R v Berlinsky

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BERLINSKY
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
8 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
The appellant pleaded guilty to four counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) and one count of dishonestly obtaining a gain from a Commonwealth entity contrary to s135.1(1) of the Commonwealth Criminal Code, in addition the following offences were to be taken into account in sentencing, five counts of opening a bank account in a false name contrary to s 24(1) of the Financial Transactions Reports Act 1988 (Cth), one count of falsifying a passport contrary to the Passports Act 1938 (Cth), and one count of falsifying identity with intention to deceive the Commissioner for Income Tax contrary to the Taxation Administration Act 1953 (Cth) s 8U(a) - the appellant was sentenced to 18 months' imprisonment with six months to be served immediately after which the appellant would be released on a recognizance to be of good behaviour with a bond of $1,000 - issues on appeal - whether the sentence was manifestly excessive - issues to be taken into consideration on sentencing - whether the appellant should have been released immediately - appeal allowed.
Crimes Act 1914 (Cth) s 16A(2)(p), s 16BA, s 19AC, s 20(1)(b), s 29D; Criminal Code (Cth) s 135.1(1); Financial Transactions Reports Act 1988 (Cth) s 24(1); Passports Act 1938 (Cth); Taxation Administration Act 1953 (Cth) s 8U(a); Criminal Law (Sentencing) Act 1988 s 10(1)(n); Migration Act 1958 (Cth) s 501(1)(6), referred to.
R v Adami (1989) 51 SASR 229; R v Shresthra (1991) 173 CLR 48; Giri and Karki (1999) 109 A Crim R 499; R v Latumetan and Murwento [2003] NSWCCA 70; R v Satui [2002] QCA 323; R v Van Hong Pham [2005] NSWCCA 94; Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608; Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133; Taurino v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 119; R v Phelan (1993) 66 A Crim R 446; Wagon Mound (No 2) [1966] 2 All ER 709; Vaughan (1982) 4 Cr App R (s) 83; Boyle (1987) 34 A Crim R 202; Nguyen v The Queen (2001) 160 FLR 284; Walsh v Department of Social Security (1996) 67 SASR 143; The Queen v Carmody (1998) 100 A Crim R 41; R v Shresthra (1991) 173 CLR 48; Miceli (1997) 139 FLR 309; Cobiac v Liddy (1969) 119 CLR 257; Osenkowski (1982) 30 SASR 212; Director of Public Prosecutions v Carter [1998] 1 VR 601; R v Clarke [1996] 2 VR 520; R v Penno [2004] SASC 354; R v Lowery (1992) 14 Cr App R 485, considered.

R v BERLINSKY
[2005] SASC 316
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: Ms Berlinksy appeals by leave against a sentence imposed on her by the District Court. She claims that the sentence is manifestly excessive. She also claims that the Judge failed to make proper allowance for certain factors present in her case.
The Judge imposed a single sentence in respect of each of the offences to which she pleaded guilty. He also took into account a number of other matters that she asked him to take into account.
The Judge ordered that Ms Berlinsky be imprisoned for one year and six months. But for her plea of guilty he would have imprisoned her for two years. As required by s 19AC of the Crimes Act 1914 (Cth) the Judge made a recognizance release order that Ms Berlinsky be released after serving a period of six months’ imprisonment, and that for the balance of 12 months she enter into a recognizance to be of good behaviour.
Ms Berlinsky pleaded guilty to four counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act. The maximum penalty for each of those offences is imprisonment for ten years and a fine of $100,000.
Each of the four counts alleged that Ms Berlinsky obtained social security benefits by falsely pretending to be Alison Rena McKenzie. The offences were committed between November 1994 and May 2001, a period slightly in excess of six years.
She also pleaded guilty to a single count of dishonestly obtaining a gain from a Commonwealth entity contrary to s 135.1(1) of the Commonwealth Criminal Code. This offence arose from the obtaining of the payment of social security benefits between May 2001 and March 2003. It attracts a maximum sentence of imprisonment for 5 years or a fine not exceeding $33,000 or both.
Over an eight year period Ms Berlinsky obtained a variety of social security benefits, amounting to about $95,000 in all.
The case is an unusual one. The false pretence or deception was that Ms Berlinsky pretended to be a New Zealand national, a young child who had in fact died in 1968 in New Zealand. The deception was carried out with some skill, and involved Ms Berlinsky obtaining a New Zealand passport in the name of Alison McKenzie. By this means she gained entry into Australia and permanent residence here. This was not done for direct financial gain. It was done because Ms Berlinsky believed, probably correctly, that she would not be granted permanent residence in Australia if she disclosed her true identity. She was in fact a national of the United Kingdom, and had been refused permanent residence in Australia. She obtained work here and paid income tax on her earnings. She became a member of the community.
It was in late 1993 and early 1994 that she undertook this scheme of deception, and took up residence in Australia.
The benefits that Ms Berlinsky claimed were, I understand, benefits for which she was eligible had she been entitled to permanent residence in Australia. Thus, the false pretences did not relate to the circumstances that made her eligible to receive the benefit, but to the obtaining of the status of permanent resident which qualified her for the benefits, should the relevant circumstances arise.
This cannot be allowed to obscure the seriousness of the offending. The plea of guilty means that Ms Berlinsky admits she knew that her false pretence as to her identity was a material factor in her obtaining the payments. This is not the case of an initial lie or deception from which later consequences flowed, without any active intervention on her part. Each time she claimed benefits she, in effect, repeated the false pretence by which she gained permanent residence. The course of conduct was prolonged. The false pretence was repeated on numerous occasions. She obtained a large amount of money.
However, while the offending remains serious, I accept that the case is an unusual one, and less serious than some of its kind.
Ms Berlinsky also asked the Judge to take into account seven other related offences against Commonwealth law.
I can deal with them briefly. There were five allegations of opening an account with a bank in a false name contrary to s 24(1) of the Financial Transactions Reports Act 1988 (Cth). There was one count of having a falsified passport, contrary to a provision of the Passports Act 1938 (Cth). This allegation related to the passport upon which she obtained entry to Australia. There was one count of falsifying identity with intention to deceive the Commissioner for Income Tax, contrary to s 8U(a) of the Taxation Administration Act 1953. This arose from Ms Berlinsky lodging an application for a tax file number in the name of Alison McKenzie.
Each of these offences attracted a maximum penalty of imprisonment. But when taken into account, as they were, the penalty imposed could not exceed the maximum penalty for the offences with which she was charged: s 16BA of the Crimes Act 1914.
The payments that Ms Berlinsky received were, broadly, in respect of periods of unemployment and payments or allowances in respect of her son who was born in Australia in October 1998, and who is an Australian citizen.
Ms Berlinsky is now 45 years of age. Her son is now six years of age. She is separated from the boy’s father, but has custody of the boy. She married another man in May 2003. The Judge noted that Ms Berlinsky had applied for a spouse or partner visa, on the basis of that marriage. The determination of that application had been deferred awaiting the outcome of the court proceedings.
Not surprisingly, Ms Berlinsky’s status as a permanent resident has been terminated, and accordingly she faces the real risk of deportation. A final decision has not yet been made by the Minister.
Material before the Judge indicated that Ms Berlinsky is a good and loving mother. She is well regarded in her local community. She wants to live in Australia, which she regards as her home. She has no wish to return to the United Kingdom. She has successfully established a business renovating and decorating dwellings. A report from a clinical psychologist is to the effect that she has successfully overcome a difficult childhood. It is not necessary to go into details. There is no reason to think that she is likely to offend again. All of these matters operated in her favour.
There were other matters raised before the Judge. As I have said, Ms Berlinsky is at risk of being deported.
If she is deported, the Family Court might not permit her to take her son with her. The boy’s father is an Australian citizen. Whether the Family Court will require her son to remain here remains unknown. She has had legal advice that if she were deported and the boy’s father did not consent to the child going with her, then she is unlikely to be permitted to take the boy with her. I have no reason to doubt that advice. If it is correct and the appellant is deported, that could well occur, given the apparently acrimonious relationship between the appellant and the boy’s father. The Judge recognised the risk of this happening, and Ms Berlinsky’s concern arising from her belief that the boy’s father is not an appropriate person to have custody of the boy.
In that respect Ms Berlinsky is in a distressing and sad position. I accept that if separated from her son she will suffer severely. I accept that the son will also suffer significantly. There is expert evidence to that effect. But this is a matter the outcome of which is in the hands of the Commonwealth Minister and of the Family Court. Each of them will have to make a decision under the relevant legislation.
If Ms Berlinsky is sentenced to imprisonment for more than 12 months, as she has been, she does not pass the character test referred to in s 501 of the Migration Act 1958 (Cth). That conclusion cannot be challenged. That fact constitutes a ground for the Minister to refuse to grant a visa to Ms Berlinsky. However, other factors, including the best interests of Ms Berlinsky’s child, must be taken into account in making the decision: Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608; Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; Taurino v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 119. However, it is also relevant to note that even with a lesser sentence than 12 months, the Minister might decide that the appellant does not pass the character test having regard to the circumstances in which she obtained permanent residence, and the offending conduct. But such a decision would at least be open to challenge were it made. In any event, the ultimate decision on the granting of a visa, and hence on deportation, is a discretionary decision to be made by the Minister or her delegate. If the decision is made by the delegate, there is an appeal to the Administrative Appeals Tribunal: s 501(1)(b) Migration Act 1958.
A relevant matter is that Ms Berlinsky has made full restitution. She sold her house to do so. She is entitled to significant credit for that. She has expressed contrition and regret. The Judge said that he was not sure what that meant. He thought she was sorry to find herself in the situation in which she did find herself, but obviously was uncertain whether the expression of regret went beyond that. I must say that I can find no reason to doubt that she was genuine.
In relation to Ms Berlinsky’s child, the Judge said that he could have regard “in a general way” to the effect his sentence might have on the child. I am sure that the Judge there was referring both to the impact of imprisonment, and to the possibility of deportation.
I turn to the grounds of appeal.
Ground 3 complains that the Judge wrongly failed to take account of the possibility of deportation. I disagree. The Judge obviously had it in mind. In any event, at the end of the day the Judge had to impose an appropriate sentence having regard to the relevant circumstances. It would be wrong for the Judge to impose a lesser sentence than was appropriate on the basis that the shorter the sentence the better the prospects of the Minister permitting Ms Berlinsky to avoid deportation. And as to the fact of deportation, there was really nothing that the Judge could do. The risk was there, whatever the Judge might do. While the risk of deportation is a matter that naturally arouses one’s sympathy, it is difficult to see how it can affect the sentencing process. As Ms Abraham QC, counsel for the respondent, correctly pointed out, deportation is a matter for the Executive Government. It is irrelevant, as such, as a sentencing consideration: R v Shresthra (1991) 173 CLR 48; Giri and Karki (1999) 109 A Crim R 499 at 507; R v Latumetan and Murwento [2003] NSW CCA 70 at [19]; R v Satui [2002] QCA 323; R v Van Hong Pham [2005] NSWCCA 94.
Ms Berlinsky also complains that the Judge failed to give sufficient weight to the effect of the sentence on her son. Again, I disagree. There is no reason to think that the Judge did not bear in mind the fact that the imprisonment would work a hardship on Ms Berlinsky’s son. The effect of an order of imprisonment on the dependents and immediate family of the imprisoned person is often a sad feature of the sentencing process. A court can make some allowance for it, but usually only in exceptional cases. My impression from the Judge’s sentencing remarks is that this did have a moderating effect on the sentence, and that was appropriate.
As to the effect of the possible deportation of Ms Berlinsky on her son, I do not accept that the Judge should have taken this into account.
By s 16A(2)(p) of the Crimes Act 1914 (Cth) the Judge was required to take into account:
The probable effect that any sentence or order under consideration would have on any of the persons’ family or dependents.
This provision mirrors s 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA). In R v Adami (1989) 51 SASR 229 this Court held that this provision reflected established common law principles.
The first issue that this provision raises is a factual one. What effect will a proposed sentence, or a sentence under consideration, have on Ms Berlinsky’s son, other than the adverse effect attributable to separation resulting from imprisonment? If the Commonwealth Minister, her delegate or the AAT on appeal refuses to grant her a visa, resulting in an order that Ms Berlinsky be deported, and if the Family Court does not permit Ms Berlinsky’s son to leave Australia, I accept that Ms Berlinsky’s son is, on the evidence before the Court, likely to suffer significantly from the separation from his mother that will result. This consequence will follow only if each of the postulated decisions is made, and it is pertinent to bear in mind that both the Minister the Family Court will undoubtedly consider the interests of the child. Nor is it possible to predict what effect the sentence of the Court would have on the Minister’s decision. The Minister will presumably be aware of all the facts. A sentence of imprisonment for 12 months or more means that Ms Berlinsky will not pass the character test under the Commonwealth legislation. But even then the decision on the visa application is discretionary and must take account of other factors. And the Minister, her delegate or the AAT might refuse Ms Berlinsky a visa, having regard to her conduct, even if the Court were to sentence Ms Berlinsky to imprisonment for less than 12 months. In short, it is not possible to say that any particular sentence will have any particular effect on the Minister’s decision, other than to acknowledge that a sentence of imprisonment for 12 months or more will provide the Minister with an unreviewable ground for refusing a visa which must be considered along with other factors.
In my view the link between the sentence imposed by the Court, and an adverse effect on Ms Berlinsky’s son resulting from her deportation, is too speculative for it to be given any weight in the sentencing process. I reach that conclusion quite apart from the question of whether it is appropriate to consider the consequences of deportation at all. That is a matter on which the Court did not hear full submissions, and for present purposes I am prepared to assume that the Court could do so, were the necessary factual basis made out.
There is a further point to be made. Ms Powell urged the Court to impose a sentence of less than 12 months’ imprisonment, if a sentence of imprisonment were to be imposed, so that Ms Berlinsky would not fail “the character test”. In my view it would not be proper exercise of this Court’s power to tailor the sentence in such a way as to affect the decision by the Minister.
That leaves the question of whether, taking the matter as a whole, the sentence is excessive.
I consider that the sentence of imprisonment for 18 months was appropriate. There were substantial mitigating circumstances, but the course of conduct was sustained, the amount involved was substantial, and the offending came to an end only when the deception was detected.
That leaves the question of whether the Judge erred in requiring Ms Berlinsky to serve six months of the period of imprisonment. Should he have ordered her immediate release, or that she be released after a shorter time? Power to order her release forthwith is conferred by s 20(1)(b) of the Crimes Act.
This is a difficult issue. The offending was serious, as I have said several times. But there were significant mitigating circumstances. The case also has an unusual aspect. As I have explained, the deception related to the obtaining of permanent residency, rather than the criteria for the payment of the benefits. There is good reason to think that Ms Berlinsky will not offend again. The interests of her child call for careful consideration, although the decision of the court cannot be affected by the risk of deportation.
I am persuaded that this is an unusual case. Ms Berlinsky’s crimes are not as serious as they might at first sight appear. There are significant mitigating circumstances. There is good reason to think that she will not offend again. She has served 2 months’ imprisonment. This was a case that called for and required a more lenient approach than the Judge took. The time already served is sufficient.
I would allow the appeal.
I would confirm the sentence of imprisonment for one year and six months. I would set aside the recognizance release order. I would substitute an order that Ms Berlinsky be released forthwith, she having served 2 months’ imprisonment, upon her giving security in the sum of $1,000 to be of good behaviour for a period of 16 months from today.
BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons. I merely add a few remarks of my own with respect to the effect of s 16A(2)(p) of the Crimes Act 1914 (Cth). That section requires the Court to take into account:
(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

The first question for consideration under that paragraph is what are the probable effects, in this case, on Ms Berlinsky’s son, of the sentence under consideration. I accept that dictionaries will give a variety of meanings to the word “probable”. However, in the context of s 16A of the Crimes Act I consider that the effect to be considered is that which is more probable than not or more likely to occur than not. If a lesser standard were required, it is likely that the drafter would have used the word “possible” rather than “probable”.
It was therefore necessary for the sentencing Judge to take into account the probable effect on the child that the sentence under consideration would have on the child.
The sentence then under consideration was obviously a sentence of 18 months imprisonment, albeit with a release after serving a period of six months imprisonment, followed by a recognisance to be of good behaviour for 12 months thereafter. In this case there were two possible effects of the sentence on the child. One was the effect of the incarceration. There was material before the sentencing Judge from which the probable effect of that on Ms Berlinsky’s son could be ascertained. The other possible effect was the effect on her son if, because of that prison sentence, she was to be refused a visa to remain and was required to leave the country. Such a sentence would mean that, unquestionably, the appellant would not pass the character test referred to in s 501 of the Migration Act. If the sentence were less than 12 months imprisonment, she might or she might not pass that test. However, as the reasons of the Chief Justice demonstrate, the sentence imposed cannot be determinative, by itself, of the decision on the appellant’s application for a visa. The effect on her child of the refusal to grant a visa will itself be a matter of substantial importance in determining whether she should be granted a visa. It cannot be said that the probable effect that an 18 month sentence will have on the child is that he will be separated from either parent. It remains a mere possibility, as does the effect of a sentence of less than 12 months imprisonment.
The likely effect on the child of separation from his mother is well documented. I imagine that there will also be significant adverse effects on the child if he were required to leave the country with his mother. The Minister or her delegate will be required not only to consider those effects but the many other unusual features which have been brought to bear in this case and which tell in the appellant’s favour when it comes to imposing a sentence. Not least of those features are the voluntary repayment of the full amount of the benefits received, the contribution that the appellant has shown she can make to the Australian community, her contrition and the unlikelihood of her offending again, and the fact that in all the circumstances this Court has considered that her sentence should be suspended upon her giving security to be of good behaviour for 16 months.
It is not for this Court to attempt to influence in any way the decision on the appellant’s visa application, and the determination of the proper sentence in this case cannot be influenced in any way by the effect it may have on that decision. I merely mention the features I have in order to emphasise the range of factors that renders so speculative the effect on the child of the 18 months sentence of imprisonment, such that it cannot be described as probable for the purposes of s 16A(2)(p) of the Crimes Act.
GRAY J:
Introduction
This is an appeal against sentence.
The appellant pleaded guilty to four counts of defrauding the Commonwealth contrary to section 29D of the Crimes Act 1914 (Cth) and one count of dishonestly obtaining a gain from a Commonwealth entity contrary to section 135.1(1) of the Commonwealth Criminal Code. She was sentenced to the one term of imprisonment of one year and six months in respect of all counts. The Judge ordered that she be released after serving six months on her entry into a recognisance to be of good behaviour.
I have had the advantage of perusing the draft reasons of Doyle CJ. His Honour has extensively reviewed the facts. I respectfully adopt that review. I refer to the facts only where necessary for an understanding of my reasons.
Nature of the offending
The appellant gained entry into and has resided in Australia since 1994 under false pretences. She has lived, worked and conducted her life in Australia as though she were a legal resident. The sentencing Judge described the appellant as “a hardworking law-abiding member of the community” and noted that “[b]ut for the assumption of a false name [the appellant was] no different from any other Australian citizen”. The appellant’s husband and child are Australian citizens. The estranged father of the child is also an Australian citizen. The appellant applied for and obtained social security benefits that she would have been entitled to if she were a legal resident. It is this conduct that gave rise to the present offending. It is clearly to be viewed as an extension of the fraudulent course of conduct that the appellant embarked upon when she obtained the false passport and entered Australia. Whilst this does not lessen the gravity of the offending in any way, the characterisation of the offences as such is necessary to an overall understanding of the appellant’s situation and the circumstances of the offending.
The motivation underpinning the appellant’s initial act in gaining entry into Australia under a false pretence is also a relevant matter. The circumstances leading to her decision to move to Australia were set out in a psychological report. The report concluded that it was likely that the appellant’s poor judgment at the time of making the decision in 1993 to create a false identity and obtain an illegal passport was influenced by unresolved psychological difficulties related to past trauma stemming from her childhood. The report considered that, for the appellant, the traumatic events of her childhood were connected to Britain as the place where those events had occurred and that as a result, the appellant viewed a return to that country as an anathema.
A further matter of significance is that the appellant has shown a great deal of contrition and remorse for her conduct. She has taken steps to “set the record straight” and to cooperate with the relevant authorities. She pleaded guilty at the earliest possible opportunity. She asked the sentencing Judge to take into consideration seven further offences relating to her initial entry into Australia. Most significantly, even prior to her pleas, the appellant made full reparation to the Commonwealth government of all monies that she had fraudulently obtained.
Sentencing Considerations
It is to be accepted that the effect on family members cannot be used to shield a defendant from an appropriate sentence. The courts must not shrink from performing their duty by giving undue weight to personal and sentimental factors. However, the present case is unusual.
The appellant’s offending resulted from her “living out” the lie of having taken a false identity. But for this lie and its perpetuation, the appellant has conducted her everyday life as though she were an Australian citizen. There is no suggestion that she conceived her child to improve her prospects of staying in Australia. There is no suggestion of any criminal conduct other than that giving effect to her false identity. The appellant’s background allows an understanding of her conduct. Her contrition and remorse may be accepted as entirely genuine. The reparation was made by a person of modest means and involved a substantial sacrifice.[1] Her prospects of rehabilitation are excellent.
[1] Phelan (1993) 66 A Crim R 446 at 448.
An additional factor relevant to determining an appropriate sentence for the appellant is that she is the mother of a young child. The sentencing Judge remarked:
I accept that I may have regard in a general way to the effect my sentence may have on your young child. I give some consideration to that, although I note that the Minister’s decision whether or not to grant you a visa to stay in this country is not dependent solely upon the sentence I impose on you. You may be granted or refused a visa regardless of what I do.
By having only a very general regard to the circumstances relating to the appellant’s child, the sentencing Judge failed to have adequate regard to the mandatory requirement contained in section 16A(2)(p) of the Crimes Act that courts, when sentencing offenders, have regard to
the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents.
At the hearing of the appeal, a discussion between Bench and Bar ensued as to the meaning of “probable” within section 16A(2)(p). Counsel for the Crown submitted that the correct definition to be attributed to “probable” is “more likely than not”. However, it is clear that, both in its grammatical sense and as interpreted by the common law, “probable” is not so narrowly defined.
The Oxford English Dictionary attributes three primary meanings to the term. The first two are characterised as now historic definitions. They are:
Capable of being proved; demonstrable, provable.
Such as to approve or commend itself to the mind; worthy of acceptance or belief; rarely in bad sense, plausible, specious, colourable.
It is said that the latter definition is now merged in the modern and popular sense of the word, encompassed in the third definition:
Having an appearance of truth; that may in view of present evidence be reasonably expected to happen, or to prove true; likely.
Also included within the definition of “probable” are the Latin roots for the word. They are, probābil-is, meaning “that may be proved, probable, credible”; prob-āre, meaning “to try, test, approve, make good”; and prob-us, meaning “good”.
In Wagon Mound (No 2)[2] Lord Reid discussed the meaning of “probable”, observing:[3]
[“Probable”] is used with various shades of meaning. Sometimes it appears to mean more probable than not, sometimes it appears to include events likely but not very likely to occur, sometimes it has a still wider meaning and refers to events the chance of which is anything more than a bare possibility, and sometimes, when used in conjunction with other adjectives, it appears to serve no purpose beyond rounding off a phrase.
In the context of section 16A(2)(p), a provision obviously intended by the legislature to enable the Court to take into account a wide range of circumstances and eventualities, the term “probable” is correctly interpreted as including events that are possible, in the sense of being credible or having the appearance of truth, that is, events that are plausible outcomes, not merely fanciful postulations. Such an interpretation provides consistency of approach when sentencing.
[2] Wagon Mound (No 2) [1966] 2 All ER 709.
[3] Wagon Mound (No 2) [1966] 2 All ER 709 at 713.
The appellant entered into a relationship with the now-estranged father of her child in the mid-1990s. She claimed to have been subjected to abuse from him, causing her to seek police protection on a number of occasions. This led to their separation and a dispute over custody and access arrangements. The father has limited weekend access to the child.
The child, a boy now aged six years, is in poor health. He suffers from asthma. A report of a clinical-forensic psychologist before this Court prepared prior to the appellant’s incarceration offers the following opinions and comments concerning the child’s need for his mother:
Primary care [for the appellant’s son] falls to [his] mother, including payment of school fees and management of his asthmatic condition, that sometimes requiring [sic] her to take time off work. The boy described his favourite activity as going on holidays with his mother. He also informed me the couple spend considerable periods together at play and attending cultural and social events.
…
[The appellant’s son] presents as a happy, confident, trusting child. There were no signs of behavioural disturbance during the assessment period. He enjoys an appropriately close, loving bond with his mother who is the primary care giver. I would expect an extended separation from his mother to negatively impact upon his future development.
A report prepared by a senior social worker at the Child and Adolescent Mental Health Service observed:
I am a therapist who has seen [the appellant and her son] on a number of occasions since February of this year. My involvement has been in relation to how best to attend to his emotional needs in the context of a Family Court dispute, parental conflict and the fear of his mother being deported. The Family Court dispute has been resolved and he remains in the care of his mother who has been his primary carer since birth.
[The appellant’s son] is a bright articulate child with a strong sense of loyalty to his mother. He is aware of the possibility of his mother being compelled to leave the country and is understandably very anxious about this. I think this stress combined with the long term family stress of a family court conflict have had a significant impact on his emotional well-being and anxiety levels, which in turn has impacted upon his behaviour.
I think that it is highly desirable … that his relationship with his mother continue uninterrupted. Similarly his schooling needs to continue without interruption. Additionally, I believe that the threat of his mother being deported needs to be dispensed with as soon as possible as it places him in a state of ongoing fear of what is going to happen to him and his mother.
A report from the family’s doctor notes:
[The appellant] and her son … have been patients of mine since April 2003. [The appellant’s son] suffers from asthma. Throughout that time I have found [the appellant] to be a very concerned, attentive and diligent mother. The possibility of any separation would be extremely detrimental to [the child’s] asthma and his general well being.
A support letter prepared by a social worker employed by a department of the Flinders Medical Centre observed:
During the latter part of 2004, [the appellant] shared with me her current situation which is now under consideration. In discussing this with me, she has shown great remorse for her wrongdoings of 11 years ago, and is devastated on [sic] the impact this has had on [her son]. [The appellant] is a very responsible person and is strongly committed to supporting her husband … and her son … In the face of adversity, she has still managed to promote the best care for [her son], including supporting him to attend private schooling. Any potential separation between mother and child would not only be detrimental to [the child’s] development, but utterly devastating for them both.
A letter from the child’s teacher discussed the relationship between mother and child:
I have been [the appellant’s son’s] teacher since August 2004. During that time I have known [the appellant] to be a thoroughly committed, interested and passionate parent…
[The appellant] has been extremely diligent in her communication with me in all aspects of [the child’s] school life and in her role as a community member of our school and parent body.
She has shown great concern to be connected to all areas of [her son’s] development and a willingness to continue to grow as a parent and community member.
A letter provided on a personal level by a solicitor who had met the appellant in the course of legal proceedings discussed the relationship that the appellant’s son shared with his mother and father:
I first met [the appellant] in early 2004 when she asked me to represent her in Family Court proceedings concerning the welfare of her son …
Right from the start, [the appellant] impressed me as a loving, totally dedicated and resourceful parent …
[The child’s] father … has regular contact with him and this is not without its difficulties, partly because of the different approaches taken to management of [the child’s] health and well being, in the households of his respective parents, and this usually requires an extra effort by [the appellant] prior to and on [her son’s] return from contact. Nevertheless, she is supportive of his relationship with his father.
His father works part-time and lives quite some distance from [the child’s] kindergarten/school and so is not involved in his life on a daily basis, but on approximately an alternate fortnightly basis.
Should [the appellant] be unable to care for [her son] for any period of time, although [the father and stepfather] would step in, they could not provide a proper substitute for the level of care and attention to detail provided by [the appellant]. This would be extremely distressing for [the child], who does not cope well with changes in his routine or with any stress.
On the evidence before this Court it can be safely concluded that separating this mother from her child will be to the detriment of the child. The child needs his mother’s love and care. His ill health and the estrangement of his parents heighten this need.[4]
[4] Loss of parental care has been considered a relevant factor – Vaughan (1982) 4 Cr App R (S) 83; Boyle (1987) 34 A Crim R 202 at 205.
That failure to comply with section 16A(2)(p) of the Crimes Act gives rise to an error in the sentencing process was the conclusion reached by Malcom CJ in Nguyen,[5] where he observed:[6]
As is apparent, the learned Judge did not say how he took the effect of the sentence on the children into account or make any inquiry about the fate or future of the children. Counsel for the applicant at the time did not proffer any information. This was a failure by counsel to obtain the necessary information so that the court could be properly informed. In my opinion, the learned Judge should have taken steps to obtain the necessary information by calling for a pre-sentence report. The failure to do so meant that the sentence was imposed without compliance with s16A(2)(p) of the Crimes Act. That in itself is a sufficient reason to allow the appeal.
In that case, Malcom CJ concluded that the circumstances involving the appellant’s children were “exceptional” such that they should be taken into account as a relevant factor when sentencing. He then weighed the interests of the community in ensuring that the children received adequate care against the interests of the community in punishing the appellant for her offending and concluded that the community’s interests would be better served if the appellant were conditionally released from prison. Malcom CJ observed:[7]
Giving effect to the requirements of s16A(2)(p) of the Crimes Act requires this Court to consider what is in the best interests of the community so far as the sentencing of the appellant is concerned. This must be done in a context of balancing the competing community interests. On the one hand, in this case there is a need to punish the offenders involved. The "prime mover" was the husband, who has been sentenced to a very substantial term of imprisonment. In my opinion, given the relatively minor role played by the appellant, when taken together with the situation where the welfare of her three children is in jeopardy, with the possibility that they may, if not appropriately protected and directed, themselves become offenders, the best interests of the community will be served by giving the appellant the opportunity to rehabilitate herself in the community and take responsibility for the care and protection of the children.
It is to be observed that Malcolm CJ, when invoking section 16A(2)(p), had regard to the possibility of detriment.
[5] Nguyen v The Queen (2001) 160 FLR 216 (application for leave to appeal); Nguyen v The Queen (2001) 160 FLR 284 (appeal proper).
[6] Nguyen (2001) 160 FLR 216 at [12]; 160 FLR 284 at [7].
[7] Nguyen (2001) 160 FLR 284 at [35].

In Walsh v Department of Social Security,[8] Perry J concluded that when sentencing two appellants, the parents of three young children, the magistrate had failed to have sufficient regard to the impact of the sentence on the children as required by section 16A(2)(p). Perry J observed:[9]
Various international instruments which have been entered into by Australia emphasise the protection by the society and the State of the family as the natural and fundamental group unit of society, and preservation of the rights of children. Although such international instruments do not form part of Australian law, they serve to underscore the importance of provisions such as s 16A(2)(p) of the Crimes Act, which, where possible, should be construed and applied consistently with them. So that while we should always bear in mind the principles which find expression in relevant international instruments, particularly those which have to do with human rights, recourse to them in this case is hardly necessary, as s 16A(2)(p) of the Act is clear and unambiguous in its terms.
[8] Walsh v Department of Social Security (1996) 67 SASR 143.
[9] Walsh (1996) 67 SASR 143 at 147.
In Carmody,[10] Tadgell JA of the Victorian Court of Appeal observed:[11]
Section 16A(2)(p) of the Crimes Act 1914 of the Commonwealth requires that, in determining a sentence to be passed on a person for a Federal offence, the court must take into account the probable effect that a sentence would have on any of the person's family or dependents. The courts have taken the view that that provision is to be interpreted as making hardship to a prisoner's family resulting from imprisonment relevant only if exceptional circumstances are shown: see, for example, Matthews, (unreported, Courts of Appeal, Vic, 20 March 1996). It is the same at common law, which in this respect governs the imposition of a sentence for the State offence of trafficking.
Notwithstanding that the child became very ill when separated from his mother such that arrangements were made for him to live in prison with his mother, Tadgell JA concluded that it was not a case where exceptional circumstances had been shown and then continued:[12]
Nevertheless, this Court is in a position - as the learned sentencing judge necessarily was not - to learn something, with less than satisfactory material, of the actual impact that the applicant's incarceration has had on her son. We cannot act as though exceptional circumstances have been shown, for they have not been shown. We can, however, show some mercy, tempering the wind to the shorn lamb. I think this is a case in which to do it: compare Miceli (1997) 94 A Crim R 327. A similar attitude has been taken in the English cases of Vaughan (1982) 4 Cr App R (S) 83 and Haleth (1982) 4 Cr App R (S) 178. In each of those cases an amendment of sentence was made on appeal so as to achieve the immediate release of a prisoner in order to allow a sick child or children to be cared for.
The circumstances here do not, I think, call for the applicant's immediate release, and the seriousness of her offences precludes it. I would propose, however, that the applicant's sentence be shortened, but on the sole ground that some mercy is warranted. It is really mercy to the child that is deserved, the law having immemorially shown tenderness towards the very young, the very old and the sick. Here, the child is at risk of being deprived of both his mother and his father if he is compelled to leave the prison where he now stays. The risk that he should be placed in that position for any appreciable time can appropriately be at least minimised.
Tadgell JA concluded that in light of the evidence of the suffering of the child, it was appropriate to reduce the length of the non-parole period imposed by the sentencing Judge but that given the gravity of the offending, it was inappropriate to order the immediate release of the appellant.
[10] The Queen v Carmody (1998) 100 A Crim R 41.
[11] Carmody (1998) 100 A Crim R 41 at 45.
[12] Carmody (1998) 100 A Crim R 41 at 45.
Callaway JA also considered section 16A(2)(p), observing:[13]
As Tadgell JA has said, hardship to an offender's family is a matter which frequently arises but, both at common law and under s16A(2)(p) of the Crimes Act, such hardship has to be exceptional or, as it is sometimes said, "clearly exceptional". See the Victorian Sentencing Manual, paras 17.535-17.541. As the learned sentencing judge said in the present case, children cannot be used as a form of insurance by parents engaged in criminal enterprises. It is not uncommon in drug trafficking to find persons recruited whose antecedents or family circumstances will elicit sympathy if they are convicted. For that reason, speaking very generally, absence of prior convictions has been held to have less relevance as a mitigating factor in such cases.
Callaway JA agreed with the sentence suggested by Tadgell JA, as did the third member of the Court of Appeal, Winneke P.
[13] Carmody (1998) 100 A Crim R 41 at 46.
The passages from the relevant authorities cited above emphasise that a risk of detrimental effect or the chance that a parent’s incarceration may have ramifications for the child is sufficient for the purposes of section 16A(2)(p), provided the court is of the view that the risk or chance is exceptional and not ordinary. The risk of a parent’s deportation and the probable consequent effect on a child is clearly an exceptional circumstance and therefore a relevant matter within the meaning of section 16A(2)(p) to be considered when sentencing.
Counsel for the respondent accepted that the appellant, due to illegal entry into Australia and subsequent criminal conduct, might well be removed from Australia regardless of the sentence imposed. However, the prospect that the sentence imposed upon the appellant may increase the risk of deportation is an “exceptional circumstance” when considering the effects on the dependant infant child. This exceptional circumstance should be taken into account when determining the appropriate sentence to be imposed. It is one of the factors that should be considered, together with factors such as the gravity of the offending, the full reparation made prior to her plea, her contrition and remorse as demonstrated by this fact and by her early pleas.
It is to be accepted that, when re-sentencing, this Court should not construct the sentence so as to avoid the operation of the provisions of the Migration Act 1958 (Cth).[14] The task of the Court is to fix an appropriate sentence having regard to all relevant factors. Those factors include the effect of the sentence on a dependent infant child. Section 16A(2)(p) requires that these matters be brought to account in the sentencing process.
[14] R v Shresthra (1991) 173 CLR 48.
In this limited context it is appropriate to have regard to the probable consequences of the appellant being deported. The likely effect of the appellant’s potential deportation is to be assessed by the Court having regard to all relevant matters. One such effect is that mother and child may be separated for much or all of the child’s remaining minority. The Court is concerned to assess the real effect on the child, not the fanciful or far-fetched effects. The passages from the various reports and letters cited above indicate that the deportation of the appellant would have a devastating effect on her son.
In Miceli,[15] the Victorian Court of Appeal recognised the doctrine of mercy as relevant to the exercise of sentencing discretion. Reference was made[16] to the following remarks of Windeyer J in Cobiac v Liddy:[17]
The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy… This is not because mercy, in Portia’s sense,[18] should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.
The Court of Appeal then applied the observations of King CJ in Osenkowski[19] where it was observed:[20]
… There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
This statement has been approved by Winneke P and Hayne JA in Carter[21] and Clarke.[22]
[15] Miceli (1997) 139 FLR 309.
[16] Miceli (1997) 139 FLR 309 at 313.
[17] Cobiac v Liddy (1969) 119 CLR 257 at 269 (footnote added).
[18] Portia in Merchant of Venice, Act 4 Scene 1:
[19] R v Osenkowski (1982) 30 SASR 212.
[20] Osenkowski (1982) 30 SASR 212 at 212-213.
[21] Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601.
[22] R v Clarke [1996] 2 VR 520 at 523.
In Miceli, after hearing submissions from counsel seeking a merciful approach, the sentencing Judge commented:[23]
I am not here to dispense mercy, I am here to dispense justice.
On appeal, the trial Judge was reprimanded for so commenting.[24] Having referred to the authorities cited above, Charles JA observed:[25]
The learned judge was indeed, as he said, there to dispense justice. His Honour was also there to consider whether, on the evidence before him, a reasonable basis existed in well balanced judgment for adopting a course which might bear less heavily on the applicant than if he were to receive his just desserts. It would be quite wrong for anyone to have thought that our system of justice did not entitle the prisoner standing for sentence to receive proper consideration of any claim he may legitimately have had to the exercise of clemency.
[23] Miceli (1997) 139 FLR 309 at 312.
[24] Miceli (1997) 139 FLR 309 at 312-313 (Tadgell JA).
[25] Miceli (1997) 139 FLR 309 at 315.
The discretion to adopt a merciful approach to sentencing should only be used in exceptional circumstances to allow weight to be given to factors that are ordinarily not regarded as relevant mitigating circumstances.[26]
[26] R v Penno [2004] SASC 354 at [52]-[55]; Lowery (1992) 14 Cr App R 485; See also Richard G Fox, “When Justice Sheds a Tear: The Place of Mercy in Sentencing” (1999) 25 Monash University Law Review 1.
The sentencing Judge in the present case failed to have adequate regard to the unusual nature of the criminal conduct, to the making of full reparation and to the effects of sentencing on the appellant’s dependant child. This case allowed for a compassionate approach. This is a case that calls for justice to be tempered with mercy.
For these reasons, the sentence imposed by the sentencing Judge should be set aside. It is appropriate to order that the appellant be sentenced to a term of imprisonment of 10 months but for the Court to direct that the appellant be released forthwith, upon giving security by her recognisance to be of good behaviour for a period of 16 months pursuant to section 20(1)(b) of the Crimes Act. That section relevantly provides:
(1)Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:
(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
Accordingly there was an error in the approach of the sentencing Judge and it is appropriate for this Court to re-sentence.
Conclusion
I would allow the appeal. I would set aside the sentence imposed by the sentencing Judge. I would impose a sentence of imprisonment of 10 months. I would order that the appellant be released forthwith upon her giving security in the sum of $1,000 to be of good behaviour for a period of 16 months from today.

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice.

[2005] SASC 316

8 September 2005

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Sentencing

Probable Effect on Family