Criminal division – sentencing

On the other hand, in R v Dong [2012] VSC 525 Coghlan J treated the accused’s intoxication as a mitigating factor by reducing moral culpability. At [25] his Honour said to the accused when sentencing him for attempted murder:

“It has been accepted by the courts that intoxication may act in mitigation, but it will not always do so: R v Davis, Court of Criminal Appeal (unreported, 9 May 1980). The principal consideration is whether or not a person does something under the influence of alcohol which they might otherwise [not] have done. That proposition will often in turn depend upon the person’s previous good character. That is, the extent to which the behaviour being considered can be said to be outside ordinary behaviour. The general testimonials as to your good character are powerful. The evidence about your assistance to the Liu family was powerful. I am prepared to say in your case that intoxication does reduce your moral culpability, but that has to be seen in the light of the very clear resentment that you bore to [the victim].”

See also R v Morrison [2012] VSCA 222 at [15]-[21] & [24]-[25]; R v Grant [2013] VSC 53 at [32]-[41].

11.2.18 Relevance of hardship on offender's family

In R v Michael Close [2004] VSCA 188 at [18] Charles JA, with whom Winneke P substantially agreed, said:

"It is well-established…that the circumstances must be clearly exceptional [Carmody (1998) 100 A Crim R 41 at 46] before the impact on an offender's family will lead to the imposition of a lesser sentence. But this is not an absolute rule. Exceptional circumstances have been found to exist where, for example, imprisonment will result in children being left to fend for themselves as best they can without parental supervision or support [Boyle (1987) 34 A Crim R 202 at 205 applied in the Court of Appeal in Yates (1998) 99 A Crim R 483 at 486]."

In R v Roberta Williams [2004] VSC 429 Kellam J, in rejecting a submission that a wholly suspended sentence be imposed on a mother of 4 children who had pleaded guilty to trafficking in a commercial quantity of ecstasy, said:

"[16] I accept that in all the circumstances before me, the fact that your children will be deprived of their mother is a matter that affects you and causes you concern and hardship. That is a matter which should be taken into account in mitigation of sentence. I accept that by reason of your conduct and that of your husband, your children will suffer hardship and that in particular any term of incarceration to be served by you will cause them considerable disruption. However, I do not conclude that the circumstances of that hardship suffered by your children are so exceptional as to justify a wholly suspended sentence as submitted is appropriate by your counsel. As the Queensland Court of Criminal Appeal observed in R v Tilley (1991) 53 ACR 1 at 3-4:

'It is common that hardship or stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. The public, which includes many people who struggle to bring up their children with moral standards, would be poorly served if the courts gave in to this temptation.'

[17] In my view, and in all the circumstances of this case, cogent and exact evidence of hardship which goes well beyond the situation of other families where a parent or parents have been imprisoned, would need to be produced before I could set aside other relevant principles of sentencing and fully suspend a sentence of imprisonment on that basis alone. The evidence before me is that your youngest daughter will be cared for by a loving grandparent. Your other three children will be cared for by their father, with whom they have a ‘positive relationship' on the material before me.

[18] As Winneke P said in Panuccio [unreported, Court of Appeal Vic, 04/05/1998]:

'Although the court is not, both as a matter of compassion and commonsense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be ‘exceptional’ or ‘extreme’ before the court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the court’s primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned.

Thus it has been often stated that it is a general principle of sentencing that the court should usually disregard the impact which the sentence will have upon the members of a prisoner’s family unless exceptional circumstances have been demonstrated. The principle has been so often stated that it does not need repeating …. It goes without saying I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration.'”
But in R v Thao Thi Tran [2005] VSC 220 Kaye J imposed a sentence of 3 years’ imprisonment, wholly suspended for 3 years, on a mother of 3 children aged 9, 7 & 6 who was found guilty of manslaughter of the children’s father whom she had stabbed 5 times. At [21] & [22] his Honour was satisfied that the defendant had acted out of a loss of self-control caused by the grave provocation to which she had been subjected and had been in fear of her own safety. At [42] his Honour said:

“Ordinarily, potential hardship to third parties as a result of a sentence is irrelevant to the question of what sentence is to be imposed on a person convicted of a crime. However, hardship to third parties, such as young children, may be taken into account as a mitigating circumstance where the hardship is ‘truly exceptional’, so that it would be an affront to common sense and human decency if the sentencing judge were to ignore it. In the present case, I consider that the plight of your three young children, and most particularly the precarious condition of your eldest son, is of such a truly exceptional character. It would be an affront to common sense and human decency for a sentencing judge to ignore such a factor. This is particularly so because, as a result of your crime, your children have been already deprived of their father.”

In R v Thi Loang Thai [2005] VSCA 283 the appellant had been found guilty of one count of attempting to import into Australia a traffickable quantity of heroin, a package containing 316.7g of heroin of approximately 70% purity having been posted to her from Cambodia by her husband. On appeal the sentence of 3 years and 1 day imprisonment with a non-parole period of 1 year was reduced to 2½ years imprisonment with release on recognizance after 271 days. After the accused and her husband were imprisoned, their two very young children were cared for by the accused’s sister. A clinical psychologist gave evidence that both children were showing signs of significant anxiety and distress and that from their long-term psychological point of view theie well-being would be compromised by the separation. At [35] Eames JA - with whom Charles & Buchanan JJA agreed – said:

“At common law the impact of the sentence upon family members, in particular children, could be regarded as a mitigating factor only in exceptional circumstances [see R v Pearce, unreported, Court of Appeal-Callaway JA, Southwell & Coldrey AJJA, 19/09/1996 and although s.16A(2)(p) of the Crimes Act 1914 (Cth) requires the court in sentencing to take into account the probable effect that a sentence would have on the family or dependants of the offender, that provision has been held, nonetheless, to also require that exceptional circumstances be shown. See R. v. Carmody (1998) 100 A Crim R. 41 at 45 per Tadgell JA.”

At [41] Eames JA held that the circumstances were not exceptional but acknowledged the overriding right of the Court to exercise mercy towards innocent children:

“In my opinion, as significant as they are, these circumstances are not so out of the ordinary as to amount to exceptional circumstances. I acknowledge, however, that the Court nonetheless has an overriding right, by way of the exercise of mercy towards innocent children, to take account of such matters in appropriate cases. See Carmody at 45 per Tadgell JA, per Callaway JA at 47.”

In DPP (Cth) v Gaw [2006] VSCA 51 the Court of Appeal referred with approval to R v Sinclair (1990) 51 A Crim R 418; R v Matthews [unreported, Court of Appeal, 20/03/1996]; R v Togias (2001) 127 A Crim R 23; R v Holland (2002) 134 A Crim R 451 & R v Mangione [2006] VSCA 34 and said at [19] & [21]:

“Hardship to an offender’s family or dependants must be truly exceptional…Hardship, even exceptional hardship, to children or other dependants is not a passport to freedom. It is simply a factor to be taken into account. In some cases it is entitled to great weight, in others [e.g. murder and serious cases of armed robbery] to hardly any weight at all.”

In R v Nagul [2007] VSCA 8 at [44] the Court of Appeal held that even if hardship to the offender’s family could not be taken into account for sentencing purposes because of absence of exceptional circumstances, it may be taken into consideration in determining whether mercy should be extended to the offender (as was the case in R v Carmody (1998) 100 A Crim R 41.& R v Thai [2005] VSCA 283), the exercise of mercy being part of the exercise of the sentencing discretion (R v. Miceli [1998] 4 VR 588 at 592 per Tadgell JA and at 594 per Charles JA.; DPP v. Carteri [1998] 1 VR 601). Chernov JA, with whom Maxwell P & Habersberger AJA agreed, referred with approval to dicta of King CJ in R v Osenkowski (1982) 30 SASR 21 at

“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.”

Referring to R v Nguyen [2006] VSCA 184 and R v Dooley [2006] VSCA 269, the Court of Appeal noted that in an appropriate case mercy may be extended effectively to the family member who suffers significant hardship because of the offender’s incarceration or to both the family member and the offender. The Court also said at [45] that considerations of mercy may operate both at the level of fixing of the head sentence or of the non-parole period or both.
However, in R v Markovic & Pantelic (2010) 30 VR 589; [2010] VSCA 105 a bench of five judges of the Court of Appeal affirmed the common law position that there can be no residual discretion to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional. At [1]-[3] & [5] Maxwell P, Nettle, Neave, Redlich & Weinberg JJA said:

[1] “There must always be a place in sentencing for the exercise of mercy ‘where a judge’s sympathies are reasonably excited by the circumstances of the case’: R v Osenkowski (1982) 30 SASR 212, 212–3 (King CJ). This is a proposition of long standing and high authority, repeatedly affirmed in this Court: Cobiac v Liddy (1969) 119 CLR 257, 269; R v Kane [1974] VR 759, 766; R v Clarke [1996] 2 VR 520, 523 (Charles JA, with whom Winneke P and Hayne JA agreed); Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601, 607 (Winneke P); R v Miceli [1998] 4 VR 588, 592 (Tadgell JA), 594 (Charles JA). For a recent example, see DPP v Najjar [2009] VSCA 246, [11].

[2] The issue raised by these applications concerns the circumstances in which an offender can legitimately seek an exercise of mercy on the ground that his/her imprisonment is likely to cause hardship to members of his/her immediate family or other dependants.

[3] It has long been the position at common law that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration. The contention advanced by each of the present applicants, however, was that even if the circumstances of family hardship were not adjudged exceptional, a sentencing court could nevertheless be called on to exercise – on that ground – what is sought to be characterised as a ‘residual discretion of mercy’. Indeed, Mr Markovic argued that failure to extend sufficient ‘residual’ mercy on the ground of family hardship was an appealable error…

[5] We have concluded that the established common law position should be reaffirmed. Our reasons may be summarized as follows:

1. Reliance on family hardship – that is, hardship which imprisonment creates for persons other than the offender – is itself an appeal for mercy.

2. Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.

3. Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.

4. The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.”

At [20] Maxwell P, Nettle, Neave, Redlich & Weinberg JJA elaborated on point 4 in paragraph 5, distinguishing the hardship which imprisonment places upon the offender’s family from the effect on the offender of hardship caused to family members by imprisonment. The Court said:

“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.”
In Johnson v The Queen [2014] VSCA 283 at [31]-[46] the Court of Appeal (Santamaria JA with whom Weinberg JA agreed), although referring to and approving the above dicta in Markovic’s Case, refused to grant the applicant leave on this ground since the psychological evidence did not provide support for the contention that the applicant’s “anguish at being unable to care for a family member...will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterremce or of the offender’s prospects of rehabilitation”.
In R v El-Hage [2012] VSCA 309 the Court of Appeal noted that the stringency of the test in Markovic v The Queen (2010) 30 VR 589 reflects not only the inevitability of adverse impact on family but also the fact that any discounting of sentence on the grounds of third party hardship creates difficulties of unequal treatment of offenders. However, the Court found that El-Hage’s Case was “one of those rare cases where the high hurdle of ‘exceptional circumstances’ was surmounted:

“Not only did Mrs El-Hage’s severe mental illness mean that the two boys were effectively without any parental care, but she herself had become suicidal and the younger boy had actually attempted suicide. On the uncontested expert evidence, these extremely grave consequences were the direct result of the applicant’s imprisonment.”

See also R v Stanisavljevic [2004] VSCA 144 at [28]-[31]; R v Mitchell [2005] VSC 219 at [26]; R v Airey [2006] VSCA 31 at [14]-[16]; R v Ienco [2008] VSCA 17 at [21]-[28]; R v NAD [2008] VSCA 192 at [5]-[9] & [51]-[52]; R v Vipulkumar Gajjar [2008] VSCA 268 at [18]-[19] & [35]-[39]; DPP v Bourozikas [2009] VSCA 29 at [32] and the cases cited in footnote 13; R v Gerrard [2011] VSCA 200 at [46], [57] & [59]-[61]; R v El-Hage (Sentence) [2011] VSC 452 at [47]-[49]; DPP v MGP [2011] VSCA 321 at [7]-[10] & [15]; R v HAT & Ors [2011] VSCA 427 at [68]-[71]; Ramezanian v The Queen [2013] VSCA 71 at [23]-[32]; R v Johnson [2014] VSC 175 at [121]-[125].