Australia, Sept. 10 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 11:

1. MITCHELMORE JA: I agree with Coleman J.

2. IERACE J: I agree with Coleman J.

3. 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).

4. 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.

5. 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.

6. The applicant seeks leave to appeal against the aggregate sentence on the following grounds of appeal:

1) the failure to place evidence before the court relevant to the applicant's subjective circumstances resulted in a miscarriage of justice; and

2) the sentencing judge erred in his consideration of whether to impose an Intensive Correction Order ("ICO").

7. 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]).

8. For the reasons which follow, I would grant leave to appeal, allow the appeal and re-sentence the applicant.

The sentencing judgment

9. Because the Crown says no other sentence should be imposed it is necessary to consider in some detail the sentencing judgment.

10. 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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198736c2bb8753814c7765fb)

Disclaimer: Curated by HT Syndication.