Impact on Dependents is Relevant when Sentencing for Commonwealth Crimes

Print Friendly, PDF & Email

Over a period of a little over six years ending in January 2019, western Sydney woman Clarisse Totaan underreported or failed to report her earnings to the Department of Human Services (DHS), which led to her receiving parenting payments to a sum of just shy of $113,000.

This social security fraud began after she had her first child at 18 years old to a controlling partner, who subjected her to emotional, financial and physical abuse. The pair had two children. And soon after they moved in together, he developed a gambling addiction and later an ice habit.

Deceiving the DHS happened over three periods. During those times, Totaan had various casual and full-time customer service and management positions. Averaged out, she earnt around $63,000 a year, while raising two kids, as her partner spent all of his income and some of hers on his habits.

An Australian Taxation Office data match detected the offending. Totaan was called in to Mount Druitt Centrelink Office to participate in an interview in January 2019. She was told she didn’t have to answer any questions and could seek legal representation, but she willingly divulged everything.

The mother-of-two was very clear that she had just used the money to buy necessities for her children and to pay the bills. She further outlined that her partner, who was eventually placed on an apprehended domestic violence order (ADVO), would tell her “fib stories” to obtain money from her.

Social security fraud

On 20 November 2020, Totaan pleaded guilty to two counts of obtaining a financial advantage by deception from the Commonwealth, contrary to section 134.2(1) of the Criminal Code (Cth). This crime carries a maximum penalty of up to 10 years imprisonment.

A count of dishonesty causing a loss to the Commonwealth, contained in section 135.1(5) of the Criminal Code, was taken on a Form 1, meaning she wasn’t convicted of it, but the judge took the offence into consideration in sentencing. This crime also carries up to 10 years inside.

NSW District Court Judge Jennifer English sentenced Totaan on 12 March last year to 4 years prison time, with non-parole set at 2 years. This reflected a 25 percent discount for the utilitarian value of the offender’s early guilty pleas. Her honour also cited her full cooperation with investigators.

Judge English described the offending as “systemic and persistent deceit over a number of years”, although “not as serious as offences involving false identities and aliases”. And while she noted the “toxic relationship” Totaan was in, she didn’t accept the mother was facing financial hardship.

Her Honour further noted that it was unlikely Totaan would reoffend. Although she cited specific deterrence in sentencing, so the offender wasn’t tempted again. But, above all, the judge prioritised general deterrence to dissuade others in the community from attempting similar fraudulent actions.

Impact on family neglected

On 11 April this year, Totaan appealed her sentence to the NSW Court of Criminal Appeal (NSWCCA) on two main grounds.

The first was that the judge made an error in not taking into account the impact being sent to gaol would have on Totaan’s dependents, especially as her Honour considered that this would have had to be “exceptional hardship” to have affected the length of the prison sentence.

And the second ground was that the sentence was manifestly excessive.

The issue raised in this appeal was of such importance that a bench of five justices was called to deliberate upon it. The significant matter was whether consideration of an offender’s family and dependents should only be taken into account in circumstances of exceptional hardship.

Section 16A(2) of the Crimes Act 1914 (Cth) provides a list of matters that must be taken into account when sentencing for a federal offence. This includes clause “(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants”.

Common versus statutory

Section 16A was added to the Crimes Act in 1989. Section 16A(2)(p) is similar to the common law principle that dependents should be considered in sentencing an offender but only when the hardship that would be caused to the third parties was exceptional.

The first case to consider 16A(2)(p) was the 1990 WA Supreme Court case R versus Sinclair, which saw the full bench find that the probable effect of the new sentencing provision was to reassert the common law principle that dependents must be considered only “in exceptional cases”.

NSW Chief Justice Andrew Bell noted the dissenting view of Justice Robert Beech-Jones in the 2013 NSWCCA case R versus Zerafa, in which he “expressed the strong view” that there’s nothing in the wording of 16A(2)(p) that states “exceptional hardship” as a trigger for its consideration.

The Chief Justice further outlined that the explanatory memorandum of the bill that created the law was devoid of any mention of the exceptional hardship factor, and that the consideration of dependents appearing last on the list of factors had nothing to do with “a hierarchy of importance”.

“The section says nothing about exceptional hardship being required, either as a pre-condition to its being taken into account or as a matter that is required to be demonstrated before there may be a substantial reduction in a sentence,” his Honour found.

The full bench of the NSWCCA concluded that the line of authorities commencing with Sinclair have been “clearly wrong”, and therefore, in the future 16A(2)(p) must be considered in sentencing for federal offences without any requirement of “exceptional hardship”.

Therefore, the main ground of appeal was upheld, which meant resentencing must occur and the other ground of appeal didn’t need to be deliberated upon.

Free to go

In resentencing, the NSWCCA recognised that in sanctioning someone for the crime of social security fraud general deterrence is usually considered paramount, but in the current case, the personal circumstances of the offender were compelling and held significance on an appropriate sentence.

In terms of the 16A(2)(p) family and dependents matter it was found that Totaan’s two children were suffering greatly without the care of their mother. And they were currently being looked after by their grandmother whose capacity to care for them was limited due to her chronic illness.

Justice Bell stated that while the crimes were “undoubtedly serious, sustained and fraudulent”, there were “significant mitigating factors which, whilst not excusing the offences, go a very large way to explaining them”. And he stressed that greed was not a primary motive behind the crime.

His Honour last week ordered that the original sentence be quashed and Totaan be resentenced to 3 years prison time. And as she’d already served 13 months, he further called for her to be released immediately on a 23 month good behaviour bond on “posting security in the sum of $10”.

NSWCCA Justices Fabian Gleeson, Ian Harrison, Christine Adamson and Hament Dhanji all agreed with the Chief Justice’s orders.

Author Image

About Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on civil rights, drug law reform, gender and Indigenous issues. Along with Sydney Criminal Lawyers®, he writes for VICE and is the former news editor at Sydney’s City Hub.

Leave a Comment