Totaan v R [2022] NSWCCA 75

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Totaan v R [2022] NSWCCA 75 Hearing dates: 11 February 2022 Date of orders: 11 April 2022 Decision date: 11 April 2022 Before: 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 alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that "exceptional hardship" is required are "plainly wrong" SENTENCING — appeal against sentence — general principles — 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" SENTENCING — federal offenders — relevant considerations — hardship — to third parties — whether s 16A(2)(p) of the Crimes Act 1914 (Cth) 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" STATUTORY INTERPRETATION — precedent — federal legislation — the importance of comity and consistency between intermediate appellate courts in the interpretation of federal legislation — 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 alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that "exceptional hardship" is required are "plainly wrong" Legislation Cited: Crimes Act 1914 (Cth) ss 16A, 16A(2)(p), 16BA, 19AB(1), 19AC(1), 20(1)(b), 20(2), 20A(5), 20AA, 21B Crimes Legislation Amendment Act (No 2) 1989 (Cth), s 6 Criminal Appeal Act 1912 (NSW), s 6(3) Criminal Code Act 1995 (Cth) ss 134.2(1), 135.1(5) Criminal Law (Sentencing) Act 1988 (SA), s 10(n) Evidence Act 1995 (Cth) Evidence Act 1995 (NSW) s 128(8) Cases Cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 Bae v R [2020] NSWCCA 35 Boyle v The Queen (1987) 34 A Crim R 202 Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 Chippendale v Commissioner of Taxation (1996) 62 FCR 347 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 De Faria v Western Australia [2013] WASCA 116 Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145 Director of Public Prosecutions (Cth) v Milne [2001] VSCA 93 Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42 Director of Public Prosecutions v Ip [2005] ACTCA 24 Elshani v The Queen (2015) 255 A Crim R 488; [2015] NSWCCA 254 Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Fish v Solution 6 Holdings Limited (2006) 225 CLR 180; [2006] HCA 22 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Heath v R [2016] NSWCCA 24 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Huddart Parker Ltd v Cotter (1942) 66 CLR 624 Huynh v Commonwealth Services Delivery Agency (2014) 120 SASR 557; [2014] SASC 143 Jafaar v R [2017] NSWCCA 223 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Jorissen v The Queen [2017] WASCA 71 Kaveh v R [2017] NSWCCA 52 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106 Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] 2 VR 505 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Markovic v R (2010) 30 VR 589; [2010] VSCA 105 McKinnon v Secretary; Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 Nguyen v R [2016] NSWCCA 5 Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 R v Adami (1989) 51 SASR 229 R v Betka [2020] NSWSC 77 R v Buckskin [2010] SASC 138 R v Carter [2018] NSWCCA 138 R v Constant (2016) 126 SASR 1; [2016] SASCFC 87 R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 866 R v Edwards (1996) 90 A Crim R 510 R v Girard [2004] NSWCCA 170 R v Hawkins (1989) 45 A Crim R 430 R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405 R v Holdsworth [1993] QCA 242 R v Hurst; Ex parte Director of Public Prosecutions (Cth) [2005] QCA 25 R v Ibbetson [2020] QCA 214 R v Knipe [2017] SASCFC 34 R v Matthews (1996) 130 FLR 230 R v Milne (2012) 91 ATR 560; [2012] NSWSC 1538 R v Milne (No 6) [2010] NSWSC 1467 R v Newton (2010) 199 A Crim R 288; [2010] QCA 101 R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369 R v Peter Michael Clark; (Court of Criminal Appeal (NSW), 15 March 1990, unrep) R v Polterman (Court of Criminal Appeal (Vic), 2 August 1974, unrep R v Qian Lin [2014] NSWCCA 254 R v Ruha; Ex Parte Director of Public Prosecutions (Cth) (2010) 198 A Crim R 430; [2010] QCA 10 R v Sinclair (1990) 51 A Crim R 418 R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 R v T (1990) 47 A Crim R 29 R v Taleb (No 5) [2019] NSWSC 720 R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522 Robertson v R [2017] NSWCCA 205 Saoud v The Queen; Fernandez v The Queen [2019] VSCA 208 Saxon v Commonwealth Services Delivery Agency (2004) 88 SASR 382; [2004] SASC 118 The Queen v Wirth (1976) 14 SASR 291 Transurban City Link Ltd v Allan (1999) 95 FCR 553; [1999] FCA 1723 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Warden v The Queen [2019] VSCA 2 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Zaky v The Queen [2015] NSWCCA 161 Texts Cited: Australian Law Reform Commission, Sentencing (Report No 44, March 1988) Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989 J D Heydon, "How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law?" (2009) 9 Oxford University Commonwealth Law Journal 1 M Leeming, "Farah and its Progeny: Comity Among Intermediate Appellate Courts" (2015) 12 Judicial Review 165 Category: Principal judgment Parties: Clarisse Totaan (Applicant) The Crown (Respondent) Representation: Counsel: