List of subheadings:

Crimes Act 1914 (Cth)
- Probable Effect
- Objective Seriousness of the Offence
- Exceptional Circumstances
Mercy

Commentary on the taking into account the effect on the offender's family or dependants under the Crimes Act 1914 (Cth)

A court sentencing a federal offender must take into account, where relevant and known, the probable effect that any sentence or order under consideration would have on any of the person's family or dependants: Crimes Act 1914 (Cth) s 16A(2)(p)

Courts have interperated s 16A(2)(p) as operating alongside the common law principle that any hardship suffered by the person's family and dependants can only mitigate a sentence in 'exceptional circumstances' (see further below).

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Probable Effect

In R v Togias [2001] NSWCCA 522,[10] Spigelman CJ said

[it] is of some significance that the Parliament has identified this matter in terms of a "probable effect", not merely a "possible effect''.

Spigelman CJ did not explore the term "probable effect" further.

The court must only take into account the probable effect to the extent that it is relevant and known. In many of the cases before the courts there has been a lack of evidence tendered addressing the probable effect that the sentence will have on the family or dependants. [1]

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The objective seriousness of the offence may mean that the court determines that the effect of the sentence on the person's family or dependants carries little or no weight.

In Natasha Jade Thomas v The Queen [2006] NSWCCA 313 the applicant sought leave to appeal a sentence imposed for social security fraud. Barr J (Sully and Adams JJ agreeing) said:

... whether the likely effect of a custodial sentence on the applicant’s family is to be given significant weight rather depends on the objective seriousness of the offences themselves. When an offender is sentenced for fraud upon the social security services, a custodial sentence is to be imposed unless there appear very special circumstances justifying some more lenient approach: R v Luu Court of Criminal Appeal, 7 December 1984 unreported; R v Medina Court of Criminal Appeal, 28 May 1990 unreported; R v Mears (1991) 53 A Crim R 141; R v Purdon Court of Criminal Appeal, 27 March 1997 unreported. The only circumstance put forward as making the present case very special was the likely effect of a custodial sentence on the children. The principal question that arises on appeal is whether, giving weight to the applicant’s subjective circumstances, it would be within the proper sentencing discretion to impose a sentence less than one having a substantial component of full-time custody. [2]

In Mohlasedi v The Queen [2006] WASCA 267 a South African Flight Attendant appealed an 18 year sentence of imprisonment for heroin importation. The appellant alleged that the sentencing Judge had failed to take account of the effect of the sentence upon his sick mother in South Africa who was dependent upon him. Roberts-Smith JA (Pullin and Buss JA agreeing) remarked:

To say a sentencing Judge failed to take a relevant matter into account at all, is one thing. That would be a failure to comply with s 16A of the Crimes Act. To say the Judge took the relevant matter into account but gave it little, inadequate or no weight, is quite another thing - and alleged error of that kind is extremely difficult to make out. [3]

In her sentencing remarks the sentencing Judge had expressly referred to the effect of the sentence upon the offender's mother but found that it was not,

a matter that could have any weight at all "really" in sentencing him because he was a man who had chosen to come to Australia and commit the offence and when people come to Australia and do that, the fact they leave behind problems among their own families cannot be a matter that can be taken into account in mitigation. [4]

Roberts-Smith JA of the Supreme Court of Western Australia (Court of Appeal) held the sentencing Judge did take the effect of the sentence upon the offender's dependants into account. Roberts-Smith JA remarked

... she [the sentencing Judge] concluded that having regard to the seriousness of the offence as shown by its objective circumstances, she could give it virtually no weight. She was entitled to take that view. It was one plainly open to her. [5]

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At common law hardships suffered by third parties (for example the offender's family) may in 'exceptional circumstances' mitigate a sentence: R v Edwards (1996) 90 A Crim R 510.

This common law principle has been held to apply to s 16A(2)(p): R v Togias [2001] NSWCCA 522;R v Nguyen [2006] NSWCCA 369, [10-13]; R v Sinclair (1990) 51 A Crim R 418; R v Matthews (1996) 130 FLR 230; R v Carmody (1998) 100 A Crim R 41.

In R v Edwards (1996) 90 A Crim R 510 Gleeson CJ (James and Ireland JJ agreeing) cited with approval the following passage from Wirth (1976) 14 SASR 291 (Well J):

Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court... 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 hardships 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. ...[H]ardships likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly expectional, where it would be, in effect, inhuman to refuse to do so...[6]

Professors Fox and Freiberg's commentary on the hardship caused to others and the operation of s 16A(2)(p) of the Crimes Act 1914 (Cth) in Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 342-344, has been cited with approval by the West Australian Court of Appeal: Nguyen v The Queen [2001] WASCA 72, [37] and [68]; Nguyen v The Queen [2001] WASCA 119, [58].

Nguyen v The Queen [2001] WASCA 72 was an appeal against sentence for failure to take into account the probable effect of the sentence of imprisonment upon the appellant's dependant children. The appellant who had been convicted for trafficking offences, was the mother of four children (aged from six to sixteen years). Her husband had also been convicted of trafficking offences and was the father of the youngest child. Wallwork J remarked:

In the recent text, "Sentencing: State and Federal Law in Victoria", 2nd Ed, 1999, Professor Fox and Professor Freiberg, when discussing the effects of hardship to others of a prison sentence, state:

"Where hardship is claimed, it must be so extreme, going so far beyond the sort of hardship that inevitably results to a family when the breadwinner is in prison, that 'a sense of mercy or of affronted commonsense imperatively demands that they [the sentencing Judges] should draw back'. To establish such exceptional hardship the defendant must produce cogent evidence ... to establish that his imprisonment would impose exceptional hardship on his family, one which is considerably more severe than normal for a family where the father is imprisoned. The situation must be so highly exceptional that 'it would be, in effect, inhuman to refuse to [take the hardship into account]'. The circumstances may be regarded as exceptional if the imprisonment of a parent leaves children without parental care, if a dependant will suffer overwhelming hardship because of the imprisonment of the offender, or where the offender provides the only means of support for a grandparent. Where all the features of the case point to a custodial sentence and there is evidence of extreme hardship, a court may take into account the extraordinary features of the case by suspending the sentence of imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased."

There are a number of decided cases which are relied on by the authors for their views in this regard. Most of them have different features.

In this case s 16A(2)(p) of the Crimes Act requires the Court to take into account the probable effect that any sentence would have on any of the person's family or dependants. It is obvious from the pre-sentence report that the youngest child in particular is being very badly affected by his mother's imprisonment. This is to be expected.

In my view, it is not an appropriate response to this family's situation to say, as some courts have said in the past, that the offender should have thought of that beforehand. The children are innocent of any wrongdoing and should not be so gravely disadvantaged. Their rights are most important in a case like this as young children in this society are to be protected as far as possible. Every effort should be made to see that they are not deprived of parental care.[7]

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Mercy

Where exceptional circumstances have not been shown the court may, operating under their sentencing discretion, exercise mercy in sentencing the federal offender who has affected family or dependants.

In federal case of Carmody (1998) 100 A Crim R 41, before the Victorian Court of Appeal, Tadgell JA remarked:

Section 16A(2)(p) of the Crimes Act 1914 (Cth) of the Commonwealth requires that, in determining a sentence to be passed on a person for a federal offence, the court must take into account the probable effect that a sentence would have on any of the person's family or dependants. The courts have taken the view that provision is to be interpretated as making hardship to a prisoner's family resulting from imprisonment relevant only if exceptional circumstances are shown... We cannot act as though exceptional circumstances have been shown, for they have not been shown. We can, however, show some mercy, tempering the wind to the shorn lamb. I think this is a case in which to do it: compare Miceli (1997) 94 A Crim R 327. A similar attitude has been taken in the English cases of Vaughan (1982) 4 Cr App R (s) 83 and Haleth (1982) 4 Cr App R (S) 178. In each of those cases an amendment of sentence was made on appeal so as to achieve the immediate release of a prisoner in order to allow a sick child or children to be cared for. [8]

For further commentary on the exercise of mercy by a court see Mercy.

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Footnotes

[1] For example, in R v Togias [2001] NSWCCA 522,[11] Spigelman CJ remarked that 'there was virtually no evidence before the court about the relevant circumstances' to assist the court in making a finding about the probable effect of the sentence upon the offender's family or dependants.

[2] Natasha Jade Thomas v R [2006] NSWCCA 313, [25-6].

[3] Mohlasedi v The Queen [2006] WASCA 267, [60].

[4] Mohlasedi v The Queen [2006] WASCA 267, [12].

[5] Mohlasedi v The Queen [2006] WASCA 267, [60].

[6] R v Edwards (1996) 90 A Crim R 510, 516-7.

[7] Nguyen v The Queen [2001] WASCA 72, [68 - 71]

[8] Carmody (1998) 100 A Crim R 41, 45.