Criminal law: May 2022

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.