Background
The applicant pleaded guilty to two counts of obtaining a financial advantage by deception from the Commonwealth (s 134.2(1), Criminal Code (Cth)), arising from underreporting income to obtain Parenting Payment Single benefits to which she was not entitled. A third offence of dishonestly causing a loss to the Commonwealth was taken into account on a Form 1. The total over approximately six years was $112,999.96.
Importantly, during the entire period of offending the applicant was a victim of sustained emotional, financial and physical domestic abuse by her former partner, the father of her two children.
In the District Court, she was sentenced to 4 years' imprisonment with a 2-year non-parole period and a reparation order of $112,999.96. Evidence was led about the effect of imprisonment on her children and mother. The sentencing judge acknowledged that material but applied an "exceptional hardship" threshold — drawn from prior intermediate appellate decisions — before s 16A(2)(p) of the Crimes Act 1914 (Cth) could carry weight. Finding no exceptional hardship, his Honour imposed full-time custody. The matter was heard by a five-judge bench.
Legal Issues
- Does s 16A(2)(p) of the Crimes Act 1914 (Cth) require "exceptional hardship" to be established before a court may take into account — or attach weight to — the probable effect of a sentence on an offender's family or dependants?
- Are the prior intermediate appellate authorities imposing that threshold plainly wrong?
- On re-exercise of sentencing discretion, what sentence is appropriate?
Decision
The full bench (Bell CJ, Gleeson JA, Harrison J, Adamson J and Dhanji J) allowed the appeal and re-sentenced the applicant to a reduced term.
On the exceptional hardship threshold, the Court held unanimously that it has no foundation in the text of s 16A(2)(p). The section plainly requires a court to take into account the probable effect of any sentence on the offender's family or dependants, where that is relevant and known. There is no threshold. Earlier decisions imposing one were plainly wrong and are overruled.
The Court reasoned that importing a gatekeeping threshold writes words into a statute that Parliament deliberately omitted. Section 16A(2) lists a range of matters a court must consider — none of them carry an explicit threshold — and treating hardship to family differently by requiring "exceptionality" is inconsistent with the structure of the provision and its evident purpose.
On the re-exercise of discretion, the Court gave substantive weight to the effect of imprisonment on the applicant's young children and her mother, as well as to the domestic violence context of her offending. The aggregate sentence and non-parole period were reduced.
Orders Made
- Leave to appeal: granted
- Appeal: allowed
- Sentence varied: reduced aggregate term and non-parole period
Key Takeaways
- The Court of Criminal Appeal held that there is no "exceptional hardship" threshold under s 16A(2)(p) of the Crimes Act 1914 (Cth), overruling a line of intermediate appellate authority that had imposed such a requirement.
- Under s 16A(2)(p), sentencing courts dealing with federal offenders must take into account the probable effect of a sentence on the offender's family and dependants where relevant, treating this as a substantive sentencing obligation rather than a mere tie-breaker.
- A five-judge bench found that prior authorities imposing the exceptional hardship requirement were plainly wrong and should not be followed, reasoning that importing a gatekeeping threshold writes words into the statute that Parliament deliberately omitted.
- Domestic violence suffered during the period of offending was recognised as a relevant mitigating factor, even where it does not directly cause the offending conduct.
- In allowing the appeal and re-sentencing the applicant to a reduced term, the Court confirmed that evidence about the effect of imprisonment on an offender's family and dependants is relevant to sentencing federal offenders without any threshold needing to be cleared before such evidence can be considered.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 16A, 16A(2)(p), 19AB, 20
- Criminal Code Act 1995 (Cth), ss 134.2(1), 135.1(5)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Key cases
- Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 — sentencing federal offenders
- Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41 — sentencing discretion
- Bae v R [2020] NSWCCA 35 — exceptional hardship threshold (now overruled)