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Key decisions

  • Totaan v R [2022] NSWCCA 75
  • GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65

Totaan v R [2022] NSWCCA 5

Hardship to third parties – sentencing – Federal offenders

In this decision a five-judge bench of the Court of Criminal Appeal (‘CCA’) has overturned NSW and interstate authority on the question of hardship to third parties when sentencing federal offenders. The Court held there is no requirement that such hardship meet the description of being ‘exceptional’ before it is taken into account when sentencing under the Crimes Act 1914 (Cth).

The applicant pleaded guilty to offences involving underreporting or failing to report her income to the Department of Human Services, resulting in her illegitimately receiving about $113,000 of benefits over six years. During the period of offending, she was the subject of emotional, financial, and physical abuse, inflicted by her former partner (a significant proportion of the money was said to have gone to him). She was sentenced to imprisonment for 4 years, with a non-parole period of 2 years.

One issue at the sentence proceedings had been the hardship which would be occasioned to the applicant’s two children (and her ill mother, who was caring for the children) if she were imprisoned. Section 16A(2)(p) of the Crimes Act 1914 (Cth) provides that when sentencing a federal offender, a court must take into account the probable effect any sentence would have on the offender’s family or dependants (if relevant and known to the court). There are various NSW and interstate authorities that have held the section requires ‘exceptional hardship’ to the third party before it can be considered.  However, there have been some powerfully argued judgments to the effect that those decisions, whilst binding, were wrong.

A five judge bench of the CCA (Bell CJ; Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing) was required to consider whether the NSW and interstate authorities ought not be followed.

After reviewing previous decisions, the Court concluded that the NSW and interstate authorities holding that a court imposing a sentence for a federal offence may only have regard to hardship to third parties if the circumstances are ‘exceptional’ are plainly wrong and should not be followed (at [77]). The error in the common law was traced back to a very early decision and the case law took an immediate wrong turn in holding that s 16A of the Crimes Act did not intend to alter the common law (at [84]).  There is no textual support for the requirement that circumstances must be ‘exceptional’, and ‘unwarranted judicial glosses should not be placed on the simple language of s 16A(2)(p)’ (at [78]). Not only is there no textual support for the gloss of a ‘requirement’ of ‘exceptional hardship’, but ‘such a test also actually runs contrary to the language of the subsection, which provides that the probable effect of the sentence on family members and dependants “must” be taken into account’ (at [82]). The gloss defeats the clear statutory intention, other than in those cases which satisfy the epithet of being ‘exceptional’ (at [82]).

The applicant was duly resentenced to imprisonment for 2 years, 6 months, with a recognizance release order made after 1 year and 1 month (coincidentally resulting in her immediate release).

Practitioners will note that, at least in the short term, this decision results in a clear divergence between sentencing for NSW state-based offences versus sentencing for federal offenders. This decision was based explicitly on legislative language, whereas for state-based offences the common law (requiring proof of exceptional circumstances) continues to apply.

Not only is there no textual support for the gloss of a ‘requirement’ of ‘exceptional hardship’, but ‘such a test also actually runs contrary to the language of the subsection, which provides that the probable effect of the sentence on family members and dependants “must” be taken into account’…

GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65

Intentional choking – elements of the offence

In this decision, the Court of Criminal Appeal (‘CCA’) (Payne JA; Rothman and Harrison JJ agreeing) declared that ‘intentionally chokes’, within the meaning of s 37 (1A) of the Crimes Act 1900 (NSW), means ‘intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head’. The Court considered that it may be prudent for the Crown to adduce expert evidence as proof of that issue.

GS was on trial for offences relating to domestic violence. The jury acquitted him of count 1, and the trial judge directed the jury to enter a verdict of not guilty on count 2. Count 2 was for the offence of intentionally choking the victim without her consent, being an offence under s 37(1A) of the Crimes Act 1900. The Crown pursued an appeal against that directed acquittal and this summary only deals with that aspect of the matter (GS was also convicted of related summary offences, and he appealed – unsuccessfully – against both the convictions and the sentence for those).

The intentional choking offence in s 37(1A) was introduced in 2018, and since then has typically been dealt with summarily (despite being an indictable offence). At issue is the meaning of the word ‘chokes’ in the phrase ‘intentionally chokes, suffocates or strangles another person without the other person’s consent’.

In relation to this appeal ground, the evidence from the complainant was that GS had jumped on top of her, grabbed her by the throat with two hands, and pushed her down into a lying position while saying ‘you’re gonna die’. His hands remained there for about a minute. She received bruising to her neck, which was sore for a couple of days, but she did not in evidence specifically say that her breathing was impeded by the assault, or that blood flow to her brain had been constricted. The key issue was: is proof of an impediment to breathing or blood flow a necessary element of the offence in s 37(1A)?

The trial judge, heavily influenced by interstate authority, determined that there was a requirement that there be pressure that, at least, results in a restriction of the victim’s breathing. However, both parties on the appeal agreed that this was incorrect, and the parties were held to have been correct in that view (see [60]). The term ‘intentionally chokes’ should not be ascribed a narrow meaning. The relevant context strongly suggests that s 37(1A) is a broad offence intended to protect victims of domestic violence from controlling behaviours. The section was introduced to fill a gap in the legislation where, as a result of ‘intentional choking’, the victim was rendered unconscious, insensible, or incapable of resistance (at [61]).

However, it is not correct to say that any manual pressure, no matter how slight, and no matter where on the neck it is applied may amount to ‘intentional choking’ (at [62]). For example, the text, context, and purpose of the provision do not permit a conclusion that placing a hand, for example, on the back of the neck of another person, in a way that does not in any away affect breathing or blood flow, amounts to intentional choking (at [61]). It is consistent with the language used in its statutory context to require proof of conduct capable of affecting the breath or blood flow to or from the head whilst ‘choking’ (at [64]).

According to the Court, a practical consequence of this construction is that it would be prudent for the Crown to call medical evidence, in a case involving s 37(1A), to address the question of whether pressure applied to a victim’s neck could affect the breath of the person or the flow of blood to or from the head. It may be that only very slight pressure being applied to some areas of the neck of a victim may be capable of having that effect. However, simply placing any slight pressure on the neck, in a way not capable of affecting the breath or the flow of blood to or from the head, even if accompanied by a threat to apply further pressure in the event of non-compliance, does not amount to intentional choking with the meaning of s 37(1A) (at [65]). On the other hand, it may be that in the present case, even without medical evidence, if the jury accepted the bruising on the complainant’s neck was the result of pressure applied by GS and that the bruising was the result of a restriction of blood flow to or from her head, that may have been sufficient – but it is ‘unnecessary to determine that issue’ here (at [66]).

In the circumstances, error having been established, the CCA set aside the acquittal on the charge of intentionally choking and declared that ‘intentionally chokes’ within the meaning of s 37(1A) means ‘intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head’. However, in the exercise of the residual discretion, for reasons not presently important, the Court declined to remit the matter for retrial (at [107]).