In Luu (unreported, Court of Criminal Appeal, NSW, 7 December 1984) the then Chief Justice, Sir Laurence Street, said:
"The Courts of this State have uniformly sought to make plain to persons who abuse the system of social welfare that they must expect to face heavy penalties. The introduction into the administration of that system of overly meticulous preliminary checks before benefits are paid could result in real hardships to persons whose need for benefit is urgent and immediate. Thus it is that such susceptibility is open to abuse, which results in persons who do abuse it receiving salutary penal consequences at the hands of the Courts."
That decision has been approved on quite a number of occasions, and I mention specifically Perks (unreported, Court of Criminal Appeal, NSW, 8 May 1987) and Tipene (unreported, Court of Criminal Appeal, NSW, 7 May 1987).
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It was held in that case that neither periodic detention nor community service would have been adequate to meet the seriousness of the offences for which the respondent had been charged.
28 The fact that the present offences might have been explained by the effect of an abusive relationship on the respondent would not have provided sufficient mitigation to permit a more lenient course being adopted than that required to denounce her conduct and act as a significant general deterrent. It is rarely the case that such offences will be explained by greed alone. Gambling that results in serious criminality can usually be found to have its genesis in some psychological disorder that is not of the offender's making. But when the resultant criminality is of a high order, as it was here, then little allowance can be made for such an explanation other than as it may impact upon the prospects of rehabilitation when the non-parole period or minimum period of imprisonment is being considered.
29 The significant attack by the Crown on the present sentence is that the total sentence was suspended. In aid of the submission that such a course resulted in manifest inadequacy, the Crown points to the fact that the respondent was suitable for periodic detention but his Honour did not consider that as an option. The Crown contends that to suspend the total sentence imposed paid insufficient regard to general deterrence even though his Honour expressly referred to that matter. The Crown is also critical, with some justification in my respectful opinion, of his Honour's statement that the respondent was already performing community service by looking after her daughter.
30 However, the question on this appeal is whether it was outside the proper exercise of his Honour's discretion to determine that the effect of imprisonment upon the respondent's daughter was such that in all the circumstances of the case it justified the highly unusual course of imposing a sentence which did not require the respondent to serve immediately a sentence of actual imprisonment of some form.
31 It is now clear that the reference in s 16A(2)(p) of the Crimes Act to the "probable effect that any sentence or order under consideration would have on any of the person's family or dependents" should be read as if it were proceeded by the words "in an exceptional case": R v Togias [2001] NSWCCA 522 where many of the relevant cases concerned with the effect on a child of a sentence of imprisonment imposed upon the mother are considered in the judgment of Grove J. But each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person. It should be exmphasised that the question of whether the probable effect of a sentence upon a third party will give rise to an exceptional case, cannot be considered in isolation from the facts of the particular matter and the degree of criminality involved in the offences for which sentence is to be imposed.
32 Whether exceptional circumstances exist is a finding of fact and this Court is strictly curtailed in displacing a finding of fact by a sentencing judge with a finding of its own, especially where error which might infect that finding cannot be shown. Where there is no patent error, the Court can only intervene where it is satisfied that there is no basis upon which the finding could be made. I am not satisfied that it was not open to his Honour to reach the finding that he did. This was a case where there was reliable and undisputed evidence that there was, at the time of sentence, severe behavioural and emotional problems being experienced by the respondent's child and that the child's long-term psychological well being would be affected by the full-time imprisonment of the respondent, not just because the respondent would be separated from her (which itself would probably not have been sufficiently exceptional) but because the respondent was needed both to care for the child and to take an active part in the child's treatment.
33 However, the question that then arises is what should have been his Honour's response to that finding in light of the seriousness of the offences committed by the respondent and the importance of general deterrence in offences of this nature. In R v Zamagias [2002] NSWCCA 17, this Court was concerned with the appropriateness of a suspended sentence to act as effective punishment and reflect general deterrence. In my judgment, with which Hodgson JA and Levine J agreed, I stated: