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Totaan v The Queen [2022] NSWCCA 75

The offender was sentenced following a plea of guilty to 2 counts of obtaining a financial advantage by deception from the Commonwealth contrary to s 134.2(1) of the Commonwealth Criminal Code. Additional dishonesty offence was taken into account pursuant to s 16BA. Original sentence imposed 4 years imprisonment with a non-parole period of 2 years and a reparation order in the sum of $112,999.96. Offender appealed sentence of imprisonment on the ground that the sentencing judge had erred in not taking into account hardship to the offender’s dependents because they did not consider exceptional hardship to be established.

Family and Dependants: Decisions holding that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependent where the circumstances of hardship satisfy the epithet ‘exceptional’ are ‘plainly wrong’ and should not be followed. There is 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 1914 (Cth) more generally. 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. The ‘requirement’ to demonstrate ‘exceptional hardship’, as grafted on to s 16A(2)(p), runs contrary to the language of the subsection, which provides that the probable effect of the sentence on family members and dependents ‘must’ be taken into account. The gloss that has been placed on the interpretation of s 16A(2)(p) should be removed. Section 16A(2)(p) should be applied according to its terms.

Leave to appeal granted. Appeal allowed. For Count 1, offender resentenced to 1 and a half years imprisonment commencing on 12 March 2021. For Count 3, taking into account the s 16BA offence, offender resentenced to 2 and a half years imprisonment commencing on 12 September 2021. Offender to be released immediately on recognizance to be of good behaviour for 1 year and 11 months and upon posting security in the sum of $10.
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