Adams (a pseudonym) v The Queen

[2022] SASCA 47

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ADAMS (A PSEUDONYM) v THE QUEEN

[2022] SASCA 47

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

9 June 2022

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS

The appellant was found guilty following a trial by jury of four offences arising out of a home invasion in company: one count of aggravated serious criminal trespass, contrary to s 170(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), one count of aggravated assault causing harm, contrary to s 20(4)(c) of the CLCA, one count of aggravated robbery, contrary to s 137 of the CLCA and one count of false imprisonment at common law.  The offending involved two victims.

On 1 November 2021, the appellant was sentenced by a judge of the District Court to a single sentence of 10 years’ imprisonment.  After allowance for time spent in custody and on home detention bail, the sentence was reduced to nine years and nine months, with a non-parole period of four years fixed.

The appellant sought permission to appeal on the sole ground that the head sentence was manifestly excessive.  The appellant contended that head sentence of 10 years’ imprisonment fell outside of the range available to the sentencing judge, emphasising the appellant’s lack of material criminal history and the hardship associated with imprisonment given the appellant’s role as a mother to five children, three of whom are very young.

Held (the Court) granting permission to appeal but dismissing the appeal:

1.Hardship to dependents of a defendant is relevant to the exercise of the sentencing discretion but unlikely to significantly affect the sentence which is imposed unless it is shown to be out of the ordinary or extreme.

2.When the head sentence and non-parole period are considered as part of the sentence as a whole, it cannot be said that the head sentence is unjust or that the exercise of sentencing discretion miscarried. 

Criminal Law Consolidation Act 1935 (SA) ss 20, 137, 170; Sentencing Act 2017 (SA) ss 3, 9, 10, 11, 26, 54, 96; Criminal Law (Sentencing) Act 1988 (SA) ss 10, 38; Family Law Act 1975 (Cth) s 60CA; Crimes Act 1914 (Cth) ss 16A, 16BA, 19AB, 19AC, 20; Criminal Code Act 1995 (Cth) s 134.2, referred to.

Totaan v The Queen [2022] NSWCCA 75, distinguished.

Adams v The Queen [2021] SASCA 147; Bates v Police (1997) 70 SASR 66; Boyle v The Queen (1987) 34 A Crim R 202; Bubner v The Queen [2022] SASCA 27; Da Silva v The Queen [2020] SASCFC 66; Dinsdale v The Queen (2000) 202 CLR 321; Elias v The Queen (2013) 248 CLR 483; Giordimania v The Queen [2020] SASCFC 28; Hillman v Black (1996) 67 SASR 490; Hoare v The Queen (1989) 167 CLR 348; Hutchins v The Queen [2021] SASCA 31; Jallett v Samuels (1970) 4 SASR 78; Jones v Dodd (1999) 73 SASR 328; Kentwell v The Queen (2014) 252 CLR 601; Markarian v The Queen (2005) 228 CLR 357; Markovic v The Queen (2010) 30 VR 589; Moore v Fingleton (1972) 3 SASR 164; Neill v Police [1999] SASC 270; Nguyen v The Queen (2001) 118 A Crim R 519; O’Neill v The Queen (2020) 137 SASR 1; Phillipou v The Queen [2020] SASCFC 21; R v Adami (1989) 51 SASR 229; R v Amuso (1987) 32 A Crim R 308; R v Bagnato (2011) 112 SASR 39; R v Bergman [2007] SASC 31; R v Bondarenko [2015] SASCFC 42; R v Buckskin [2010] SASC 138; R v Carpentieri (2001) 81 SASR 164; R v Clarke [1996] 2 VR 520; R v Constant (2016) 126 SASR 1; R v Copeland (No 2) (2010) 108 SASR 398; R v Delphin (2001) 79 SASR 429; R v Eckardt (1971) 1 SASR 347; R v Edwards (1996) 90 A Crim R 510; R v Farrer (2017) 80 MVR 9; R v Girard [2004] NSWCCA 170; R v Hinton (2002) 134 A Crim R 286; R v Humby [2004] SASC 358; R v Hunter [2015] SASCFC 84; R v Huston; Ex parte Director of Public Prosecutions (Cth) (2011) 219 A Crim R 209; R v Jany [1966] Qd R 328; R v Knight (2021) 138 SASR 156; R v Lean (2017) 128 SASR 451; R v Lindsay [2015] SASCFC 62; R v M, G (2016) 262 A Crim R 152; R v Major (1998) 70 SASR 488; R v Mangelsdorf (1995) 66 SASR 60; R v Maslen (1995) 79 A Crim R 199; R v Matthews (1996) 130 FLR 230; R v Moffa (No 2) (1977) 16 SASR 155; R v Palmer [2016] SASCFC 34; R v Peterson [1984] WAR 329; R v Power (2001) 214 LSJS 58; R v Robinson (1979) 22 SASR 367; R v Sinclair (1990) 51 A Crim R 418; R v Siviour [2016] SASCFC 51; R v Skinner (2016) 126 SASR 120; R v Spiers (1983) 34 SASR 546; R v Symonds [1999] SASC 217; R v Togias (2001) 127 A Crim R 23; R v Wayne (1982) 62 A Crim R 1; R v Wilson [2015] SASCFC 54; R v Wirth (1976) 14 SASR 291; R v Zerafa (2013) 235 A Crim R 265; Reg v Ramsay [1972] Crim LR 790; Reg v Saunders [1972] Crim LR 194; Reg v Tullett [1971] Crim LR 719; Reg v Wring [1972] Crim LR 387; Rodgerson v The Queen [2022] VSCA 82; Stewart v The Queen (1994) 72 A Crim R 17; Tame v Fingleton (1974) 8 SASR 507; Veen v The Queen (No 2) (1988) 164 CLR 465; Walsh v Department of Social Security (1996) 67 SASR 143; Zefi v The Queen [2021] SASCA 15, considered.

ADAMS (A PSEUDONYM) v THE QUEEN
[2022] SASCA 47

Court of Appeal - Criminal: Livesey P, Doyle and Bleby JJA

LIVESEY P:

Introduction

1. The appellant appeals against sentence on the sole ground that the head sentence is manifestly excessive.[1]

   [1]     Permission was granted by Livesey P at the callover on 28 February 2022.  The appeal against conviction was dismissed late last year, Adams v The Queen [2021] SASCA 147 (Livesey P, Doyle, and Bleby JJA). Other matters arising out of this home invasion in company have been addressed by the Court of Criminal Appeal in Giordimania v The Queen [2020] SASCFC 28 and O’Neill v The Queen (2020) 137 SASR 1.

2. Following a trial before a jury, the appellant was convicted of four offences arising out of a home invasion in company committed at around 2.30 am on 8 September 2017 at Two Wells:

   1.One count of aggravated serous criminal trespass in a place of residence, contrary to s 170(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), for which the maximum penalty is life imprisonment;

   2.One count of aggravated assault causing harm, contrary to s 20(4)(c) of the CLCA, for which the maximum penalty is five years’ imprisonment;

   3.One count of aggravated robbery, contrary to s 137 of the CLCA, for which the maximum penalty is life imprisonment; and

   4.One count of false imprisonment at common law, for which the maximum penalty is at large.

   The sentence imposed

3. The appellant was sentenced to a single sentence of 10 years’ imprisonment, together with what has been described as a “merciful” non-parole period of four years and three months.  These were reduced to nine years and nine months’ imprisonment, together with a non-parole period of four years, on account of time spent in custody and on home detention bail.

4. The sentencing judge declined to suspend the sentence.  She also declined to order that it be served on home detention and that is not now challenged.

   The circumstances of the offending

5. The sentencing judge found that the appellant played a “leading and integral role” in organising the offending.  She recruited other offenders who had the physical strength to undertake the offending which involved assaulting the male victim whilst three cars, three motorbikes, a trailer, money, a mobile phone, an iPad, tools and computers were stolen.

6. The home invasion involved a group of armed offenders forcing their entry into the home of the victims and using, or threatening to use, a taser against the male victim, binding his hands behind his back and preventing him moving for around 45 minutes.  Whilst he was bound and detained, he was jabbed with a baseball bat and a knife was held against the back of his neck, with one offender threatening to kill him if he moved.  The female victim was forced to lie on the floor.  The victims were left with very serious psychological trauma.  The male victim sustained a range of physical injuries including concussion, a fractured nose, damage to an eye socket and many bruises and lacerations.

7. The circumstantial evidence against the appellant included material found on her phone which included images of the male victim and an aerial photograph of the victims’ property.  These were downloaded shortly before the home invasion. Forensic evidence linked the appellant’s DNA to a knife found by the victim.

8. The appellant was sentenced on the basis that she was the female offender inside the home during the offending and she drove one of the stolen vehicles, together with a stolen trailer, from the home.

   The circumstances of the offender

9. The appellant is and was at the time of sentence a woman in her mid-thirties.  At the time of offending, she had four children.  By the time of sentence, she was pregnant with her fifth child, likely conceived following conviction in early May 2021.  The sentencing judge paid particular attention to the likely effect of imprisonment on the appellant and her five children.

10. The appellant had no material criminal history.  The sentencing judge was given references from the appellant’s netball club and from her mother.  The appellant’s mother will bear the brunt of raising the appellant’s five children.

11. The appellant had been the victim of domestic violence.  There was a history of anxiety and depression, including postnatal depression, which included a suicide attempt in 2017, a few months after the subject offending.

    The approach to sentencing for a home invasion in company

12. Whilst it is often helpful when utilising s 26 of the Sentencing Act 2017 (SA) (Sentencing Act) to identify notional sentences for individual offences, [2] a different approach has sometimes been taken to cases of serious criminal trespass and the separate offences committed during that trespass.  For example, in R v Power it was explained:[3]

    When sentence is being imposed in respect of aggravated serious criminal trespass and a separate offence committed after entry into the place of residence that is the subject of the trespass, it is important to ensure that there is no doubling-up of the factors to be taken into account in determining what would be both the appropriate individual sentences and the total period that properly reflects the gravity of the criminal conduct. As the offences are closely linked in time and fact, it can be difficult to isolate the factors in each offence that determine the gravity of each offence… In my view, therefore, in these particular circumstances, while regards should be had to the range of appropriate individual sentences for crimes of the type under consideration, it is preferable for the sentencing court to impose a single sentence of imprisonment which adequately reflects the total criminal conduct of the offender.

    [2]     R vMajor (1998) 70 SASR 488, 490 (Doyle CJ); R v Symonds [1999] SASC 217, [21]-[22] (Doyle CJ, with whom Prior and Mullighan JJ agreed); R v Bagnato (2011) 112 SASR 39, [32]-[42] (Gray and Sulan JJ); R v Copeland (No 2) (2010) 108 SASR 398, [29] (Gray J).

    [3]     R v Power [2001] SASC 157; (2001) 214 LSJS 58, [16] (Martin J, with whom Doyle CJ and Williams J agreed). See also R v Humby [2004] SASC 358, [120] (Gray J, with whom Nyland J agreed).

13. This appears to reflect the approach taken by the sentencing judge in this case.  That approach was not criticised on appeal.  As for the factors relevant to determining the seriousness of this type of offending, in R v Delphin the Court of Criminal Appeal explained:[4]

    Leaving aside factors personal to the offender, three factors would appear to be relevant.  One is the nature of the entry and whether gained by force, threat or deception, the amount of damage caused to the premises, the extent of necessary planning and other like factors relating to the nature of the trespass.  Another factor would appear to relate to the intention upon entry, and that opens up a range of possibilities from simple assault to homicide, a range of possible sexual offences as well as larceny and damage to property.  However, where the serious criminal trespass offence is constituted by entry, it is the intention at that time that is relevant, and not some change of intention which occurs later while the defendant is on the premises.

    [4]     R v Delphin (2001) 79 SASR 429, [42] (Debelle, Bleby and Wicks JJ).

14. This offending represented a very serious example of its kind.  The offending was premeditated and well planned.  A number of offenders were recruited and involved.  Entry was gained by force and weapons were used, being a taser, baseball bat and knife.  The offending was therefore planned to involve both threats and the use of force so as to subdue the victims, particularly the male victim.  The object of the offending was the robbery of valuable personal property and significant property damage was caused.  The victims were terrified and traumatised by their ordeal.

    The sentences imposed on the co-offenders

15. It was contended that the sentences imposed on the appellant’s co-offenders were relevant to the assessment of this sentence.  Whilst that contention is correct, some variation may be expected where there are differences in the roles performed in the offending and where personal circumstances must play a role in determining the appropriate sentence.

16. In Giordimania v The Queen a co-offender who was actively involved in the violence inside the home, was given a total effective starting point of eight years’ imprisonment.  This was held to be “comfortably within the appropriate range” of sentences that might be imposed.[5]  In that case, the sentencing judge selected a starting point of seven years on counts 1, 3 and 4, and 12 months on count 2, to be served cumulatively after reductions were made on account of the guilty pleas.  Mr Giordimania’s intellectual impairment was regarded as mitigatory.

    [5]     Giordimania v The Queen [2020] SASCFC 28, [59]-[66] (Doyle J, with whom Nicholson and Hughes JJ agreed).

17. In O’Neill v The Queen another co-offender was sentenced on the basis of a starting point of 10 years.[6]  That co-offender had a significant history of prior offending, and he was subject to both a bail agreement and a good behaviour bond at the time of the offending.  Nonetheless, the starting point was reduced for various factors including the assistance given by way of evidence at the appellant’s trial.

    [6]     O’Neill v The Queen (2020) 137 SASR 1, [7] (Nicholson J, with whom Stanley and Hughes JJ agreed).

18. The ultimate sentence was just under five years’ imprisonment.

    Other sentences for home invasion involving robbery

19. The parties accepted that there were obvious limitations associated with comparing cases, but nonetheless reviewed various decisions for the purposes of obtaining some guidance when assessing the complaint of manifest excess in this case.[7]

    [7]     See, by way of example, Bubner v The Queen [2022] SASCA 27, [36] (Livesey P, Doyle and David JJA).

20. In R v Power Martin J held that the appropriate sentence for an aggravated criminal trespass and assault with intent to rob was “at least nine years”.[8]  In that case, the assault on a 19-year-old woman involved the appellant waking her by straddling her in her bed at 4.20 am, before putting his fingers in her mouth to gag her and then threatening her with a knife.

    [8]     R v Power [2001] SASC 157; (2001) 214 LSJS 58, [6] and [17] (Martin J, with whom Doyle CJ and Williams J agreed).

21. In R v Humby the respondent and another man smashed a glass panel in the rear door of a house before waking two elderly men and threatening them with wrenches.[9]  The offenders wore masks and made the elderly victims sit before demanding to know the location of their money.  The house was ransacked during an ordeal that lasted two and a half hours.  Before leaving, the victims were tied to their chairs with duct tape, and they were threatened with shooting and the running of a car through their house if they contacted police.  One of the victims suffered a heart attack.  The respondent had a long history of similar offending, and the subject offending was committed only four months after release from custody on a partially suspended sentence.  The majority suggested a starting point of nine years’ imprisonment for the totality of the offending.  In separate reasons, Perry J generally agreed.[10]

    [9]     R v Humby [2004] SASC 358.

    [10]   R v Humby [2004] SASC 358, [96]-[101] (Perry J).

22. In R v Bergman the appellant committed an aggravated serious criminal trespass in a place of residence and cause grievous bodily harm with intent to cause grievous bodily harm.[11]  He was one of a group of five who broke open the front door of the home, chased the occupant to the laundry and set upon him with an aluminium baseball bat.  The victim suffered, amongst other injuries, a broken arm.  A sentence of eight years after a plea of guilty on the morning of trial was held not to be manifestly excessive.

    [11]   R v Bergman [2007] SASC 31.

23. In R v Wilson the appellant committed two separate aggravated serious criminal trespass offences, including threats with a gun and, in one case, an assault that rendered the occupant unconscious.[12]  The offending was committed four weeks after the appellant was released on parole.  The separate offences were separated by one week.  The appellant had a long criminal history over a sixteen-year period and had spent more than a decade in custody.  There were previous violent robberies.  The appellant lacked insight and had lied to a psychologist and psychiatrist.  Indeed, he told police that “next time I’ll kill someone instead of being locked up for robbery”.  The sentencing judge started with 15 years for each of the offences, reduced to 12 years for the pleas of guilty.  After unexpired parole was added, the total sentence became 24 years, eight months and 13 days, reduced to 18 years on the application of the totality principle.

    [12]   R v Wilson [2015] SASCFC 54.

24. In R v Siviour a home invasion related to a drug debt involved assaults with a taser, false imprisonment and kidnapping.[13]  The sentence, after reductions were made for guilty pleas and some allowance for concurrency, was 11 years and three months.

    [13]   R v Siviour [2016] SASCFC 51, [37]-[49] (Doyle J, with whom Vanstone and Kelly JJ agreed).

25. In Hutchins v The Queen this Court was required to re-sentence following an error made in the application of the serious repeat offender provisions.[14]  Part of the offending comprised an aggravated serious criminal trespass and theft which comprised a break-in at 4.00 am, waving a tyre iron, swearing and demanding keys to a motor vehicle which was then stolen. The appellant had a very significant history of violent and dishonest offending.  He was on parole for aggravated robbery at the time of the criminal trespass.  For that offending the court adopted a starting point which corresponded with the starting point adopted by the sentencing judge, being five years’ imprisonment.

    [14]   Hutchins v The Queen [2021] SASCA 31 (Kelly P, Lovell and Livesey JJA).

26. The parties to this appeal accepted that the process of instinctive synthesis necessitates individualised justice, together with the exercise of a wide sentencing discretion.[15] It was accepted that none of the cases provided as examples could govern the approach taken to this case.

    [15]   Elias v The Queen (2013) 248 CLR 483, [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); Markarian v The Queen (2005) 228 CLR 357.

    Hardship to or by reason of dependants

1. The sentencing judge paid careful regard to the effect of imprisonment on the appellant and her dependent children, as well as her mother, who will be their primary caregiver.  She considered a number of decisions of the Court of Criminal Appeal in which the relevant principles were addressed.  Given the attention paid to this issue on appeal it is helpful to review these principles.  It is convenient to commence with R v Wirth, where Wells J outlined the common law approach:[16]

   … Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court.  Again and again, sentencing judges point out that convicted persons should have though about the likely consequences of what they were doing before they did it…

   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.  So it is proper that I should here add that, in my opinion, hardship 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… For example, if it were demonstrated to the satisfaction of the Court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty.  But further than that, in my judgement, courts should not go.

   [16]   R v Wirth (1976) 14 SASR 291, 295-296 (Wells J); subsequently considered, for example, in R v Edwards (1996) 90 A Crim R 510; R v Carpentieri (2001) 81 SASR 164; R v Buckskin [2010] SASC 138; R v Constant (2016) 126 SASR 1, [68]-[69] (Nicholson, Lovell and Hinton JJ); R v Farrer (2017) 80 MVR 9; [2017] SASCFC 27 (Kelly J, with whom Vanstone and Nicholson JJ agreed); Phillipou v The Queen [2020] SASCFC 21; and Zefi v The Queen [2021] SASCA 15, [21] (Doyle JA, with whom Kelly P and Bleby JA agreed).

2. Bray CJ expressed strong reservations:[17]

   I turn first to the question of the hardship on the appellant’s family.  It seems to me that this is not, in normal circumstances at least, a matter which can be taken into account in the offender’s favour.  He cannot, as I see it, compound for his own demerits by another’s merits.  I dealt with this question at length in Moore v. Fingleton:[18] see at pp. 168-170.  I there cited Gramadopoulos v. Sullivan[19] and Reg. v. Jany.[20] Similar views have been expressed by other Judges of this Court: Jarrett v. Samuels[21] per Mitchell J. at p. 80; Tame v. Fingleton,[22] per Walters J. at p. 511.

   Nevertheless there have been cases in England where the Court of Appeal has mitigated sentences because of the effect of imprisonment on the offender’s family: Reg. v. Tullett[23]; Reg. v. Saunders[24]; Reg. v. Wring[25]; to the contrary see Reg. v. Ramsay[26]. In Saunders’ case[27] and in Wring’s case[28] the Court said that it was taking the course it took as an act of mercy. The present criminal appeal legislation in England arms the appellate court with a wider power of interference with sentences than this court possesses, but it may be that these decisions reflect a general change of policy.  In Thomas’ Principles of Sentencing, which was published in 1970 and reprinted in 1973, it is said in effect at pp. 190-191 that normally the effect of the sentence on the offender’s family will not be taken into account, but that this is subject to exceptions in extreme cases.

   [17]   R v Wirth (1976) 14 SASR 291, 293 (Bray CJ).

   [18]   Moore v Fingleton (1972) 3 SASR 164, 168-170 (Bray CJ).

   [19]   Unreported. Supreme Court Mayor 1. 8th September, 1955.

   [20]   R v Jany [1966] Qd R 328.

   [21]   Jallett v Samuels (1970) 4 SASR 78.

   [22]   Tame v Fingleton (1974) 8 SASR 507.

   [23]   Reg v Tullett [1971] Crim LR 719.

   [24]   Reg v Saunders [1972] Crim LR 194.

   [25]   Reg v Wring [1972] Crim LR 387.

   [26]   Reg v Ramsay [1972] Crim LR 790.

   [27]   Reg v Saunders [1972] Crim LR 194.

   [28]   Reg v Wring [1972) Crim LR 387.

3. Bray CJ explained why he regarded it as “wrong in principle” to take into account the effect of sentence on the defendant’s family, as distinct from the effect that this may have by way of “special hardship” on the offender, which could be taken into account:[29]

   It seems to me, as I said in Moore v. Fingleton[30], that it would be patently unjust if of two people accused of the same crime in the same circumstances with no other differentiating factor one were to receive more lenient treatment than the other simply because of the effect of the sentence on his family.  It also seems to me that it would be wrong in principle if the generosity of a stranger to the proceedings were permitted in effect to purchase leniency for the offender.  The law does not recognise vicarious atonement for crime.  In saying this I in no way disparage the magnitude of the sacrifices made on the appellant’s behalf or the magnitude of the peril in which his relations stand, but it seems to me that these are matters which ought not to be allowed to deflect the course of justice.

   It may still be, however, that the learned author quoted above is right in saying that in extreme cases the court can take into account the effect of the sentence on the offender’s family, but at the moment I cannot envisage circumstances in which it would be logical to do so.

   However, circumstances peculiar to the offender himself, as opposed to circumstances peculiar to his relations, can always be taken into account.  His family circumstances, for example, may explain or excuse the crime or provide the motivation of it.  This cannot be said here.  And if imprisonment will bear with special hardship on him, that can always be taken into account; and it may bear with special hardship on him because of its effect on his family.

   [29]   R v Wirth (1976) 14 SASR 291, 294 (Bray CJ).

   [30]   Moore v Fingleton (1972) 3 SASR 164.

4. Subsequent decisions largely followed the approach of Wells J.[31] This approach was followed even after legislation required that the sentencing court take into account the effect of sentence on dependants.[32]  It was held by the Court of Criminal Appeal that this legislation produced no change in the law.[33]

   [31]   See, for example, R v Moffa (No 2) (1977) 16 SASR 155, 158 (Walters, Sangster and Jacobs JJ), “there may be ‘extreme’ or ‘exceptional’ cases, in which it is proper to take into account the effect of the sentence on the offender’s family”; R v Amuso (1987) 32 A Crim R 308, 313 (Jacobs ACJ, with whom Prior and O’Loughlin JJ agreed), “there is scarcely a case that comes before this Court, when a person is sentenced to imprisonment, in which it cannot be said that there is great distress and hardship caused to the members of the family”; R v Adami (1989) 51 SASR 229, 233 (Bollen J, with whom King CJ agreed), the “probable effect of a sentence on dependants is still relevant only in exceptional cases”; R v Mangelsdorf (1995) 66 SASR 60, 70 and 74 (Doyle CJ, with whom Prior and Williams JJ agreed), “it is a sad fact that a term of imprisonment will often cause harm and result in considerable suffering for the dependants of the person imprisoned. There is nothing out of the ordinary in that …”; Bates v Police (1997) 70 SASR 66, 69 (Perry J): “Although regard will be had in all cases to the effect of the imposition of a custodial sentence on dependents of the defendant, it will only have a significant effect on penalty if the effect which is has in that respect in that particular case is out of the ordinary”; Neill v Police [1999] SASC 270, [24] (Doyle CJ): “A sentence of imprisonment will usually affect the family of the offender. In the ordinary case that is not a matter that will provide a basis to reduce a sentence …”; R v Carpentieri (2001) 81 SASR 164, [19] (Doyle CJ, with whom Martin and Besanko JJ agreed), “out of the ordinary”; R v Hunter [2015] SASCFC 84, [34] (Nicholson J, with whom Gray and Peek JJ agreed) there must be “a matter that goes beyond the hardship which inevitably results from a bread winner being sent to prison; there must be something that demands the exercise of mercy”; R v M, G (2016) 262 A Crim R 152, [39]-[55] (Nicholson J), [99]-[100] (Hinton J).

   [32] Being s 10(n) of the Criminal Law (Sentencing) Act 1988 (SA): a court, “in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the Court: … (n) the probable effect any sentence under consideration would have on dependants of the defendant”.

   [33]   R v Adami (1989) 51 SASR 229, 233 (Bollen J, with whom King CJ agreed): “The probable effect of a sentence on dependants is still relevant only in exceptional cases. The section does not change the law on this point. Moreover, s 10 is no more than a section which declares what has always been the law”.

5. Nonetheless, a close review of decisions since R vWirth shows that the phrase “exceptional circumstances” has not been used to preclude a sentencing court from giving consideration to hardship to dependants.  In particular, the courts have not literally applied the requirement that hardship be considered irrelevant unless “the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so”.[34] 

   [34]   R v Wirth (1976) 14 SASR 291, 295-296 (Wells J).

6. Rather, the test of “exceptional circumstances” has been used as a way of describing what is necessary to be demonstrated before an otherwise appropriate sentence may be reduced.  In that latter sense, the Courts have looked to discern circumstances which may be thought to be out of the ordinary or relatively extreme rather than highly exceptional.  Only then will hardship to dependants have any “significant effect on penalty”.[35] For example, Perry J held in Bates v Police:[36]

   Properly understood, I do not think that the explanation of the principle which appears in that passage [from Adami] is at odds with s 10(n) of the Criminal Law (Sentencing) Act. Although regard will be had in all cases to the effect of the imposition of a custodial sentence on dependants of the defendant, it will only have a significant effect on penalty if the effect which it has in that respect in the particular case is out of the ordinary.

   [35]   Bates v Police (1997) 70 SASR 66, 69 (Perry J).

   [36]   Bates v Police (1997) 70 SASR 66, 69 cited with approval in R v Carpentieri (2001) 81 SASR 164, 168 (Doyle CJ).

7. In Bates v Police the appellant was the sole de facto parent of his sister’s children.  The children’s mother died in custody and the children were fearful that the appellant might also die in custody.  Perry J concluded that it had been an error to overlook the effect of imprisonment on the emotional wellbeing of the children. 

8. In R v Carpentieri Doyle CJ referred to Bates v Police with approval and explained:[37]

   The judgment in Wirth has frequently been cited by appeal courts with approval. In R v Edwards (1996) 90 A Crim R 510 Gleeson CJ, with whom James and Ireland JJ agreed, cited the above passage from Wirth and pointed out that the real difficulty in many cases is to identify a ground upon which the hardship to a third party “can properly and relevantly be regarded as exceptional”. His Honour observed that causing hardship to third parties by the imprisonment of an offender is very common and emphasised the importance of examining the nature and extent of the hardship that would follow the imposition of a sentence of imprisonment.

   I accept the submission by Mr Wells that, at common law and under the Sentencing Act, a court must have regard to the probable effects of a sentence on the dependants of the defendant. In this case the relevant effect is the effect on Mrs Carpentieri. However, the effect of the cases referred to is that ordinarily hardship to a defendant will not be a reason to mitigate or reduce a penalty, but in exceptional cases that hardship may be a reason to do so.

   [37]   R v Carpentieri (2001) 81 SASR 164, 167-168 (Doyle CJ).

9. In Neill v Police,[38] the effect of the imprisonment on dependent children, as shown by affidavit evidence concerning the plight of the children after sentence was passed, was held to be sufficiently significant to warrant a substantial reduction in sentence. As Doyle CJ explained:[39]

   … A sentence of imprisonment will usually affect the family of the offender. In the ordinary case that is not a matter that will provide a basis to reduce a sentence. But there are cases when the effect is so great that the court can rely on it to reduce the sentence that is otherwise appropriate. The court does so out of consideration of the welfare of the family, and society’s interest in their welfare, and not merely as an act of mercy to the offender. Even then the court must still give weight to the other relevant factors. The process of sentencing does not become one in which the impact on the offender’s family controls the outcome, or even is a dominating factor. The true position is that the interests of the offender’s family may be given effect to by reducing an otherwise appropriate sentence.

   [38]   Neill v Police [1999] SASC 270.

   [39]   Neill v Police [1999] SASC 270, [24] (Doyle CJ).

10. In that case the Chief Justice was satisfied that the head sentence of four years was appropriate, but he reduced the non-parole period of two years and six months:[40]

    However, having given the matter a lot of thought, I consider that the interests of Mr Neill’s daughters should be taken into account to reduce the non-parole period to 22 months or 1 year 10 months. That is a much greater reduction than the appellant’s own circumstances warrant. An offender who commits this many offences with the record that Mr Neill has, and Mr Neill’s prospects, could never expect such a low non-parole period. But I am prepared to reduce the non-parole period to this level to reduce to the minimum the time for which Mr Neill’s daughters will have no support from either parent. Unfortunately, it would not be proper to go any further. The non-parole period still has to reflect the seriousness of the offending.

    [40]   Neill v Police [1999] SASC 270, [27] (Doyle CJ).

11. The subtle change in approach evident in cases such as Bates v Police and Neill v Police was reaffirmed and refined in the reasons of Kourakis J, as he was, in R v Buckskin:[41]

    The exception articulated by Wells J has been recognised in many cases since.[42]  In my respectful opinion, even though the exception is not strictly logical by reference to matters of sentencing principle, it is justifiable on the grounds of public policy.  In my view, where a claim is made to mitigate a sentence on the grounds that it will adversely affect an offender’s family, the court must necessarily weigh the public interest in imposing a sentence which sufficiently serves the purposes of punishment and deterrence against the public interest in the welfare of the children and dependents of the offender.[43]  The offender’s failure to discharge his or her duty to them does not extinguish the public interest in their welfare.  The welfare of children is a matter of public interest of the highest importance.[44]

    [41]   R v Buckskin [2010] SASC 138, [109]-[110] (Kourakis J).

    [42]   R v Moffa (No 2) (1977) 16 SASR 155; R v Spiers (1983) 34 SASR 546; Boyle v The Queen (1987) 34 A Crim R 202; R v Maslen (1995) 79 A Crim R 199. Cf R v Wayne (1982) 62 A Crim R 1; R v Amuso (1987) 32 A Crim R 308; Stewart v The Queen (1994) 72 A Crim R 17.

    [43]   Neill v Police [1999] SASC 270, [24] (Doyle CJ).

    [44]   Family Law Act 1975 (Cth) s 60CA; Walsh v Department of Social Security (1996) 67 SASR 143, 147 (Perry J); Hillman v Black (1996) 67 SASR 490, 518 (Perry J); Jones v Dodd (1999) 73 SASR 328, [62] (Perry J, with whom Millhouse and Nyland JJ agreed).

12. Whilst the majority in R v Buckskin concluded that, in relation to the children, “particularly in light of the seriousness of the offending conduct in this case, … hardship and distress is not sufficiently exceptional to impact on the penalty imposed”,[45] Kourakis J approached the issue differently:[46]

    With respect, I do not find the threshold test of “exceptional circumstances” useful because it focuses on circumstances which are peculiar instead of the substance of the concern about the childrens’ welfare and its relationship to the other sentencing considerations.[47]  I would prefer to take the approach that the welfare of the children of an offender who faces imprisonment is always a relevant consideration but that in the majority of cases it will have no material effect on the sentence imposed because of the public interest in the imposition of condign punishment.  However, the effect of imprisonment of an offender on his or her children or other dependents must be considered in the circumstances of each case and an appropriate balance struck between their welfare and the need to protect the community through the enforcement of the criminal law.  The approach I prefer probably differs little in the results it yields, but in my respectful opinion it better explains that result and, in part at least, answers the illogicality which concerned Bray CJ in Wirth.

    That said, it remains the evidentiary responsibility of the offender facing imprisonment to show the extent to which imprisonment will adversely affect his or her children…

    [45]   R v Buckskin [2010] SASC 138, [48] (Nyland and Gray JJ), citing R v Hinton (2002) 134 A Crim R 286, [26] (Howie J, with whom Wood CJ at CL & Sully J agreed).

    [46]   R v Buckskin [2010] SASC 138, [110]-[111], cf [39]-[48] (Nyland and Gray JJ).

    [47]   Cf R v Hinton (2002) 134 A Crim R 286, [26].

13. Kourakis J concluded that the “risk to the welfare of the children was not so great as to call for any material reduction in the sentence that was otherwise appropriate”.[48]

    [48]   R v Buckskin [2010] SASC 138, [113] (Kourakis J).

14. In R v Constant the Court of Criminal Appeal considered the sentence imposed on a federal offender, and therefore s 16A of the Crimes Act 1914 (Cth) (Crimes Act), which is not relevant to this appeal.[49] Nonetheless, after observing that s 16A(1) required the sentencing court to “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”, the Court emphasised that s 16A(2) required a sentencing court to take into account the factors there listed as are “relevant and known to the court” including, by s 16A(2)(p):

    … the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

    [49]   R v Constant (2016) 126 SASR 1.

15. The Court drew the obvious analogy with s 10(n) of the former sentencing legislation in this State, which also required that the sentencing court take into account:[50]

    … the probable effect any sentence under consideration would have on dependants of the defendant.

    [50]   Criminal Law (Sentencing) Act 1988 (SA).

16. The Court in R v Constant then explained that it was bound to apply the common law exceptional circumstances test, there being no submission to the contrary:

    Both ss 16A(2)(p) and 10(1)(n) have been construed as being no different in effect to the common law.[51] It has long been accepted that the common law imposes an exceptional circumstances test where hardship to dependants is put in mitigation of penalty. We are bound to apply the exceptional circumstances test.[52] That said, stating the test in such convenient terms runs the risk of masking the analysis to be undertaken. An assertion of exceptional circumstances contemplates a discernible norm — the routine or ordinary outcome — in relation to which the asserted circumstances may be compared and the question determined whether they do in fact answer the description of being exceptional. What is the norm and when is a departure from that norm exceptional?

    [51]   R v Adami (1989) 51 SASR 229; R v Sinclair (1990) 51 A Crim R 418; R v Matthews (1996) 130 FLR 230; R v Togias (2001) 127 A Crim R 23; R v Hinton (2002) 134 A Crim R 286; Markovic v The Queen (2010) 30 VR 589; R v Huston; Ex parte Director of Public Prosecutions (Cth) (2011) 219 A Crim R 209; R v Zerafa (2013) 235 A Crim R 265; Huynh v The Queen [2015] NSWCCA 167.

    [52]   No submission was made to the contrary.  We note the dissenting judgment of Beech-Jones J in R v Zerafa (2013) 235 A Crim R 265 but, as Spigelman CJ said in R v Togias, [17] “If there is to be any change in position … only the High Court can effect it”.

1. The Court referred to the decision of Gleeson CJ in R v Edwards, which cited the decision of Wells J in R vWirth with apparent approval, before considering the work of Dr Thomas:[53]

   That judgment has been cited with approval, and followed, in the Courts of Criminal Appeal in other Australian States: see Boyle (1987) 34 A Crim R 202; T (1990) 47 A Crim R 29; Adami (1989) 51 SASR 229; 42 A Crim R 88. It is in accordance with the approach taken in England (see D A Thomas, Principles of Sentencing: The Sentencing Policy of the Court of Appeal, Criminal Division (2nd ed, 1979) p 211).

   We note Gleeson CJ’s reference to the work of Dr DA Thomas. Dr Thomas is also the author to whom Bray CJ refers in Wirth. In his book, Dr Thomas notes that hardship caused to an offender’s wife and children is “not normally a circumstance which the sentence may take into account” because it “is an inevitable consequence of crime” and is one of the penalties which convicted persons must pay.[54] Dr Thomas identifies three exceptions to the rule. First, where the circumstances of the particular family are such that the “degree of hardship is exceptional, and considerably more severe than the deprivation suffered by a family in normal circumstances as a result of imprisonment”.[55] Second, where the offender is a mother of young children and her offending consists of less serious offences, the hardship caused to her family by her incarceration may have mitigatory effect. Third, family hardship may have mitigatory effect where both parents are before the Court and the imprisonment of both will leave the children of the relationship effectively orphaned. Similarly, the needs of the children may be taken into account where the offender is the sole parent.

   The second and third exceptions offend the principle of equality that implicitly underpins Bray CJ’s approach. The first does not. The first, consistent with Wells J’s exceptional circumstances test, takes, as its point of distinction, hardship of a degree such that the purposes of punishment are obtained at too high a price.

   [53]   R v Constant (2016) 126 SASR 1, [65]-[66] (Nicholson, Lovell and Hinton JJ), citing R v Edwards (1996) 90 A Crim R 510, 517 (Gleeson CJ, with whom James and Ireland JJ agreed).

   [54]   DA Thomas, Principles of Sentencing: The Sentencing Policy of the Court of Appeal (Heinemann, 2^nd ed, 1979), 211.  In Tame v Fingleton (1974) 8 SASR 507 at 511, Walters J said “[i]f his feelings for his family are those of genuine concern and affection, it behoves him to avoid crime”; cf Nguyen v The Queen (2001) 118 A Crim R 519, [71] (Wallwork J).

   [55]   DA Thomas, Principles of Sentencing: The Sentencing Policy of the Court of Appeal (Heinemann, 2^nd ed, 1979), 212.

2. It appears that the Court of Criminal Appeal then reiterated the refined approach earlier taken to the exceptional circumstances test, largely agreeing with what had been said by Kourakis J in R v Buckskin:[56]

   Approached in this way, hardship 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. In our view, consistent with Dr Thomas’s first exception, both ss 16A(2)(p) and 10(1)(n) invite 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…

   [56]   R v Constant (2016) 126 SASR 1, [66] (Nicholson, Lovell and Hinton JJ).

3. The Court in R v Constant emphasised the necessity for the circumstances to be “special or uncommon”, before delineating and distinguishing the effect of hardship on the defendant, rather than the defendant’s dependants:[57]

   In our view, however, to adopt such approach is not to abandon the exceptional circumstances test, but to give it the content which belies its original formulation in the judgment of Wells J in Wirth. 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.

   Finally we would add that neither s 16A(2)(p) nor s 10(1)(n) is concerned with the effect upon the defendant of, for example, separation from his or her family. That is not to say that the effect of separation for the defendant is irrelevant to sentencing. Quite the contrary; it is relevant to the punitive nature of the penalty contemplated and should always be taken into account. As the Court of Criminal Appeal in Victoria noted in Markovic v The Queen:

   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. These are conventional issues of mitigation, and they are not subject to the “exceptional circumstances” limitation.

   (Footnotes omitted)

   [57]   R v Constant (2016) 126 SASR 1, [67]-[68] (Nicholson, Lovell and Hinton JJ), citing Markovic v The Queen (2010) 30 VR 589, [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).

4. Later decisions by the Court of Criminal Appeal have not suggested that R v Constant altered the common law.[58]

   [58]   R v M, G (2016) 262 A Crim R 152, [39]-[40] (Nicholson J), [99]-[100] (Hinton J); R v Lean (2017) 128 SASR 451, [74] (Hinton J, with whom Stanley and Nicholson JJ agreed); R v Farrer (2017) 80 MVR 9, [37]-[39] (Kelly J, with whom Vanstone and Nicholson JJ agreed): “The appellant’s choice to allow herself to become pregnant at a time when she was already on bail awaiting trial on charges in respect of which she was ultimately convicted is perhaps the most irresponsible aspect of her conduct in the period after committing these offences”.

5. Since R v Constant, the sentencing legislation in this State has been repealed and replaced by the Sentencing Act, which no longer contains a provision like s 16A(2)(p) of the Crimes Act, or s 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA), requiring that the sentencing court take into account, where known, the probable effect that any sentence would have on the dependants of the defendant.

6. In Zefi v The Queen this Court recently explained that hardship to dependants will only impact significantly on sentence where it is “relatively serious or extreme” and, even then, hardship is merely a factor to which the sentencing court will have regard when formulating the appropriate sentence:[59]

   I accept that hardship to an offender’s dependents may, in some cases, be a relevant consideration, despite this not being a matter expressly identified in s 11 of the Sentencing Act.[60]

   However, the law recognises that there will often be some degree of hardship visited upon the dependents of people who commit criminal offences and become liable to serve a custodial sentence of imprisonment.  As a reflection of this, hardship to dependents will only impact significantly upon the sentence to be imposed where that hardship is of a relatively serious or extreme nature.[61]  Further, even when relevant, hardship of this type is merely a factor to which the Court should have regard.  It will not generally control the sentencing outcome, or otherwise be the dominant factor.  The usual sentencing objectives and considerations, in particular as prescribed by the Sentencing Act, will continue to govern the process, and require, for example, that the Court have regard to the importance of community protection (being the primary sentencing purpose under s 3), as well as punishment and accountability, denouncement, recognition of harm, deterrence and rehabilitation (being the secondary sentencing purposes under s 4).

   [59]   Zefi v The Queen [2021] SASCA 15, [20]-[21] (Doyle JA, with whom Kelly P and Bleby JA agreed).

   [60] Cf s 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA).

   [61]   R v Wirth (1976) 14 SASR 291, 295-296 (Wells J); Neill v Police [1999] SASC 270, [24] (Doyle CJ); R v Penno [2004] SASC 354, [46] (Gray J, with whom Nyland J agreed); R v D, RHC [2011] SASCFC 31, [14], [21]-[24] (Doyle CJ, with whom Kelly and Peek JJ agreed); R v Hill (2011) 110 SASR 588, [38]-[41] (Sulan J, with whom Gray and Stanley JJ agreed); R v M, G (2016) 262 A Crim R 152, [39]-[40], (Nicholson J), [100] (Hinton J).

7. The parties before this Court were agreed that Zefiv The Queen correctly states the law in this State and that the hardship caused to dependants by a defendant’s sentence may be taken into account at common law and by virtue of s 11(2) of the Sentencing Act.[62]

   [62] Section 11(2): “The matters referred to in subsection (1) are in addition to any other matter the court is required or permitted to take into account under this Act or any other Act or law”.

8. When the cases since R vWirth are closely considered, it can be seen that the position at common law and under the Sentencing Act regarding hardship to dependants has over time been refined.  The requirement to show “exceptional circumstances” before hardship to dependants becomes relevant has not been insisted upon.  Rather, hardship to dependants has usually been regarded as relevant to the exercise of the sentencing discretion.  Since at least Bates v Police, hardship to dependents has not materially affected the sentence which is imposed unless that hardship is shown to have been out of the ordinary,[63] special or uncommon[64] or, as was said in Zefi v The Queen, relatively serious or extreme.[65]

   [63]   Bates v Police (1997) 70 SASR 66, 69 (Perry J); R v Carpentieri (2001) 81 SASR 164, [19] (Doyle CJ, with whom Martin and Besanko JJ agreed); Neill v Police [1999] SASC 270, [24] (Doyle CJ).

   [64]   R v Constant (2016) 126 SASR 1, [66]-[68] (Nicholson, Lovell and Hinton JJ), citing Markovic v The Queen (2010) 30 VR 589, [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).

   [65]   Zefi v The Queen [2021] SASCA 15, [20]-[21] (Doyle JA, with whom Kelly P and Bleby JA agreed).

9. Typically, hardship to the dependants of a defendant concerns children, particularly very young infants, or aged or disabled relatives.  Hardship to relatives or dependants may be taken into account when determining an appropriate sentence in the exercise of a broad sentencing discretion, as part of the “instinctive synthesis”[66] by which sentence is determined.  

   [66]   Markarian v The Queen (2005) 228 CLR 357, [139] (Kirby J).

10. Nonetheless, the proper exercise of the sentencing discretion requires that consideration also be given to the primary and secondary sentencing considerations set out in the Sentencing Act, including “proportionality”.[67] 

    [67]   Hoare v The Queen (1989) 167 CLR 348, 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ); Veen v The Queen (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ). See Sentencing Act 2017 (SA) ss 3, 9 and 10.

11. So, even where the hardship to the dependants of a defendant is raised as an issue, it remains necessary to consider and weigh all other relevant sentencing considerations.  The hardship caused to the dependants of a defendant will not generally control the sentencing outcome, nor will it become the dominant factor.[68]  Most sentences of imprisonment seriously and deleteriously affect the dependants of a defendant.  That is the ordinary and usual effect of a sentence, particularly sentences involving lengthy terms of imprisonment. 

    [68]   Neill v Police [1999] SASC 270, [24] (Doyle CJ).

12. To take into account the effect of hardship on dependants does not address whether or to what extent that issue will affect the sentence which is imposed.  Very clear words would be required before it might be concluded that the issue of hardship to dependants is not only to be taken into account, but that the Sentencing Act intended that all offenders with dependants should invariably receive more favourable sentences, regardless whether the effects of sentence on the dependants might be considered the ordinary or usual consequences of punishment for the defendant’s criminal wrongdoing.  In a case where two defendants are both guilty of a serious crime, and one has able, adult children who reside with that defendant, but the other defendant has no dependants, it is difficult to see why hardship to the dependants should, on account of that issue alone, result in different sentences.

13. The issue of hardship to dependants therefore remains one of a number of issues, often conflicting, which must be taken into account and balanced as part of the exercise of a broad sentencing discretion. 

14. Where the evidence in a case before the sentencing court demonstrates, on balance, that the hardship caused to the dependants of a defendant by a sentence of imprisonment is out of the ordinary or extreme, then it may be regarded as an exceptional case.

15. The relative weight given to this issue must vary according to the circumstances of the case.  The relevant considerations will include the need to enforce the criminal law, the need to protect the community, the seriousness of the offending, the need for punishment and deterrence (general and specific), the defendant’s prospects for rehabilitation, as well as the likely nature and degree of the hardship to the defendant’s dependants.  Any evidence about alternative care arrangements, and the immediate and likely long term physical and psychological impact on the dependants, must be carefully considered.

16. The public interest in imposing a sentence on the defendant which appropriately recognises the purposes of punishment and deterrence, and any other relevant sentencing objectives, must be balanced against the public interest in the welfare of the dependants of the defendant.  In a case where the hardship is out of the ordinary, the public interest in the welfare of the dependants of the defendant may be reflected by reducing what is an otherwise appropriate sentence. 

17. The issue of proved hardship to dependants which is out of the ordinary or extreme might readily be reflected in the non-parole period which is fixed, as was done in Neill v Police,[69] and it might also play a part when considering other elements of a sentence, including the head sentence.

    [69]   Neill v Police [1999] SASC 270, [27] (Doyle CJ).

18. When the issue of proved hardship to dependants which is out of the ordinary or extreme materially affects a sentence, that is not done merely or only as a means of extending mercy to the defendant,[70] but in recognition of the societal or public interest in the welfare of the dependants of the defendant.[71] 

    [70]   Neill v Police [1999] SASC 270, [24] (Doyle CJ). Cf, Markovic v The Queen (2010) 30 VR 589, [5], [13]-[21] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).

    [71]   R v Buckskin [2010] SASC 138, [109]-[111] (Kourakis J); R v Constant (2016) 126 SASR 1, [67]-[68] (Nicholson, Lovell and Hinton JJ).

19. In most cases the sentencing court may be expected to take the issue of hardship to dependants into account without evidence, in the same way as issues such as the age of the offender may be taken into account, particularly in cases of very young or very old offenders.  In those cases where it is suggested that the issue should have a significant effect on penalty, evidence may be required, particularly where there is otherwise a factual contest between the parties.  Though this may include medical or psychiatric evidence, the issue should not be permitted to distort or overwhelm the sentencing process.

20. Any question of hardship to a defendant, particularly special hardship, is a separate and distinct consideration.  Nonetheless when an issue about the welfare of dependents arises, many cases, such as this case, will raise both issues.[72]

    [72]   R v Constant (2016) 126 SASR 1, [67]-[69] (Nicholson, Lovell and Hinton JJ).

    The ruling in Totaan v The Queen

21. When this matter was first called on for argument on 12 May 2022, counsel for the appellant invited this Court’s attention to the recent decision of the Court of Criminal Appeal of New South Wales, Totaan v The Queen.[73] 

    [73]   Totaan v The Queen [2022] NSWCCA 75 (Bell CJ, with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed), delivered 11 April 2022.

22. In that case the appellant pleaded guilty to two counts of obtaining a financial advantage by deception from the Commonwealth, contrary to s 134.2(1) of the Criminal Code 1995 (Cth), for which the maximum penalty on each offence was imprisonment for 10 years and/or a pecuniary penalty pursuant to the Criminal Code. Both offences involved under-reporting or failing to report income to the Department of Human Services and, obtaining thereby, Parenting Payment Single benefits to which the appellant was not legally entitled, totalling over $100,000. This occurred over a period of around a decade. A s 16BA offence was also taken into account.[74]

    [74]   Crimes Act 1914 (Cth).

23. The evidence before the sentencing court disclosed that the appellant had two children (11 and 7 years)[75] and that she had suffered physical, financial, and other abuse from their father, who developed drug and gambling addictions.  The money the subject of the offending was used to meet household expenses and, following threats, given to the father.  The appellant was the primary carer of her children and they lived with her parents. 

    [75]   At the time of sentence on 12 March 2021.

24. The father served a sentence of imprisonment referable to domestic violence.  By reason of an apprehended domestic violence order, the father could not reside with the appellant or her children and, while it did not prevent contact between them, he was not involved in the care of the children. 

25. There was psychiatric evidence demonstrating that the appellant’s incarceration had taken a toll on the children and they had developed psychiatric illnesses.  There was also evidence demonstrating that the appellant’s parents were struggling to care for the appellant’s children.

26. The sentencing judge did not use the expression “exceptional hardship” in her sentencing remarks, but she found that any hardship was “no different to that which would be expected normally”.  Whether that was a correct statement given the unusual and extreme facts of the case may be doubted.  The appellant was sentenced as follows:[76]

    (1)Count 1: imprisonment for two years, commencing on 12 March 2021 and expiring on 11 March 2023.

    (2)Count 3, taking into account the s 16BA offence, imprisonment for three years and six months, commencing on 12 September 2021 and expiring on 11 March 2025.

    [76]   Totaan v The Queen [2022] NSWCCA 75, [29] (Bell CJ, with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed).

27. Pursuant to s 19AB(1) of the Crimes Act, the sentencing judge fixed a single non-parole period of two years commencing on 12 March 2021 and expiring on 11 March 2023.  A reparation order was made in the sum of $112,999.96.

28. The New South Wales Court of Criminal Appeal found that the sentence was vitiated by error and set the sentence aside.  The appellant had served one year and one month of her sentence in custody and she was resentenced as follows:[77]

    In relation to Count 1, the Applicant is sentenced to a term of imprisonment for one and a half years, commencing on 12 March 2021 and expiring on 11 September 2022.

    In relation to Count 3, taking into account the s 16BA offence, the Applicant is sentenced to a term of imprisonment of two and a half years, commencing on 12 September 2021 and expiring on 11 March 2024.

    [77]   Totaan v The Queen [2022] NSWCCA 75.

1. As the sentences in the aggregate, within the meaning of the Crimes Act, did not exceed three years (and were exactly three years), a non-parole period was not available, and a recognizance release order was made under s 19AC(1). The appellant was released immediately pursuant to s 20(1)(b) of the Crimes Act on recognizance to be of good behaviour for one year and 11 months, and upon posting security in the sum of $10.

2. The decision of the New South Wales Court of Criminal Appeal was given by Bell CJ, who found that the sentencing judge had erroneously applied the test of “exceptional hardship”, excluding from her consideration the effect of sentence on the appellant’s defendants, and that it was wrong to do so. Particular emphasis was given to the terms of s 16A of the Crimes Act, the relevant Australian Law Reform Commission report, Sentencing (Report No 44, March 1988), and the dissenting reasons of Beech-Jones J in R vZerafa:[78]

   In an important judgment delivered in 2013, Beech-Jones J (as his Honour then was), sitting as a member of this Court, expressed the strong view that any requirement that “exceptional hardship” be established before the probable effect of any sentence under consideration on the offender’s family or dependants could be taken into account was not supported by the language of s 16A(2)(p), and that decisions that had held to the contrary, based upon the view that s 16A(2)(p) was not intended to alter the position at common law, were clearly wrong: R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222… The other members of the Zerafa Court did not share that opinion, Hoeben CJ at CL (with whom Latham J agreed) holding at [93] that it was “not appropriate for this Court to overrule or depart from cases such as Togias and Hinton”…

   Beech-Jones J’s critique in Zerafa, re-emphasised by his Honour in Elshaniv The Queen (2015) 255 A Crim R 488; [2015] NSWCCA 254 …, was augmented by Basten JA in Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42 … at [49]-[60].

   [78]   Totaan v The Queen [2022] NSWCCA 75, [4]-[5] and [40] (Bell CJ, with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed) citing R v Zerafa (2013) 235 A Crim R 265.

3. The course of authority was extensively surveyed, charting the way in which R vWirth had over time been applied as a common law “gloss” on the Crimes Act. Bell CJ held that these decisions were “plainly wrong”:[79]

   … holding that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependant where the circumstances of hardship satisfy the epithet “exceptional”, are “plainly wrong” and should not be followed.

   [79]   Totaan v The Queen [2022] NSWCCA 75, [77] (Bell CJ, with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed).

4. As to the statement made by the Court of Criminal Appeal in R v Constant that it was “bound to apply the exceptional circumstances test”, Bell CJ said:[80]

   The Court’s statement that it was bound to apply the “exceptional circumstances test” was, perhaps and with respect, overly absolute. An intermediate court of appeal may depart from an established line of authority when it is satisfied that it is “clearly wrong”, although caution and great care must be exercised in so doing…

   [80]   Totaan v The Queen [2022] NSWCCA 75, [65] (Bell CJ, with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed).

5. In addition, Bell CJ held that:[81]

   To the extent that authorities such as this Court’s 2006 decision in Nguyen have held that hardship to third parties must rise to the level of “exceptional” before being given a specified weight or resulting in a substantial reduction of sentence, that approach, too, attracts a similar criticism.

   [81]   Totaan v The Queen [2022] NSWCCA 75, [92] (Bell CJ, with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed).

6. Those conclusions appear to apply to R v Constant,[82] albeit not without qualification:[83]

   Whilst not abandoning the exceptional circumstances formulation of the test in terms, the Full Court’s decision in Constant, coupled with its endorsement of Kourakis J’s observations in Buckskin, appears to represent a retreat from the position at common law, as articulated in Wirth and as explained in Markovic, and as applied to s 16A(2)(p) in cases such as Sinclair, Togias and Hinton. The same may be said of the decision of this Court in 2006 in Nguyen, referred to at [57] above, which has attracted support in Kaveh v R [2017] NSWCCA 52 … at [40]–[41], R v Qian Lin [2014] NSWCCA 254 at [72], R v Milne (No 6) [2010] NSWSC 1467 at 223, R v Milne (2012) 91 ATR 560; [2012] NSWSC 1538 at [83] and Jorissen v The Queen [2017] WASCA 71 at [34].

   [82]   Totaan v The Queen [2022] NSWCCA 75, [64]-[71] (Bell CJ, with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed).

   [83]   Totaan v The Queen [2022] NSWCCA 75, [67] (Bell CJ, with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed).

7. It may be observed that the common law “retreat” from a literal application of R vWirth, as it was described by Bell CJ, has been apparent in South Australia for some time, certainly since the decision of Perry J in Bates v Police around 25 years ago.

8. The hearing of this appeal was adjourned to enable the parties to make considered submissions about Totaan v The Queen.

9. Ultimately both parties contended that it did not affect the decision required of this Court because Totaan v The Queen was concerned with the proper approach to s 16A(2)(p) of the Crimes Act, mentioned earlier, rather than the common law and s 11(2) of the Sentencing Act.

   The approach of the sentencing judge in this case

10. The sentencing judge was in this case conscious of the serious consequences imprisonment would carry for the appellant and her dependants.  Whilst the sentencing judge accepted that there was hardship, there was no evidence suggesting that the appellant’s mother could not cope. 

11. Nonetheless the sentencing judge readily accepted that the separation of the appellant from her children caused real hardship and difficulty for the appellant and her children, and that the appellant’s mother would bear a significant physical, emotional and financial burden caring for the children.  The relevant authorities were cited.[84]  The sentencing judge was mindful of the need to balance hardship to the appellant and her family, and the welfare of her dependants, against the need to protect the community.

    [84]   R v Buckskin [2010] SASC 138, [110] (Kourakis J); R v Constant (2016) 126 SASR 1; and R v Farrer (2017) 80 MVR 9, [39] (Kelly J, with whom Vanstone and Nicholson JJ agreed).

12. The issue of hardship to the appellant and the dependants of the appellant was taken into account generally and in connection with the submission that the sentence should be served on home detention.

13. The sentencing judge appeared to reflect these considerations in both the head sentence and the non-parole period that she fixed.  It would seem that the circumstances of the appellant and her children were regarded as being out of the ordinary.  The non-parole period, in particular, is markedly lower than might ordinarily have been imposed.[85]  Whilst the appellant accepts that this is so, she maintains that the head sentence is nonetheless manifestly excessive.

    [85]   Well below the range of one half to three quarters of the head sentence, see for example, R v Palmer [2016] SASCFC 34, [4] (Kourakis CJ).

    The determination of the appeal

14. As might be expected, counsel for the appellant emphasised his client’s lack of material criminal history and the hardship associated with imprisonment given her role as a mother to five children, three of whom are very young indeed.

15. We were told that the appellant’s youngest child, conceived following conviction, would be residing with the appellant in custody for at least a few months under a trial programme.

16. It was submitted that the sentence of 10 years was the sort of head sentence that would have been appropriate for an offender with a long history of similar offending and without the mitigating factor of the particularly burdensome effect of imprisonment on the appellant and the likely hardship which will be experienced by her children, especially the younger children.[86]

    [86]   Reference was made to R v Constant (2016) 126 SASR 1, [89] (Nicholson, Lovell and Hinton JJ). In that case the Court of Criminal Appeal considered the likely impact of the removal of a newborn being particularly traumatising, and carrying the potential to have lasting psychological consequences, citing the Victorian Court of Appeal in Markovic v The Queen (2010) 30 VR 589.

17. These criticisms must be rejected.  Though it may be said that this sentence was heavy, it needed to reflect the seriousness of the appellant’s criminal conduct.  In R v Lindsay the Court of Criminal Appeal emphasised that home invasions committed in company where other offences are then committed against householders are grave and require sentences which adequately reflect the extent and degree of criminality involved.[87]

    [87]   R v Lindsay [2015] SASCFC 62, [19]-[21] (Vanstone J, with whom Blue and Lovell JJ agreed), citing R v Bondarenko [2015] SASCFC 42, albeit cases involving rape.

18. Although the appellant placed particular weight on the result in R v Humby, there are obvious points of difference.[88]  It is not necessary to address them all.  They include the different charges that were proved, the different weapons used, and the value of the property taken.  The most important is that the sentence in that case was imposed following a successful Crown appeal, and the Court appears to have adopted an approach of imposing a sentence at the lower end of the applicable range.[89]

    [88]   R v Humby [2004] SASC 358.

    [89]   R v Humby [2004] SASC 358, [64] (Perry J). Though this was not mentioned by the majority, this appears to reflect the majority’s approach.

19. In addition, when assessing a complaint of manifest excess or inadequacy, it is necessary to examine the sentence as a whole.  Any examination of the head sentence cannot be addressed without reference to all other elements of the sentence, including the non-parole period.  That does not mean that an excessive or inadequate head sentence can be justified by reference to a lenient or harsh non-parole period.  It means that this Court cannot take one element of a sentence out of context, for it must recognise and respect that the broad sentencing discretion is exercised as to the sentence as a whole.[90]  The sentencing discretion is exercised so as to ensure “a duly proportioned and properly balanced sentence that is appropriate to meet all the circumstances of the case”.[91]

    [90]   Da Silva v The Queen [2020] SASCFC 66, [55]-[56] (Livesey J, with whom Kourakis CJ and Stanley J agreed).

    [91]   R v Robinson (1979) 22 SASR 367, 369 (King CJ, with whom Walters and White JJ agreed) citing R v Eckardt (1971) 1 SASR 347, 351 (Bray CJ, Mitchell and Wells JJ).

20. The appellant fell to be sentenced for playing a leading and integral role in offending which was carefully pre-meditated, violent and terrifying.

21. Clearly, very serious offending of this kind required a strong response from the sentencing court.  General deterrence and community protection, as well as retribution, were particularly important sentencing considerations.[92] The sentencing judge was also entitled to take into account that the appellant had shown no sign of contrition or remorse and was maintaining her innocence. The sentencing judge observed that she had only limited information with which to determine the appellant’s rehabilitation prospects.  Even allowing for the appellant’s personal circumstances, and the likely hardship to her and her dependants, the starting point of 10 years was within range.

    [92]   Sentencing Act 2017 (SA) ss 3, 9 and 10.

22. When one considers the head sentence, together with the lower than usual non-parole period as part of the sentence as a whole, it cannot be said that the head sentence is unjust or that the exercise of sentencing discretion has miscarried.[93]

    [93]   Kentwell v The Queen (2014) 252 CLR 601, [42] (French CJ, Hayne, Bell and Keane JJ), contra [47]-[48] (Gageler J).

23. The appeal should be dismissed.

24. DOYLE JA:  For the reasons set out by Livesey P under the heading ‘The determination of the appeal’, I agree that the appeal should be dismissed.

25. On the topic of hardship to the appellant’s family or dependants, as Livesey P has explained, the sentencing judge took this into account in determining both the head sentence, and the non-parole period.  On appeal, there was no dispute between the parties that her Honour was entitled to proceed in this way; the dispute was confined to the appellant’s more general contention that, having regard to this hardship, in combination with all of the other relevant circumstances, the sentence ultimately imposed was manifestly excessive.  As such, this case does not directly require consideration of the exceptional circumstances test that has been applied in determining whether family hardship may, as a matter of common law sentencing principles, be taken into account in the exercise of the court’s sentencing discretion.

26. Livesey P has conveniently traced the way in which the authorities in this jurisdiction have applied and developed the exceptional circumstances test, from its articulation as a common law principle in R v Wirth,[94] through to its recent restatement in the context of the Sentencing Act 2017 (SA) in Zefi v The Queen.[95]  While most of the cases considered by his Honour were decided in the context of an express legislative prescription that the sentencing court have regard to the probable effect of the sentence upon the dependants of the defendant,[96] this legislative prescription has been construed as reflecting the common law approach.  Further, and in any event, by the time of Zefi v The Queen, there was no longer any legislative prescription to this effect, and so the matter fell to be determined in accordance with the common law sentencing principles governing hardship to a defendant’s dependants.

    [94]   R v Wirth (1976) 14 SASR 291 at 293-294 (Bray CJ), 295-296 (Wells J).

    [95]   Zefi v The Queen [2021] SASCA 15 at [20]-[21] (Doyle JA, Kelly P and Bleby JA agreeing); via the decisions in cases such as Bates v Police (1997) 70 SASR 66 at 69 (Perry J), Neill v Police [1999] SASC 270 at [24], [27] (Doyle CJ), R v Carpentieri (2001) 81 SASR 164 at 167-168 (Doyle CJ), R v Buckskin [2010] SASC 138 at [109]-[111] (Kourakis J) and R v Constant (2016) 126 SASR 1 at [65]-[68] (Nicholson, Lovell and Hinton JJ).

    [96]   Criminal Law (Sentencing) Act 1988 (SA), s 10(1)(n).

27. It may be accepted that the authorities in this jurisdiction represent something of a retreat from the articulation of the common law principles in R v Wirth.[97]  While the articulation of these principles in R v Wirth treated exceptional circumstances as a threshold requirement to be satisfied before hardship is relevant at all, subsequent authorities have tended to treat the exceptionality of the hardship as merely descriptive of the circumstances in which it may have a significant influence upon the sentence to be imposed, as opposed to it being relevant merely in some more general way as part of the overall process of instinctive synthesis involved in determining an appropriate sentence.  In this context, it has been emphasised that exceptional hardship connotes hardship that is relatively serious or extreme.  Conversely, if the hardship is no more than what often, or ordinarily, occurs upon the imprisonment of a defendant with dependants, then it is unlikely to have any significant influence upon the sentence to be imposed.

    [97]   Totaan v The Queen [2022] NSWCCA 75 at [67] (Bell CJ, Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing).

28. Understood in this way, the approach in this jurisdiction broadly resembles the approach taken by Hodgson JA in R v Girard,[98] which Bell CJ in Totaan v The Queen[99] described as an arguably more nuanced or refined statement of the common law approach to family hardship.  As Bell CJ explained, it involves maintaining the language of exceptional circumstances, but transforming its application from a pre-condition or threshold consideration to a matter that is more directed towards the weight to be given to the hardship.

    [98]   R v Girard [2004] NSWCCA 170 at [21] (Hodgson JA, Levine and Howie JJ agreeing).

    [99]   Totaan v R [2022] NSWCCA 75 at [56] (Bell CJ, Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing).

29. In New South Wales, a bench of five in Totaan v The Queen[100] recently went further, and abandoned any requirement of exceptional circumstances, at least insofar as the operation of s 16A(2)(p) of the Crimes Act 1914 (Cth) is concerned. In so holding, the Court took a different view from that taken by the Victorian Court of Appeal, which had in 2010 also convened a bench of five to consider the issue in Markovic v The Queen.[101]  In upholding the continuing applicability of the exceptional circumstances test, the Victorian Court of Appeal relied upon reasoning which included a view that, at common law, family hardship was not a mitigating factor properly so-called, since it concerned neither the offender nor the offence.  Rather, it was a matter that fell to be considered in the sentencing court’s discretion to extend mercy, with exceptional circumstances being the trigger to the exercise of that discretion.[102]  That said, it would seem, from the very recent grant of leave to appeal in Rodgerson v The Queen,[103] that the issue may soon be revisited in Victoria.

    [100] Totaan v The Queen [2022] NSWCCA 75 (Bell CJ, Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing).

    [101] Markovic v The Queen (2010) 30 VR 589.

    [102] Markovic v The Queen (2010) 30 VR 589 at [5], [12]-[21] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).

    [103] Rodgerson v The Queen [2022] VSCA 82 at [105]-[109] (Kyrou JA).

30. Despite the apparent retreat from a strict application of exceptional circumstances as a threshold requirement of relevance, the authorities in this jurisdiction have stopped short of any express disavowal or abandonment of a threshold requirement of exceptionality before hardship will be taken into account. As the issue does not directly arise for consideration in the present case, I do not consider it necessary to resolve the issues of principle underpinning the continued appropriateness of the exceptional circumstances test.  I would prefer to wait until these issues arise directly for consideration, and the Court has had the benefit of full submissions, before expressing any concluded view as to whether the exceptional circumstances test remains appropriate, either as a threshold requirement of the relevance of family hardship, or as a description of the circumstances in which family hardship may have a significant impact on the sentence to be imposed.   

31. That said, I would conclude by observing that it seems to me there is little, if any, practical difference between an approach that applies a threshold requirement of exceptionality, and one which accepts the relevance of hardship in all cases but which also acknowledges that it will not have any significant impact upon the sentence unless it is exceptional.  This is particularly so in circumstances where ‘exceptional’ hardship is understood to mean no more than hardship that is out of the ordinary, in the sense that it is relatively serious or extreme.  For these reasons, I see no difficulty in the continued application of the approach I favoured in Zefi v The Queen,[104] pending resolution of the underlying issues of principle.

    [104] Zefi v The Queen [2021] SASCA 15 at [20]-[21] (Doyle JA, Kelly P and Bleby JA agreeing).

32. As indicated at the outset of these reasons, I would dismiss the appeal.

33. BLEBY JA:     I agree that the appeal should be dismissed, for the reasons given by Livesey P. I also agree with Doyle JA that the questions of the continued appropriateness of the ‘exceptional circumstances’ test to the relevance of family hardship and, if it is still appropriate, how such a test is to be applied, do not need to be answered to determine the issues raised on this appeal.