The principles relating to whether a sentencing Court may take into account hardship to a third party.
30 The sentencing Judge's reference in his remarks to R v Edwards is in fact a reference to the Court of Criminal Appeal's decision in Cynthia Therese Edwards (1996) 90 A Crim R 510. This was a case where the relevant principles at common law had been extensively examined. Ms Edwards had pleaded guilty to manslaughter and was sentenced to penal servitude for three years. The sentencing Judge took into account the fact that Ms Edwards was the long-term carer for a 61-year-old patient in an institution. It seems he was a difficult and dangerous patient, and Ms Edwards had achieved greater success than anyone else in caring for him. At least in the short term, it seemed that there would be no one to care for him, if she were sentenced to fulltime imprisonment. The Court of Criminal Appeal disagreed with the sentencing Judge and found that the sentence was manifestly inadequate by virtue of an order allowing it to be served by way of periodic detention. At page 515 Gleeson CJ (with whom James and Ireland JJ agreed) said: -
"There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison would more often than not cause hardship, sometimes-serious hardship, and sometimes-extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing Judges and Magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be bread winners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend on their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of fulltime imprisonment".
31 And again page 516, Gleeson CJ said: -
"The real difficulty about a case such as the present, and many other cases in which imprisonment of an offender causes hardship to a third party, is to identify a ground upon which they can properly and relevantly be regarded as exceptional; regrettably, causing hardship to third parties by the imprisonment of an offender is only too common. Further more, as the Crown pointed out, if a hardship to (the invalid) were to be compared with a hardship that is commonly suffered by the spouse or children of a person sent to prison, it cannot be fairly categorised as exceptional in degree".
32 Gleeson CJ referred to a frequently cited Australian judgment on the subject. This was the decision of Wells J in Wirth (1976) 14 SASR 291 at 295-296 where his Honour had said: -
"The argument thus presented to us raises the following question: when (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?
…Hardship to spouse, family and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court…it seems to me that Courts would often do less than their clear duty - especially where the element of retribution, deterrence, or protection of society is the predominant consideration - if they allowed themselves to be much influenced by the hardship that prison sentences which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it is often been remarked that the strength of our law lies in the willingness of Judges, when applying a principle, not to carry it past the point where a sense of mercy or an affront to commonsense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so…For example, if it were demonstrated to the satisfaction of the Court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely hearted Judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, Courts should not go".
33 In R v Togias [2001] 127 A Crim R 23 although dealing with sentencing in the Federal sphere, reaffirmed the continued applicably of the principles to which I have made reference. (See also R v Hinton [2002] 134 A Crim R 286 per Howie J (with whom Wood CJ at CL and Sully J agreed).
34 The present situation of the law, relevant to the present appeal, may be briefly stated as follows: -