Hardship to Third Parties

Published by Geoff Harrison | 27 August 2023

The common law principle and current law in NSW is that, "exceptional circumstances" must be demonstrated in order to mitigate a sentence for hardship to third parties eg. children etc. However, this is not the case in relation to sentencing for Commonwalth offences as s16A(2)(p) of the Crimes Act 1914 (Cth) mandates that the court take into consideration the probable effect that any sentence would have on any of the persons's family or dependants: see Totaan v R [2022] NSWCCA 75 per Bell CJ at [92] - [93] (below). The common law notes that generally any custodial sentence will invetiably and unavoidably invole hardship to third parites. In R v Edwards (1996) 90 A Crim R 510, Gleeson CJ said at 515:

There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.

The Judicial Bench Book commenatary relating to hardship to family members can be viewed here.

Cases:

• R v Gip; R v Ly [2006] NSWCCA 115

• Dipangkear v Regina [2010] NSWCCA 156

• R v Chan [1999] NSWCCA 103

• R v MacLeod [2013] NSWCCA 108

• R v Nguyen [2023] NSWDC 288

_______________________________________________________________________

CRIMES ACT 1914 - SECT 16A Matters to which court to have regard when passing sentence etc.--federal offences

Matters to which court to have regard when passing sentence etc.--federal offences

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

Note: Minimum penalties apply for certain offences--see sections 16AAA, 16AAB and 16AAC.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

...

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

...

_______________________________________________________________________

Totaan v R [2022] NSWCCA 75 (11 April 2022)

Court of Criminal Appeal

Supreme Court

New South Wales

Case Name:

Totaan v R

Medium Neutral Citation:

[2022] NSWCCA 75

Hearing Date(s):

11 February 2022

Date of Orders:

11 April 2022

Decision Date:

11 April 2022

Before:

Bell CJ at [1]; Gleeson JA at [148]; Harrison J at [149]; Adamson J at [150]; Dhanji J at [151]

Decision:

1. Grant leave to appeal.

2. Appeal allowed.

3. Set aside the sentences imposed on the Applicant on 12 March 2021 and resentence the Applicant as follows:

In relation to Count 1, the Applicant is sentenced to a term of imprisonment of one and a half years, commencing on 12 March 2021 and expiring on 11 September 2022.

In relation to Count 3, taking into account the s 16BA offence, the Applicant is sentenced to a term of imprisonment of two and a half years, commencing on 12 September 2021 and expiring on 11 March 2024.

4. Order that the Applicant be released immediately on recognizance to be of good behaviour for one year and 11 months, and upon posting security in the sum of $10.

Catchwords:

CRIME — appeals — appeal against sentence — misapplication of principle — sentencing for federal offences — relevant considerations for a court sentencing a federal offender pursuant to s 16A of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong”

CRIME — appeals — appeal against sentence — re-sentence – obtaining a financial advantage by deception from the Commonwealth, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) — where offending involved social security fraud — where offender underreported or failed to report income to authorities and thereby received benefits to which she was not entitled — the proper treatment of general deterrence in sentencing for social security fraud offences — where offender was the victim of physical, emotional and financial abuse perpetrated by her former partner — where the offender’s incarceration resulted in hardship to her family and children

JUDGMENTS AND ORDERS — court of appeal — review of previous decision of the court of appeal — whether previous decision plainly wrong — the proper construction of s 16A(2)(p) of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong”

SENTENCING — appeal against sentence — general principles — relevant considerations for a court sentencing a federal offender pursuant to s 16A of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong”

SENTENCING — federal offenders — relevant considerations — hardship — to third parties — whether s 16A(2)(p) of the Crimes Act 1914 (Cth) requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong”

STATUTORY INTERPRETATION — precedent — federal legislation — the importance of comity and consistency between intermediate appellate courts in the interpretation of federal legislation — the proper construction of s 16A(2)(p) of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong”

Legislation Cited:

Crimes Act 1914 (Cth) ss 16A, 16A(2)(p), 16BA, 19AB(1), 19AC(1), 20(1)(b), 20(2), 20A(5), 20AA, 21B

Crimes Legislation Amendment Act (No 2) 1989 (Cth), s 6

Criminal Appeal Act 1912 (NSW), s 6(3)

Criminal Code Act 1995 (Cth) ss 134.2(1), 135.1(5)

Criminal Law (Sentencing) Act 1988 (SA), s 10(n)

Evidence Act 1995 (Cth)

Evidence Act 1995 (NSW) s 128(8)

Cases Cited:

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Bae v R [2020] NSWCCA 35

Boyle v The Queen (1987) 34 A Crim R 202

Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1

Chippendale v Commissioner of Taxation (1996) 62 FCR 347

Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86

Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12

De Faria v Western Australia [2013] WASCA 116

Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145

Director of Public Prosecutions (Cth) v Milne [2001] VSCA 93

Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42

Director of Public Prosecutions v Ip [2005] ACTCA 24

Elshani v The Queen (2015) 255 A Crim R 488; [2015] NSWCCA 254

Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67

Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Fish v Solution 6 Holdings Limited (2006) 225 CLR 180; [2006] HCA 22

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76

Heath v R [2016] NSWCCA 24

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Huddart Parker Ltd v Cotter [1942] HCA 34; (1942) 66 CLR 624

Huynh v Commonwealth Services Delivery Agency (2014) 120 SASR 557; [2014] SASC 143

Jafaar v R [2017] NSWCCA 223

Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15

Jorissen v The Queen [2017] WASCA 71

Kaveh v R [2017] NSWCCA 52

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106

Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] VicRp 83; [1992] 2 VR 505

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Markovic v R (2010) 30 VR 589; [2010] VSCA 105

McKinnon v Secretary; Department of Treasury (2006) 228 CLR 423; [2006] HCA 45

Nguyen v R [2016] NSWCCA 5

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62

R v Adami [1989] SASC 1640; (1989) 51 SASR 229

R v Betka [2020] NSWSC 77

R v Buckskin [2010] SASC 138

R v Carter [2018] NSWCCA 138

R v Constant (2016) 126 SASR 1; [2016] SASCFC 87

R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 866

R v Edwards (1996) 90 A Crim R 510

R v Girard [2004] NSWCCA 170

R v Hawkins (1989) 45 A Crim R 430

R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405

R v Holdsworth [1993] QCA 242

R v Hurst; Ex parte Director of Public Prosecutions (Cth) [2005] QCA 25

R v Ibbetson [2020] QCA 214

R v Knipe [2017] SASCFC 34

R v Matthews (1996) 130 FLR 230

R v Milne (2012) 91 ATR 560; [2012] NSWSC 1538

R v Milne (No 6) [2010] NSWSC 1467

R v Newton (2010) 199 A Crim R 288; [2010] QCA 101

R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369

R v Peter Michael Clark; (Court of Criminal Appeal (NSW), 15 March 1990, unrep)

R v Polterman (Court of Criminal Appeal (Vic), 2 August 1974, unrep

R v Qian Lin [2014] NSWCCA 254

R v Ruha; Ex Parte Director of Public Prosecutions (Cth) (2010) 198 A Crim R 430; [2010] QCA 10

R v Sinclair (1990) 51 A Crim R 418

R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130

R v T (1990) 47 A Crim R 29

R v Taleb (No 5) [2019] NSWSC 720

R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222

R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522

Robertson v R [2017] NSWCCA 205

Saoud v The Queen; Fernandez v The Queen [2019] VSCA 208

Saxon v Commonwealth Services Delivery Agency (2004) 88 SASR 382; [2004] SASC 118

The Queen v Wirth (1976) 14 SASR 291

Transurban City Link Ltd v Allan (1999) 95 FCR 553; [1999] FCA 1723

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Warden v The Queen [2019] VSCA 2

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Zaky v The Queen [2015] NSWCCA 161

Texts Cited:

Australian Law Reform Commission, Sentencing (Report No 44, March 1988)

Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989

J D Heydon, “How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?” (2009) 9 Oxford University Commonwealth Law Journal 1

M Leeming, “Farah and its Progeny: Comity Among Intermediate Appellate Courts” (2015) 12 Judicial Review 165

Category:

Principal judgment

Parties:

Clarisse Totaan (Applicant)

The Crown (Respondent)

Representation:

Counsel:

S Howell with R El-Choufani and C Akthar (Applicant)

J Single SC with G Marsden (Respondent)

Solicitors:

Legal Aid Commission (Applicant)

Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2020/178413

Decision under appeal:

Court or Tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

12 March 2021

Before:

English DCJ

File Number(s):

2020/0178413

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 20 November 2020, Ms Clarisse Totaan (the Applicant) pleaded guilty to two offences of obtaining a financial advantage by deception from the Commonwealth, contrary to s 134.2(1) of the Criminal Code (Cth). She also asked that a further offence of dishonestly causing a loss to the Commonwealth, contrary to s 135.1(5) of the Criminal Code, be taken into account in determining her sentence.

All three offences involved the Applicant underreporting or failing to report her income to the Department of Human Services, and thereby obtaining Parenting Payment Single benefits to which she was not legally entitled. The total amount of the illegitimately obtained benefits was $112,999.96, over a combined period of approximately six years and three months. During the period of offending, the Applicant was the victim of emotional, financial and physical abuse perpetrated by her former partner, who was the father of her two children.

In the District Court, the Applicant was sentenced to an aggregate term of four years of imprisonment, with a non-parole period of two years. The sentencing judge also made a reparation order in the sum of $112,999.96, which was not the subject of the present application for leave to appeal.

In proceedings before the sentencing judge, evidence was led concerning the hardship that would be occasioned to the Applicant’s mother and two children if she were imprisoned. Section 16A(2)(p) of the Crimes Act 1914 (Cth) relevantly provides that, when sentencing a federal offender, a court must take into account “the probable effect that any sentence or order under consideration would have on any of the person's family or dependants”, if relevant and known to the court. Authorities in both this Court and intermediate appellate courts of other States have held that “exceptional hardship” must be established before a court may have regard to, or attach a specified weight to, hardship to third parties pursuant to s 16A(2)(p).

The Applicant sought leave to appeal from her sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The principal issues on appeal were:

1. whether the sentencing judge in fact took into account the asserted hardship that would be occasioned to the Applicant’s family and dependants by her imprisonment (the first issue);

2. whether “exceptional hardship” must be established before a court may have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth), including whether authorities that have held that “exceptional hardship” is required are “plainly wrong” (the second issue); and

3. whether the Applicant should receive a lesser sentence in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW) (the third issue).

The Court held (Bell CJ, Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing), granting leave to appeal against sentence and allowing the appeal:

As to the first issue

1. The sentencing judge did not take into account the claimed hardship to third parties because she did not consider the hardship to be of an exceptional kind. The fact that the remarks on sentence did not identify or describe any particular hardship, or how it was taken into account, confirms that it was not taken into account at all: [36]–[39] (Bell CJ); [148] (Gleeson JA); [149] (Harrison J); [150] (Adamson J); [151] (Dhanji J).

R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, considered.

As to the second issue

2. Decisions which have held that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or dependant where the circumstances of hardship satisfy the epithet “exceptional” are “plainly wrong” and should not be followed. Similarly, authorities which have held that hardship must rise to the level of “exceptional” before being given a specified weight, or resulting in a substantial reduction of sentence, are wrongly decided and should not be followed. Section 16A(2)(p) should be applied according to its terms: [77], [92]–[93] (Bell CJ); [148] (Gleeson JA); [149] (Harrison J); [150] (Adamson J); [151] (Dhanji J).

R v Sinclair (1990) 51 A Crim R 418; R v Matthews (1996) 130 FLR 230; R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522; R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405; R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369; R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222; R v Constant (2016) 126 SASR 1; [2016] SASCFC 87; R v Ibbetson [2020] QCA 214; Saoud v The Queen; Fernandez v The Queen [2019] VSCA 208, not followed.

R v Adami [1989] SASC 1640; (1989) 51 SASR 229; The Queen v Wirth (1976) 14 SASR 291; R v Edwards (1996) 90 A Crim R 510; Markovic v R (2010) 30 VR 589; [2010] VSCA 105; R v Polterman (Court of Criminal Appeal (Vic), 2 August 1974, unrep); R v Girard [2004] NSWCCA 170; Elshani v The Queen (2015) 255 A Crim R 488; [2015] NSWCCA 254; R v Buckskin [2010] SASC 138; Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42, considered.

Director of Public Prosecutions v Ip [2005] ACTCA 24, approved.

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76; Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, applied.

3. While comity, consistency and certainty in the administration of justice are important considerations when a court is determining whether to depart from its own earlier decisions, and those of other courts at a similar level of the federal judicial hierarchy, these considerations do not preclude departure from an established position which is “plainly wrong”. Considerations that may bear upon such a determination include: whether the challenged decision(s) are closely reasoned; whether the principle for which the decision stands has been worked through in a series of cases; and whether the decision(s) challenged have been unanimously followed or whether there is some tension between decisions of courts of coordinate authority in relation to the challenged decision(s): [74]–[76] (Bell CJ); [148] (Gleeson JA); [149] (Harrison J); [150] (Adamson J); [151] (Dhanji J).

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76; Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22; Transurban City Link Ltd v Allan (1999) 95 FCR 553; [1999] FCA 1723, considered.

4. The sentencing judge erred in not taking into account the asserted hardship to third parties on the basis that it was not of an exceptional kind: [93] (Bell CJ); [148] (Gleeson JA); [149] (Harrison J); [150] (Adamson J); [151] (Dhanji J).

As to the third issue

5. The sentencing judge was incorrect to state that in cases of social security fraud, general deterrence is the primary sentencing consideration and an offender’s personal circumstances must be given less weight than might otherwise be the case. The effect of s 16A is not to establish a hierarchy of sentencing considerations: [100] (Bell CJ); [148] (Gleeson JA); [149] (Harrison J); [150] (Adamson J); [151] (Dhanji J).

Director of Public Prosecutions (Cth) v Milne [2001] VSCA 93, Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106; R v Hurst; ex parte Director of Public Prosecutions (Cth) [2005] QCA 25; R v Newton (2010) 199 A Crim R 288; [2010] QCA 101, considered.

6. A lesser sentence was warranted in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW). While the Applicant’s offences were serious, sustained and fraudulent, significant mitigating factors were present. Of particular importance was the fact that the Applicant was not motivated by greed but by a desire to provide for her children, in circumstances where their father was addicted to gambling and drugs, made little contribution to the household, was abusive and, in this context, placed the Applicant under pressure of an emotional, physical and financial kind: [141]–[144] (Bell CJ); [148] (Gleeson JA); [149] (Harrison J); [150] (Adamson J); [151] (Dhanji J).

7. For Count 1, the Applicant should be resentenced to a term of imprisonment of one and a half years, commencing on 12 March 2021. For Count 3, taking into account the s 16BA offence, the Applicant should be resentenced to a term of imprisonment of two and a half years, commencing on 12 September 2021. The Applicant should be released immediately, on recognizance to be of good behaviour for one year and 11 months, and upon posting security in the sum of $10: [145]–[146] (Bell CJ); [148] (Gleeson JA); [149] (Harrison J); [150] (Adamson J); [151] (Dhanji J).

JUDGMENT

1. BELL CJ:

Introduction

The issue raised in this appeal is one of importance in relation to sentencing for federal offences. It relates to the question of whether “exceptional hardship” to family and other dependants is required to be demonstrated before the probable effect of any sentence on such persons may be taken into account in the sentencing of a federal offender for the purposes of s 16A(2)(p) of the Crimes Act 1914 (Cth).

2. Section 16A of the Crimes Act relevantly provides that:

“(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

...

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants”.

3. There are authorities in both this Court and intermediate appellate courts of other States that hold that “exceptional hardship” is required to be established, as is the position at common law.

4. In an important judgment delivered in 2013, Beech-Jones J (as his Honour then was), sitting as a member of this Court, expressed the strong view that any requirement that “exceptional hardship” be established before the probable effect of any sentence under consideration on the offender’s family or dependants could be taken into account was not supported by the language of s 16A(2)(p), and that decisions that had held to the contrary, based upon the view that s 16A(2)(p) was not intended to alter the position at common law, were clearly wrong: R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 (Zerafa). The other members of the Zerafa Court did not share that opinion, Hoeben CJ at CL (with whom Latham J agreed) holding at [93] that it was “not appropriate for this Court to overrule or depart from cases such as Togias and Hinton”. R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522 (Togias) and R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405 (Hinton) were both decisions of this Court and are referred to in more detail later in these reasons.

5. Beech-Jones J’s critique in Zerafa, re-emphasised by his Honour in Elshani v The Queen (2015) 255 A Crim R 488; [2015] NSWCCA 254 (Elshani), was augmented by Basten JA in Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42 (Pratten) at [49]–[60].

6. In this appeal, we are asked to revisit the question considered by Beech-Jones J in Zerafa. To do so would involve a departure from earlier decisions of this Court including the majority position in Zerafa, which raises issues of the kind considered in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 (Gett) concerning the circumstances in which an intermediate appellate court should depart from one of its previous decisions. To follow the approach of Beech-Jones J in Zerafa would also require the Court to depart from approaches taken to the interpretation of s 16A(2)(p) by intermediate appellate courts of other States and Territories in relation to an important federal statute. Any decision to do so must necessarily heed the important observation by the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492; [1993] HCA 15 (Marlborough Gold Mines) where it was said that:

“...uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.”

To like effect, in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135] (Farah), the Court said:

“Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.” (citations omitted)

7. Before turning to the question of whether Togias, Hinton and cases followed in those decisions, and other cases in turn following them (including the majority position in Zerafa itself) were “plainly wrong”, it is first necessary to set out the background against which the question has arisen. In particular, it is necessary to examine the sentencing remarks in the District Court, given that there is a question raised by the Crown as to whether or not the sentencing judge in the present case in fact approached the sentencing task on the basis that exceptional hardship was required to be shown for the purposes of engaging s 16A(2)(p) of the Crimes Act. In other words, the Crown contended that the question did not properly arise on the facts of this case.

Background

8. On 20 November 2020, Ms Clarisse Totaan (the Applicant) pleaded guilty to two offences of obtaining a financial advantage by deception from the Commonwealth, contrary to s 134.2(1) of the Criminal Code (Cth). Both offences involved the Applicant underreporting or failing to report her income to the Department of Human Services (the DHS), and thereby obtaining Parenting Payment Single (PPS) benefits to which she was not legally entitled. The maximum penalty for each offence is imprisonment for 10 years and/or a pecuniary penalty of $66,000.

9. The offences were particularised as follows:

(1) Count 1 related to conduct that occurred between 21 March 2011 and 24 December 2012.

(2) Count 3 related to conduct that occurred between 21 July 2014 and 14 January 2019.

10. The conduct constituting Count 1 resulted in the Applicant obtaining $27,070.50 to which she was not entitled, while that constituting Count 3 resulted in her obtaining $80,405.81 to which she was not entitled. A third charge was initially brought in relation to an offence of dishonestly causing a loss to the Commonwealth, contrary to s 135.1(5) of the Criminal Code. The Applicant did not enter a guilty plea to this charge but rather admitted the offence and requested that it be taken into account in sentencing her for Count 3 pursuant to s 16BA of the Crimes Act (the s 16BA offence). The maximum penalty for this offence is five years and/or a pecuniary penalty of $33,000. The amount of loss caused to the Commonwealth in relation to the s 16BA offence was $5,523.65.

11. In proceedings before the sentencing judge, the Applicant gave evidence about her personal circumstances. She is the mother of two young children, who were aged 11 and seven years at the time of sentence. There is a history of domestic violence perpetrated against her by her former partner, who is the father of her two children (the father).

12. The Applicant had her first child in April 2009, at the age of 18 years. She first began receiving PPS benefits in February 2010, and at the end of 2010, she and the father moved into a rental property together. The father displayed controlling behaviours towards the Applicant,[1] and soon after moving into the rental property, he developed a gambling habit.[2] He regularly withdrew money from the couple’s shared bank accounts to fund his gambling, and when there was no money in the accounts, he would use credit cards.[3] The Applicant said that he would gamble his whole week’s pay.[4]

13. The couple began to struggle financially and accrued a substantial amount of personal debt. During this time the Applicant’s wages paid for most of the family’s expenses and the servicing of their debts, although the father made some contributions.[5] The Applicant says she began to use her Centrelink payments to meet the costs of running the house and raising a child.[6] Even with the illegitimately obtained PPS benefits, from time to time she would have to ask her parents for financial assistance.[7]

14. After the birth of her second child, the father’s gambling worsened.[8] His controlling behaviours towards the Applicant intensified,[9] and he damaged property within the home during arguments with the Applicant.[10] The sentencing judge found that the Applicant “suffered domestic abuse and on one occasion physical violence”.[11] In 2016, an apprehended domestic violence order (ADVO) was made for the Applicant’s protection.[12] The ADVO did not prevent the father contacting the Applicant, and he continued to live with her.[13] Sometime after this, the father developed an addiction to methamphetamine.[14] The couple continued to accrue debt, increasing to approximately $70,000 to $75,000 in 2017.[15]

15. The Applicant said she spent the illegitimately obtained PPS benefits on “bills and necessities” for herself and her children.[16] She also gave money to the father, who would tell her “fib stories” to persuade her to do so.[17] His requests for money were at times accompanied by psychological or physical abuse.[18] She said he spent the money on gambling and drugs.[19]

16. In December 2019, the Applicant reported the father to police for intimidation, and he was arrested.[20] After he was released on bail, he approached the family home in breach of a condition of his bail, and his bail was revoked.[21] In early 2020, the Applicant and her children moved back in with the Applicant’s parents.[22] In May 2020, when the father was sentenced, a further ADVO was made against him which included the Applicant’s children as protected persons.[23] The ADVO prevented the father residing with the Applicant and her children, but did not prevent contact between them. The father served a sentence of imprisonment and was released in September 2020.[24] He had some contact with the children after his release up to the time of the Applicant’s sentence, but he and the Applicant did not remain in a relationship.[25]

The effect of a custodial sentence on the Applicant’s family and dependants

17. The Applicant gave evidence that at the time of sentence, she and her two children were living with her parents.[26] The Applicant was the primary carer for the children, although she received some assistance from her mother, who dropped the children to school each morning.[27] The Applicant also met the costs of providing for the children.[28] The father was prevented from living at the same address as the Applicant and the children, and so did not care for the children. The Applicant’s father worked full-time.[29] Her brother also lived at the house, was 35 years old and had recently been made redundant. The Applicant said her brother “[has] got his own life and he – he’s hardly home”.[30] No other evidence was led about the capacity of the Applicant’s brother and father to care for the children.

18. The Applicant explained that her mother was in poor health, and expressed concerns that she would struggle to care for the children.[31] At the time, her mother was 56 years old.[32] She suffered from chronic pain since sustaining a work-related injury, and had issues in her shoulder, her neck and her spine.[33] She also suffered from high blood pressure and psoriasis.[34] In a letter to the Court, the Applicant’s mother said, “I would not be able to care for [the children] full time without [the Applicant] due to my health”.[35]

19. The Applicant gave evidence that her parents were “struggling” financially.[36] She said that they were having difficulty servicing their credit cards, and that her father’s income just covered the cost of servicing the mortgage.[37]

Submissions relevant to hardship to third parties

20. In the District Court, both parties furnished short written submissions in relation to sentence and also addressed orally. The written submissions utilised sub-headings which corresponded with a number of matters s 16A(2) of the Crimes Act requires to be taken into account, if relevant and known to the Court, when sentencing for a federal offence. In this context, both parties included a heading ‘Hardship to third parties’, reflecting s 16A(2)(p) of the Crimes Act, but the Applicant’s written submissions did little more than refer to her mother’s own health issues meaning that she was unable to care for Applicant’s children full time without the assistance of the Applicant coupled with a submission that “the hardship to the offender’s children will be substantial if the offender is sentenced to a term of imprisonment to be served by way of full time custody.”[38]

21. In the course of the sentencing hearing, both counsel addressed on the question of hardship to third parties by way of amplification of their brief written submissions. In oral address, counsel for the Applicant said the following:[39]

“Your Honour, in relation to the evidence that your Honour heard about hardship, some distinction, I think, can be drawn between principles set out in the State legislation and State caselaw in terms of consideration of hardship; and there’s some conflicting statements, but the general position seems to be that it’s a reality that if someone’s sent to gaol there will be hardship, and really has to be exceptional for it to be properly considered. There seemed to be some other cases in the State jurisdiction which say that hardship can still be taken into account in the subjective mix, but your Honour’s dealing with the Federal legislation and its statutory outlined consideration your Honour’s required to consider under s 16A, that is, hardship to third parties; so that higher threshold that your Honour would ordinarily consider under the State legislation, it doesn’t appear to have the same significance. It’s a factor your Honour is required to consider under the Federal code: there is hardship to third parties.” (emphasis added).

22. In oral submissions, the Crown put the following:[40]

“With respect to what my learned friend said about exceptional hardship, this is more a point of clarification. Under the Commonwealth regime, it is a relevant factor for your Honour to take into account; however, it would need to be exceptional hardship for that factor to sway your Honour that a full-time custodial sentence was inappropriate in this case. It would have to outweigh all of the other subjective features and rise to the level of being exceptional.

In this case, the Crown submits that, while there’s evidence of hardship to both the offender’s children and likely her parents, were she to go into custody, that is the ordinary course; and that in this case it wouldn’t rise to the level of exceptional, but it is certainly a matter that your Honour can take into account in the subjective mix.” (emphasis added)

The sentencing judge’s remarks on sentence

23. The sentencing judge delivered her remarks ex tempore. Her Honour characterised the Applicant’s offending as:[41]

“...systemic and persistent deceit over a number of years. Whilst it is not as serious as offences involving false identities and aliases, it is still serious offending and at times very deliberate in not disclosing the gross income as she was required to do. There are those who are poorly paid and struggle and who succumb to temptation, but this offender is not one of those.”

24. With respect to the Applicant’s financial hardship, the sentencing judge said the following:

“The offender has been the victim of a toxic relationship and there have been apprehended domestic violence orders made to protect her and her children. However, from her interview with investigators and her evidence, it is clear that her partner was capable of earning income and did, in fact, earn income and did pay some monies towards the upkeep of the family, even if he did keep some portion of it for himself and his habits. She cannot lay the blame entirely at his feet.[42]

...

The offender cites financial hardship caused by her ex-partner as the motivation for committing these offences. I find that a somewhat preposterous suggestion given her income-earning potential as demonstrated by her gross income for varying periods of time and her own evidence that her partner did contribute financially to the household, albeit not all of his income.”[43]

25. The sentencing judge considered the domestic abuse suffered by the Applicant, and said: [44]

“I am asked to find that there is a nexus between her offending and the domestic abuse she suffered. Whilst clearly she suffered domestic abuse and on one occasion physical violence, the evidence does not go so far as to enable a finding to be made that it was the sole reason for her offending. As she now knows, there are ways in which to resolve abusive relationships, even if it took her former partner's incarceration for that to happen.”

26. The sentencing judge found that the Applicant was remorseful and contrite, that she had good prospects for rehabilitation, and that she was unlikely to reoffend.[45] Nonetheless, her Honour considered that specific deterrence “ha[d] a significant role to play to ensure that she's not tempted to again defraud the government, as she has done previously”.[46] Her Honour also considered that general deterrence was a significant element of the penalty to be imposed.[47]

27. The sentencing judge noted the Applicant’s immediate admissions and that she cooperated with the investigation. She allowed the Applicant a 25% discount for her pleas of guilty.[48]

28. On the subject of hardship to third parties, in a passage which is of central significance to this appeal, the sentencing judge said:[49]

“The issue of hardship to third parties is raised on [the Applicant’s] behalf. She currently resides with her parents and if she is incarcerated, the burden will fall upon them to provide for their grandchildren. There is evidence that her mother is not well. There is always hardship to others when a parent is incarcerated. Any hardship in the present circumstances is no different to that which would be expected normally.” (emphasis added)

29. On 12 March 2021, the Applicant was sentenced as follows:

(1) Count 1: imprisonment for two years, commencing on 12 March 2021 and expiring on 11 March 2023.

(2) Count 3, taking into account the s 16BA offence: imprisonment for three years and six months, commencing on 12 September 2021 and expiring on 11 March 2025.

30. Pursuant to s 19AB(1) of the Crimes Act, the sentencing judge fixed a single non-parole period of two years commencing on 12 March 2021 and expiring on 11 March 2023. Her Honour also made a reparation order in the sum of $112,999.96.[50] No issue is raised on appeal in relation to the reparation order.

31. The Applicant now seeks leave to appeal from her sentence on the following grounds:

“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:

a. 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

b. 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.

2. The sentence imposed was manifestly excessive.”

32. The nature of the argument sought to be put in relation to ground 1(b) warranted the convening of a bench of five judges to hear this matter, in circumstances where, as noted above, different views have been expressed both within this Court and between intermediate appellate courts of other States and Territories as to the proper construction of s 16A(2)(p) of the Crimes Act.

33. The first matter to be considered, however, concerns what the sentencing judge in fact held on the subject of hardship to the Applicant’s family members and dependants.

What the sentencing judge held

34. Mr Howell, who appeared for the Applicant with Mr El-Choufani and Ms Akthar, submitted that, although the sentencing judge did not use the expression “exceptional hardship” in the paragraph of her sentencing remarks dealing with hardship to third parties (see [28] above), the Court should understand the last sentence of that paragraph to amount to a finding that the Applicant had failed to demonstrate that third parties, namely her children and mother, would experience “exceptional” hardship as a result of her imprisonment. Mr Howell submitted that the sentencing judge dismissed or did not have regard to third party hardship because of her implicit finding that any hardship was not of an exceptional kind.

35. On the other hand, Ms Single SC, who appeared with Ms Marsden for the Crown, submitted that this paragraph of the sentencing judge’s remarks did in fact demonstrate that her Honour took the asserted hardship into account but gave it little if any weight because it was hardship of a kind that was “no different to that which would be expected normally.” That factual finding was challenged by the Applicant’s appeal ground 1(a): see [31] above.

36. On balance and taking into account the fact that the judgment was delivered ex tempore and that due allowance must be made for that fact when considering a judge’s reasons (R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at [34]–[35]), in my view, her Honour did not take the claimed hardship into account because she did not consider it to be of an exceptional kind. Whether this was an erroneous approach is the subject of appeal ground 1(b), although it should immediately be pointed out that the sentencing judge followed an approach which, sitting in the District Court and on the state of the authorities, her Honour was bound to take.

37. In reading her Honour’s reasons in the way explained above, the paragraph of the sentencing remarks dealing with third party hardship is expressed somewhat differently from other paragraphs in which the sentencing judge made findings about matters relevant to sentence (for example, “I find she is unlikely to reoffend...”; “I find she is remorseful and contrite...”; “I find she has good prospects of rehabilitation...”).[51] By way of contrast, there is no actual finding of third party hardship nor any exploration of the evidence that was led in relation to it in the relevant paragraph of the reasons. Rather, the sentencing judge simply says, “[a]ny hardship in the present circumstances is no different to that which would be expected normally”.[52]

38. The fact that the sentencing judge’s remarks do not identify or describe any particular hardship or how it was taken into account confirms, contrary to Ms Single’s submission, that it was not taken into account at all.

39. I therefore accept Mr Howell’s submission that the sentencing judge did not take the evidence of hardship relied upon into account because she did not think that such hardship as there may have been was exceptional. If this was the wrong approach, appeal ground 1(a) does not need to be considered. It is therefore directly to appeal ground 1(b) that these reasons turn. This ground involves consideration of whether the “exceptional hardship” approach applied by the sentencing judge involved a gloss on s 16A(2)(p) of the Crimes Act and, if it did, whether that gloss was impermissible in light of authority of this and other intermediate appellate courts.

The questions of construction and precedent

40. Section 16A was introduced into the Crimes Act by s 6 of the Crimes Legislation Amendment Act (No 2) 1989 (Cth), which started its life as the Crimes Legislation Amendment Bill (No 2) 1989. As Beech-Jones J observed in Zerafa at [123], this bill followed the Australian Law Reform Commission’s report on sentencing (Australian Law Reform Commission, Sentencing (Report No 44, March 1988)) (the ALRC report).

41. The terms of s 16A(2)(p) have been noted at [2] above. Viewing the terms of this subsection in isolation, a straightforward answer is suggested as to whether exceptional hardship needs to be demonstrated before the probable effect on family and other dependants may be taken into account. In short, the section says nothing about exceptional hardship being required, either as a pre-condition to its being taken into account or as a matter that is required to be demonstrated before there may be a substantial reduction in a sentence.

42. Nor do the terms of s 16A(2)(p) lend any support to the Crown’s submission at first instance that “it would need to be exceptional hardship for that factor to sway your Honour that a full-time custodial sentence was inappropriate in this case. It would have to outweigh all of the other subjective features and rise to the level of being exceptional”: see at [22] above.

43. As has been noted at the outset of these reasons, however, the section has been afforded a gloss requiring that the hardship relied upon in a federal sentencing exercise be “exceptional” before regard may be had to it.

44. The first decision of an intermediate appellate court to consider s 16A(2)(p) appears to have been R v Sinclair (1990) 51 A Crim R 418 (Sinclair), a decision of the Full Court of the Supreme Court of Western Australia, although cognate legislation in South Australia had been considered by the Full Court of the Supreme Court of that State a year earlier in R v Adami [1989] SASC 1640; (1989) 51 SASR 229 (Adami). In that case, Bollen J expressed the opinion that s 10(n) of the Criminal Law (Sentencing) Act 1988 (SA) did not produce a change in the law, concluding (with the agreement of King CJ) at 233 that “[t]he probable effect of a sentence on dependants is still relevant only in exceptional cases.” His Honour then held that the subsection was “no more than a section which declares what has always been the law”.

45. In Sinclair, Malcolm CJ (with whom Kennedy and Pidgeon JJ agreed) stated that, in his view, s 16A of the Crimes Act was “not intended to change the common law”: at 430.

46. The common law position as it stood in 1976 was reviewed by Bray CJ and Wells J in The Queen v Wirth (1976) 14 SASR 291 (Wirth). The Chief Justice was prepared to contemplate (but it would seem only just) that in an extreme case, a sentencing court could take into account the effect of a sentence on an offender’s family, but his Honour was affronted by the logic of doing so: see at 294. Wells J also considered that any third party hardship would need to be “highly exceptional” to be taken into account when sentencing. Thus at 296, he said:

“Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. Again and again, sentencing judges point out that convicted persons should have thought about the likely consequences of what they were doing before they did it—I am, of course, addressing myself to the more serious crimes in which some form of premeditation, wilfulness, or intent, must be proved. It seems to me that courts would often do less than their clear duty—especially, where the element of retribution, deterrence, or protection of society is the predominant consideration—if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so.”

47. In R v Edwards (1996) 90 A Crim R 510 at 517, Gleeson CJ noted that Wirth had been cited with approval and followed in the Courts of Criminal Appeal of other Australian States (citing Boyle v The Queen (1987) 34 A Crim R 202; R v T (1990) 47 A Crim R 29; Adami). A five member bench of the Victorian Court of Appeal in Markovic v R (2010) 30 VR 589; [2010] VSCA 105 (Markovic) at [12] explained the common law’s requirement of exceptional circumstances or exceptional hardship as founded on an “appeal for mercy” (citing R v Polterman (Court of Criminal Appeal (Vic), 2 August 1974, unrep)). An important consideration underlying the approach at common law, as explained in Markovic at [7], was a concern that there must be equal justice as between like offenders, and that taking into account third party hardship in one case when it did not exist in another was apt to violate this precept. One difficulty with this is that the precept is violated by the test at common law itself, which discriminates between like offenders by reference to the degree (as opposed to the existence) of hardship.

48. Malcolm CJ’s view in Sinclair that s 16A of the Crimes Act was “not intended to change the common law” was expressed without reference to chapter 6 of the ALRC report (see [40] above) which described what became s 16A(2)(p) as a “controversial” matter: at [172]. Consideration of the position at common law, as articulated by Bray CJ and Wells J in Wirth, makes it easy to understand why the Commission acknowledged that its recommendation in relation to third party hardship was “controversial”. It was “controversial” because, as drafted without any reference to the need to establish “exceptional hardship” or “very exceptional” hardship, it represented a departure from the common law position.

49. Nor was any reference made in Sinclair to the Explanatory Memorandum to the Crimes Legislation Amendment Bill (No 2) 1989. As pointed out by Beech-Jones J in Zerafa at [124], the Explanatory Memorandum stated as follows in relation to s 16A:

“Subsection (1) directs a sentencing court to impose a sentence or make an order that is appropriate to the gravity of the crime, having regard to the circumstances of the offence.

Subsection (2) contains a number of matters that must be taken into account by a court when selecting a sentence, if relevant. These matters are in addition to matters a court is otherwise required or permitted to take into account on sentencing. The subsection in part gives statutory recognition to matters already taken into account by courts when sentencing (eg the character, antecedents, age, means and physical or mental condition of the person), but it also highlights certain matters including the circumstances of the victim and the probable effect of the sentence on the offender's family or dependants. The matters to be taken into account are not set out in a hierarchy of importance or significance." (emphasis added)

50. Sinclair was followed in R v Matthews (1996) 130 FLR 230 at 233 (Matthews) where the then Chief Justice of Victoria (with whom Southwell and Hampel AJJA agreed) said:

“At first sight the provision would seem to require the court to take into account any hardship. However, there is powerful authority for the proposition that hardship is “relevant” only if it is exceptional. In R v Sinclair (1990) 108 FLR 370 the Court of Criminal Appeal of Western Australia considered this provision. Malcolm CJ, with whom the other members of the court agreed, held that the inclusion of par (p) in s 16A(2) does not alter the common law, which had for long stated that only exceptional hardship was relevant.” (emphasis added)

51. In expressing the view that the Victorian Court of Appeal should follow Sinclair, Phillips CJ made reference to authority recognising the desirability, at least ordinarily, of consistency in the interpretation of national legislation by intermediate appellate courts (see Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] VicRp 83; [1992] 2 VR 505 at 510, and the authorities referred to therein).

52. In Togias, counsel for both the Crown and the respondent to the Crown appeal accepted the approach that had been taken by the sentencing judge at first instance, being that hardship to a child could not be given substantial weight for the purposes of s 16A(2)(p) unless it rose to the level of “exceptional” hardship. At [13], Spigelman CJ noted:

“His Honour approached the sentencing exercise on the basis that hardship to a child had to be classified as "exceptional" before it could be given substantial weight for the purposes of s 16A(2)(p). Counsel for both the Appellant and the Respondent in this appeal accepted that his Honour was correct.” (emphasis added)

53. While this formulation differs somewhat from the position at common law and adopted in Sinclair, it should be noted that, on appeal, Spigelman CJ did not go so far as to embrace or endorse the approach of the sentencing judge in that case. Togias did not amount to a departure from, or qualification of, the position outlined in Sinclair. Indeed, central to Spigelman CJ’s reasoning (at [16]–[17]) was that he considered himself constrained by the previous decisions of other intermediate appellate courts, referring to Adami, Sinclair and Matthews:

“Courts of Criminal Appeal in three States have interpreted s 16A(2)(p) as not altering the common law. Exceptional hardship is required. It is important that Courts of Criminal Appeal adopt the same approach to the interpretation of national legislation. ... If there is to be any change in this position, and that was not put in this case even on a formal basis, only the High Court can effect it.”

54. In the following year in Hinton, Howie J, with whom Wood CJ at CL and Sully J agreed, followed Togias, stating at [31] that:

“It is now clear that the reference in s 16A(2)(p) of the Crimes Act to the ‘probable effect that any sentence or order under consideration would have on any of the person's family or dependants’ should be read as if it were [preceded] by the words ‘in an exceptional case’.”

55. It may be noted at this juncture that the Crown in its submissions in the present appeal volunteered that Hinton was wrongly decided, contending, in line with the approach to s 16A(2)(p) taken by the sentencing judge in Togias, that hardship to a child had to be exceptional before it could be given substantial weight for the purposes of s 16A(2)(p). This characterisation of the approach to s 16A(2)(p) does not, however, accord, with the approach to the subsection adopted by Spigelman CJ in Togias (see [53] above) nor the interpretation given to that section in Sinclair or Matthews. Moreover, the Crown’s characterisation really amounts to saying little more than that the stronger a particular consideration on the facts of a given case, the more weight it will be given. That is not an accurate statement of the common law approach to third party hardship in sentencing matters.

56. An arguably more nuanced identification or refined statement of the approach taken at common law to the relevance to sentencing of third party hardship emerged in Hodgson JA’s judgment in R v Girard [2004] NSWCCA 170 (Girard). At [21], his Honour considered that the fact that innocent children would be adversely affected by the imprisonment of their parents could be taken into account as one subjective circumstance, but “in the absence of exceptional circumstances, this is not to be taken into account as a specific and particular matter resulting in a substantial reduction or elimination of a sentence of imprisonment.” This formulation maintains the language of “exceptional circumstances” but transforms its application from a pre-condition or threshold consideration to a matter that is more directed towards the weight to be given to a particular consideration. In this respect, it is more akin to the approach taken by the sentencing judge, but not expressly endorsed by Spigelman CJ on appeal, in Togias: see [52]–[53] above.

57. In R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369 (Nguyen), the Crown submitted and James J (with whom Hidden and Hislop JJ agreed) accepted that the articulation of approach taken by Hodgson JA in Girard should be applied to the sentencing of federal offenders. His Honour thus accepted at [27] the Crown’s submission that hardship to an offender’s family “could be taken into account as part of the general subjective facts”, but “could not be used to justify any substantial reduction in sentence, unless it was truly exceptional”. As observed above, the Girard approach, if I may call it that, differed from the approach to s 16A(2)(p) that had been summarised in the Court of Criminal Appeal in both Togias and Hinton, and these decisions have continued to be followed in the Court of Criminal Appeal: see, for example, Heath v R [2016] NSWCCA 24 at [79]; Zerafa at [93]; see also, following the majority position in Zerafa, Nguyen v R [2016] NSWCCA 5 at [69]; Jafaar v R [2017] NSWCCA 223 at [107], [120].

58. As noted at [4] above, in 2013 in Zerafa Beech-Jones J comprehensively considered the course of authority on the question of taking into account hardship to third parties in sentencing, both at common law and in the context of the interpretation and application of s 16A(2)(p) of the Crimes Act. No submission was made before this Court that his Honour’s analysis of the case law to the date of that decision was flawed or incomplete. Some of it has been noted above. At [139]–[141], Beech-Jones J offered the following powerful analysis:

“The above represents only a sample of the judgments of intermediate courts of appeal that have considered or applied s 16A(2)(p). Contrary to Mr Game SC's submission, with the exception of the Australian Capital Territory, intermediate Courts of Appeal of all the mainland States have consistently construed it in a manner that requires that exceptional circumstances be demonstrated before its subject matter is to be given any, or possibly any substantial, weight. Nevertheless, the origin of that principle is a South Australian decision concerning legislation of that state. As best as I can ascertain, none of the judgments that have adopted or applied this principle has attempted to reconcile it with the express words of the section or considered the secondary materials concerning its introduction. In my view those matters invalidate the assumption upon which this stream of cases has flowed, namely that the section was not intended to modify the common law's treatment of hardship to an offender's family.

This succession of cases has led to the adoption of a principle with little to commend it. If in other contexts Courts are bound to consider the impact of their orders on innocent third parties (Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; 195 CLR 1 at [65] to [66]; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 324 and 332), why is the impact on children of any sentence under consideration to be excluded unless their hardship is only exceptional? The primary objects in sentencing of ‘retribution, deterrence [and the] protection of society’ described by Wells J in Wirth can still be given effect to without requiring sentencing courts to divide the forms of hardship occasioned to an offender's family into those which meet the description ‘exceptional’ and those which do not. The assessment of probable hardship to family members is a task that sentencing courts are perfectly able to undertake, and no doubt they do. In any event, the words of the section and the secondary materials indicate a clear policy choice on the part of the legislature on this topic.

Further, the difficulty that accompanies the addition of a gloss to a legislative provision that is otherwise clear is revealed by the different formulations of the gloss that have emerged from the cases. The construction adopted by Howie J in Hinton suggests that no consideration can be given to hardship that falls short of the description ‘exceptional’. The judgment of Spigelman CJ in Togias suggests that something other than ‘substantial weight’ might be afforded to probable hardship occasioned to family members of offenders even if exceptional circumstances cannot be demonstrated. Nguyen appears to confirm that. In circumstances where s 16A(2) specifies that a court is to take a ‘matter into account’, what authority does an intermediate court of appeal have to specify the weight a sentencing court attaches to that factor? The relevant constraint on a sentencing court affording too much weight to the factor set out in s 16A(2)(p) is to be found in s 16A(1). Unconstrained by authority, in my view, s 16A(2)(p) should be applied by sentencing courts according to its terms, without having to determine whether the circumstances are exceptional or otherwise. If the result of affording weight to that consideration is that the sentence is unduly lenient then that will attract appellate interference on the established basis that it is manifestly inadequate, but not because some specified level of weight was attached to this factor that the Crimes Act does not expressly preclude. A sentence that is manifestly inadequate does not conform with s 16A(1).”

59. One of the decisions referred to by Beech-Jones J in Zerafa was the decision of the Australian Capital Territory (ACT) Court of Appeal in Director of Public Prosecutions v Ip [2005] ACTCA 24 (Ip). In a judgment of the Court at [60]–[61], it was said of s 16A(2)(p) that:

“The mandate of the Commonwealth Parliament is quite clear: the sentencing court ‘must take into account’ the matters set out in subs 16A(2) of the Crimes Act 1914 (Cth), including ‘(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’. The contemplated taking into account of such factors must clearly be real and must occur in every case in which one or more of those factors exist. There is, with respect, simply no warrant for a sentencing court to presume judicially to qualify the clear parliamentary command by suggesting, as has been done, in R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286, 293, that –

The reference in s 16A(2)(p) of the Crimes Act 1914 (Cth) to the "probable effect that any sentence or order under consideration would have on any of the person’s family or dependants" should be read as if it were [preceded] by the words "in an exceptional case": R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23.

Indeed, this court would wish to specifically dissociate itself from the reasoning in R v Togias which gave rise to that suggestion (see Togias (supra) at 34-37). As R v Hinton stresses, each case will "to a very great degree depend upon its own facts". So here.

Of course, what weight a listed factor is to be given is a discretionary matter. In many cases, it will not be possible to give a family’s suffering much or any weight. But as a matter of the letter and the clear conceptual intendment of the Parliament, it must be anxiously considered in every case where it exists.”

60. As noted at [55] above, in submissions on appeal in the present case, the Crown did not seek to defend this Court’s earlier decision in Hinton as correct. This was significant because in Zerafa itself, one of the matters separating Beech-Jones J’s analysis and that of Hoeben CJ at CL (with whom Latham J agreed) was that the majority did not consider it appropriate “for this Court to overrule or depart from cases such as Togias and Hinton”: at [93].

Case-law post-Zerafa

61. Elshani saw a challenge to the majority’s decision in Zerafa and the earlier decisions of this Court which followed the Sinclair line of authority. It was, however, ultimately unnecessary to resolve that challenge in circumstances where the Court took the view that exceptional circumstances had in any event been established on the facts for the purposes of the resentencing exercise that was carried out in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell): see, for example, at [6] per Gleeson JA, [36] per Adams J.

62. Gleeson JA noted (at [7]), however, that the Court would be required to be “convinced” that Zerafa and the earlier decisions in relation to the interpretation of s 16A(2)(p) of the Crimes Act were “plainly wrong”, referring to Marlborough Gold Mines and Farah. Adams J stated (at [35]) that in his view:

“...despite the persuasive (indeed convincing) dissenting judgment of Beech-Jones J in Zerafa, the principle stated by the majority has now become too embedded for this Court to reconsider it.”

63. Beech-Jones J, on the other hand, adhered to the dissenting view he had expressed in Zerafa, adding (at [41]) that, in relation to the decisions of intermediate appellate courts since Zerafa that had continued to hew to the line created by Sinclair:

“...there was no discussion of how the preferred interpretation of s 16A(2)(p) could be arrived at having regard to orthodox principles of statutory construction. The issue presented by the continued maintenance of this construction of s 16A(2)(p) is not the same as that which presents itself to a Court at this level of the judicial hierarchy that is determining whether it will depart from some well established doctrine of the common law. Instead the issue is whether such a Court will maintain an interpretation of a statutory provision which is contrary to Parliament’s clearly stated intention and which has been established by a line of authority that has not sought to justify it. In my view it should not be maintained. The line of authority is clearly wrong and should not be followed.”

64. R v Constant (2016) 126 SASR 1; [2016] SASCFC 87 (Constant) is a decision of the South Australian Court of Criminal Appeal. The Court in that case also surveyed the case law, noting at [59] that:

“Both s 16A(2)(p) and s 10(1)(n) [of the Criminal Law (Sentencing) Act 1988 (SA)] have been construed as being no different in effect to the common law. It has long been accepted that the common law imposes an exceptional circumstances test where hardship to dependants is put in mitigation of penalty. We are bound to apply the exceptional circumstances test. That said, stating the test in such convenient terms runs the risk of masking the analysis to be undertaken. An assertion of exceptional circumstances contemplates a discernible norm – the routine or ordinary outcome – in relation to which the asserted circumstances may be compared and the question determined whether they do in fact answer the description of being exceptional. What is the norm and when is a departure from that norm exceptional?” (footnotes omitted; emphasis added)

65. The Court’s statement that it was bound to apply the “exceptional circumstances test” was, perhaps and with respect, overly absolute. An intermediate court of appeal may depart from an established line of authority when it is satisfied that it is “clearly wrong”, although caution and great care must be exercised in so doing. The Court’s observation that “stating the test in such convenient terms runs the risk of masking the analysis to be undertaken” presaged the Court’s subsequent observation (at [66]) that s 16A(2)(p) invited sentencing courts:

“...to consider whether the community’s interest in the imposition of the appropriate sentence, being a sentence formulated having regard to the purposes of punishment and for the promotion of the community welfare through the administration of justice and the enforcement of the criminal law, would, if imposed, pursue those purposes at a cost to the defendant’s family or dependants that is, in the community’s interests, too high such that the sentence under consideration should be adjusted. This, in our view, is what is entailed in the application of the exceptional circumstances test.” (emphasis added)

66. The Court described itself as largely being in agreement with the observations of Kourakis J (as he then was) in R v Buckskin [2010] SASC 138 (Buckskin) at [110], who said:

“With respect, I do not find the threshold test of “exceptional circumstances” useful because it focuses on circumstances which are peculiar instead of the substance of the concern about the childrens’ welfare and its relationship to the other sentencing considerations. I would prefer to take the approach that the welfare of the children of an offender who faces imprisonment is always a relevant consideration but that in the majority of cases it will have no material effect on the sentence imposed because of the public interest in the imposition of condign punishment. However, the effect of imprisonment of an offender on his or her children or other dependents must be considered in the circumstances of each case and an appropriate balance struck between their welfare and the need to protect the community through the enforcement of the criminal law.” (footnotes omitted)

67. Whilst not abandoning the exceptional circumstances formulation of the test in terms, the Full Court’s decision in Constant, coupled with its endorsement of Kourakis J’s observations in Buckskin, appears to represent a retreat from the position at common law, as articulated in Wirth and as explained in Markovic, and as applied to s 16A(2)(p) in cases such as Sinclair, Togias and Hinton. The same may be said of the decision of this Court in 2006 in Nguyen, referred to at [57] above, which has attracted support in Kaveh v R [2017] NSWCCA 52 (Kaveh) at [40]–[41], R v Qian Lin [2014] NSWCCA 254 at [72], R v Milne (No 6) [2010] NSWSC 1467 at 223, R v Milne (2012) 91 ATR 560; [2012] NSWSC 1538 at [83] and Jorissen v The Queen [2017] WASCA 71 at [34]. The Crown in the present case drew a distinction between this line of cases and those that had followed Hinton.

68. In the year following Constant, although without reference to it, Basten JA in Pratten engaged in an extended consideration of Beech-Jones J’s analysis of the question in Zerafa and augmented his Honour’s critique of the majority position in that case. Although it was ultimately not necessary for Basten JA to decide the point, his Honour’s analysis at [49]–[60] is characteristically persuasive. Of particular significance, at [57], his Honour noted:

“...the changes in the approach to statutory interpretation which have occurred over the last 25 years. Thus, when the Western Australian Court of Criminal Appeal concluded in 1990 that s 16A(2) was not intended to alter the common law in this regard, little attention was given to the precise wording of the section. That is not the approach which would now operate. The approach to s 16A adopted by the High Court in Hili v The Queen and in Bui v DPP gave careful attention to the manner in which general law principles were “accommodated” by the language of Pt 1B of the Crimes Act, or picked up by s 68 or s 80 of the Judiciary Act, for the purpose of the exercise of federal jurisdiction. As the High Court explained in Bui, it is one thing to read the language of s 16A as accommodating general law principles in order to identify the severity of the penalty appropriate in the circumstances of the offence; it is quite another to place a limitation upon an expressly stated consideration where the limitation is not found in the statute, but can only arise under the general law.” (footnotes omitted)

69. By way of contrast with Basten JA’s endorsement and amplification in Pratten of Beech-Jones J’s critique in Zerafa, and what was in substance if not in form the South Australian Court of Criminal Appeal’s retreat from the “exceptional circumstances” test in Constant, in R v Ibbetson [2020] QCA 214 (Ibbetson), Lyons J (with whom Sofronoff P and Philippides JA agreed) used language plainly derivative of that used by Wells J in Wirth in the context of considering s 16A(2)(p). Her Honour said at [29]:

“In any event, as the respondent argues, whilst the effect of the sentence on the applicant’s family is a relevant sentencing consideration, the principles referred to in R v Huston, Fox and Henke; Ex parte Director of Public Prosecutions (Cth) [(2011) 219 A Crim R 209; [2011] QCA 350 at [51]–[54]], make it clear that the consequences need to be exceptional before they can affect the sentencing outcome. In that case, the Court of Appeal held that the authorities indicate that hardship to a family should not ordinarily ameliorate a sentence which is otherwise appropriate unless the circumstances are highly exceptional or where it would in effect be inhuman to refuse to do so. The Court noted that hardship and distress to families as a result of a term of imprisonment on a family member will inevitably be not beyond that commonly observed in courts as a result of the necessary punishment of wrongdoers. In my view, as this possible hardship has occurred post-sentence and affects the prison population as a whole, it could not amount to exceptional circumstances that should have been taken into account by the sentencing judge.” (footnotes omitted; emphasis added)

70. The expression “highly exceptional or where it would in effect be inhuman to refuse to do so”, which would appear to be taken from the judgment of Wells J in Wirth (see [46] above), arguably adds an even greater gloss to the Sinclair and Hinton formulations with the addition of the epithet “highly”. It certainly strains in a different direction to the decision of the South Australian Court of Criminal Appeal in Constant and those decisions referred to at [67] above which have followed this Court’s decision in Nguyen.

71. It may also be noted that the Victorian Court of Appeal applied the “exceptional” hardship gloss without comment or embellishment in Saoud v The Queen; Fernandez v The Queen [2019] VSCA 208 at [27]–[28] and [32], an approach consistent with Sinclair, Hinton and Togias.

When should an intermediate appellate court depart from its own earlier decisions, and those of courts of co-ordinate jurisdiction?

72. Before turning to a consideration of whether the prevailing case law in relation to s 16A(2)(p) is “plainly wrong” within the meaning of that expression as used in Marlborough Gold Mines and Farah, reference should also be made to the cognate cautionary principle articulated in the New South Wales Court of Appeal’s decision in Gett at [273], [277]–[278], [281] and [286]. That principle is to the effect that, whilst intermediate appellate courts are not legally bound by their own earlier decisions, they should only depart from such authority or the authority of courts of co-ordinate jurisdiction within the national system if they are of the view that the decision in question is “plainly wrong” and, such an error having been identified, there are “compelling reasons” to depart from the earlier decision or decisions. The fact that reasonable minds might differ on the interpretation of a statutory provision will generally be insufficient to warrant a conclusion that an earlier or existing interpretation of the provision or provisions in question was “plainly wrong”: Transurban City Link Ltd v Allan (1999) 95 FCR 553; [1999] FCA 1723 at [29]; JD Heydon, “How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?” (2009) 9 Oxford University Commonwealth Law Journal 1 at 26 (Heydon).

73. It was said in Gett at [294]–[295], in a passage applied in Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77 at [147], that:

“The phrases “plainly wrong” or “clearly wrong” can be understood to focus on at least one or more of the following attributes of a ruling:

(a) the fact of error is immediately [...] apparent from reading the relevant judgment;

(b) the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred (cf Chamberlain and Clutha), and

(c) the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis.

In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority.”

74. Underpinning language such as “a strong conviction” or “compelling reasons” (see Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 100) employed in this area of discourse are the important goals of fostering stability and predictability in the law and consistency and certainty in the administration of justice: Gett at [286], [300]. Neither of those considerations should be lightly gainsaid, perhaps especially so when the intermediate court is exercising federal jurisdiction as this Court is doing in the present case: see Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [46]–[51]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [56] (Hili).

75. Such considerations do not, however, preclude departure from an established position if the Court considers the earlier position to have been “plainly wrong”. As has been said, “[i]n essence, the Australian position rests on a compromise between the desirability of achieving uniformity and the undesirability of repeating gross error”: Heydon at 27; see also and generally M Leeming, “Farah and its Progeny: Comity Among Intermediate Appellate Courts” (2015) 12 Judicial Review 165.

76. Considerations that may bear upon an intermediate court’s approach to departing both from its own earlier decisions (including earlier decisions not to depart from still earlier decisions) and those of courts at a similar level of the federal judicial hierarchy include whether the challenged decision(s) are closely reasoned, whether the principle for which the decision stands has been worked through in a series of cases, and whether the decision(s) challenged have been unanimously followed or whether there is some tension between decisions of courts of coordinate authority in relation to the challenged decision(s).

Consideration

77. In my view, decisions such as Sinclair and Hinton, holding that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependant where the circumstances of hardship satisfy the epithet “exceptional”, are “plainly wrong” and should not be followed. Acknowledging and concurring with the compelling reasons of Beech-Jones J in Zerafa, augmented by the observations of Basten JA in Pratten, my reasons for reaching that conclusion are as follows.

78. First, there is simply no textual support for the requirement that exceptional circumstances be shown before hardship to family members or dependants may be taken into account, or given any specified weight, either in the language and structure of s 16A itself or in the Crimes Act more generally. Unwarranted judicial glosses should not be placed on the simple language of s 16A(2)(p): cf McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 at [61]; Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 at [89]; Fish v Solution 6 Holdings Limited (2006) 225 CLR 180; [2006] HCA 22 at [28], [107], [110] and [113]. As Kirby J observed, albeit in dissent, in Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 (Cornwell) at [185], “[i]f the statutory language is encrusted with legal barnacles imported from earlier times, part of the object of the reforming measure will inevitably be lost.”

79. Just as in the case of many statutes with a long history of judicial exposition “there may be a danger of losing sight of the text for the commentary” (Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [23]), where a common law doctrine is replaced or overlaid by statute, there may be a natural reluctance by judges and practitioners alike to “let go” of the common law principles with which they have been long familiar, and a tendency (sometimes no doubt subconscious) to apply the previous common law mindset to the interpretation of the statutory language. Examples of that phenomenon spring to mind in the context of the passage of the Evidence Act 1995 (Cth) and its New South Wales analogue which together put the law of evidence in New South Wales on a far more comprehensive statutory basis than had hitherto existed: see, for example, Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67.

80. The continuing operation of common law sentencing principles in the context of federal offences following the introduction of s 16A into the Crimes Act in 1989 was addressed in Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [15] by Gummow, Callinan and Heydon JJ, who said that:

“...except to the extent stated in ss 16A and 16B of the Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable. That common law principles may apply follows from the use of the words "of a severity appropriate in all the circumstances of the offence ..." in s 16A(1) and the introductory words "In addition to any other matters ..." to s 16A(2) of the Act.” (emphasis added)

The words to which emphasis has been added are most important. The continuing operation of common law principles was qualified to the extent stated and, I would add, necessarily implied, in ss 16A and 16B. It would be most odd if the legislature, in enacting s 16A(2)(p) in the plain language in which that provision appears, intended that it be read and understood, by reason of a pre-existing common law position, in a way that was different from and more limited than that suggested by the words in fact used: cf Chippendale v Commissioner of Taxation (1996) 62 FCR 347 at 348-349; Huddart Parker Ltd v Cotter [1942] HCA 34; (1942) 66 CLR 624 at 653.

81. It is correct that s 16A has been held to accommodate the application of the totality principle and “some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression ‘of a severity appropriate in all the circumstances of the offence’ used in s 16A(1)”: Hili at [25]; see also Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 (Bui) at [18]. In Hili, the plurality observed that s 16A should be applied “without being distracted or influenced by other and different provisions that would be engaged if the offender concerned were not a federal offender”: at [50]. It might equally be said that s 16A(2)(p) should be applied without the gloss derived from the common law’s attitude to the relevance and logic of third party hardship being taken into account for the purposes of sentencing federal offenders. A unanimous Court in Bui refused “to gloss the text [of s 16A] impermissibly by introducing a notion for which there is no textual foundation”: at [19].

82. Not only is there no textual support in s 16A for the requirement that exceptional circumstances be shown or established, the “requirement” to demonstrate “exceptional hardship”, as grafted on to s 16A(2)(p) by the series of cases under challenge, in fact runs contrary to the language of the subsection, which provides that the probable effect of the sentence on family members and dependants “must” be taken into account. The gloss defeats this clear statutory direction in all cases other than those which satisfy the somewhat elusive epithet of being “exceptional”.

83. Not only is the requirement of “exceptional circumstances” not supported by any aspect of the text of s 16A(2)(p) but nothing in s 16A(2) as a whole suggests any hierarchy of considerations or that varying degrees of importance should be placed upon each of the matters set out in subsection (2). Indeed, the Explanatory Memorandum specifies (at 7) that “[t]he matters to be taken into account [pursuant to s 16A(2)] are not set out in a hierarchy of importance or significance”. To the contrary, so long as “relevant and known to the court”, the Court is obliged (“must”) to take an enumerated matter into account: see also Hili at [49]. In particular, contrary to the position at common law, as usefully explained by the Victorian Court of Appeal in Markovic noted at [47] above, “the probable effect that any sentence or order under consideration would have on any of the person's family or dependants” referred to in s 16A(2)(p) is not described as a residual discretionary matter, akin to a “last gasp” appeal to the mercy of the sentencing court.

84. In my view, the case law interpreting s 16A(2)(p) took an immediate wrong turn in Sinclair with Malcolm CJ’s assertion that s 16A of the Crimes Act did not intend to alter the common law. Even if that statement may have been partly or even generally true, it was never true in relation to s 16A(2)(p), as reference to the ALRC report and the Explanatory Memorandum make plain: see [48]–[49] above. In Cornwell, both ALRC reports which preceded the passage of the Evidence Act 1995 (Cth) were extensively referred to by the High Court (at [59]–[73]) in its consideration of the proper construction of s 128(8) of the Evidence Act 1995 (NSW). By way of contrast, no reference was made in Sinclair to the ALRC report nor to the Explanatory Memorandum, which would immediately have brought home the incorrect nature of Malcolm CJ’s understanding of the intended effect of the introduction of s 16A to the Crimes Act, and s 16A(2)(p) in particular.

85. The error in Sinclair was, with respect, compounded by Phillips CJ’s description of Sinclair in Matthews as “powerful authority”: see at [50] above. No doubt any decision of Malcolm CJ is entitled to great respect but even “Homer nods”. The sole reason advanced in Sinclair in support of the retention of the exceptional circumstances test was the incorrect understanding that the legislative initiative constituted by s 16A was not intended to alter the position at common law. I am, with respect to Phillips CJ, quite unable to characterise this aspect of the decision in Sinclair in relation to s 16A(2)(p) of the Crimes Act as comprising “powerful authority”. Far closer to the mark was Phillips CJ’s initial impression in Matthews at 233 that “[a]t first sight the provision would seem to require the court to take into account any hardship”.

86. It is not difficult to understand how, after two early decisions of intermediate appellate courts following the introduction of s 16A, other intermediate appellate courts felt constrained to follow course as a matter not only of comity but of the need for consistency in the context of an important piece of national legislation. But comity and the need for consistency are not absolute considerations, and even decisions such as Marlborough Gold Mines and Farah admit of the possibility that an intermediate appellate court should not follow a decision it considers to be “plainly wrong”. In fact, the very importance of the legislation in question, and the ramifications of a mistaken (albeit consistently applied) interpretation of s 16A(2)(p) of the Crimes Act in terms of the potential impact of that mistaken interpretation on the length of a federal offender’s incarceration (and thus indirectly his or her liberty), point strongly in favour of the correction of the error.

87. On analysis, moreover, in relation to the proper interpretation of s 16A(2)(p), the case for the maintenance of consistency in the interpretation of a piece of national legislation is somewhat overstated. Reference has already been made (as it was by Beech-Jones J in Zerafa) to the decision of the ACT Court of Appeal in Ip. In addition, in Pratten at [58], Basten JA drew attention to the decision of the Queensland Court of Appeal in R v Ruha; Ex Parte Director of Public Prosecutions (Cth) (2010) 198 A Crim R 430; [2010] QCA 10 at [59] (Keane and Fraser JJA and Atkinson J) in which no “exceptional circumstances” or “exceptional hardship” gloss appears to have been placed on s 16A(2)(p).

88. Since Zerafa, in Constant the South Australian Court of Criminal Appeal, whilst not abandoning the language of “exceptional circumstances”, appears to have at the very least diluted the understanding of that expression in the context of s 16A(2)(p) (see at [64]–[67] above) as does the Nguyen line of authority in New South Wales (see [57] and [67] above). On the other hand, the Queensland Court of Appeal in Ibbetson appears to have adopted a requirement that the circumstances be “highly exceptional” for hardship to third parties to be taken into account: see at [69]–[70] above.

89. In addition, a number of judges have acknowledged the force of the dissenting analysis of Beech-Jones J in Zerafa but in cases in which the point did not need to be determined: see, for example, Pratten at [162] per S Campbell J, at [164] per N Adams J; Kaveh at [6] per Basten JA; R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 866 at [37] per McCallum J; R v Carter [2018] NSWCCA 138 at [67] per McCallum J; R v Taleb (No 5) [2019] NSWSC 720 at [75] per Hamill J; R v Betka [2020] NSWSC 77 at [77] per Harrison J.

90. The issue raised on the current appeal is not wholly dissimilar to an issue considered by a bench of five justices of this Court in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 (Parente). In that case, the issue was whether the Court and sentencing judges should continue to follow what had come to be described as the Clark “principle” (R v Peter Michael Clark, (Court of Criminal Appeal (NSW), 15 March 1990, unrep)), namely that drug trafficking in any substantial degree should lead to a custodial sentence to be served by way of full-time imprisonment unless there are exceptional circumstances. The Parente Court held that this principle, which had been regularly applied including by this Court for over 25 years, was incompatible with the judicial sentencing discretion and should no longer be applied: at [101], [108]–[110]. Part of the Court’s reasoning related to the elusive nature of what the concept of “exceptional circumstances” meant and how such circumstances were to be ascertained: see at [78]–[81]. As with the interpretation of s 16A(2)(p), although the Clark principle had been regularly followed, doubts had been expressed by a number of judges as to the absolutist nature of the principle: see Parente at [91]. Perhaps most relevantly for present purposes, the Court observed at [95] that:

“An approach to sentencing in drug supply cases of first determining whether there has been trafficking to a substantial degree giving rise to an assumption that there must be a full-time custodial sentence, and then to inquire whether there are exceptional circumstances that would justify some alternative imposition, may be characterised as a "two-staged" approach that is contrary to the "instinctive synthesis" approach of taking into account all of the relevant factors in order to arrive at a single result which takes due account of them all.”

91. After quoting from Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [27], the Court continued at [97] by observing that:

“The Clark "principle", whether intended or not, has been given an interpretation in its practical application of dictating the particular path that a sentencing judge must follow. It is inconsistent with the flexibility to be afforded to sentencing judges in the exercise of the sentencing discretion.”

The same criticism may be made of the approach taken to s 16A(2)(p) of the Crimes Act in Sinclair and the line of cases that has applied it. The requirement for “exceptional circumstances” or “exceptional hardship” to be shown has no “statutory root” (cf Parente at [101]) and, to adopt the words of Simpson JA in Robertson v R [2017] NSWCCA 205 at [89] in relation to the Clark principle, the grafting on of such a requirement imposes “an unlegislated judicially created constraint on the sentencing discretion".

92. Just because “any hardship” may be “no different to that which would normally be expected”, to quote the words of the sentencing judge in the present case, does not mean that it must not be taken into account for the purposes of s 16A(2)(p) as part of the instinctive synthesis, consistent with decisions such as Markarian. To the extent that authorities such as this Court’s 2006 decision in Nguyen have held that hardship to third parties must rise to the level of “exceptional” before being given a specified weight or resulting in a substantial reduction of sentence, that approach, too, attracts a similar criticism.

93. For all of these reasons, coupled with the fact that the Court was met with a submission by the Crown inconsistent with Sinclair and Hinton, namely that hardship “does not need to be exceptional in order to be taken into account”, the gloss that has been placed on the interpretation of s 16A(2)(p) should be removed. That straightforward section should be applied according to its terms and, to the extent that decisions of this Court and other intermediate appellate courts have taken a different approach, they should, in my opinion, no longer be followed in New South Wales. Accordingly, leave to appeal is granted and appeal ground 1(b) is upheld. The Applicant’s sentences should be set aside.

Appeal Ground 2

94. In light of my conclusion in relation to appeal ground 1(b) and the necessity to resentence the Applicant, appeal grounds 1(a) and 2 do not need to be considered.

Resentencing

95. It now falls to this Court to exercise its sentencing discretion for the purpose of determining whether a lesser sentence is warranted in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell at [42].

96. Section 6(3) of the Criminal Appeal Act provides:

“On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

97. In undertaking this task, the Court must take into account all of the factors listed in s 16A(2) of the Crimes Act that are relevant and known. Ultimately, it must impose a sentence that is “of a severity appropriate in all the circumstances of the offence” (s 16A(1)).

98. In proceedings before the sentencing judge, the Crown in its written submissions outlined a series of “general principles” said to be derived from case law relevant to sentencing for social security and other fraud offences contrary to the Criminal Code.[53] Care must be taken that such a compilation of “principles” does not itself result in either glossing s 16A or fettering the sentencing court’s discretion. So much may be illustrated by the first of the so-called principles advanced by the Crown, namely that:

“The pre-eminent sentencing consideration in offending involving fraud on the government is general deterrence in order to protect the revenue.” (footnotes omitted)

99. With the arguable exception of Director of Public Prosecutions (Cth) v Milne [2001] VSCA 93, not only did the cases cited for this asserted “principle”[54] not support it but, as noted earlier in these reasons, s 16A does not fetter the sentencing discretion by creating any hierarchy of matters to be considered so as to result in one or more factors being described as “pre-eminent”. The role of deterrence was more accurately described by Doyle CJ, Mullighan, Williams, Bleby and Martin JJ in Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106 at [43] as follows:

“In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served.”

100. Although not a separate ground of appeal, the sentencing judge’s statement that:[55]

“As the authorities state:

‘When general deterrence is the primary sentencing consideration such as in cases of social security fraud, personal mitigating factors such as prior good character, age and prospects for rehabilitation must be given less weight than might otherwise be the case.’”

is not, in my opinion, correct. Her Honour did not identify the “authority referred to” and the structure of s 16A of the Crimes Act is not to establish a hierarchy of sentencing considerations: see [83] above.

101. A number of other propositions or principles for which various cases were cited by the Crown did not in fact appear to be supported by the authorities referred to in the Crown’s submissions at first instance, which continued to be relied upon on appeal.[56] One proposition which was supported by the cited authorities, however, and which may be readily accepted, was taken from the judgment of McMurdo P in R v Hurst; Ex parte Director of Public Prosecutions (Cth) [2005] QCA 25 (Hurst) at 7. There, her Honour said:

“The honesty of those claiming under the welfare system is essential to its operation. Offences against the welfare system lead to public loss of confidence in the social security system and create a risk of demonising the genuine and needy in society who require assistance from time to time."

102. The facts of that case were that Mr Hurst pleaded guilty to one count of defrauding the Commonwealth and one count of dishonestly obtaining a financial advantage from the Commonwealth. The amount of benefits obtained to which he was not entitled was $79,089.87, and although there were mitigating factors, it was noted by McMurdo P that at the time of the fraud, which extended over a number of years, Mr Hurst was not in grave financial need. He was originally convicted and sentenced to three years imprisonment to be released forthwith, under s 20(1)(b) of Crimes Act 1914 (Cth), upon entering into a recognizance in the sum of $1,000, on condition that he be of good behaviour for three years. He was additionally ordered under s 21B Crimes Act 1914 (Cth) to pay reparation to the Commonwealth of $65,089.87. On the Crown appeal, the sentence at first instance was varied by deleting that part of the order that Mr Hurst be released forthwith and, instead, ordering that he be released after serving six months imprisonment.

103. Hurst was referred to in R v Newton (2010) 199 A Crim R 288; [2010] QCA 101 (Newton) at [7], in which Chesterman J observed (at [8]) that “[i]t may be that one aspect of the need for general deterrence is now less important than it was formerly in the case of those who, like the applicant, offend by fraudulently concealing income earned in their own names”; see also at [29], [38]. In that case, which involved the offender fraudulently claiming social security payments amounting to $50,379.62, a sentence was imposed at first instance of two years imprisonment, with the offender to be released after five months on a recognizance for two years in the amount of $2,000. Following a review of comparative sentences and taking into account the particular facts of the case including the “relatively unsophisticated” nature and circumstances of the offending, the lack of any assumption of false identities, an early plea of guilty, what were described as “her unfortunate family circumstances”, the offender’s use of the money only for everyday living expenses and not a lavish lifestyle, and her complete lack of criminal history, the Queensland Court of Appeal by majority found that the sentence imposed was manifestly excessive. The Court ordered that, having served three months of her term, the offender be released forthwith, subject to the recognizance order made at first instance.

104. Returning to the facts of the present case, in addition to the evidence led at first instance, the Applicant led further evidence relevant to resentencing. This evidence consisted of an affidavit of Ruth Carty, affirmed on 25 November 2021, an affidavit of the Applicant, affirmed on 14 December 2021, and an affidavit of the Applicant’s mother, affirmed on 17 November 2021. Annexed to the affidavit of Ruth Carty were:

(1) two case notes by a staff member at the Dillwynia Correctional Centre concerning the Applicant’s work as a library clerk, dated 3 June 2021 and 10 August 2021;

(2) a list of programs and services which the Applicant participated in between 3 May 2021 and 11 August 2021 while incarcerated; and

(3) a report of child psychiatrist Dr Joey Le concerning the Applicant’s two children, dated 3 September 2021.

105. This material is referred to in the course of considering various matters to be taken into account pursuant to s 16A(2) of the Crimes Act.

The nature of the offending

106. The nature and circumstances of the two offences to which the Applicant has pleaded guilty, and of the additional s 16BA offence, are described in further detail as follows:

(1) The Applicant first began receiving PPS benefits on 23 February 2010.

(2) Between 21 June 2010 and 31 December 2012, the Applicant was employed in a number of casual and full-time positions in customer service and business management. For most of that period, she was required to report her income to the DHS each fortnight.

(3) Between 21 March 2011 and 24 December 2012, the Applicant underreported her income on 25 occasions and falsely declared no income on 24 occasions. During this period, she declared $11,875.50 gross income from employment, but in fact earned $138,500.03 (before tax). As a result, she received an overpayment of $27,070.50 to which she was not entitled.[57] This overpayment was the subject of Count 1.

(4) Between 3 February 2014 and 14 January 2019, the Applicant was again employed in a number of positions in sales and customer service. At different times during this period, she was required to either report her income each fortnight or report a change of her circumstances within 14 days.

(5) Between 17 March and 7 July 2014, the Applicant was required to report a change in her circumstances within 14 days. She did not advise the DHS that she had commenced employment in sales with a recruitment company. During this period, she did not declare any income from employment, but in fact earned $15,789.91 gross income. As a result, she received an overpayment of $5,523.65 to which she was not entitled.[58] This was the subject of the s 16BA offence, which is to be taken into account in sentencing the Applicant for Count 3.

(6) Between 21 July 2014 and 14 January 2019, she underreported her income on 22 occasions and falsely declared no income on 99 occasions. During this period she declared $11,875.50 gross income from employment, but in fact earned $239,905.52. As a result, she received an overpayment of $80,405.81 to which she was not entitled.[59] This was the subject of Count 3.

(7) In sum, during the periods of offending (which combine to approximately six years and three months) the Applicant declared $23,336.20 total gross income from employment, but in fact earned $394,195.26 before tax. She received overpayments in the total amount of $112.999.96.

(8) The Applicant gave evidence that she spent the fraudulently obtained benefits on “bills and necessities”.[60] She said the money was also used by the father on gambling and drugs. [61] He would tell her “fib stories” to persuade her to give him money,[62] at times accompanied by psychological or physical abuse.[63]

(9) The offending was detected as a result of a ‘data match’ with the Australian Taxation Office. On 16 January 2019, the Applicant was invited by the DHS to participate in a formal interview and voluntarily agreed to do so. An interview took place that day at the Mount Druitt Centrelink Office, during which she made full admissions to failing to declare her income properly.[64]

107. In cases of social security fraud, it is well established that the sum of money the subject of the fraud is a significant consideration on sentence: R v Hawkins (1989) 45 A Crim R 430, at 435. In the present case, the total loss to the Commonwealth was $112,999.96. The loss and duration referable to each offence was as follows:

(1) Count 1: $27,070.50, over two years, six months and 10 days

(2) The s 16AB offence: $5,523.65, over three months and 20 days

(3) Count 3: $80,405.81, over four years, five months and 24 days

108. The offences clearly form part of a course of conduct, which spanned a relatively lengthy period of approximately six years and three months. The sentencing judge found that the offending involved “a calculated long-term course of deception”,[65] which involved “systemic and persistent deceit over a number of years.”[66] Nonetheless, as her Honour recognised, the offending was unsophisticated, and did not involve the use of deceptive means such as multiple identities or false documents.

The subjective circumstances of the offender

109. The seriousness of the offending is, of course, informed by its surrounding circumstances, including the personal circumstances of the Applicant. Although it is sometimes said, as was submitted by the Crown, that when sentencing for offences such as social security fraud where general deterrence is of particular importance, the personal circumstances of an offender may attract somewhat less weight than they otherwise would, nonetheless, the personal circumstances of the Applicant in the present case are compelling, and bear significantly on the determination of the appropriate sentence.

110. The Applicant had her first child at age 18, and was 20 years old when the offending conduct commenced. She was 30 years old at the time of sentence, and is now 31 years old. She had no prior convictions, and the sentencing judge found she was “a person of otherwise good character”.[67] Her two children were aged 11 and seven at the time of sentence.

111. During the periods of offending, the Applicant was employed in a series of casual and full-time positions in customer service and business management. Over the period of offending, which spanned approximately six years and three months, she earnt a cumulative income of $394,195.26,[68] equating to an average annual income in the realm of $63,000 per year (before tax).

112. A very important aspect of the Applicant’s subjective case is the physical, emotional and financial abuse she suffered at the time of the offending, at the hands of her former partner and the father of her two children. The violent and controlling nature of her relationship with the father was established by sworn evidence before the sentencing judge, and has been described at [11]–[16] of these reasons. In summary, she was the victim of protracted and at times violent abuse, and experienced financial hardship by reason of the father’s addictions to gambling, and after about 2016, to methamphetamine. The abuse experienced by the Applicant was most severe during and after the period of Count 3. It resulted in the making of an ADVO for her protection in 2016, and culminated in the arrest and imprisonment of the father in 2020.

113. The sentencing judge’s findings with respect to the domestic abuse experienced by the Applicant are set out at [25]. While her Honour found that the Applicant suffered violent domestic abuse, she was not satisfied that it was “the sole reason for her offending”. Her Honour then went on to say, “[a]s [the Applicant] now knows, there are ways in which to resolve abusive relationships, even if it took her former partner's incarceration for that to happen.”[69]

114. This observation, with respect, does not give adequate weight to the evidence which the Applicant gave before the sentencing judge, which was consistent with remarks she made in her initial voluntary interview with staff from the DHS on 16 January 2019. This evidence indicated that she was trapped in a violent and controlling relationship, which she felt she was unable to leave. In the interview, for example, she said the following: [70]

“... And, yeah, a lot of people say, "Then why are you with him?" Like, "Why did you stick around?" He does not make it easy for me to just leave. So when me and - me and him started dating when I was only 16. I don't know any better. I had my son at 18... It's- he - the way that he is, I don't know if it was something of how he grew up or whatnot, but I think what it is, he doesn't make it easy for me to just walk out the door and leave him. Or even if I wanted to separate, he will make my life a living hell and make sure of it because he is that dependent on me...” (emphasis added)

115. Later in the same interview, the Applicant said:[71]

“...it's just so hard because I've gone through women's services, family domestic violence services asking for advice if I was to leave. And at the end of the day I can't do anything of taking my kids with me because police have clearly told him that obviously we've got 50/50 right for the kids. I can leave the house but he will not let me take my kids and if I ever I took it to court, it would still be six to 12 months. I cannot be apart from my kids, especially with the state Edward's in.”

116. Edward was the Applicant’s partner. It should be noted that the sentencing judge found that there was some causal nexus between the domestic abuse the Applicant experienced and her offending, save that her Honour did not consider it to be the sole cause. Of particular significance, however, was the Applicant’s evidence that the father would, at times abusively, request money from her.

117. Another important and related aspect of the Applicant’s subjective circumstances is the financial hardship she described as a result of the father’s gambling and drug use. She gave evidence that the couple accrued a sizeable credit card debt as the father’s gambling problem worsened. She said that she was primarily responsible for paying for household expenses and servicing the couple’s debts from her income.

118. As to financial hardship, in her interview with the DHS, the Applicant said:[72]

“...as a mum, how can I not come back to the house, knowing that my kids are with him with nothing to eat? Like, we're pretty much - I don't know if you'd consider it as poverty. It's not, but I mean, I mean, the past week we've had - I don't even know what to do. I cannot comprehend what to do anymore. ... like, at the end of the day, we're about to get evicted from that property because of non-payment. They're about to take my car for non-payment. On top of that, like, kids could be suspended in enrolment. And he doesn't - if you're going to look at it, it's - whether we're staying in a relationship, yeah, probably because we're living together. But in terms of all of the financial side of it or working as a couple? No. I feel like a single mum. For so long now I've been doing it on my own. He does not have a care in the world of it. But yes, I'm with him for the sake of my kids. I thought that a bit of sacrifice on my end, of being the emotional punching bag for him, just taking all of his crap, to make it easier for my kids, I can take that for now as - until they get to an age where they decide, "Yeah, I can leave their house. I don't have to worry about them. They can look after themselves."

119. A character referee, Ms Danna Marcelo, gave evidence that the family was living under such financial stress that “they would have to sell their possessions to a money lending service so they could put food on the table”.[73]

120. The sentencing judge found that the Applicant had good prospects of rehabilitation.[74] While in the Dillwynia Correctional Centre, she completed two intensive counselling and rehabilitation programs, which she says have assisted her to plan for her release and better understand her offending.[75] For some time she also had a position as an administrative assistant in the Dillwynia Correctional Centre library, at first three days a week and then on a full-time basis.[76] A file note by an employee created on 10 August 2021 noted that she had “excellent work ethics”.[77]

The Applicant’s contrition

121. Section 16A(2)(f) requires the Court to have regard to the degree to which an offender has shown contrition for an offence, either by taking action to make reparation for any loss or damage resulting from the offence, or in any other manner.

122. The sentencing judge found that the Applicant was “remorseful and contrite”.[78]

123. At the time of sentence, the Applicant had entered a payment plan for the repayment of the benefits she had illegitimately received from the Commonwealth, and had been making repayments for some time. The repayments were being deducted on an ongoing basis from her Family Tax Benefit, at a rate of $112.91 per fortnight.[79] No evidence was led on appeal as to the status of this repayment plan. It can be presumed that the repayments ceased when the Applicant was remanded in custody. This was not, of course, by the Applicant’s choice.

124. In a statement which was tendered on sentence, the Applicant wrote about her feelings of remorse. Among other things, she said:[80]

“I... take full responsibility for my offences resulting to the charges filed against me. I regret my actions and decisions and understand that my behaviour and my reasoning upon making these decisions is unacceptable. I did not mean any harm or loss to others especially to the community due to my actions and I understand the seriousness of my offence and definitely will ensure to take all measures possible to not do the same mistake again.

Due to my actions, I understand this has caused a great loss to the community and had made arrangements with Centrelink directly to pay back what I am not entitled too, to rectify the situation I had put myself in due to my poor judgement.

I am sincerely regretful and embarrassed for my actions, I am a person who shows pride in everything I do- living with values, morals and integrity in everything I do, and my offences does not reflect this and does not reflect my true character. It took a long time for me to comprehend and comes to terms with my offences, and even just sharing it with my family had been hard. I did not even know how to explain to them the gravity of the situation I had put myself in as I was so ashamed.”

125. The Applicant also gave sworn evidence in the sentence proceedings. When asked why she defrauded the Commonwealth in the way that she had, she answered:[81]

“As per the fact sheets, it’s all there, the reasons behind it, but I know that the reasons won't justify the wrongdoing that I did, the wrong mistakes that I did. If I could change them, I would. I'm really sorry and remorseful for what I've done. I know that it’s not - whatever reason there is, it’s not a good enough reason at all to be accepted.”

126. The Applicant’s early pleas of guilty and cooperation with investigating authorities also indicate her remorse and contrition.

The Applicant’s guilty pleas and cooperation with law enforcement

127. The Applicant entered guilty pleas in committal proceedings in the Local Court, at the earliest opportunity.[82] When sentencing an offender for a federal offence, the Court may apply a discount to reflect the utilitarian value of a guilty plea pursuant to s 16A(2)(g) of the Crimes Act: see Bae v R [2020] NSWCCA 35 at [12]. I would allow a discount of 25% for the Applicant’s early plea of guilty.

128. Further, the Applicant cooperated significantly with investigating authorities. She voluntarily attended a formal interview with DHS investigators on 16 January 2019. She was advised that she was under no obligation to answer the investigators’ questions, and that she had a right to seek legal advice. She declined to seek legal advice, and proceeded to make immediate admissions that she had failed properly to declare her income.

The need for general and specific deterrence, and adequate punishment

129. The sentencing judge found that the Applicant was unlikely to reoffend.[83] This finding is reinforced by the fact that her abusive relationship, which has now ended, contributed to her offending conduct. Having regard to these considerations, the need for specific deterrence is low.

130. As to general deterrence, the observations of Chesterman J in Newton noted at [103] above are of importance. Having said that, it is important to condemn and deter the kind of offending engaged in by the Applicant which, if replicated on a wide scale, threatens the integrity of the social security system upon which many vulnerable people rely. The need for general deterrence in any given case, however, must always be assessed by reference to the personal circumstances of the offending and which may have operated on the offender. Here there was domestic abuse, no doubt contributed to by the gambling addiction of the Applicant’s partner.

131. I also take into account that the hardship experienced by the Applicant while in custody has been considerably exacerbated by the COVID-19 pandemic. In her affidavit of 14 December 2021, the Applicant gave evidence that lockdown measures at the Dillwynia Correctional Centre resulted in the suspension of programs for approximately three months, and caused a deterioration of her mental health.[84] She said that she had been unable to receive in-person visits since June 2021. As to her inability to receive in person visits from her children, she said the following:[85]

“Not having contact visits with my children has been incredibly difficult. Not being able to hug my children or see them in person has taken its toll on me emotionally. I worry about what it is doing to my relationship with my children with them not being able to see me. I am yet to tell my daughter that I have been sentenced to a term of imprisonment. I want to tell my daughter and have her be able to come and see me in person so she can see for herself that I am doing alright. I haven’t been able to tell her yet as she is currently unable to visit in person and I am concerned that without actually being able to see me she might get distressed when she hears about my situation. I think she is upset at me as she feels it was my choice to leave her, which it wasn’t. I want to explain all of this to her but I want to do it in person.”

The effect of incarceration on the Applicant’s family or dependants

132. The Applicant gave evidence before the sentencing judge about the care arrangements in place for her children, and the likely effect on her family if she were to be sentenced to a term of full-time imprisonment. That evidence is summarised at paragraphs [17]–[19] of these reasons. In summary, the Applicant was primarily responsible for the care of the children, and for meeting the expenses of providing for them. The Applicant’s mother had several chronic health issues since a workplace accident in 2018; her father worked full-time; and her parents were struggling financially. She expressed the opinion that her parents would struggle to care for her children if she were in custody.

133. Further material relating to the effect of the Applicant’s incarceration on her family since being sentenced can be found in the three affidavits tendered on resentence.

134. The report of psychiatrist Dr Le, dated 3 September 2021, indicates that the Applicant’s incarceration has taken its toll on the psychological state of her children. With respect to the Applicant’s son, who was 12 years old at the time of assessment, Dr Le found that:[86]

(1) he exhibits symptoms consistent with an adjustment disorder with depressed mood, which is directly attributable to his mother's incarceration;

(2) he has been forced to take on a parent or care-giver role for his younger sister, by assisting with her day-to-day care, being the primary facilitator for her education during the COVID-19 lockdown, and feeling the need to protect her from their father’s aggression; and

(3) the need to take on a parental role for his sister has negatively impacted his own educational progress, and has likely increased his risk of developing future mental health difficulties.

135. With respect to the Applicant’s daughter, who was 8 years old at the time of assessment, Dr Le found that:[87]

(1) she exhibits symptoms consistent with an adjustment disorder with mixed disturbance of conduct and emotions; and

(2) she has been displaying challenging behaviours due to her sadness, grief and anger.

136. Dr Le considered that the Applicant’s incarceration had a particularly deleterious impact on her children, noting that her mother was not a “suitable carer... able to fulfil all the roles performed by [the Applicant]”.[88] He also considered the impact on her children to be greater than expected by reason of remote schooling during the COVID-19 pandemic, and their limited but ongoing contact with their father.[89]

137. With respect to the Applicant’s mother, Dr Le considered that “her capacity to function as a well-rounded substitute parent to the children is significantly impacted by her chronic ill-health”, and “[i]t is likely that the additional stressors of providing care to the children will deleteriously affect her health”.[90]

138. In an affidavit of 17 November 2021, the Applicant’s mother gave evidence that it has been “incredibly difficult” being the sole carer for the two children. She said that she has not been able to help the children with their home-schooling during the COVID-19 pandemic, as she does not know how to use a computer. She also said that she has seen the father yell at the children since the Applicant has been in custody.

139. It is also abundantly clear that the Applicant’s separation from her children has made her incarceration more onerous for her, particularly given the extended suspension of in-person visits to correctional facilities due to the COVID-19 pandemic. This much is evident from the Applicant’s affidavit, in which she said (at [6] and [21]):

“During my time in custody I have been really worried about my mother and my children on the outside. I have been concerned that they will catch COVID 19 due to the high levels of cases in the Sydney area. I also worry about my mother having to home school my two children when she is unwell. I worry that my mother's health is suffering and that my children's education is suffering as a result of my incarceration.

...

I have found custody very difficult because I am concerned about my family on the outside, particularly my mother and my children. I feel guilty that I can’t be with my children to help them with their school work and I worry about their education. I miss my children very much and the thought of being without them for a further 16 months makes me very upset. This is time with them that I will not be able to get back.”

Consideration and conclusion on resentence

140. The Applicant was sentenced to an aggregate term of four years to commence on 12 March 2021 with a single non-parole period of two years. She has already served over 12 months in prison.

141. The Applicant’s offences were undoubtedly serious, sustained and fraudulent. There were, however, significant mitigating factors which, whilst not excusing the offences, go a very large way to explaining them. I do not consider this to be a case where the Applicant was motivated by greed at all. To the contrary, she was motivated by a desire to provide for her children in circumstances where their father was addicted to gambling and later drugs, made little contribution to the household, was abusive and, in this context, in fact placed the Applicant under pressure of an emotional, physical and financial kind.

142. The Applicant’s fraud was not sophisticated, did not involve aliases, was immediately confessed on detection and resulted in an early guilty plea. She has shown remorse and has been assessed as having good prospects of rehabilitation.

143. Her family and, in particular, her children have suffered. This is not a case where one parent remains to care for young children. Their grandmother has acted as a carer, no doubt to the best of her ability, but as the evidence shows, that is not without considerable limitation.

144. Taking into account the considerations discussed above, in my opinion, the Applicant should receive a lesser sentence than that which was passed by the sentencing judge but should receive a sentence of imprisonment as no other sentence is appropriate given the serious and sustained nature of the offending, and the need for deterrence in respect of such serious and sustained offending.

145. For Count 1, I would sentence the Applicant to a term of imprisonment of one and a half years, commencing on 12 March 2021 and expiring on 11 September 2022. For Count 3, taking into account the s 16BA offence, I would sentence the Applicant to a term of imprisonment of two and a half years, commencing on 12 September 2021 and expiring on 11 March 2024. As the sentences in the aggregate, within the meaning of the Crimes Act, do not exceed three years (being three years exactly), a non-parole period is not available and a recognizance release order should be made (see s 19AC(1)).

146. I would order that the Applicant is to be released immediately pursuant to s 20(1)(b) of the Crimes Act, having served exactly one year and one month of her sentence in full-time custody, on recognizance to be of good behaviour for one year and eleven months and upon posting security in the sum of $10. Consistent with the requirement of s 20(2) of the Crimes Act, it must be explained to the Applicant that the purpose and effect of this order is that she will be released from custody, but that she is obliged to be of good behaviour for the balance of her sentence. If she does not comply with this order, the Court may impose a monetary penalty of not more than $1,000, extend the period of required good behaviour, or order that she be imprisoned for the whole or part of the duration of her sentence which she has not served at the time of her release (being one year and 11 months): s 20A(5)(c) of the Crimes Act. Section 20(2)(c) also requires that it be explained to the Applicant that the conditions of the recognizance release order may be discharged or varied pursuant to s 20AA of the Act.

147. The Applicant will still be subject to the reparation order, in relation to which no application for leave to appeal was brought.

148. GLEESON JA: I agree with Bell CJ.

149. HARRISON J: I agree with Bell CJ.

150. DAMSON J: I have had the benefit of reading the reasons of Bell CJ in draft. Substantially for the reasons his Honour gives, I agree with the orders his Honour proposes that the appeal be allowed and with the re-sentence proposed. Mr Howell, who appeared with Mr El-Choufani and Ms Akthar for the applicant in this Court, demonstrated through careful analysis of the authorities, which the Chief Justice has summarised, that there is no consistency throughout Australia as to the meaning of s 16A(2)(p) of the Crimes Act 1914 (Cth). In these circumstances, I am persuaded that this Court ought give effect to the plain meaning of the words: namely, that hardship may be taken into account on sentence, even if it is not exceptional.

151. DHANJI J: I agree with Bell CJ.

**********

Amendments

26 April 2022 - Revisions made as follows:

[4] - first sentence, colon replaced with a comma and R v Zerafa citation moved to end of sentence.

[15] - second sentence, delete the words "to her" following "fib stories".

[131] - third sentence, add "had" before the words "been unable to receive".

[141] - fourth sentence, delete the word "be" between "motivated" and "a desire to provide" and replace with the word "by".

25 November 2022 - Revision made to [101] in the quote. Removed last sentence of quote.

[1] AB 16.7-8.

[2] AB 17.

[3] AB 18.

[4] AB 18.

[5] AB 19.

[6] AB 19.

[7] AB 20.

[8] AB 22.40.

[9] AB 24.18-21.

[10] AB 24.38-25.7.

[11] AB 54.

[12] AB 24.41.

[13] AB 38.13.

[14] AB 26.11.

[15] AB 26.49.

[16] AB 31.18.

[17] AB 31.37.

[18] AB 37.25.

[19] AB 31.43.

[20] AB 27.42, 23.37.

[21] AB 28.23

[22] AB 33.46.

[23] AB 29.14.

[24] AB 30.27.

[25] AB 30.35.

[26] AB 33.44.

[27] AB 35.9, 79.

[28] AB 34.50.

[29] AB 33.07.

[30] AB 35.18.

[31] AB 35.32.

[32] AB 36.1.

[33] AB 34.19

[34] AB 24.13, 25.34.

[35] AB 79.

[36] AB 35.44.

[37] AB 35.47.

[38] AB 100-101.

[39] AB 41.

[40] AB 42.

[41] AB 52-53.

[42] AB 52.

[43] AB 55-56.

[44] AB 54.

[45] AB 56.

[46] AB 54.

[47] AB 55.

[48] AB 55.

[49] AB 56.

[50] AB 57.

[51] AB 56.

[52] AB 56.

[53] AB 87-88.

[54] Warden v The Queen [2019] VSCA 2 at [32]; De Faria v Western Australia [2013] WASCA 116 at [159]; Jorissen v The Queen [2017] WASCA 71; R v Knipe [2017] SASCFC 34 at [23]; Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106; R v Holdsworth [1993] QCA 242; Saxon v Commonwealth Services Delivery Agency (2004) 88 SASR 382; [2004] SASC 118; Huynh v Commonwealth Services Delivery Agency (2014) 120 SASR 557; [2014] SASC 143; Zaky v The Queen [2015] NSWCCA 161; Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145.

[55] AB 55.

[56] T 28.3.

[57] AB 62.

[58] AB 62.

[59] AB 62.

[60] AB 31.18.

[61] AB 31.43.

[62] AB 31.37.

[63] AB 37.25.

[64] AB 63.

[65] AB 53.

[66] AB 52.

[67] AB 56.

[68] AB 63, CWS 4 [15].

[69] AB 54.

[70] AB 72

[71] AB 75.

[72] AB 75.

[73] AB 78.

[74] AB 56.

[75] Affidavit of Clarisse Totaan, affirmed 14 December 2021, at [8]–[14].

[76] Affidavit of Clarisse Totaan, affirmed 14 December 2021, at [15]–[16].

[77] Affidavit of Ruth Carty, affirmed 25 November 2021, 3.

[78] AB 56.

[79] AB 43.37.

[80] AB 76.

[81] AB 31.12.

[82] AB 86 [4]; 90 [20].

[83] AB 56.

[84] Affidavit of Clarisse Totaan, affirmed 14 December 2021, at [14].

[85] Affidavit of Clarisse Totaan, affirmed 14 December 2021, at [19].

[86] Affidavit of Ruth Carty, affirmed 25 November 2021, at 19.

[87] Affidavit of Ruth Carty, affirmed 25 November 2021, at 19-20.

[88] Affidavit of Ruth Carty, affirmed 25 November 2021, at 20.

[89] Affidavit of Ruth Carty, affirmed 25 November 2021, at 20.

[90] Affidavit of Ruth Carty, affirmed 25 November 2021, at 21.