The Hardship Question - s16A(2)(p) of the Act
52A considerable proportion of the sentence hearing was taken up with Mr Hatzistergos' abovementioned argument the probable effect of any sentence under consideration upon family members or dependents must be taken into account pursuant to section 16A(2)(p) of the Act regardless as to whether such effect rises to the level of being considered "exceptional".
53Section 16A(2) of the Act makes it mandatory for a Court to take into account the numerous considerations listed therein "as are relevant and known to the Court". 16A(2)(p) lists as one of those considerations "the probable effect that any sentence or order under consideration would have on any of the person's family or dependents". In New South Wales, this provision has long been read in accordance with the common law as if it were preceded by the words "in an exceptional case": see R v Togias [2001] NSWCCA 522, R v Hinton [2002] NSWCCA 405; R v El Hani [2004] NSWCCA 162. Similar interpretations had been adopted in other states: see R v Berlinsky [2005] SASC 316; R v Nguyen [2001] WASCA 72; R v Gaw [2006] VSCA 51.
54Despite these lines of authority Mr Hatzistergos' argument, in short, was that such an interpretation was contrary to the words of the subject provision itself and also to the decision of the High Court in Wong v The Queen [2001] HCA 64 where at [71] Gauldron, Gammow and Hayne JJ, so the argument went, their Honours made it clear that no such requirement of "exceptional circumstances" is to be read into section 16(2)(p). Whilst Mr Hatzistergos accepted that many subsequent decisions in this and other Australian states have continued to so read such words into this provision, he argued that in none of these decisions had Wong's case being drawn to the relevant Court's attention. He also relied upon the decision of the ACT Court of Appeal in DPP v Ip [2005] ACTCA 24 where that Court disassociated itself from the reasoning in Togias, preferring an unqualified construction of section 16A(2)(p) whilst acknowledging that the weight to be accorded to a given sentencing factor is a discretionary matter.
55I found Mr Hatzistergos' argument based on Wong, quite persuasive and if it were not for some more recent decisions I may well have been prepared to adopt it. The first of such decisions is Le v R [2006] NSWCCA 136 where Latham J, with whom McColl JA agreed, at [25] expressed the view that Ip's case was "against the weight of authority in this state and in other states" and went on to state that "in any event, Togias is binding on this Court". Before leaving this decision, I note that Wong's case was not drawn to the Court's attention. Much more recently a similar construction as urged for by Mr Hatzistergos was urged upon the Court of Criminal Appeal in R v Zerafa [2013] NSWCCA 222, a decision which Mr Hatzistergos very properly drew the Court's attention after the sentence hearing in this matter. In that case, whilst R v Wong was again not drawn to the Court's attention, Hoeben CJ with whom Latham J agreed at [93] stated that in "relation to section 16A(2)(p) it is not appropriate for this Court to overrule or depart from such cases as Togias and Hinton". His Honour went on to approve Spiegleman CJ's comments in Togias at [17] that "if there is to be any change in this position... only the High Court can affect it". Before leaving this decision I should also point out that Beech-Jones J who dissented as to this point stated at [144] "that the construction of section 16A(2)(p) which reads the provision as though it were proceded or preceded "by the words in and exceptional case" is plainly wrong...".
56Whilst Mr Hatzistergos argued that I was bound by what the High Court said in Wong's case and that accordingly I should decline to follow the long line of authority in this State, I am not prepared to do so, especially in light of Zerafa and in circumstances where the issue was not fully ventilated in Wong's case which dealt with the validity of a guideline judgment arising from the importation of narcotics.
57Accordingly, before the probable effect of any sentence under consideration upon the offender's family or dependents can be taken into account it must be found to be exceptional. However, there is ample authority for the proposition that even if such an effect does not rise to the level of "exceptional" it can be taken into account as part of the general factual matrix in selecting an appropriate sentence and in relation to the length of the non parole period: see R v Bednarz [2000] NSWCCA 553 at [51] - [52]; Elsobky v R [2006] NSWCCA 168 at [17] - [21]; Dipangkear v R [2010] NSWCCA 156 at [29] and [40].
58I now intend to summarise the evidence relevant to section 16A(2)(p) of the Act in relation to the current matter before making a finding as to its probable effect and whether that effect can be characterized as exceptional.
59I have already recorded that the offender's wife had some form of mental breakdown in approximately 2004 and that since such time the offender has cared for her as well as being involved in the care of his two sons. During the trial the offender gave evidence that if he had not been arrested, he and his family intended moving into his parents house which is located at 50 Alfred Street, Ramsgate as soon as some "renters" moved out. Apart from saying that his parents home was "large", he did not say why they intended to move in although it would seem to have something to do with his then financial position and the fact that his recent accommodation "was all temporary accommodation".
60In Exhibit 1, the offender's father deposes that when the offender was first released on bail "he was living in my family house at Ramsgate with his wife and children." The offender's father goes on to state that he had "witnessed the difficulty that (the offender) has with his wife Maria in relation to her medical needs" and that the offender "makes sure that she is properly medicated and attends hospitals and appointments with doctors as and when required." He also states that as "long as (the offender) is (in) jail, I will support his family as much as I can." However, in this regard he goes on to state that he has "multiple health issues including diabetes, hypertension, arthritis and morbid obesity". He is also currently 76 years of age. As to his wife, whom is currently 75 years of age, the offender's father describes her as "elderly and infirm" with no license to drive. He says that neither of them are "very mobile" and that he is worried about the offender's wife and two sons and "the impact of their father's imprisonment on them".
61In exhibit 2, the offender's brother deposes that consequent on the offender's incarceration the "burden on the family, particularly my elderly father...has been enormous" and that his father and mother "are left with the responsibility of looking after Maria and their grandchildren." He also states that the offender had been the primary carer for his wife and that she has very little support from others" being estranged from her own family although she does have some irregular contact with her youngest brother." He further deposes that until recently the offender's wife was a patient at the Prince of Wales Mental Health Service and that it was the offender's task "to ensure that she attended monthly medical appointments and took her daily medication at morning and night" and that now that "task has fallen to my very elderly father and mother who have health conditions of their own".
62More particularly, the offender's brother describes the current situation in the following terms at paragraphs 17-20 of exhibit 2:
"17. In recent weeks her care has been transferred to St George Hospital where she has monthly meeting with her treating psychiatrist. Her condition means that it is difficult to have a serious conversation with her. She is very forgetful and almost child-like in how she behaves. She seems to be "not there" and has a blank expression on her face when you talk to her. She regularly talks to herself.
18. The care of the children has always primarily been Nick's responsibility due to Maria's illness. Nick was responsible for disciplining the children, helping them with their homework, and taking them to where they needed to go for extracurricular activities. Although Maria has a driving license, the family does not allow her to drive long distances so I have stepped in to do a lot of the driving including taking the children and Maria to see Nick is prison.
19. In my view the family are seriously struggling now Nick is in prison. Maria is not up to the task of looking after herself, let alone the children too. Without reminders she would struggle with her personal hygiene and cleaning, she has no ability to manage her finances or do the shopping. Nick took care of all these things. Now that he is in prison, my mother and father are doing their best to help her and the children, but they are really finding it extremely difficult.
20. The children are naturally upset about their dad being in prison and away from them. I have been taking them and Maria to visit Nick regularly. My mother has attended once, but struggled with the journey and not gone again. My father has not been to visit. He is simply too unwell."
63Annexed to exhibit 2 are a number of short medical reports in relation to, inter alia, the offender's wife's health. These reports do not contain the factual basis upon which the opinions expressed in same are grounded and were criticised by the Crown in this regard which it argued meant that they were therefore of limited weight.
64Firstly, there is a report from a Dr Futeran, staff specialist psychiatrist, at the Prince of Wales Hospital dated 31 July 2013. It records that the offender's wife is a patient at the that hospital's mental health service and has severe schizophrenia and a severe anxiety disorder and that whilst she "functions reasonably, with the help and support of her family", the offender "is a vital part of her support system and his absence has significantly impacted on her mental health which has deteriorated since his absence." Secondly, there is a report from a Dr Medhat Kerlous, apparently a general practitioner, which states, inter alia, that the offender's wife is "in great need for her husband Nick to care for her and their kids, due to her health status." Finally there is a short handwritten report from a Dr Salem, GP, that states that the offender's wife suffers from, inter alia, depression.
65As to the offender's father's health there is also a short report annexed to exhibit 2 from Dr Kerlous stating that he "is not fit to be carer for somebody else due to his current health status, and he needs a carer to himself".
66At the sentence hearing, I asked Mr Hatzistergos what were, in his view, the "exceptional circumstances" if I was ultimately against him in relation to his submission based upon Wong's case. In this regard, he answered in the following terms:
"The exceptional circumstances are in this case referable to (p), which would be the impact on the family. Obviously the age - the condition of the wife, the need for her to effectively have supervision, they're referred to in the affidavit of Mr John Megaloudis, in particular the need for supervision of her medication, the need to assist her with her household tasks, shopping, budgeting and so on, taking to medical appointments and the particular difficulty that her father-in-law Mr Vasilias Megaloudis has also sworn an affidavit before your Honour as in attending to those matters in light of his and his wife's own medical ailments are issues that in our respectful submission will be accentuated with time."
67The question of whether there are exceptional circumstances relevant to the issue of family hardship is a question of fact. However, it is not to be determined in isolation and without any consideration as to the nature of the offending. As Howey J stated in R v Hinton (supra) at [31]:
"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 emphasised 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"
68Based upon the evidence, I am satisfied that the probable effect that any sentence of imprisonment, which is accepted by both parties as being the only appropriate sentence in relation to each offence, will be to cause, as it has to date, a need for others to step in circumstances where some of these others will have not insignificant difficulty in doing so because of their own age and health.
69Nevertheless, it would seem in relation to the offender's wife, that her monthly assessment at St George Hospital is able to continue and that there have been no failures as to her taking her medication to date. Further, she is apparently able to self care, albeit with reminders, and there is no evidence that she is aggressive or violent or needs supervision from a safety perspective or wanders off or becomes lost. In this respect, the evidence as to precisely what care the offender's wife needs is rather general. I also note that the offender himself has chosen not to give any evidence as to what he did for his wife, or his children, a situation which leaves the Court having to piece the situation together from other evidence. Further, the short nature of the medical reports referred to which lack reference to any history that was taken into account by their authors does effect the weight of their opinions to a degree as does the fact that these reports contain little information as to their authors' involvement in the offender's wife's care.
70In relation to the children, I note that Mr Hatzistergos made no specific submission in relation to any effect upon them of their father's incarceration and there is no evidence that would suggest that any such probable effect was "exceptional" in relation to them either alone or in conjunction with that relevant to their mother. Indeed, there is little evidence as to the effect upon them of their father's absence. However, I accept that his absence will have an emotional effect upon them which is an unfortunate but inevitable consequence of their father's offending: see generally Wirth (1976) 145 SASR 291 at 295-296 per Wells J and R v Edwards (1996) 90 A Crim R 510 at 515 - 516 per Gleeson CJ. Further, I note that the offender used to help them with their homework although there is no other suggestion that their schooling has in anyway been affected.
71In Eken v R [2007] NSWCCA 320 a submission that leniency ought to be extended to an offender was rejected in circumstances where the offender (who himself suffered from a mental illness) had been primarily responsible for the care of severely physically and intellectually disabled adult brother, who was confined to a wheelchair and required 24-hour care. In that case, other family members had taken over that responsibility since the offender's incarceration. Hidden J, with whom Handley AJA and Hoeben J agreed, pointed out that, where family members other than the offender were available to care for a gravely ill or disabled child, however onerous the task, the Court generally failed to find exceptional circumstances.
72In Roberts v R [2007] NSWCCA 112, the offender's five year old daughter was seriously disabled but his mother was able to care for her, albeit with difficulty. The Court held that it was open to the sentencing judge to conclude that the case was not sufficiently exceptional to justify taking into account on sentence the undoubted effect upon the child of the offender's imprisonment. On the other hand, in R v Dibb (CCA, unreported, 13 September 1991), exceptional circumstances were found where an offender's teenage son had serious brain damage and there was effectively no one else to care for him.
73In Elsobky v R (supra) a finding that there were not exceptional circumstances was upheld by the Court of Criminal Appeal in circumstances where the wife of the offender who had suffered serious spinal injury requiring the offender to be her carer as well as that of their three children in circumstances where their youngest suffered from significant urethral and bladder problems causing him to be incontinent and to wear pads or nappies. However, the Court did approve the trial judge's decision in those circumstances to significantly reduce the non-parole period.
74I have not found determining whether there are exceptional circumstances in the current matter easy. Apart from the cases just mentioned, I have had regard to the circumstances falling on either side of the line as outlined in the following decisions: R v Hart [1999] NSWCCA 204; R v Luong [2000] NSWCCA 139; R v Bednarz [2000] NSWCCA 533; R v Capper [2000] NSWCCA 63; R v Aller [2004] NSWCCA 378; R v Lo; R v Ouyang [2004] NSWCCA 382; R v Wood [2005] NSWCCA 233; Le v R [2006] NSWCCA 136; Dipangkear v R (supra).
75 However, ultimately in the current circumstances where I regard the level of the offender's overall criminality as quite significant as detailed below, I am not prepared to find that the probable effects that I have found will be occasioned upon his family as a result of the sentences of imprisonment that I intend to impose can be characterised as exceptional although I have taken them into account, firstly, as part of the general factual matrix in selecting an appropriate sentence and, secondly, in relation to the length of the non-parole period I have imposed.