Australia, July 23 -- New South Wales Land and Environment Court issued text of the following judgement on June 23:

1. MITCHELMORE JA: The applicant, William O'Dwyer, pleaded guilty to six counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). In broad outline, the offences involved conduct on the part of the applicant in obtaining loan facilities on behalf of three development companies of which he was the sole director, in order for those companies to carry out separate residential development projects.

2. On 2 February 2024, the applicant was sentenced in the District Court by Anderson SC DCJ to an aggregate term of imprisonment of 4 years, commencing on 2 February 2024 and expiring on 1 February 2028, with a non-parole period of 2 years and 4 months expiring on 1 June 2026. He seeks leave to appeal from the sentence imposed on the following grounds:

1) The sentencing proceedings miscarried by reason of the prosecutor's reliance upon the agreed facts in a way that characterised the criminality as giving rise to more serious offences, in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 ("De Simoni"); and the sentencing judge fell into error in assessing the objective seriousness of each of the offences by having regard to facts which gave rise to more serious offending, in breach of De Simoni.

2) The aggregate sentence imposed was manifestly excessive.

3) The sentencing judge erred in assessing the objective seriousness of each of the offences as underpinned by an evaluation of the amount of the drawdowns and the period of time over which they were made; and by failing to take into account the responsible management of the drawdowns in this objective context.

3. Although ground 1 and ground 3 (which was added by later amendment) appeared internally inconsistent, counsel for the applicant clarified at the hearing that the error that is alleged in ground 3 proceeds on the premise that ground 1 is rejected and the sentencing judge was able to rely on the amount and period of the drawdowns. Counsel also clarified at the hearing that ground 2 was independent of the other two grounds, even though the applicant's written submissions did not advance separate arguments in respect of it and only brief oral submissions were addressed to it.

4. For the reasons that follow, I do not consider that the applicant's grounds of challenge to the sentence have been made good. Accordingly, although I would grant the applicant leave to appeal against his sentence, I would dismiss the appeal.

The charges and the offending conduct

5. The Crown tendered a detailed statement of facts (Exhibit A). However, the sentencing judge observed in his reasons that "notwithstanding its length", the statement of facts "did not actually address the six specific offences for which the offender had pleaded guilty": at [5]. At his Honour's request, a supplementary document was prepared which set out, for each sequence, the date range, the factual basis, the financial advantage obtained, the drawdowns made and the applicant's conduct in obtaining the financial advantage (Exhibit C). His Honour took both Exhibit A and Exhibit C into account in preparing his reasons: at [5].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1978157f4d5bf3c748d9a07e)

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