undertakes those treatments, I consider his prospects of rehabilitation are reasonable.
I accept that the applicant has shown remorse for his offending. I consider he has shown some insight into the loss caused by his criminality and that it goes beyond the actual financial loss to the Commonwealth.
When sentencing a person who is convicted of one or more Commonwealth offences, there are various sentencing options available. Relevantly in this case, the applicant may be released without the Court passing sentence, with or without sureties, by recognizance or otherwise, on conditions (see s 20(1)(a) Crimes Act). The applicant may be sentenced to imprisonment and the Court may order that the person be released, with or without sureties, on recognizance or otherwise, with conditions either immediately, or after he has served a specified period of imprisonment (see s 20(1)(b) Crimes Act).
A sentence of imprisonment can only be imposed if, after having considered all other available sentences, the Court is satisfied that no other sentence is appropriate in the circumstances of the case (see s 17A(1) Crimes Act).
I consider that having regard to all of the circumstances of this case and taking into account other possible sentences, no sentence other than a sentence of imprisonment is necessary for all sequences except, as the sentencing judge found, for sequence 21. I do not consider any other sentence for that offence other than that imposed by the sentencing judge is warranted. For the remainder of the sequences, I consider that a sentence of imprisonment is appropriate to reflect the denunciation of the applicant’s criminality and to serve as punishment for that conduct.
With respect to the sequences that will be the subject of terms of imprisonment, although counsel for the Crown expressly accepted that an aggregate sentence pursuant to s 53A of the CSPA is able to be imposed for these Commonwealth offences, I consider such a course may be imprudent having regard to the grant of special leave to appeal to the High Court from the decision of McGregor. I observe it was the position of the Commonwealth Director of Public Prosecutions in this Court (and on the application for special leave to appeal to the High Court) that such a sentence cannot be imposed for Commonwealth offences.
I intend therefore to impose individual sentences. I must have regard to the principles of totality and proportionality in the sentences to be imposed. As his Honour found, the offending can be regarded as a relatively short but consistent course of conduct. Sequence 1 occurred over only two weeks, but the applicant obtained $9,000. Sequence 4 took place over a period of two months, again leading to the applicant obtaining $9,000. Sequence 16 occurred over two and a half months involving the applicant making claims for up to $25,000, however most of them were withdrawn. I agree with the sentencing judge that it is relevant that such claims were withdrawn, not refused, just as it is relevant that the offending ceased on the applicant’s own volition not because he was caught. Sequence 31 lasted well over four months and involved claims totalling $30,000. The vast majority of the claims were withdrawn by the applicant. There will need to be some cumulation of the sentences to reflect the separate criminality of the offending, however there will be a significant degree of concurrency so that the total sentence is not disproportionate to the overall criminality engaged in.
I must take into account the early plea entered by the applicant. I agree with the sentencing judge that this should result in a 25% discount to the sentence received.
I would propose the following sentences:
for sequence 1 a term of imprisonment after the 25% discount of 9 months commencing on 27 November 2024 and expiring 26 August 2025;
for sequence 4 a term of imprisonment after the 25% discount of 9 months commencing 26 May 2025 and expiring 25 February 2026;
for sequence 16 a term of imprisonment after the 25% discount of 5 months commencing 26 August 2025 and expiring 25 January 2026; and
for sequence 31 a term of imprisonment after the 25% discount of 5 months commencing 27 December 2025 and expiring 25 May 2026.
This is an overall term of imprisonment of 18 months commencing 27 November 2024 and expiring on 25 May 2026.
Because the applicant has been convicted of 2 or more Federal offences and I propose that he be sentenced to terms of imprisonment that do not, in the aggregate, exceed 3 years s 19AC(1) of the Crimes Act requires the sentencing court to make a single recognizance release order (unless satisfied under s 19AC(4) that it is not appropriate to do so). I do not consider that in the circumstances of the offences for which the applicant has been convicted and his antecedents, it is not appropriate to make such an order.
The applicant has been in custody for these offences since 27 November 2024. That is, as at 1 August 2025, a period of 8 months and 4 days. I consider this is a sufficient period of custody. Having served that period of custody, the applicant should be released upon entering into a recognizance, without security, in the sum of $500 and to comply with the following conditions for a period of 12 months from the date of these orders:
To be of good behaviour;
To be supervised by Community Corrections for so long as that service deems it necessary and to obey all reasonable directions given by that service; and
To participate and maintain his participation in any programs for treatment required and/or facilitated by Community Corrections for alcohol and other drugs and/or mental health for as long as that service deems necessary.
Having proposed the recognizance release order, it is not necessary to consider whether it is appropriate to make an ICO.
I would not interfere with his Honours reparation order whereby, pursuant to s 21B of the Crimes Act the applicant make reparation to the Commonwealth in the sum of $16,226.89.
For sequence 21, I would not interfere with the CCO imposed by the sentencing judge.
The orders I therefore propose are:
Leave to appeal granted.
Appeal allowed.
Set aside the sentences of imprisonment imposed on 27 November 2024 in the District Court of NSW and in lieu thereof impose the following sentences:
(i) For sequence 1 a term of imprisonment after the 25% discount of 9 months commencing on 27 November 2024 and expiring 26 August 2025. (ii) For sequence 4 a term of imprisonment after the 25% discount of 9 months commencing 26 May 2025 and expiring 25 February 2026. (iii) For sequence 16 a term of imprisonment after the 25% discount of 5 months commencing 26 August 2025 and expiring 25 January 2026. (iv) For sequence 31 a term of imprisonment after the 25% discount of 5 months commencing 27 December 2025 and expiring 25 May 2026.
(i) To be of good behaviour; (ii) To be supervised by Community Corrections for so long as that service deems it necessary and to obey all reasonable directions given by that service; and (iii) To participate and maintain his participation in any programs for treatment required and/or facilitated by Community Corrections for alcohol and other drugs and/or mental health for as long as that service deems necessary.
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AB 56.
AB 57.
At [49] Crown Written Submissions on Sentence at AB 153.
see [16] Crown Written Submissions
AB 55.
Typographical amendment to Coversheet, [95] and [102].
O'Hanlon
R
(2013) 249 CLR 531
(2010) 79 NSWLR 1
(2014) 252 CLR 601
(1990) 19 NSWLR 677
(2016) 258 CLR 420
(1939) 61 CLR 167
(1974) 131 CLR 510
(1979) 142 CLR 659