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Hardship to the Offender

Hardship to the Offender

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

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Offender’s Family and Dependants

1. Overview

There is no explicit recognition of hardship to the offender as a relevant sentencing factor in s 16A(2) of the Crimes Act 1914 (Cth).1

At common law, hardship may be relevant where an offender will be required to serve their sentence under more onerous conditions than those of other prisoners: Muldrock v The Queen [2011] HCA 39, [19] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

When determining whether an offender will suffer hardship by reason of onerous conditions of custody, the relevant comparison is between the offender and the general prison population, not between offenders convicted of the same offence or type of offence: Zahab v The Queen [2021] NSWCCA 7, [48] (Bathurst CJ, Garling and Wright JJ agreeing).

The common law has also recognised that a conviction and/or sentence may result in non-custodial hardships for some offenders.2

For example, an offender may suffer a particular hardship by way of public opprobrium.

There are some listed sentencing factors in s 16A(2) of the Crimes Act 1914 (Cth) which may arise for consideration when hardship to an offender is raised. For example, s 16A(2)(m) requires a court to take into account the character, antecedents, age, means and physical or mental condition of the offender; and s 16A(2)(h) requires a court to take into account the degree to which an offender has cooperated with law enforcement.

For commentary on hardship to third parties, see Offender’s Family and Dependants.

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2. Onerous custodial conditions

It is relevant to consider any hardship that may result from both the risk of reprisals against the offender, and that the offender may be placed in protective custody, when determining the extent of the allowance to be made for cooperation.

2.1 General Principles

Where an offender suffers hardship from being subjected to prison conditions that are materially more onerous than normal, this may be a factor mitigating the sentence imposed: Muldrock v The Queen [2011] HCA 39, [19].

However these conditions will not be mitigating where the reason they have been imposed is attributable to breaches of prison rules by the offender or disciplinary requirements: Milenkovski v Western Australia [2014] WASCA 48, [106].

In the case of Milenkovski v Western Australia [2014] WASCA 48, dealing with WA offences, the Court reviewed authority from various jurisdictions regarding the relevance of onerous conditions of imprisonment.3

 Buss JA (McLure P and Mazza JA agreeing) summarised the relevant principles to be derived from those cases at [151]–[157], which are paraphrased as follows:

  1. The fact that an offender has served or is likely to serve part of a term of imprisonment in conditions that are more onerous than those applicable to mainstream prisoners is a relevant sentencing factor;
  2. If it is submitted or apparent at sentencing that this is likely, the prosecutor and defence counsel should provide the judge with all available information as to
    1. the facts and circumstances of the custody
    2. how those facts and circumstances differ from those applicable to mainstream prisoners, and
    3. the nature and extent of any consequential hardship or benefit to the offender;
  3. The weight to be given to an offender’s detention under more onerous conditions depends on all the facts and circumstances including the reasons why the offender requires protection, and the likely duration of the more onerous conditions. Any benefits, as well as hardships to the offender from the protection must be taken into account;
  4. Greater leniency will be given to an offender who is at risk of reprisals due to cooperation with law enforcement, than an offender who is at risk due to grudges arising in the context of illegal activities. This is because of the public policy rationale for allowing leniency or a discount for cooperation, which is absent where the risk to the offender is attributable to their criminal activity;
  5. Greater leniency will be given where the onerous conditions have caused or exacerbated an offender’s physical or mental illness or disability;
  6. The justification for allowing some leniency or a discount for onerous conditions is that time spent in custody under more onerous circumstances is in general, equivalent in evaluating the sentencing objectives of punishment, denunciation and deterrence, to a longer period in custody under less onerous circumstances.

In Al Maouie v The Queen [2022] NSWCCA 30, Harrison J (Payne JA and Rothman J agreeing) emphasised the importance of adducing positive evidence of onerous conditions at [47]:

‘there must … be evidence of the conditions and a sentencing judge cannot assume that the conditions will be harsher based simply on the category of inmate into which the offender fits’. [Emphasis added]

However, where it is apparent that there is a material risk of harm, the sentencing judge is not required to determine the precise level of risk to the offender. In Richardson v The Queen [2021] NSWCCA 304, the offender was likely to face hardship as a result of their background as a corrective services officer’ however the sentencing judge had not attempted to ‘quantify or assess the level of risk’: at [122]. Johnson J (Lonergan and Dhanji JJ agreeing) held at [122] that it is ‘not necessary nor possible to attempt any such quantification of risk.’

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2.2 Protective Custody

Courts may account for the more onerous conditions of offenders serving a sentence of imprisonment in protective custody: C v The Queen [2013] NSWCCA 81, [37]–[38].

However, courts have noted that the conditions of protective custody can vary greatly, and that it cannot be assumed that being placed in protective custody will necessarily make a sentence more onerous: Carroll v The Queen [2011] VSCA 150, [39] (Maxwell P, Buchanan JA agreeing). Positive evidence will need to be raised demonstrating the risk of more onerous conditions and hardship arising from those circumstances: R v Males [2007] VSCA 302, [51] (Maxwell P).

In C v The Queen [2013] NSWCCA 81, the Court noted that there was conflicting authority on whether protective custody could be taken into account without the offender providing any further evidence as to the particular hardships that protective custody could involve: at [40]. The Court accepted that it was an error to ‘effectively ignore that the applicant was in the Special Purpose Centre’; however, in the absence of any further evidence, the weight to be given to that fact could only be modest: at [43].

Where there are additional circumstances from which an inference as to hardship may be drawn, it is not necessarily an error to presume that the offender will face some degree of hardship. In Richardson v The Queen [2021] NSWCCA 304, Johnson J (Lonergan and Dhanji JJ agreeing) held at [116]–[117] that it was ‘entirely appropriate’ for the sentencing judge to take into account the likely hardship faced by a former Corrective Services officer in protective custody despite receiving no direct evidence of the actual circumstances of custody.

2.2.1 Assistance to authorities

Under s 16A(2)(h) of the Crimes Act 1914 (Cth), a sentencing judge is required to take into account the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence(s).

A court should additionally take into account whether an offender will serve their sentence under protective conditions because of their assistance to authorities: C v The Queen [2013] NSWCCA 81, [37]–[38].

2.2.2 Former law enforcement officers

Where an offender is placed in protective custody because of prior employment in law enforcement, this may be a factor mitigating the sentence imposed.

In Adams v Western Australia [2014] WASCA 191, a case involving both state and federal offences committed by a former AFP officer, the Court applied the principles from Milenkovski to find that the sentencing judge had erred in failing to take into account the fact that prison conditions for the offender would be more restrictive than for other prisoners. The Court received detailed evidence as to the nature of the conditions of imprisonment, and Mazza JA (Buss and Newnes JJA agreeing) stated at [132]:

On the evidence provided by Mr Pittard, I am satisfied that, as a result of the appellant’s service with the AFP, his movements and participation in programs has been, and will continue to be, adversely affected. Further, based on common experience, former police officers are at greater risk of assault and intimidation than the general prison population. Consequently, it may be said that the appellant’s imprisonment will be materially more arduous than for other prisoners.

In the state case of R v Liddy (No 2) [2002] SASC 306, the Court considered the situation of a former judicial officer who was placed in protective custody due to both his former status as a magistrate and the nature of his crimes. In relation to his former status as a magistrate, the Court expressed conflicting opinions on affording leniency due to the protective custody:

Mullighan J stated at [114], [123]:

In my view, a sentence should not be reduced because the crime was committed by a member of the judiciary. Usually that would be a matter of aggravation and should not operate in any way as a matter of mitigation.
The appellant was a former prosecutor in the Crown Prosecutor’s Office and a magistrate. He was well aware of the type of sentence which would be imposed upon him if his offending was detected and proved. Also, he would have known of the public opprobrium which his offending would attract and of the attitude of prisoners towards him because of the nature of his offending and his having been a magistrate. Nevertheless he committed these very serious offences.

For these reasons I would not reduce the sentence because of the harsh circumstances in which the appellant finds himself in prison. It cannot be the case that the whiter the collar of the offender or the greater the revulsion at the crime, the lower the sentence.

However, Williams J stated at [146]:

However, there comes an extreme point where the hardship of protective custody made necessary by resentment amongst prisoners as to an offender’s previous occupation may properly attract some discount to lessen the impact of undeserved punishment associated with solitary confinement without normal privileges. The difficulty in the present case is that Liddy took advantage of his office to commit these infamous crimes. He must expect to suffer particular shame as a disgraced magistrate but gaol inmates with long memories cannot be allowed to settle old scores. The need for Liddy’s solitary confinement is partly attributable to the grudge which many within the prison system may be expected to bear against him as a magistrate by reason of the experiences of themselves and their friends at his hands. Therefore, I consider that the conditions which he is enduring do warrant some reduction in sentence insofar as the extraordinary need for his confinement in isolation arises from a justifiable fear of reprisals unconnected with Liddy’s crimes.

Gray J stated at [214]–[215] that the mitigatory effect of protective custody depends on the facts and that in the present case the mitigatory effect was ‘much less’ than in cases involving an offender’s physical disability or cooperation with law enforcement.

2.2.3 Gang members

In the state case of Milenkovski v Western Australia [2014] WASCA 48, the offender was a member of a motorcycle gang, and his need for protection stemmed from the threat of violence from members of rival gangs. McLure P stated at [16]–[17]:

Finally, the appellant was separated from the general prison population for his own protection because, being a member of an outlaw motorcycle gang, his safety was at risk from other inmates who were members of rival motorcycle gangs. The evidence suggests that the appellant’s membership of the motorcycle gang was voluntary.

Against that broad factual background, the steps taken by prison authorities to protect the appellant from risks directly associated with his voluntary and continuing membership of a motorcycle gang is not a mitigating factor. Even if I am wrong in that regard, the weight to be attached to it would not cause me to conclude that a different individual or total sentence should be imposed.4

However, Buss JA found at [204]:

The circumstances of the appellant’s incarceration while he was in the MPU were a relevant sentencing factor and had to be taken into account. The trial judge was not entitled to ignore those circumstances because the threat to the appellant’s safety arose from grudges formed in the context of illegal activities preceding his arrest. A very small discount should have been allowed in the determination of the individual sentences and the total effective sentence for the conditions of the appellant’s detention in the MPU before sentencing.

2.2.4 Where the offender’s own conduct is the cause of hardship

In the state case of Tazroo v Police [2005] SASC 14 the Court declined to mitigate the sentence where the offender was serving his sentence in protective custody due to personality differences with other prisoners. Sulan J stated at [19]:

…it is the responsibility of the correctional services authorities to ensure that prisoners are not subject to undue hardship in serving their sentences. The fact that a prisoner may have difficulty in relating to other prisoners and, therefore, some arrangements must be made for that prisoner to be kept separate from others is not, in itself, a basis to reduce what would be an appropriate sentence; see: R v Liddy (No 2) (2002) 84 SASR 231 at 260–266.5

In R v Stevens [2009] VSCA 81, Maxwell P, Vincent JA and Hargrave AJA considered the offender’s own conduct and decision-making at [22]–[24]:

[I]t is one thing for a prisoner to be kept apart from other prisoners… because, for example, he is perceived as being at risk of retribution as an informer, or can be seen to be vulnerable to violence or abuse by other prisoners. It is quite another for a person to be similarly situated as a consequence of his violence towards others, or of his drug use, or of his refusal to comply with the ordinary standards that must be maintained if the prison environment is to be remain safe and stable…

In the present case, the appellant’s placement within the system is attributable to his own past conduct and conforms with his own wishes. That being so, no significance can be attributed to it when considering the sentence to be imposed… He [the offender] can be taken to have a clear understanding of the significance of his various behaviours’. [Emphasis added]

2.2.5 Disease status

In R v De Silva [2011] NSWSC 243, the offender was HIV positive and the evidence suggested that he would be subjected to harassment from other prisoners. Buddin J stated at [70]:

The fact that the offender had the HIV virus was canvassed at length by Palmer J and it has been necessary for me to do so as well. It seems inevitable that the offender’s status will become known within a short period of time after his return to custody. The evidence demonstrates that the offender was indeed subjected to harassment from other inmates during his earlier sentence. He is unlikely to be treated any differently this time. For those reasons it is appropriate to give some weight in the sentencing process to the fact that the offender will find the circumstances in which he will serve his sentence more burdensome than would otherwise be the case. [Citations omitted]

An offender’s chronic liver disease, hepatitis B and C, and HIV status was similarly taken into account in Pham v The Queen [2014] VSCA 204 at [23] as being likely to engender ‘the hostility of other prisoners’.6

 2.2.6 Protective custody resulting from nature of offence

Where an offender is subject to protective custody because of the risk of reprisals from other prisoners expressing their distaste at the crimes committed by the offender, this may be a factor that mitigates the sentence imposed. However, courts are less willing to regard protective custody that has been imposed for this purpose as mitigating.7

In R v Fattal [2011] VSC 681, a case involving terrorism offences, King J stated at [81]:

I accept that each of you has been in protection as a result of the classification of your offences, and you have had a more limited ability to mix, work and exercise than if you had been in mainstream. I also accept that you will remain as protection prisoners for some time, possibly for the entire duration of your incarceration. This is the type of offence that would cause ill-feeling amongst others in the prison population and you need to be protected from that. It is a factor I will take into account in determining the appropriate level of imprisonment.8

Similar protective conditions imposed due to the nature of an offender’s terrorism offence were taken into account in The Queen v Besim [2016] VSC 537, [159].

Protective custody is often imposed in cases involving the abuse of children, as it is common for such offenders to be subjected to assaults by other prison inmates.9

 There is conflicting opinion on whether protective custody imposed for this purpose can mitigate a sentence.

For example, in AB v The Queen [1999] HCA 46, mitigation for protective custody resulting from state offences of a sexual character was recognised. Kirby J stated at [105]:

… [I]t is well recognised in England and in Australia that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison. In a sentence already accepted as being at least at the upper extremity of that available, and acknowledged by the sentencing judge as likely to be regarded by some as ‘overly harsh’, this consideration might not have been given as much weight as it deserved. [Footnotes omitted]

The NSW Court of Criminal Appeal reconsidered the sentence in R v AB [2000] NSWCCA 467. Barr JA (Spigelman CJ agreeing) stated at [98] that, because the offender was a child sex offender and would be kept in protection, he was entitled to additional consideration ‘because in the circumstances he will find his sentence harder to serve than it would otherwise be’.

However, recent judicial consideration of this factor raises questions about the rationale for granting leniency. In R v Liddy (No 2) [2002] SASC 306 Mullighan J reviewed both AB v The Queen [1999] HCA 46 and R v AB [2000] NSWCCA 467 and stated at [117]:

I regret that I am unable to accept the proposition that the reason for the harsh conditions in custody is not to the point. Informers and others who cooperate with the police usually provide benefits to the community in that offenders may be brought to justice and that is often, although not always, cogent evidence of remorse and contrition. However, there are no such benefits to society in the circumstances of cases such as the present case.

Williams J in R v Liddy (No 2) [2002] SASC 306, did afford a discount to the offender based on the harshness of the prison conditions, however he stated at [146] that this discount was justified insofar as the need for protection arose from a fear of reprisals due to his former occupation as a magistrate, which were unconnected with his crimes.

In the state case of Houghton v Western Australia [2006] WASCA 143, the Court reviewed a number of authorities, including Liddy (No 2). Steytler P (Roberts-Smith JA and Murray AJA agreeing) noted at [26] that hardship due to onerous prison conditions is generally more influential on the sentence imposed where the conditions ‘are not a consequence of the nature of the offence committed by the offender.’10

These authorities were further considered by the Court in Milenkovski v Western Australia [2014] WASCA 48, where the Court stated at [154]:

 …the weight to be given in the sentencing outcome to an offender’s detention under conditions that have been or are likely to be materially more arduous than those applicable to the general prison population will depend on all the facts and circumstances of the case including, for example, the reasons why the offender required or is likely to require protection… [Emphasis added]

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2.3 Maximum and supermaximum security

Where an offender will be imprisoned in a maximum security prison or subjected to more strict security conditions than mainstream prisoners, this may be taken into account as a mitigating factor. For example, in R v Lodhi [2006] NSWSC 691, the offender’s classification as a maximum security prisoner meant that he was held in segregated custody, shackled while out of his cell, constantly monitored and filmed by video camera. Whealy J stated at [88]:

In my view, the Court is entitled to make some allowance in the sentencing process for the conditions of imprisonment, which will be imposed on the offender here. This is particularly so because of the fact that those conditions of imprisonment are imposed by virtue of a classification following on conviction.11

In R v Dakkak [2020] NSWSC 1806, Hamill J considered at [28] the fact that the supermax security prison in which the offender was held on remand, was ‘largely, although not exclusively, used to house offenders charged with terrorism offences.’ Hamill J noted at [32] the facility-wide lockdowns and high security measures, that these were not by reason of any fault on the part of the offender, and took into account these custodial conditions on sentence (at [36]).

See also Mokbel v The Queen [2013] VSCA 118, [117]; R v Kent [2009] VSC 375, [51] (Bongiorno JA); R v Benbrika [2009] VSC 21, [51]–[52] (Bongiorno J).12

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2.4 Temporary adverse conditions

Courts have taken into account the increased burden of imprisonment caused by temporary events and circumstances, such as public health crises, even where all offenders are similarly affected. In Director of Public Prosecutions v Saadieh [2021] NSWSC 1186, Hamill J said at [47]:

I reject the idea that the Court should approach the matter on the basis that the current pandemic, and its impact on prisoners, should be treated as ‘the new normal’. Nor can I accept the implication that it is a matter worthy of little weight because all inmates are facing the same problems. The submission is contrary to any number of cases on both bail and sentencing. [Citations omitted]

2.4.1 COVID-19 pandemic

During the COVID-19 pandemic, courts have considered the additional hardship to offenders of lost visitation privileges, social distancing requirements, increased apprehension of risk to themselves and others, and reduced access to facilities.13

Increased weight has been given to factors such as the loss of in-person visitation for offenders where alternatives such as video calling are not available: R v Mostafa Dib [2020] NSWDC 145, [173]. However, pandemic circumstances are not an automatic mitigating factor. ‘The extent to which [they] may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case’: Brown v The Queen [2020] VSCA 60, [48].

Additional weight may be given to pandemic hardship faced by offenders suffering from existing mental and physical health conditions. In Director of Public Prosecutions v Saadieh [2021] NSWSC 1186, Hamill J said at [48]:

There is restricted access to work opportunities, training and education programs as well as mental health services. The procedures adopted also include a restriction on personal (face to face) visits with loved ones as well as more periods of lockdown and isolation. The potential impact on the mental health of inmates is real and well documented.

Courts have been reluctant to assume for the purposes of sentencing that increased hardship from the pandemic will persist throughout long sentences. In relation to a 10-year head sentence in R v Ali [2020] VSC 316, Champion J stated at [208]:

It is unknown how long the current restrictions in custody will remain … I accept that for some time there will be uncertainty about a number of these matters, and that this may hinder the progress of your rehabilitation, and make the time spent in custody more onerous for the period that the possibility of infection remains current. However, I do not think that I should act on the basis that any additional burdens will last for the duration of your sentence.

See further: The Impact of COVID-19 on Federal Sentencing.

2.4.2 Other circumstances

Other events and circumstances may also be taken into account when assessing hardship.

In Taha v The Queen [2022] NSWCCA 46, Walton J (McCallum JA and Fullerton J agreeing) considered the conditions of a ‘severe rat plague’ occurring in the offender’s correctional facility at [61], [65]:

The applicant advised that he lived in these conditions for approximately three months which included mice chewing on his shoes, eating his food, crawling on his face, nibbling on his feet and depositing faeces on his bed.

The hardship suffered by the applicant was for a finite period and is, therefore transitory in nature akin to, for example, offenders being confined in protective custody for periods of their sentence. I shall take this factor into account in resentencing, but, in these circumstances, the weight afforded to it cannot be substantial.’ [Emphasis added]

Similarly, increased restrictions imposed by correctional authorities to quell riots and prison violence have been taken into account: see, eg, DPP (Cth) v Kazemi and Shahbazi [2016] VCC 431, [84], [99]; DPP v Petzierides [2019] VCC 1888, [40].

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3. Hardship resulting from offender’s personal circumstances

3.1 Risk of reprisal

When determining the extent of the allowance to be made for cooperation, it is relevant to take into account whether the offender is likely to be subject to threats or worse treatment from other prisoners while serving a sentence of imprisonment: DPP (Cth) v AB [2006] SASC 84, [42].

Leniency may be afforded to an offender who is at grave risk of being killed or injured while imprisoned. However, the weight that should be given to that risk depends on all the circumstances of the case, including the likelihood of its occurrence: York v The Queen [2005] HCA 60, [23] (McHugh J).

A court may also take into account that an offender has been placed at a real risk of harm when released from prison in retribution for the assistance provided to authorities: C v The Queen [2013] NSWCCA 81, [37]–[38], [44].

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3.2 Isolation from family or community

A sentence of imprisonment may be more onerous on an offender who is isolated from their family or community, such as where the offender is a foreign national.

Where an offender has entered the country for the purpose of committing the crime, most often in drug importation cases, the hardship caused by imprisonment in a foreign country is of limited significance. In R v Ferrer-Esis (1991) 55 A Crim R 231, 239 Hunt CJ stated:

The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact.

This approach was approved in DPP (Cth) v De La Rosa [2010] NSWCCA 194 by McClellan CJ at CL at [265]:

I acknowledge that the respondent’s imprisonment in Australia would be a greater burden than for some others given his limited English skills and distance from his family in Spain. However, I agree with the sentencing judge that this factor is of ‘strictly limited’ significance (see also R v Ferrer-Esis (1991) 55 A Crim R 231 at 18). Many persons convicted of importing drugs will not be Australian residents and will have only limited, if any, capacity in the English language.14

However, Ferrer-Esis has been distinguished in cases where the offender did not enter the country for the purpose of committing the crime. In R v Cruz; ex parte Cth DPP [2010] QCA 90, the offender was convicted of importing child pornography material contrary to s 233BAB(5) of the Customs Act 1901 (Cth). The offender worked as an engineer on commercial shipping, and had arrived at Brisbane airport on a transit visa, intending to sign onto a merchant vessel at Gladstone, when customs officers searching his baggage found the material. Holmes JA (Muir and Chesterman JJA agreeing) found that the sentencing judge had not placed excessive weight on the offender’s separation from his family, stating at [12]:

Ferrer-Esis is readily distinguished: that case involved the importation of cocaine into Australia for reward, whereas the respondent here clearly did not enter the country ‘specifically and quite deliberately’ to import pornography. And in any event, Hunt J’s statement was far from absolute in its terms. The learned judge in this instance was entitled to give weight to the respondent’s isolation and separation from his family and to reflect those circumstances by reduction of the custodial component of the sentence. In addition, s 16A of the Crimes Act 1914 (Cth) obliged her Honour to take into account the effect of the sentence on the respondent’s family.

See also R v De Silva [2011] NSWSC 24, 70 (Buddin J).

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3.3 Effect of hardship to family and dependants on offender

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

In Markovic v The Queen [2010] VSCA 105, the Maxwell P, Nettle, Neave, Redlich, and Weinberg JJA considered the issue of family hardship. The Court noted at [20]:

The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor — for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. [Citations omitted]16

In Dong v DPP (Cth) [2016] VSCA 51 the offender appealed against a total effective sentence of 5 years and 9 months imprisonment imposed for drug trafficking offences. Evidence was tendered that the offender was pregnant at the time of sentencing, a fact not known to the sentencing judge. The offender had discovered that she was pregnant the day before she was sentenced and had not informed her legal advisors as she was embarrassed. Since the date of sentencing, the offender had given birth and was caring for her child in a mothers and babies unit of the prison. On appeal, the Court admitted the evidence of her pregnancy and the child’s subsequent birth. On the basis of this new evidence, the sentence was reduced to a total of 5 years. The Court reasoned at [31]:

What has changed is the burden of imprisonment. The applicant’s anxiety about her deportation, and concern about how her life in China would be affected by the convictions, has been exacerbated by the fact that she now has a child who will also be deported. More importantly, the hardship which the applicant would inevitably have suffered as a result of isolation from her family has been exacerbated by the birth of her child, both in relation to her personal difficulties in caring for the child in custody and in relation to the anxiety and distress created as a consequence of the child’s isolation from the family in China.

See further: Offender’s Family and Dependants.

3.4 Cultural background of offender

In 2006, the phrase ‘cultural background’ was deleted from the listed sentencing factors in s 16A(2)(m) Crimes Act 1914 (Cth) through the passage of the Crimes Amendment (Bail and Sentencing) Act 2006.  A court sentencing a federal offender is no longer expressly required to consider an offender’s cultural background in determining an appropriate sentence.

While cultural background is no longer a sentencing factor which is ‘automatically’ considered under s 16A(2), cultural background remains a matter that a sentencing court may have regard to under the common law,17

 as s 16A(2) is not an exhaustive statement of the matters to which the court may have regard: DPP (Cth) v El Karhani (1990) 51 A Crim R 123.

Cultural background may also be relevant to an offender’s antecedents, which a court is to take into account under s 16A(2)(m): Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [27].

An individual’s membership of a particular race may be relevant to the sentencing determination where a term of imprisonment might be ‘particularly burdensome’ because of the offender’s cultural or ethnic background: Bugmy v The Queen [2013] HCA 37, [39].

While the same sentencing principles are to be applied irrespective of the race of a particular offender, courts are bound to take into account all material facts including those which exist only by reason of the offender’s race or ethnicity: Neal v The Queen [1982] HCA 55, [13] (Brennan J).18

For example, in R v DS [2005] VSCA 99, [19] Chernov JA (Batt and Vincent JJA agreeing) noted that serving a term of imprisonment would be of particular difficulty for the offender, a Thai national, given ‘her cultural background and isolation in Australia’.

See further: Cultural Background.

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3.5 Religious background of offender

Where an offender’s religious practices are likely to make prison more onerous for that offender, this may be taken into account as a mitigating factor. In DPP (Cth) v Goldberg [2001] VSCA 107, Vincent JA (Winneke P and Batt JA agreeing) considered the potential for hardship arising from other prisoners’ reactions to the offender’s strict observation of Jewish religious practices at [43]:

It is reasonable to anticipate that a person, who, in accordance with cultural conventions or religious observances, dresses or behaves in some respects differently from those around him, may be subjected to discrimination or harassment by other prisoners. Little imagination is required to see how this might impact upon the degree of hardship associated with the sentence to be served. The significance attributed to such considerations in a specific case must, of course, be assessed in the light cast by all of the circumstances relevant to the offence and offender concerned. [Emphasis added]

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3.6 Advanced age

Section 16A(2)(m) of the Crimes Act 1914 (Cth) requires a court to take into account various factors personal to the offender including their age. Advanced age may be relevant where some circumstance associated with that age, such as ill health or mental frailty, make imprisonment more onerous on the offender than normal. Where there is evidence sufficient to justify such a conclusion, it may be taken into account as a mitigating factor: Gulyas v Western Australia [2007] WASCA 263, [54] (Steytler P, McLure and Miller JJA).19

Account may also be taken of hardship for the offender arising out the offender’s knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release: Gulyas v Western Australia [2007] WASCA 263, [54] (Steytler P, McLure and Miller JJA).

See further: Age.

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3.7 Physical condition

Section 16A(2)(m) of the Crimes Act 1914 (Cth) requires a court to take into account various factors personal to the offender including their physical condition.

An offender’s physical condition may be relevant where that condition will make prison more onerous for the offender, or where there is a serious risk of imprisonment having a gravely adverse impact on the offender’s  health: R v Smith (1987) 44 SASR 587.20

 However, where physical condition is considered to be relevant, the extent of the mitigation must be balanced against the seriousness of the offence: Leighton v The Queen [2010] NSWCCA 280, [36] (Price J, Simpson J and Howie AJ agreeing).

In R v Sopher (1993) 70 A Crim R 570 at 53, the NSW Court of Criminal Appeal stated:

Health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live or need intense treatment which cannot be provided in gaol. There may be circumstances where to keep a person in gaol will probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life. [Emphasis added]

For example, in Leighton v The Queen [2010] NSWCCA 280, the Court considered an appeal against sentence imposed on a 72-year-old offender who suffered from a number of medical conditions. Price J (Simpson J and Howie AJ agreeing) stated at [38]–[39]:

…[T]here is an abundance of evidence, which demonstrates that the applicant’s ill health will make his time in gaol significantly harder. He suffers from chronic osteoarthritis in the hips, knees and shoulders, his mobility is compromised as is his breathing. He experiences chronic neck and back pain and his vision is adversely impacted upon by shingles. He has difficulties dressing himself and standing or sitting for any length of time. The austerity of prison conditions will add to the problems that the applicant has encountered in his daily living…

In my respectful opinion, some weight should have been given to the applicant’s ill health in determining the sentences…When balanced against the seriousness of the offences, I consider that the extent of the mitigation should have been modest.

The risk of hardship due to the offender’s physical condition must be real, and not merely a belief of the offender. In Iglesias v The Queen [2006] NSWCCA 261, McClellan CJ at CL (Hulme and Hall JJ agreeing) held at [15]:

It has also been submitted that the applicant’s period in prison may be more onerous by reason of the fact that having experienced a carcinoma and although there are not presently symptoms which suggest that he continues to suffer in that way, he has a fear that he may die in custody. I accept that that fear is genuinely held but, in my opinion, it would not justify a reduction in sentence.

Risks of inadequate access to health care in custody may not be afforded substantial weight. In Boucher v The Queen [2022] VSCA 3, the offender suffered from a range of physical health conditions, required haemodialysis three times per week, and was at risk of sudden heart complications. They submitted that the risk of delay in receiving medical care ought to be taken into account as hardship. In rejecting this submission, the Court remarked at [128]:

[E]very prisoner has a statutory right to access reasonable medical care and treatment necessary for the protection of health, and the safe custody and welfare of prisoners is the statutory responsibility of the executive branch of government carried out through the management of prisoners by prison governors. In our view, the applicant’s implied assertion that the Court should assume or accept that he might not receive appropriate treatment in prison, and should therefore discount his sentence accordingly, does not sit well with the distinct responsibilities of a sentencing court, on the one hand, and the Executive, on the other.

See further: Physical Condition.

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3.8 Mental condition

Section 16A(2)(m) of the Crimes Act 1914 (Cth) requires a court to take into account various factors personal to the offender including their mental condition.

The Victorian Court of Appeal in R v Verdins [2007] VSCA 102, [32] identified six circumstances in which an offender’s mental condition may be taken into account in sentencing; limbs five and six are relevant to hardship.21

The fifth Verdins principle includes circumstances where the condition will cause a sentence to be more onerous on the offender than it would on a person of normal health: [32].

For example, in R v Kent [2009] VSC 375, Bongiorno JA observed at [41]:

The fact that Kent is currently suffering a psychiatric disorder … makes it appropriate to take into account the probable conditions under which he will serve his sentence and the effect of those conditions on his psychological state.

However there must be an evidentiary basis for a finding that an offender’s mental condition will render their imprisonment more burdensome than for other offenders:  R v Donald [2013] NSWCCA 238, [77].

In addition to increasing the subjective burden of imprisonment, an offender’s mental condition may cause their external custodial conditions to become more onerous. In Cluett v The Queen [2019] WASCA 111, the Court found at [76] that the offender’s autism spectrum disorder presented in ‘eccentricities which … are likely to make him a target for bullying.’

The sixth Verdins principle includes circumstances where ‘there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health’: [32]. This principle has been applied in Commonwealth sentencing cases: see, eg, Du Randt v The Queen [2008] NSWCCA 121.

However, the risk of imprisonment exacerbating an offender’s mental condition will not be a mitigating factor where that risk stems from a custodial authority imposing particular conditions on the prisoner. In such a case it must be assumed that the custodial authorities, in classifying offenders and imposing particular conditions on them, will not unreasonably expose the offender to a risk of exacerbation of their mental condition: R v Benbrika [2009] VSC 21, [206].

In R v Benbrika [2009] VSC 21, the evidence showed that if the offender were to remain in a maximum security facility after sentencing, there was little doubt that his mental health would deteriorate severely. Bongiorno J took the onerous conditions of imprisonment into account, but in relation to the mental condition of the offender, stated at [202]–[203]:

The problem which faces this Court in sentencing Raad and applying the principles in Verdins is that the classification and placement of prisoners is not a matter for the Court but rather for the Executive Government. Of course the Executive is bound by law to exercise its custodial powers according to law… A custodial authority which, unreasonably, placed a prisoner in circumstances where it was reasonably foreseeable that to do so would expose that prisoner to a risk of serious psychiatric injury would be in breach of its legal obligations to that prisoner.

Bongiorno J continued at [206]

…it must be assumed that the custodial authorities will discharge their legal obligation to Raad and his fellow prisoners appropriately so that none of them will be unreasonably exposed to the risk of an exacerbation of psychiatric symptoms because of the conditions of their incarceration.

The approach of Bongiorno J to the offender’s mental condition was approved on appeal: Benbrika v The Queen [2010] VSCA 281, [592]–[593] (Maxwell P, Nettle and Weinberg JJA).

Whilst the appropriate penalty for some serious crimes will, notwithstanding the mental condition of the offender, be imprisonment, consideration of the offender’s personal circumstances may be reflected in the suspension of the sentence or in the setting of the non-parole period: Mason-Stuart v The Queen (1993) 61 SASR 204, 205-206.

See further: Mental ConditionMental Condition and the Effect of a Custodial SentenceOffenders with Mental Illness or Intellectual Disability.

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3.9 Public profile

In the case of R v Laws (No 2) [2000] NSWSC 885, Wood CJ imposed a suspended sentence of imprisonment on the offender. Due to the public profile of the offender, a full-time custodial sentence and a home detention order were deemed inappropriate. Wood CJ explained at [44]:

After careful consideration, I am not persuaded that either is the appropriate option for this case. By reason of Mr Laws’ high profile and his well known stand on issues of law and order, I believe that he would face a significant risk of personal injury or worse if sentenced to periodic detention, a form of imprisonment that does not allow for segregation other than from those inmates who are serving full-time sentences … Home detention would risk attracting the derision of the community, and provide a juicy subject for lampoon by cartoonists and columnists, which would threaten respect for the law.

However, courts have cautioned that it is not generally appropriate that those who have a higher public profile should receive a less severe sentence. In Cargnello v DPP (Cth) [2012] NSWCCA 162, Basten JA (Price J and S G Campbell J agreeing) noted at [60]:

… it is not generally appropriate that those who are wealthier, or who have a higher public profile, should receive lesser sentences because they have more to lose as a result of conviction.

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4. Extra-curial punishment

4.1 Public opprobrium

It is unclear whether hardship resulting from public opprobrium may be taken into account as a mitigating factor at sentence.22

 McHugh J stated in Ryan v The Queen [2001] HCA 21, [53] that taking it into account ‘would seem to favour the powerful and well known over those who were lesser known’. However, public opprobrium has been taken into account in the sentencing of federal offenders.23

In the state sentencing case of Kenny v The Queen [2010] NSWCCA 6, Howie J (Basten JA and Johnson J agreeing) formed a test for the consideration of public opprobrium at [49]:

[P]ublic humiliation that arises from the commission of the offence should not alone give rise to a mitigation of sentence without more. … Clearly there may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment.

In R v Jones [2011] QCA 147, the Court considered an appeal against a federal sentence imposed for using a carriage service to access child pornography material and state sentences imposed for possessing child exploitation material. The offender argued that the sentencing judge failed to accord any weight to the public shaming that the offender underwent by reason of a front page article published in a local newspaper.

Daubney J (Muir and White JJA agreeing) stated at [17]:

In respect of the first of these propositions, there is a difference of judicial opinion as to the weight, if any, to be accorded to ‘public shaming’ or ‘public opprobrium’ in the sentencing process. Whether a sentencing judge takes ‘public shaming’ into account, and the weight to be applied to that factor in the sentencing process, will depend on the circumstances of the particular case, including by reference to:

  • (a)    the identity and position of the accused;
  • (b)    the nature and seriousness of the offences;
  • (c)    the circumstances of the offending conduct (and the relevance of the identity and/or position of the accused in those circumstances);
  • (d)    the nature, content, duration and extent of the public communication which induces the opprobrium, and
  • (e)    the effect of the public shaming on the accused. [Citations omitted]

The Court in R v Jones [2011] QCA 147, found there was no evidence to support the submission that ‘the applicant’s exposure and shaming was significantly greater than usual’, and concluded at [21]:

It seems to me that if an accused would seek to persuade a sentencing judge that ‘public shaming’ is a relevant factor to be considered in a particular case, then something more is required than mere assertion that the level of exposure and shaming was ‘significantly greater than usual’.

4.1.1 Relevance of identity and/or position to offending conduct to be considered

Whether a sentencing judge takes public opprobrium into account will depend on the circumstances of the case, including the relevance of the identity and/or position of the accused to the offending conduct: R v Jones [2011] QCA 147, [17]. Where an offender’s status is used to commit the offences or further their commission, public opprobrium is unlikely to be a significant mitigating factor: Einfeld v The Queen [2010] NSWCCA 87, [101] (Basten JA).24

For example, in the state case of Kenny v The Queen [2010] NSWCCA 6, Basten JA reviewed the authorities on the relevance of public opprobrium, and stated at [18]:

It may also be important to distinguish the case where the person’s reputation is, apart from its destruction, independent of the offence and the case where the person’s reputation and office have been used or abused in the course of the criminal conduct. In the latter case, there may be good reason to disregard the destruction of reputation resulting from an abuse of trust: see R v Jackson and Hakim (1988) 33 A Crim R 413 at 436–437, referred to by Callinan J in Ryan [v The Queen [2001] HCA 21] at [176].

In the state case of R v Obeid (No 12) [2016] NSWSC 1815, a politician was sentenced for abuse of public office, Beech-Jones J considered the relevance of media coverage at [101]–[102]:

In this case the offender is a public figure, the offending did involve the abuse of a public position and the media reports that have been tendered do not sensationalise facts that are either irrelevant or trivial to the offending conduct. Instead, they are concerned with an issue of public importance, namely, political corruption. In those circumstances it seems incongruous that the consequential public humiliation should mitigate the sentence. Nevertheless, there is a body of authority to suggest that it can. …

In the end result, the principle binding this Court at first instance appears to be that such publicity will only be considered where “it reaches such proportion as to have a physical or psychological effect on the offender”. [Emphasis added; citations omitted]

Beech-Jones J took the offender’s public opprobrium into account in a ‘limited sense’: at [103]. His Honour contrasted this with R v Wran [2016] NSWSC 1015 in which ‘extra curial punishment was occasioned by the publication of humiliating material obtained as a result of criminal charges being laid that was either unrelated to the offending in question or where the level of publicity for the material was disproportionate to any relevance it had to the offence in question’, and the level of mitigation was greater: Obeid at [99]–[100].25

4.1.2 Public opprobrium and particular offences Offences involving children

In R v Poynder [2007] NSWCCA 157 the offender was convicted of offences involving the sexual exploitation of children. James J (Rothman and Harrison JJ agreeing) stated at [86] that ‘[s]ome allowance, albeit only limited, could be made for the public humiliation the respondent had suffered.’

However, in Sabel v The Queen [2014] NSWCCA 101 the offender argued that he would suffer adverse social consequences as a result of convictions for accessing child pornography. The Court rejected this submission, stating at [211]:

To the extent that the appellant’s further submission relates to adverse social consequences, we are of the opinion that even if the remarks made in the authorities to which we have referred continue to be good law in the context of fraud and tax evasion, they do not apply in relation to the offences under consideration here. Any social embarrassment or consequence that the appellant may suffer from being convicted of accessing and possessing child pornography is a direct result of his offending conduct, the underlying nature of which is exploitative of children.26

[Emphasis added] White-collar offences

In DPP v O’Reilly [2010] VSC 138, the Court declined to give public opprobrium significant weight where the offender was convicted of insider trading. Forrest J stated at [35]–[36]:

Mr Richter has directed me to various press articles which demonstrate the public humiliation which no doubt will reach its peak in tomorrow morning’s press. Whilst this is a factor I am entitled to take into account as a punishment already suffered, I do not consider it ought be accorded significant weight.

The public humiliation you have suffered is no more than a by-product of your offending, given bite by your accomplished and exemplary prior history. Informal public shaming in the media in my consideration can never be a substitute for the formal expression by society through its courts that a member of that society has committed a wrong. See ASIC v Vizard (2005) 145 FLR 57, at 66. Those who commit this type of offence can expect the same level of scrutiny as you have suffered. If your public humiliation acts as a disincentive to those considering offending in this way, then perhaps a small measure of general deterrence is achieved.

However, in R v Issakidis [2018] NSWSC 378, Harrison J took into account the impact that a loss of social standing would have on an offender convicted of Commonwealth dishonesty offences, stating at [126]:

The effect of any sentence upon Mr Issakidis will include the total destruction of his standing in the community as a respected businessman and contributor to society. Any prospect that Mr Issakidis will return to any semblance of his former life must be close to non-existent.

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4.2 Financial hardship

Where the offender is suffering, or will suffer, adverse financial consequences as a result of the conviction and/or sentence, a court may take this into account.27

Professor Freiberg has noted that while loss of future income or pension rights may count in mitigation, ‘courts around Australia are not consistent on this matter’.28

In Commissioner of Taxation v Baffsky [2001] NSWCCA 332, Spigelman CJ found that the sentencing judge had not erred in taking into account the fact that the offender had been made bankrupt by the Commissioner of Taxation ‘as a matter of hardship’, and stated that such hardship was relevant as an ‘antecedent’ under s 16A(2)(m) and also to an assessment of the need to ‘adequately punish’ an offender for the offence under s 16A(2)(k).

In cases of serious offending, financial losses may be of little significance in the sentencing process. In the state case of R v Liddy (No 2) [2002] SASC 306, Mullighan J reviewed the offender’s loss of future income and future superannuation benefits and stated at [103]:

I accept that the appellant has sustained substantial losses by his early retirement and that he would have lost his position as a magistrate upon his having been convicted of the offences had he not retired. In cases of serious criminal offending, financial losses of this nature can have limited impact in the sentencing process. It would be an error in principle that offenders without financial losses must serve longer sentences of imprisonment than wealthy offenders who commit the same crimes and suffer financial losses. In the present context these losses are of virtually no significance in view of the seriousness of the crimes, the circumstances in which they were committed and the need to impose a sentence which reflects adequate punishment, protection of the community and general and personal deterrence. [Emphasis added]

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4.3 Loss of employment of employment prospects

Where an offender suffers a loss of employment as a result of committing the offence, this may be a factor which mitigates the sentence imposed: Ryan v The Queen [2001] HCA 21, [54] (McHugh J). This principle has been adopted in various state and federal sentencing cases: see, eg, Kristensen v R [2018] NSWCCA 189, [14] (Payne JA, RA Hulme and Button JJ agreeing).

However, where the offence(s) involve the abuse of the offender’s professional position, the loss of employment is unlikely to be a significant mitigating factor: R v TA [2003] NSWCCA 191, [32].

Where the loss of employment is merely a consequence of full-time imprisonment, this is unlikely to mitigate a sentence: R v Stanbouli [2003] NSWCCA 355, [81] (Hulme J). In Cargnello v DPP (Cth) [2012] NSWCCA 162, the Court noted that ‘no particular diminution in sentence should be accorded for consequences of imprisonment, which will, in a general sense, be common to all offenders subject to custodial sentences’. Similarly, in Einfeld v The Queen [2010] NSWCCA 87, Basten JA noted at [89] that, broadly applied, the principle would result in relatively higher sentences for offenders who were unemployed prior to offending.

Likewise, where the loss of career is an obvious consequence of the offending, it will not be afforded substantial weight. In FB v The Queen [2011] NSWCCA 217, a school teacher was convicted of sexual offences against students. In holding that this could not be afforded substantial weight, Whealy JA (Buddin and Harrison JJ agreeing) considered at [156] that the offender ‘must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end.’

The loss of future professional prospects may be a mitigating factor at sentence: R v McDermott (1990) 49 A Crim R 105, 117 (Gallop J). In R v Stanbouli [2003] NSWCCA 355, Hulme J noted at [80]–[81]:

Loss of employment is, of course, but a common incident of both criminal activity and imprisonment and not a matter deserving of special consideration when the issue of the length of a term of imprisonment which must necessarily be imposed is under consideration. That is not to say it is irrelevant. The length of a sentence imposed for a serious drug offence is likely to have an impact on an offender’s life in terms of wife, children, job prospects and the like from which he may well never recover or, at the least, from which recovery will be difficult and in any judgment as to the severity of punishment it would be wrong to ignore these factors (emphasis added).

In R v Poynder [2007] NSWCCA 157, James J (Rothman and Harrison JJ agreeing) stated at [86]:

Some allowance could properly be made for the severe extra-curial punishment the respondent had suffered and would suffer, including the virtually certain loss of his profession of 25 years and his livelihood.29

4.3.1 Loss of statutory licence to practice or trade

Where an offender will lose a statutory licence, which enables them to practice or trade as a result of their conviction, this may be taken into account as a mitigating factor.30

In the state case of Einfeld v The Queen [2010] NSWCCA 87, [95] Basten JA held that it was legitimate to take into account, in mitigation of sentence, the withdrawal of the offender’s commission as Queen’s Counsel, the non-renewal of his legal practising certificate, and the removal of his name from the roll of legal practitioners.

However, where the offender’s disqualification results from criminal conduct in the course of the employment from which the offender is disqualified, it is of limited significance at sentence. In the state case of R v Talia [2009] VSCA 260, the Court stated at [28]:

There seems to us to be a distinct difference between a disqualification resulting from criminal conduct in the course of the employment from which the person is disqualified and criminal conduct remote from that employment but having that consequence… These situations are different to that which obtains when the offending conduct is remote from the employment from which the offender is incidentally precluded. In the latter class of case there might be a considerably stronger argument in favour of the incidental loss of employment being treated as a circumstance of mitigation.

For example, in R v Zerafa [2013] NSWCCA 222 the evidence indicated that the Institute of Chartered Accountants would strike the offender’s name from the relevant register. Hoeben CJ at CL (Latham J agreeing) stated at [92]:

While I accept the relevance of the extra curial punishment likely to be suffered by the respondent as a mitigating factor, its effect is limited. As with insider trading cases, it must have been anticipated by the respondent that an inevitable consequence, if his offending were discovered and successfully prosecuted, would be that he would be struck off the role of chartered accountants as not being a fit and proper person to pursue that profession. This was a risk which the respondent chose to take when he facilitated the operation of the scheme for 7 years.

4.3.2 Disqualification from managing a corporation

Courts have frequently taken into account the disqualification of white-collar offenders from corporate governance under Part 2D.6 of the Corporations Act 2001 (Cth) as a result of the offending.31

For example, in R v O’Brien [2011] NSWSC 1553, Hoeben J stated at [63]:

As a result of being convicted for these offences, the offender will be automatically disqualified from managing a corporation for a period of five years. In Rich v ASIC [2004] HCA 42, (2004) 220 CLR 129 the plurality held that disqualification from holding such office was a penalty. The Court acknowledged that disqualification orders under the Act performed a dual role of the protection of the public and as a penalty imposed on the person against whom it was made. It follows that this is a matter which the Court should take into account when considering sentence.

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4.4 Deportation and loss of visa

It is clear that in all Australian jurisdictions, a sentencing judge may not set a sentence with the intention of avoiding the consequence that the offender be deported, such as by reducing the term below the threshold for discretionary visa cancellation: The Queen v Calica [2021] NTSCFC 2, [66].

However, there is no uniform approach to when a court may consider the hardship resulting from future deportation as a mitigating factor. The approach taken in New South Wales and Western Australia differs from that taken in Victoria, Queensland, the Australian Capital Territory, and Tasmania. For further discussion of the treatment of hardship resulting from deportation in the various states and territories, see: Deportation.

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4.5 Traditional punishment

There are no reported federal cases in which a Court has taken into account hardship arising from an offender’s participation in or subjection to Indigenous customary law processes, including traditional punishment.32

However, in the state sentencing case of Jadurin v The Queen (1982) 7 A Crim R 182, the Court noted that although a court should not be seen to condone or encourage traditional punishment which is unlawful, such punishments may nonetheless be taken into account as having already occurred or being an inevitability upon release. See also R v Minor [1992] NTCCA 1 (Asche CJ and Mildren J).

Section 16A(2A) of the Crimes Act 1914 (Cth) prevents a Court from taking into account customary law or cultural practice as a reason for (inter alia) ‘excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates’. This provision is unlikely to preclude a Court from considering traditional punishment as a form of hardship on sentence.

See further: Cultural Background and Customary Practices.

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  1. The ALRC recommends that federal sentencing legislation should expressly recognise as a sentencing factor the likely impact of a particular sentence on the offender, including that the offender’s circumstances may result in imprisonment having an unusually severe impact on him or her: Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [6.120].[]
  2. See, eg, R v Chaloner (1990) 49 A Crim R 370, 376 (Kirby P, Lusher AJ and Sharpe J agreeing).[]
  3. The principles from Milenkovski v Western Australia [2014] WASCA 48 have been applied in the federal context. See, eg, Adams v Western Australia [2014] WASCA 191, [133] Mazza JA (Buss and Newnes JJA agreeing).[]
  4. Mazza JA found that the issue of whether any mitigation may be given to the conditions of custody and the weight to be attached to this factor are very fact sensitive, and that in the circumstances of this case the conditions in which the offender was held before being sentenced were not mitigatory: Milenkovski v Western Australia [2014] WASCA 48,[213].[]
  5. Leave to appeal to the Full Court was refused in Tazroo v Police [2005] SASC 126. The Court stated at [11]: ‘Sulan J’s analysis of the principles relating to the giving of credit where the imprisonment will give rise to undue hardship was correct. A reduction on this ground was not appropriate in the present case.’[]
  6. Pham v The Queen [2014] VSCA 204 was overturned in R v Pham [2015] HCA 39 on the basis of the Court of Appeal’s use of statistics and assessment of overall seriousness, but the consideration of hardship was not impugned.[]
  7. See Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 419.[]
  8. An appeal against the sentences imposed by King J was dismissed: Fattal v The Queen [2013] VSCA 276. The issue of protective custody was not considered on appeal.[]
  9. See Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 418.[]
  10. See also R v Durocher-Yvon [2003] NSWCCA 299 where Howie J (Sheller JA and Sully J agreeing) stated at [23] ‘In some cases such as prison informers or persons giving assistance to the authorities, the court may confidently assume that the offender will spend most, if not all, of the sentence in some form of strict protection which will carry with it severe physical and mental hardships over and above the normal prison experience. In other cases, such as child sex offenders, the court should recognise that to a degree the range of sentences imposed already has an element of leniency built into it because sentences for such offences are normally reduced to take this factor into account.’ See further Western Australia v O’Kane [2011] WASCA 24,[70].[]
  11. This approach was approved on appeal in Lodhi v The Queen [2007] NSWCCA 360.[]
  12. Bongiorno J’s approach was approved on appeal in Benbrika v The Queen [2010] VSCA 281, [558]–[559] (Maxwell P, Nettle and Weinberg JJA).[]
  13. See R v Poulakis [2020] ACTSC 247, [102] (social consequences of COVID-19 in prison an additional hardship attached to imprisonment); R v Omari [2021] ACTSC 18, [242] (social consequences of COVID-19 in prison an additional hardship attached to imprisonment); DPP v Cameron [2020] VCC 1506, [47]–[50] (fear of contracting COVID-19 and social consequences of COVID-19 in prison constituted increased custodial burden); DPP v Lee [2020] VCC 1346, [60] (custody more onerous by reason of lockdown); DPP v Dalton [2020] VCC 1504, [65]–[67] (requirement to isolate for 14 days, restrictions on visitors and education/rehabilitation programs, as well as heightened anxiety in prison during COVID-19 pandemic taken into account); DPP v Kijima [2020] VCC 1347, [65] (reduction in services and programs taken into account as making life in prison more difficult); R v Mostafa Dib [2020] NSWDC 145, [164] (increased anxiety of health consequences where facility did not provide protective garments or hand sanitiser and increased anxiety of risk to elderly parents who could not visit offender).[]
  14. See also Kuti v The Queen [2012] NSWCCA 43, [44] (Davies J, McClellan CJ at CL and Garling J agreeing); Heryadi v The Queen [1998] WASCA 54.[]
  15. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 423.[]
  16. The Victoria Court of Appeal’s decision in Markovic pre-dates the decisions in Totaan v The Queen [2022] NSWCCA 75 and Mohamed v The Queen [2022] VSCA 136 which overruled the ‘exceptional circumstances’ hurdle to taking into account hardship to the offender’s family and dependants. See Family and Dependants.[]
  17. The Act’s explanatory memorandum states that ‘[s]ubject to the amendment to be made by item 5, a court will still be able to take into consideration the “cultural background” of an offender, in sentencing that offender, should it wish to do so, but this amendment removes an unnecessary emphasis on the “cultural background” of convicted offenders’: Explanatory Memorandum, Senate, Crimes Amendment (Bail and Sentencing) Bill 2006, 3.[]
  18. Quoting Bugmy v The Queen [2013] HCA 37, [39].[]
  19. The principles from Gulyas have been applied in the federal context, see Ljuboja v The Queen [2011] WASCA 143, [102]–[104]; De Faria v Western Australia [2013] WASCA 116, [168].[]
  20. The principles from R v Smith (1987) 44 SASR 587 have been applied in the federal context, see, eg, Grenfell v The Queen  [2009] NSWCCA 162, [32].[]
  21. R v Verdins [2007] VSCA 102 has been frequently cited in the federal context. See especially DPP (Cth) v De La Rosa [2010] NSWCCA 194, [177]. See also, Edwards v The Queen [2013] VSCA 188, [9], [31] (Osborn JA, Nettle and Coghlan JJA agreeing); Wheeler v The Queen (No 2) [2010] WASCA 105, [6] (McLure P, Newnes JA agreeing); Melham v The Queen [2011] NSWCCA 121, [57]–[60] (Garling J, Johnson J and Macfarlan JA agreeing); Agostino v Cleaves [2010] ACTSC 19, [53]–[56] (Refshauge J).[]
  22. The High Court has not expressed a clear view on this point. See Ryan v The Queen [2001] HCA 21 where Kirby J (at [123]) and Callinan J (at [177]) found that public humiliation should be taken into account, while McHugh J (at [53]) and Hayne J (at [157] disagreed.[]
  23. See, eg, ASIC v Vizard [2005] FCA 1037, [44]; DPP (Cth) v O’Reilly [2010] VSC 138, [35]–[36]; R v Bonham; Ex parte Director of Public Prosecutions (Cth) [2014] QCA 140, [36]; R v O’Brien [2011] NSWSC 1553, [75].[]
  24. See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 424, 426.[]
  25. An appeal against sentence was dismissed in R v Obeid [2017] NSWCCA 221. Beech-Jones J’s findings in relation to public opprobrium were not impugned.[]
  26. The Court did not make reference to the earlier case of Poynder in rejecting the submission.[]
  27. R v Chaloner (1990) 49 A Crim R 370, 376 (Kirby P, Lusher AJ and Sharpe J agreeing). See also Ryan v The Queen [2001] HCA 21, [54] where McHugh J noted that it is legitimate to take into account that a conviction will result in the offender forfeiting benefits such as superannuation. See further Kenny v The Queen [2010] NSWCCA 46, [44] (Howie JA, Johnson J and Basten JA agreeing).[]
  28. Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 425.[]
  29. There was evidence that the Legal Services Commissioner had initiated complaints against the respondent that, by reason of the conduct giving rise to the offences for which he was sentenced, the respondent was not a fit and proper person to hold a practicing certificate. The sentencing judge had acted on the basis that the charges would be pursued and the respondent would lose his profession as a solicitor: R v Poynder [2007] NSWCCA 157, [22].[]
  30. The ALRC recommends that federal sentencing legislation specifies as an additional sentencing factor the likely civil and administrative consequences of a finding of guilt or a conviction in relation to the offence: Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [6.113].[]
  31. See, eg, ACCC v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267R v Johnson [2014] VSC 175, [128] (Macauley J); R v Zhu [2013] NSWSC 127, [234] (Hall J).[]
  32. For discussion of traditional punishment being taken into account in other contexts, see Australian Law Reform Commission, The Recognition of Aboriginal Customary Law, ALRC 31 (1986), [507].[]
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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