Considering the effect of a Commonwealth sentence on family members: even Homer nods

Kieran Fitzgerald

The Court of Criminal Appeal (CCA) has considered the meaning of s 16A(2)(p) of the Crimes Act 1914 (Cth), which provides that, in determining the sentence to be imposed on a Commonwealth offender, the court ‘must’ take into account ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’. The CCA held that the existing line of authority, which required that family hardship be ‘exceptional’ before it can be taken into account on sentence, was ‘plainly wrong’ and should not be followed.


The applicant had 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 Act 1995 (Cth) (Code). She also asked that a further offence of dishonestly causing a loss to the Commonwealth, contrary to s 135.1(5) of the Code, be taken into account in determining her sentence. She gave evidence during the sentence proceedings concerning the hardship that would be occasioned to her mother and children if she were imprisoned. The judge concluded that any hardship experienced by the applicant’s family would be ‘no different to that which would normally be expected’. The applicant was sentenced to an aggregate sentence of four years imprisonment with a non-parole period of two years.

The applicant appealed her sentence on grounds including whether ‘exceptional hardship’ must be established before a court may have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants, including whether authorities that have held that ‘exceptional hardship’ is required are ‘plainly wrong’.

A five-judge bench was convened and the court allowed the appeal. Bell CJ (with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed) engaged in a thorough consideration of whether the ‘exceptional hardship’ approach applied by the sentencing judge involved a gloss on s 16A(2)(p) and, if it did, whether that gloss was impermissible.

Homer Statue
British Museum
The decision

Bell CJ noted that s 16A(2)(p) says nothing about exceptional hardship being required, either as a pre-condition to its being taken into account or as a matter that is required to be demonstrated before there may be a substantial reduction in a sentence (at [41]). The first decision of an intermediate appellate court considering s 16A(2)(p) appears to have been R v Sinclair (1990) 51 A Crim R 418, a decision of the Full Court of the Supreme Court of Western Australia. In that case, Malcolm CJ (with whom Kennedy and Pigeon JJ agreed) stated that, in his view, s 16A of the Crimes Act 1900 (NSW) (Crimes Act) ‘was not intended to change the common law’. This decision was followed in R v Matthews (1996) 130 FLR 230 at 233 where Phillips CJ (with whom Southwell and Hampel AJJA agreed) described Sinclair as ‘powerful authority for the proposition that hardship is ‘relevant’ only if it is exceptional’ (at [44]–[45],[50]).

In R v Togias [2001] NSWCCA 522 at [16]–[17], Spiegelman CJ noted that he considered himself constrained by previous decisions of other intermediate appellate courts, including Sinclair and Matthews. This decision was followed in R v Hinton [2002] NSWCCA 405 (at [53]–[54]).

Bell CJ highlighted the dissenting judgment of Beech-Jones J (as his Honour then was) in R v Zerafa [2013] NSWCCA 222, in which his Honour expressed the view that any requirement that ‘exceptional hardship’ be established when considering s 16A(2)(p) was not supported by the language of the section, and that decisions that had held to the contrary were clearly wrong (at [4], [58]).

After stating the applicable principles regarding when an intermediate appellate court should depart from its own earlier decisions and those of courts of co-ordinate jurisdiction (at [72]–[76]), Bell CJ stated that decisions such as Sinclair and Hinton, holding that regard may only be had to family hardship when the circumstances are ‘exceptional’, are ‘plainly wrong’ and should not be followed (at [77]).

The crux of the decision of the CCA was based on the fact there is ‘simply no textual support’ for the requirement that exceptional circumstances be shown before hardship to family members may be taken into account, or given any specified weight, either in s 16A itself or in the Crimes Act more generally. Unwarranted judicial glosses should not be placed on the simple language of the section. Not only is there no textual support in s 16A for the requirement that exceptional circumstances be shown or established, but the ‘requirement’ to demonstrate ‘exceptional hardship’ runs contrary to the language of the sub-section. The CCA considered that this judicial gloss operated to defeat the statutory direction that the effect of the sentence on family members and dependants ‘must’ be taken into account (at [78], [82]).

Bell CJ considered that the case law interpreting s 16A(2)(p) took an immediate wrong turn in Sinclair with Malcolm CJ’s assertion that s 16A of the Crimes Act did not intend to alter the common law, and this was compounded by Phillips CJ’s description of Sinclair in Matthews as ‘powerful authority’. It was never true that s 16A(2)(p) did not intend to alter the common law (at [48]–[49]). His Honour went on to state that ‘no doubt any decision of Malcolm CJ is entitled to great respect but even ‘Homer nods’’ (at [85]).

Finally, Bell CJ addressed considerations of ‘comity’ and the need for consistency in interpreting national legislation. While these were acknowledged as important, they are not absolute considerations, and an intermediate appellate court should not follow a decision it considers to be ‘plainly wrong’. In this case, the importance of the legislation and the ramifications of a mistaken (albeit consistently applied) interpretation of s 16A(2)(p), pointed strongly in favour of the correction of the error.

Thus, the gloss that had been placed on the interpretation of s 16A(2)(p) is now to be removed. The section should be applied according to its terms and, to the extent that courts have taken a different approach, those decisions should no longer be followed (at [86], [93]).

In light of Totaan, the Commonwealth DPP recently conceded in a Victorian case that leave to appeal should be granted in respect of a ground regarding s 16A(2) (p), noting the desirability of national uniformity in sentencing for federal offences (Rodgerson v The Queen [2022] VSCA 82 at [4]). The appeal on that ground is yet to be heard. It remains to be seen what the implications of the decision will be, but given the number of cases in which this issue arose, there may be many more appeals on this point on the horizon. BN

Kieran Fitzgerald