Bell CJ at [1]; Gleeson JA at [148]; Harrison J at [149]; Adamson J at [150]; Dhanji J at [151]
Decision:
1. Grant leave to appeal.
2. Appeal allowed.
3. Set aside the sentences imposed on the Applicant on 12 March 2021 and resentence the Applicant as follows:
In relation to Count 1, the Applicant is sentenced to a term of imprisonment of 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.
4. Order that the Applicant be released immediately on recognizance to be of good behaviour for one year and 11 months, and upon posting security in the sum of $10.
Catchwords:
CRIME — appeals — appeal against sentence — misapplication of principle — sentencing for federal offences — relevant considerations for a court sentencing a federal offender pursuant to s 16A of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong”
CRIME — appeals — appeal against sentence — re-sentence – obtaining a financial advantage by deception from the Commonwealth, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) — where offending involved social security fraud — where offender underreported or failed to report income to authorities and thereby received benefits to which she was not entitled — the proper treatment of general deterrence in sentencing for social security fraud offences — where offender was the victim of physical, emotional and financial abuse perpetrated by her former partner — where the offender’s incarceration resulted in hardship to her family and children
JUDGMENTS AND ORDERS — court of appeal — review of previous decision of the court of appeal — whether previous decision plainly wrong — the proper construction of s 16A(2)(p) of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Totaan v The the Queen [2022] NSWCCA 75
Case
[2022] NSWCCA 75
Decision Date
CaseChat Overview and Summary
The matter before the court was an appeal against sentence brought by the respondent, the Queen, in relation to a conviction of the appellant, Totaan, for obtaining a financial advantage by deception from the Commonwealth. The appellant had committed social security fraud by underreporting or failing to report income to authorities, thereby receiving benefits to which she was not entitled. The case was heard in the Court of Appeal, which was required to determine whether the sentencing principles applied by the lower court were correct. Specifically, the court was asked to consider whether the lower court erred in its interpretation of section 16A(2)(p) of the Crimes Act 1914 (Cth), which deals with the relevance and treatment of hardship to third parties in sentencing federal offenders. The court was also asked to consider whether the lower court erred in its consideration of general deterrence in sentencing for social security fraud offences.
The court examined the relevant statutory provisions and previous case law to determine the correct interpretation of section 16A(2)(p) of the Crimes Act 1914 (Cth). The court found that the lower court had erred in its interpretation of the provision, which did not require the establishment of “exceptional hardship” in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants. The court also found that the lower court had erred in its consideration of general deterrence, which should not have been given undue weight in sentencing for social security fraud offences. The court found that the lower court’s sentence was plainly wrong and ordered a re-sentencing hearing.
The court of appeal found that the lower court had erred in its interpretation of section 16A(2)(p) of the Crimes Act 1914 (Cth) and in its consideration of general deterrence in sentencing for social security fraud offences. The court held that the lower court’s sentence was plainly wrong and ordered a re-sentencing hearing. The court emphasised the importance of comity and consistency between intermediate appellate courts in the interpretation of federal legislation. The court also highlighted the need for sentencing courts to consider all relevant factors, including the probable effect of a sentence or order on an offender’s family or dependants, in accordance with the principles set out in section 16A of the Crimes Act 1914 (Cth). The court’s decision provides clarity on the correct interpretation of section 16A(2)(p) of the Act and the proper treatment of general deterrence in sentencing for social security fraud offences.