Totaan v R [2022] NSWCCA 75
Totaan v R [2022] NSWCCA 75 · Read the judgment on AustLII
Catchwords: Hardship to third parties – sentencing – Federal offenders
In this decision the Court of Criminal Appeal (‘CCA’) a five-judge bench has overturned NSW and interstate authority on the question of hardship to third parties when sentencing federal offenders. The Court held that there is no requirement that such hardship meet the description of being ‘exceptional’ before it must be taken into account in sentencing under the Crimes Act 1914.
The applicant pleaded guilty to offences involving underreporting or failing to report her income to the Department of Human Services, resulting in her illegitimately receiving about $113,000 of benefits over six years. During the period of offending, she was the subject of emotional, financial, and physical abuse, inflicted by her former partner (a significant proportion of the money was said to have gone to him). She was sentenced to imprisonment for 4 years, with a non-parole period of 2 years.
One issue at the sentence proceedings had been the hardship which would be occasioned to the applicant’s two children (and her ill mother, who was caring for the children) if she were imprisoned. Section 16A(2)(p) of the Crimes Act 1914 (Cth) provides that when sentencing a federal offender, a court must take into account the probable effect that any sentence would have on the offender’s family or dependants (if relevant and known to the court). The balance of NSW and interstate authorities previously held that in order to be taken into account, the section in fact required ‘exceptional hardship’ to the third party before it could be taken into account. That said, there had also been some powerfully-argued judgments to the effect that those decisions, whilst binding, were wrong.
So in this case the CCA sat a five-judge bench (Bell CJ; Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing) to consider whether the NSW and interstate authorities ought not be followed.
After reviewing previous decisions, the Court concluded that the NSW and interstate authorities holding that a court imposing a sentence for a federal offence may only have regard to hardship to third parties if the circumstances are ‘exceptional’ are plainly wrong and should not be followed (at [77]). The error in the common law was traced back to a very early decision; the case law took an immediate wrong turn in holding that s 16A of the Crimes Act did not intend to alter the common law (at [84]). There is no textual support for the requirement that circumstances must be ‘exceptional’, and unwarranted judicial glosses should not be placed on the simple language of s 16A(2)(p) (at [78]). In fact, not only is there no textual support for the gloss of a ‘requirement’ of ‘exceptional hardship’, such a test actually 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 the clear statutory intention, other than in those cases which satisfy the epithet of being ‘exceptional’ (at [82]).
The applicant was duly resentenced to imprisonment for 2 years, 6 months, with a recognizance release order made after 1 year and 1 month (coincidentally resulting in her immediate release).
Practitioners will notice that, at least in the short term, this decision results in a clear divergence between sentencing for NSW State-based offences, versus sentencing for federal offenders. That is because this decision is based explicitly on legislative language, whereas for State-based offences the common law (requiring proof of exceptional circumstances) continues to apply.