The content on this page was last reviewed on 13 December 2022.

1. Overview

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).

In Totaan v The Queen [2022] NSWCCA 75 the NSW Court of Criminal Appeal held that proof of ‘exceptional hardship’ is not a precondition to a consideration of the effect of a sentence or order on family or dependants under s 16A(2)(p) of the Act.¹

Prior to the decision in Totaan v The Queen, courts had generally interpreted s 16A(2)(p) as operating consistently with the principle at common law that any hardship suffered by the person’s family and dependants can only mitigate a sentence in ‘exceptional circumstances’.

The Victorian Court of Appeal has since followed Totaan v The Queen in Mohamed v The Queen [2022] VSCA 136 (at [92]–[93]) and Rodgerson v The Queen [2022] VSCA 154 (at [74]), as has the Federal Court of Australia in CDPP v Joyce [2022] FCA 1423 (at [158]) and ACT Supreme Court in R v El-Debel; R v Kahlon (No 7) [2022] ACTSC 313 (at [51]).

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2. Probable Effect

The term ‘probable effect’ means that the existence of family hardship is to be assessed on the balance of probabilities. In DPP (Cth) v Bui [2011] VSCA 61, which predated the decision in Totaan v The Queen,² Ross AJA (Nettle and Hansen JJA agreeing) noted at [28] that family hardship is not to be considered ‘in terms of risk’, but ‘“the probable effect” that a sentence would have on the offender’s family or dependants’.³

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.⁴

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3. Application of s 16A(2)(_p)

3.1 No requirement of “exceptional circumstances”

In Totaan v The Queen [2022] NSWCCA 75, Bell CJ (Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing) said at [77], [82]:

[D]ecisions 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.

…

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”.⁵

In DPP (Cth) v Ip [2005] ACTCA 24, [60], the Court of Appeal of the ACT had also held that as a matter of statutory construction, the parliamentary command in s 16A(2)(p) should not be qualified by a requirement of ‘exceptional circumstances’.⁶

The ACT Court of Appeal in DPP (Cth) v Ip [2005] ACTCA 24 acknowledged at [61]:

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. [Emphasis added]

In the South Australian state sentencing case of Adams (A Pseudonym) v The Queen [2022] SASCA 47, the Court declined at [100] to express ‘any concluded view as to whether the exceptional circumstances test remains appropriate’ until it arose directly for consideration, but noted at [101]:

…[I]t seems to me there is little, if any, practical difference between an approach that applies a threshold requirement of exceptionality, and one which accepts the relevance of hardship in all cases but which also acknowledges that it will not have any significant impact upon the sentence unless it is exceptional. This is particularly so in circumstances where ‘exceptional’ hardship is understood to mean no more than hardship that is out of the ordinary, in the sense that it is relatively serious or extreme. [Emphasis added; citations omitted]

The Federal Court in Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd [2022] FCA 665 at [179] accepted that given the desirability of national uniformity in sentencing for federal offences, s 16A(2)(p) was to be applied as interpreted in Totaan v The Queen [2022] NSWCCA 75. Although no evidence was presented in support of the submission of hardship on the offender’s adopted niece, the Court nonetheless accepted that any sentence of imprisonment may adversely affect the offender’s niece.⁷

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4. Balancing hardship with seriousness of offence

The objective seriousness of the offence may mean that the Court determines that the probable effect of the sentence on the person’s family or dependants carries little or no weight.⁸

In 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) stated at [25]–[26]:

[W]hether 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.
…

In my opinion the large sum of money involved and the period of time over which the deception took place require the imposition of a substantial custodial sentence, notwithstanding the respectable subjective case put forward on behalf of the applicant. [Emphasis added]

For further information on social security fraud offences see Custodial Sentence: Social security fraud.

While a court must take the probable effect on dependants into account, it is entitled to give little or no weight to this factor. For example, 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 into account 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 at [60]:

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.

In her sentencing remarks the sentencing judge had expressly referred to the effect of the sentence upon the offender’s mother, but stated:

[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.⁹

Roberts-Smith JA held that the sentencing judge did take the effect of the sentence upon the offender’s dependants into account, but simply gave it virtually no weight, noting at [60]:

[H]aving 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.

For commentary on the relevance of hardship where an offender has come to Australia from overseas for the purpose of committing the offence see Hardship: Isolation from Family or Community.

Similarly, in Kleindyk v The Queen [2016] WASCA 123, the Court dismissed an for drug trafficking on the father of two children, one of whom was four years of age and had been diagnosed with autism spectrum disorder. The sentencing judge had accepted that the offender’s incarceration would result in exceptional hardship to his family, it could not be reflected to any significant extent in the sentence. Mazza JA (McLure P and Mitchell J agreeing) stated at [50]:

As to … the statement her Honour made at [77] of her sentencing remarks, ‘[t]he more serious the crimes, the more unlikely it is that an offender’s family hardship can be reflected to any significant extent in the sentence to be imposed’ is in accordance with authority and is not erroneous.

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5. Relevance of international instruments

A number of federal sentencing cases have recognised the when considering the effect of a sentence on dependants. Australia has ratified international instruments which, for example, emphasise the protection by the s of families as the fundamental of society,¹⁰ the preservation of the rights of children,¹¹ and the provision of appropriate services to support breastfeeding.¹²

 For example, the Convention on the Rights of the Child states in article 3.1 that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

In R v Togias [2001] NSWCCA 552, the respondent argued that the Convention on the Rights of the Child was relevant to a finding that the circumstances of the case were (following Totaan v The Queen, this test is no longer applied). Spigelman CJ found it unnecessary to decide whether the Convention could be invoked in the context of s 16A(2)(p), commenting at [35]–[36]:

The issue has arisen, so far as I have been able to determine, in Australia on three occasions before a single judge of a state supreme court. Perry J has treated the Convention as a relevant consideration in the context of s16A(2)(p) of the Crimes Act 1914 (Cth) and also in the context of the similar provision in South Australian legislation. (See Walsh v Department of Social Security [1996] SASC 5795; (1996) 67 SASR 143 at 146; Bates v Police [1997] SASC 6749; (1997) 70 SASR 66 at 70.) Bleby J, without reference to the earlier decisions of Perry J, rejected the proposition that treaty obligations can be invoked in this manner (R v Smith (1998) 98 A Crim R 442 at 448).

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Difficult questions arise. (See eg Baker v Canada (1999) 174 DLR (4th) 193 at [69]-[70] and cf [78]-[81]; Rajan v Minister of Immigration [1996] 3 NZLR 543 at 550-552.) The Court has not received the kind of assistance required for the determination, for the first time, of the important principles involved. It is not appropriate to determine these matters on this occasion. [Emphasis added; footnotes omitted]

Grove J commented on the use of the Convention on the Rights of the Child at [85]:

The ratification of the declaration and its classification as an international instrument do not operate to impose it as binding Australian law. Its proclamation and discernible aims are available to be considered in a sentencing exercise and should be so considered in an appropriate case. The availability of these for consideration does not, in my view, extend or diminish the requirements of the common law and/or s16A(2)(p) of the Crimes Act 1914 in determining that exceptional circumstances must exist to attract amelioration of generally applicable sentence assessments. This appeal is not in my view an appropriate vehicle for elaboration upon the possible range of of international covenants such as the convention generally. [Emphasis added]

Einfeld AJ also noted various international instruments relating to the promotion of breastfeeding, stating at [121]­–[124]:

Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, also ratified and in large measure legislated by Australia, requires States to supply “appropriate services in connection with pregnancy, confinement and the post-natal period … as well as nutrition during pregnancy and lactation.”

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Australia has also accepted the International Code of Marketing of Breastmilk Substitutes adopted by the World Health Organization in 1981. Paragraph 1 of the Code states its aims as being “to contribute to the provision of safe and adequate nutrition for infants, by the protection and promotion of breastfeeding…”

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I find it difficult to accept that this substantial accumulation of solemn voluntary commitment by Australia to support a clear right for babies to be breastfed for a substantial period can be accorded no weight, or can have little effect, on the process of sentencing a breastfeeding mother. On the other hand, other than in the general nurturing sense, my researches have not detected a single case of the present kind having arisen under the European Convention on Human Rights, the United Kingdom or New Zealand Human Rights Acts, the Canadian Charter of Rights and Freedoms, or the South African or the United States of America’s Bills of Rights, all of which contain general clauses that enshrine the health and wellbeing of infants and their mothers as important legislative objects.

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I have looked at some American cases but they principally focus on the effects of mandatory sentencing on mothers with young babies. [Emphasis added]

In the Queensland state sentencing case of R v Chong [2008] QCA 22, the Court considered an appeal against sentences imposed for unlawful wounding and breaching a correction order contrary to Queensland law. The Penalties and Sentences Act 1992 (Qld) does not specifically list the effect on dependants as a sentencing factor. The sentencing judge had granted the offender immediate release on parole because she was breastfeeding an infant, which would have to cease immediately if the offender was sent to prison. In dismissing the Crown appeal against sentence, Atkinson J (Fraser and Keane JJA agreeing) held that the Convention on the Rights of the Child was a ‘relevant circumstance’ which the Court was required to take into account at sentence, stating at [33]–[34]:

In my view, where relevant, the best interests of children who are on the offender fall within s 9(2)(r) of the Penalties and Sentences Act 1992 (Qld) which requires the sentencing court to take account not only of the enumerated matters found in s 9(2)(a) to (q), but also of “any other relevant circumstance”. There is of course a strong argument for the law reform recommended by the Anti-Discrimination Commission of Queensland (ADCQ) in its Women in Prison Report, March 2006, to include this factor explicitly. Recommendation 57 of that Report is that: “section 9 of the Penalties and Sentences Act 1991 be amended to include the principle that the best interests of the child be a factor to be considered when sentencing a person with a dependent child.” This is consistent with s 16A(2)(p) of the Crimes Act 1914 (Cth) which contains a requirement that a sentencing 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.”

•  

Nevertheless the law as it currently stands requires the sentencing court to take account of any “relevant circumstance.” The United Nations Convention on the Rights of the Child, which entered into force for Australia in 1991(Australian Treaty Series 1991 No 4), relevantly provides in article 3.1: “In all actions concerning children … undertaken by … courts of law … the best interests of the child shall be a primary consideration.”

•  

It appears, as Pincus JA observed in R v Le at p519, that the terms of s 9 of the Penalties and Sentences Act preclude the courts from regarding the best interests of the child being a primary consideration in sentencing those upon whom the child is dependent. They do not however preclude the court from regarding the best interests of such a child or children as being a relevant circumstance. [Emphasis added]

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6. Breastfeeding

Courts have expressed differing views on the mitigating effect of the fact that the offender is a breastfeeding mother who will have to cease breastfeeding should a term of immediate imprisonment be imposed.

The Court in R v Togias [2002] NSWCCA 363 noted at [28] that:

There is evidence that such separation from the mother and primary carer of a child of this age is likely to cause long-term and significant deleterious effects on the psychological makeup of the child. The case is different from those of SLR [[2000] NSWCCA 436] and White [[1999] NSWCCA 60] because it was assumed that in these cases the child could remain with the mother in custody.

Hodgson JA (Simpson J agreeing) found that the objective seriousness of the case meant anything less than three years’ periodic detention was outside the range of reasonable exercise of discretion, but nevertheless declined to re-sentence the offender.¹³

However, Smart AJ expressed concern about creating a ‘special class of offender’ who, despite committing a serious offence would not be sentenced to immediate imprisonment because of a young infant. Smart AJ questioned: ‘[w]as falling pregnant after committing an offence the way to avoid effective and timely punishment?’¹⁴

In R v Chong [2008] QCA 22, which involved offences against Queensland law, the Court dismissed a Crown appeal against a sentence imposed for unlawful wounding and breaching a correction order where the offender had been granted immediate release on parole. The offender had seven dependent children and was breastfeeding the youngest. Atkinson J (Keane and Fraser JJA agreeing) stated at [35]:

Of course, the effect on the offender’s children is only one factor but, as was properly conceded by the Attorney-General, a factor which is relevant to the sentence in the circumstances of this case. This was not a case where, like R v MP [2004] QCA 170, it was such a serious offence that a substantial period of imprisonment must be imposed and the children would suffer no more than the usual hardship caused by the incarceration of a child’s parent. This case falls within the category of cases referred to in Stewart [(1994) 72 A Crim R 17] where the offender is a mother of young children, one of whom was being breastfed, and the imprisonment would have an exceptionally harsh effect on her children. [Emphasis added]

In R v Constant [2016] SASCFC 87, the Court considered an appeal against a sentence of imprisonment imposed for breach of a conditional release bond and six counts of importing a border controlled precursor contrary to the Commonwealth Criminal Code. The offender was the mother of a 22 infant and six months pregnant with her second child at the time of the appeal. It was not possible in South Australia for a newborn to remain with the mother in custody. This meant that when the mother gave birth the newborn would be immediately removed and would spend the first year of its life separated from the mother. A further consequence was that the child would not be breastfed.

The Court held that the sentencing judge had erred in failing to consider the impact of the removal of the newborn on the offender’s rehabilitation. The Court further held that imprisonment would be more burdensome for the offender as a result of this removal. It adjourned resentencing to allow for further submissions, stating at [31]:

The inability of the Department of Correctional Services in this State to cater for mothers in custody and their newborn or very young children where elsewhere in the Commonwealth such circumstances can be accommodated has the consequence that time served by a mother who is separated from her young child in this State will be more punitive than interstate. Whilst we fully accept that there should be, as far as possible, consistency in sentencing federal offenders, such consistency is derived in the main from the consistent and correct application of principle. It is consistent with principle to account for the more punitive nature of the prison experience for a mother of a newborn or very young child in this State when imposing a sentence of imprisonment for a Commonwealth offence. [Emphasis added; footnotes omitted]

The Court was provided with a report by a clinical psychologist who advised the Court on ‘attachment theory’ and expressed an opinion as to the effect of the applicant’s separation from the infant, on the infant. The Court stated at [103]–[104]:

We note the applicant is due to give birth in October. As we have discussed above, it is harsh at any time to separate a newborn child and its mother, but here where motherhood has proven to be the avenue through which has been achieved and in all likelihood will be maintained, it is not only all the more harsh but counterintuitive. That said, we do not lose sight of the seriousness of the offending, we do not overlook the applicant’s antecedents, and we do not overlook the fact that she committed the Commonwealth offences whilst subject of a bond for drug related offending. However, we also bear in mind [the clinical psychologist’s] report. We have concerns that incarceration of the applicant after she gives birth may be a price too high, considering both the applicant’s dependants and the fact that imprisonment is significantly more burdensome for a woman in South Australia who gives birth whilst in custody.

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In the circumstances, we considered that the interests of justice would best be served by an order adjourning the applicant’s sentencing on the Commonwealth offences and inviting the parties to provide whatever additional information may be considered of assistance generally and particularly with respect to the impending separation of the applicant and the new baby. [Emphasis added]

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7. Hardship to offender

A court may take into account the effect on the offender of the hardship caused to others by their imprisonment.¹⁵

For further commentary see: Hardship to the Offender.

8. Hardship to dependants as a result of co-operation with law enforcement agencies

It is relevant to consider the hardship caused by the risk of danger to an offender’s family in retaliation or retribution for the offender’s co-operation with law enforcement agencies. For further commentary see Co-operation: Risk of danger or injury to offender or family.

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9. Mercy

In Markovic v The Queen [2010] VSCA 105, which predated the decision in Totaan v The Queen [2022] NSWCCA 75,¹⁶

the Court at [1] reaffirmed the proposition that ‘[t]here must always be a place in sentencing for the exercise of mercy “where a judge’s sympathies are reasonably excited by the circumstances of the case”.’ The Court stated at [5] that ‘reliance on family hardship… is itself an appeal for mercy’.

As there is no longer an ‘exceptional circumstances’ test to consider family hardship, it is unclear whether the decision in Totaan v The Queen [2022] NSWCCA 75 will have an effect on the way in which a court exercises its residual discretion to exercise mercy on grounds of family hardship.

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

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1. Totaan v The Queen [2022] NSWCCA 75; R v Khqustiaan [2022] NSWDC 128, [64].[↩]
2. The Victorian Court of Appeal has since followed Totaan: Mohamed v The Queen [2022] VSCA 136, [92]–[93]; Rodgerson v The Queen [2022] VSCA 154, [74].[↩]
3. A High Court appeal against sentence was dismissed in Bui v DPP (Cth) [2012] HCA 1.[↩]
4. 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.[↩]
5. Totaan v The Queen [2022] NSWCCA 75, [82]; R v Zoghbi [2022] NSWDC 219, [257].[↩]
6. See also R v Weir [2015] ACTSC 394, [25]–[31] (Robinson AJ); R v Ashman [2010] ACTSC 45, [38] (Refshauge J). Refshauge J noted in Ashman, a case involving both territory and federal offences, that ‘the Territory has a special statutory obligation it casts on judges to recognise the rights of children’, citing s 11 of the Human Rights Act 2004 (ACT): at [40].[↩]
7. Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd [2022] FCA 665, [179].[↩]
8. DPP (Cth) v Gaw [2006] VSCA 51, [21].[↩]
9. Mohlasedi v The Queen [2006] WASCA 267, [12].[↩]
10. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, [1980] ATS 23 (entered into force 23 March 1976) art 23. See Human Rights and Equal Opportunity Commission Act 1986 (Cth) sch 2.[↩]
11. Convention on the Rights of the Child, opened for signature 20 November 1989, [1991] ATS 4 (entered into force 9 February 1990).[↩]
12. Convention on the Elimination of all Forms of Discrimination Against Women, opened for signature 18 December 1979, [1983] ATS 9 (entered into force 3 September 1981) art 12. See also the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules). For further consideration of sentencing women, see Felicity Gerry, ‘Women in Prison in Australia’ (Paper presented at the Current Issues in Sentencing: National Judicial College of Australia and Australian National University Joint Conference, Canberra, 16–17 February 2016).[↩]
13. R v Togias [2002] NSWCCA 363, [31].[↩]
14. R v Togias [2002] NSWCCA 363, [48].[↩]
15. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3^rd ed, 2014) 423.[↩]
16. The Victorian Court of Appeal has since followed Totaan: Mohamed v The Queen [2022] VSCA 136, [92]–[93]; Rodgerson v The Queen [2022] VSCA 154, [74].[↩]