List of Subheadings
The content on this page was last reviewed on 27 October 2016.
Recent cases alert
Totaan v R  NSWCCA 75 — Section 16A(2)(p) does not require ‘exceptional circumstances’ in order to mitigate a sentence for hardship suffered by the person’s family or dependents. Previous decisions requiring ‘exceptional circumstances’ were plainly wrong and should not be followed.
Jaafar v The Queen  NSWCCA 223 — exceptional hardship not found where offender’s wife’s feelings of loneliness, difficulties in coping with her medical conditions, and caring for their children would not have been lessened to any significant degree if offender had not been imprisoned.
R v Cowley  ACTSC 213 — that custodial sentence would result in offender being registered under Crimes (Child Sex Offenders) Act 2005 (ACT), which may affect offender’s capacity to fully participate in extracurricular activities of children, taken into account under s 16A(2)(p).
R v Constant (No 2)  SASCFC 36 — rehabilitation achieved primarily through motherhood where offender gave birth to second child while released on parole and bail.
*Guidance from these cases has not yet been incorporated into the commentary
A court sentencing a federal offender must take into account, where relevant and known, the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants: Crimes Act 1914 (Cth) s 16A(2)(p).
Courts have generally interpreted s 16A(2)(p) as operating alongside the common law principle that any hardship suffered by the person’s family and dependants can only mitigate a sentence in ‘exceptional circumstances’ (see further 3. Exceptional Circumstances).
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  VSCA 61, Ross AJA (Nettle and Hansen JJA agreeing) noted at :
[H]er Honour [the sentencing judge] says that there is ‘sufficient evidence before me to draw the inference that that risk exists’. It is apparent from the previous paragraph of her Honour’s reasons that the risk referred to is a risk that the hardship to the respondent’s family amounts to exceptional circumstances. It is an error to refer to the existence of exceptional circumstance in the context of family hardship in terms of risk. Such matters are to be assessed on the balance of probabilities. This is also consistent with the language of s 16A(2)(p) of the Crimes Act 1914 (Cth) which speaks of ‘the probable effect’ that a sentence would have on the offender’s family or dependants. As Spigelman CJ observed in R v Togias (2001) 127 A Crim r 23, :
“It is of some significance that the Parliament has identified this matter in terms of a “probable effect”, not merely a “possible effect””. (emphasis added).1
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.2
3. Exceptional Circumstances
At common law hardship suffered by third parties (for example the offender’s family) may in ‘exceptional circumstances’ mitigate a sentence: R v Edwards (1996) 90 A Crim R 510.
In R v Edwards (1996) 90 A Crim R 510, 516-7 Gleeson CJ (James and Ireland JJ agreeing) cited with approval the following passage from Wirth (1976) 14 SASR 291 (Well J):
Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court… It seems to me that courts would often do less than their clear duty – especially where the element of retribution, deterrence, or protection of society is the predominant consideration – if they allowed themselves to be much influenced by hardships that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.?But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. …[H]ardships likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so… (emphasis added).
This common law principle has been held to apply to s 16A(2)(p): see R v Togias  NSWCCA 522; R v Nguyen  NSWCCA 369, -; Markovic v The Queen  VSCA 105, ; R v Huston; Ex parte DPP (Cth)  QCA 350, -; R v Sinclair (1990) 51 A Crim R 418; R v Matthews (1996) 130 FLR 230; R v Carmody (1998) 100 A Crim R 41.
In Markovic v The Queen  VSCA 105, a five member bench of the Victorian Court of Appeal affirmed the ‘exceptional circumstances’ test, stating at -:
The case law reveals that the “exceptional circumstances” test was developed in response to several considerations, as follows. First, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants.
Secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime. Thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less. Fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would “defeat the appearance of justice” and be “patently unjust”. Hence it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account [footnotes omitted].
However, in the ACT, courts have taken a different approach. In DPP (Cth) v Ip  ACTCA 24,  the Court 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’. This decision has been followed in federal sentencing cases in the ACT.3
In R v Weir  ACTSC 394, Robinson AJ noted the ‘considerable controversy within the intermediate Courts of Appeal in Australia’4 as to how s 16A(2)(p) ought to be applied, and concluded he was bound by the authority in DPP (Cth) v Ip  ACTCA 24. Robinson AJ noted that if he were open to choose, he would follow the decision in any event as a matter of statutory construction,5 concluding at :
I see no warrant to place the hurdle of exceptional in front of the sub section just as there is no warrant to place such a hurdle before any other sub section. As a matter of statutory construction it appears that Parliament intended to change the law by enacting the subsection.
The Court in DPP (Cth) v Ip  ACTCA 24, acknowledged at :
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 R v Zerafa  NSWCCA 222, Hoeben CJ at CL (Latham J agreeing) noted the divergence in the ACT, stating at :
In relation to s16A(2)(p) it is not appropriate for this Court to overrule or depart from cases such as Togias  NSWCCA 522 and Hinton  NSWCCA 405. As the respondent accepted, the “exceptional hardship” approach has been followed in Queensland and Victoria, and to a limited extent in South Australia and Western Australia. It is only the ACT which has refused to follow that line of authority. As Spigelman CJ acknowledged in Togias:
“If there is to be any change in this position, and that was not put in this case even on a formal basis, only the High Court can effect it.”
However, Beech-Jones J recorded a strong dissent, stating at  that the relevant Explanatory Memorandum:
[S]uggests that s 16A(2)(p) was seen as introducing a matter that had not previously been considered by the Courts. In so far as the passage from the judgment of Wells J in Wirth (1976) 14 SASR 291 suggests that a sentencing court was precluded from giving any consideration to the hardship caused to family members unless that hardship was exceptional, then s 16A(2)(p) was intended to alter that position.
After consideration of the state of authority on the issue, Beech-Jones J (dissenting) concluded at :
In my view, the words of s 16A(2)(p) are clear. The secondary materials confirm that meaning. The cases that have considered the provision have not reconciled their construction with either. I am satisfied that the construction of s 16A(2)(p) which reads the provision as though it was preceded or proceeded by the words “in an exceptional case” is plainly wrong…
In Elshani v The Queen  NSWCCA 254, Adams J (Gleeson JA agreeing) stated at – that Beech-Jones J’s dissent was a ‘persuasive (indeed convincing) dissenting judgment’ but that ‘the principle stated by the majority has now become too embedded for this Court to reconsider it’.
3.1 Meaning of ‘exceptional’
In R v Wirth, the court expressed that the situation must be so ‘exceptional’ that it would be, in effect, ‘inhuman’ to refuse to take the hardship into account.6
In R v Constant  SASCFC 87, the Court considered the meaning of the term ‘exceptional’. Nicholson, Lovell and Hinton JJ stated at :
[H]ardship to family or dependants is to be considered in the context of the purposes of punishment and, in particular, the overall purpose of the protection of the community and the promotion of the community welfare through the administration of justice and the enforcement of the criminal law … s 16A(2)(p) … invite[s] sentencing courts to consider whether the community’s interest in the imposition of the appropriate sentence, being a sentence formulated having regard to the purposes of punishment and for the promotion of the community welfare through the administration of justice and the enforcement of the criminal law, would, if imposed, pursue those purposes at a cost to the defendant’s family or dependants that is, in the community’s interests, too high such that the sentence under consideration should be adjusted. This, in our view, is what is entailed in the application of the exceptional circumstances test (emphasis added).
The Court concluded at :
Where the hardship occasioned by a defendant’s family travels beyond what is appropriate in securing the community’s welfare and protection through the enforcement of the criminal law, it becomes special or uncommon – exceptional (emphasis added).
The following commentary of Professors Fox and Freiberg on the hardship to dependants and the operation of s 16A(2)(p) of the Crimes Act 1914 (Cth) has been cited as correctly stating the law in federal sentencing cases:7
Where hardship is claimed, it must be so extreme, going so far beyond the sort of hardship that inevitably results to a family when the breadwinner is in prison, that ‘a sense of mercy or of affronted common sense imperatively demands that they [the sentencing Judges] should draw back’. To establish such exceptional hardship the defendant must produce cogent evidence… to establish that his imprisonment would impose exceptional hardship on his family, one which is considerably more severe than normal for a family where the father is imprisoned. The situation must be so highly exceptional that ‘it would be, in effect, inhuman to refuse to [take the hardship into account]’. The circumstances may be regarded as exceptional if the imprisonment of a parent leaves children without parental care, if a dependant will suffer overwhelming hardship because of the imprisonment of the offender, or where the offender provides the only means of support for a grandparent. Where all the features of the case point to a custodial sentence and there is evidence of extreme hardship, a court may take into account the extraordinary features of the case by suspending the sentence of imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased [emphasis added; footnotes omitted].8
4. Objective Seriousness of the Offence
The objective seriousness of the offence may mean that the court determines that the effect of the sentence on the person’s family or dependants carries little or no weight.
In Thomas v The Queen  NSWCCA 313, the applicant sought leave to appeal a sentence imposed for social security fraud. Barr J (Sully and Adams JJ agreeing) stated at -:
[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).
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  WASCA 267, a South African flight attendant appealed an 18 year sentence of imprisonment for heroin importation. The appellant alleged that the sentencing judge had failed to take account of the effect of the sentence upon his sick mother in South Africa who was dependent upon him. Roberts-Smith JA (Pullin and Buss JA agreeing) remarked at :
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 of the Supreme Court of Western Australia (Court of Appeal) held the sentencing judge did take the effect of the sentence upon the offender’s dependants into account noting that, ‘having regard to the seriousness of the offence as shown by its objective circumstances, she could give it virtually no weight. She was entitled to take that view. It was one plainly open to her.’10
For commentary on the relevance of hardship where an offender has come to Australia from overseas for the purpose of committing the offence, see Isolation from Family or Community.
Similarly, in Kleindyk v The Queen  WASCA 123, the Court dismissed an appeal against sentence imposed 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, but found that seriousness of offending meant it could not be reflected to any significant extent in the sentence. Mazza JA (McLure P and Mitchell J agreeing) stated at :
As to … the statement her Honour made at  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.
5. Relevance of international instruments
A number of federal sentencing cases have recognised the significance of international instruments when considering the effect of a sentence on dependants. Australia has ratified international instruments which, for example, emphasise the protection by the State of families as the fundamental group unit of society11 the preservation of the rights of children,12 and the provision of appropriate services to support breastfeeding.13 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  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 ‘exceptional’. Spigelman CJ found it unnecessary to decide whether the Convention could be invoked in the context of s 16A(2)(p), commenting at -:
Various international instruments which have been entered into by Australia emphasise the protection by the society and the State of the family as the natural and fundamental group unit of society, and preservation of the rights of children. Although such international instruments do not form part of Australian law, they serve to underscore the importance of provisions such as s 16A(2)(p) of the Crimes Act, which, where possible, should be construed and applied consistently with them. So that while we should always bear in mind the principles which find expression in relevant international instruments, particularly those which have to do with human rights, recourse to them in this case is hardly necessary, as s 16A(2)(p) of the Act is clear and unambiguous in its terms.
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  SASC 5795; (1996) 67 SASR 143 at 146; Bates v Police  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).
Difficult questions arise. (See eg Baker v Canada (1999) 174 DLR (4th) 193 at - and cf -; Rajan v Minister of Immigration  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 (footnotes omitted; emphasis added).
Grove J commented on the use of the Convention, at :
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 affect 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 –:
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.”
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…”
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.
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  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 and that 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 Childwas a ‘relevant circumstance’ which the Court was required to take into account at sentence, stating at -:
In my view, where relevant, the best interests of children who are dependant 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).
6. Breastfeeding mothers
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.
In R v Togias  NSWCCA 363, the Court dismissed a Crown appeal against a five-year wholly suspended sentence imposed on a breastfeeding mother convicted of drug importation. The Court was provided with medical evidence which indicated that the infant was breastfed 3-4 times per day. Hodgson JA (Simpson J agreeing) noted at :
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 [ NSWCCA 436] and White [ NSWCCA 60] because it was assumed that in these cases the child could remain with the mother in custody. In all the circumstances, in my opinion there was no error in the sentencing judge finding exceptional circumstances, or exceptional hardship to the child. I should add that this view is not based on the lack of availability of another carer, such as the respondent’s mother or her partner; but rather is based on the evidence about the severe effects of separation from the mother and primary carer (emphasis added).
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.14 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?’15
In R v Chong  QCA 22, involving 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 :
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  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 DPP (Cth) v Bui  VSCA 61, the Court allowed a Crown appeal against a sentence of three years with immediate release on recognizance where the offender was breastfeeding her infant twin daughters. The offender had been convicted of drug importation. The sentencing judge had accepted that immediate imprisonment would end any prospect of breastfeeding continuing and endanger the emotional development of the infants. The sentencing judge declined to impose a term of actual custody on the offender.
On appeal, Ross AJA (Nettle and Hansen JJA agreeing) held that family hardship was not a relevant sentencing consideration,16 and imposed a custodial sentence of four years with a non-parole period of two years. The Court considered that the sentencing Judge had erred in mitigating the sentence on the basis that there was a ‘risk’ of hardship amounting to exceptional circumstances, rather than assessing the existence of such hardship on the balance of probabilities.17 The Court instead held at :
I accept that sentencing the respondent to a term of imprisonment will have a detrimental effect on her infant children but I am not persuaded that the evidence is sufficiently cogent to support a conclusion that the circumstances of this case can be regarded as exceptional [See generally R v Togias  NSWCCA 522; (2001) 127 A Crim R 23  (Spigelman CJ),  (Grove J)].
In R v Constant  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 month old infant and 6 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 :
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 (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 -:
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 rehabilitation 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 psyhocologist’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.
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).
7. Hardship to offender
A court may take into account the effect on the offender of the hardship caused to others by their imprisonment.18 The ‘exceptional circumstances’ test has no application to a consideration of such hardship.19 For further commentary see Hardship to the Offender
8. Hardship to dependants as a result of co-operation
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. The hardship does not need to be ‘exceptional’ for it to be taken into account.
In R v El Hani  NSWCCA 162, the Court held that the sentencing judge erred in finding that it was only possible to mitigate the sentence for hardship caused to the applicant’s wife and children by reason of the applicant’s co-operation with authorities if the circumstances were exceptional. Howie J (Simpson and Bell JJ agreeing) stated at :
It should be noted that s 16A(2)(p) is only concerned with the impact of the sentence upon the offender’s family; that is, the impact of the offender being imprisoned for a specific term, or at all. The provision, and the limit placed upon it, is not concerned with some other relevant consideration arising in the course of sentencing the offender that has some bearing upon his or her family and may impact upon the sentence to be imposed. In particular, there is no principle that limits the court’s consideration of the effect upon the offender’s family of the fact that the offender has co-operated with the investigating or prosecuting authorities.
In C v The Queen  NSWCCA 81, Hoeben JA (Adams and Beech-Jones JJ agreeing) upheld an appeal against sentence where the offender argued that the discount given failed to recognise that his co-operation had put him and his family at risk of reprisals. Hoeben JA stated at , :
Not only was the assistance useful but as the applicant explained in his evidence, he was afraid both for himself and for his family that the fact of his assistance was known to the Mexican suppliers of the drug and that retribution would be sought against him and them. These fears were justified. They did not depend only upon the applicant’s evidence, but were supported by police evidence to similar effect. In that regard, the activities of the Mexican drug cartels in relation to such matters are notorious. I am satisfied that the assistance provided by the applicant has placed him and his family at real risk of harm from the suppliers of the drug.
Taking those matters into account, and in particular the significance of the applicant’s assistance and the resulting danger to which he and his family are exposed, I have concluded that the discount for assistance allowed by her Honour was inadequate and that the applicant will need to be re-sentenced (emphasis added).
For further commentary see Co-operation.
Where a Court concludes the family hardship is not exceptional, it cannot take this hardship into account in the exercise of its ‘residual discretion of mercy’. In Markovic v The Queen  VSCA 105, the Court considered the circumstances in which an offender can seek an exercise of mercy on the ground that the imprisonment is likely to cause family hardship. The Court stated at -:
There 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’. This is a proposition of long standing and high authority, repeatedly affirmed in this Court.
It has long been the position at common law that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration. The contention advanced by each of the present applicants, however, was that even if the circumstances of family hardship were not adjudged exceptional, a sentencing court could nevertheless be called on to exercise – on that ground – what is sought to be characterised as a ‘residual discretion of mercy’. Indeed, Mr Markovic argued that failure to extend sufficient ‘residual’ mercy on the ground of family hardship was an appealable error.
We have concluded that the established common law position should be reaffirmed. Our reasons may be summarised as follows:
- Reliance on family hardship – that is, hardship which imprisonment creates for persons other than the offender – is itself an appeal for mercy.
- Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
- Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
- The effect on the offenderof hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application(footnotes omitted).
For further commentary on the exercise of mercy by a court see Mercy.
- A High Court appeal against sentence was dismissed in Bui v DPP (Cth)  HCA 1.
- For example, in R v Togias  NSWCCA 522,  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.
- See R v Weir  ACTSC 394, - (Robinson AJ); R v Ashman  ACTSC 45,  (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 .
- R v Weir  ACTSC 394, .
- R v Weir  ACTSC 394, .
- R v Wirth (1976) 14 SASR 291, 296.
- Nguyen v The Queen  WASCA 72, , ; Nguyen v The Queen  WASCA 119, ; Markovic v The Queen  VSCA 105, ; Elmir v The Queen  NSWCCA 22, ; R v Togias  NSWCCA 522, -.
- R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (Thomson Reuters, 2nd ed, 1999) 343-4. See also the updated commentary in Arie Freiberg, Fox & Freibeg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 421-2.
- Mohlasedi v The Queen  WASCA 267, .
- Mohlasedi v The Queen  WASCA 267, .
- International Covenant on Civil and Political Rights, opened for signature 16 December 1966,  ATS 23 (entered into force 23 March 1976) art 23. See Human Rights and Equal Opportunity Commission Act 1986 (Cth) sch 2.
- Convention on the Rights of the Child, opened for signature 20 November 1989,  ATS 4 (entered into force 9 February 1990).
- Convention on the Elimination of all Forms of Discrimination Against Women, opened for signature 18 December 1979,  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).
- R v Togias  NSWCCA 363, .
- R v Togias  NSWCCA 363, .
- DPP (Cth) v Bui  VSCA 61,  (Ross AJA, Nettle and Hansen JJA agreeing).
- DPP (Cth) v Bui  VSCA 61,  (Ross AJA, Nettle and Hansen JJA agreeing).
- Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 423.
- Markovic v The Queen  VSCA 105,  (Maxwell P, Nettle, Neave, Redlich, and Weinberg JJA).