Family Hardship and Sentencing in Victoria

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Una EbsworthThe article Family Hardship and Sentencing in Victoria is written by Una Ebsworth, Partner, Doogue + George Defence Lawyers.

Una is an accredited criminal law specialist and is a partner at Doogue + George. She previously worked with Lethbridges Barristers and Solicitors after graduating from the University of Melbourne with a Bachelor of Laws (Honours) and Bachelor of Arts.

Una is well-experienced in a wide range of criminal matters. She regularly appears in the County, Magistrates', and Children's Courts of Victoria and is an expert in indictable offences, summary proceedings, including Supreme Court trials and appeals.

Man Facing Family Hardship to Go Through SentencingWhen a person is sentenced to a term of immediate imprisonment, the impact on their family – children, parents, siblings – is profound. While the courts can give weight to the hardship a person’s family will suffer if they are imprisoned when imposing a sentence, this is by no means a given. Indeed, it is limited to the rarest cases. And even when family hardship is taken into account, it may not be enough to avoid a gaol term.

In practice, it will usually be up to the accused (and their lawyers) to prove that hardship exists, and then to justify why it should result in a reduced goal term, or non-custodial sentence. It is therefore critical that lawyers ask the right questions of their clients to determine if family hardship is a consideration in sentencing. The lawyer will need to seek out appropriate evidence which may involve commissioning expert reports, obtaining court records, reviewing photos and other personal material. This will allow them to tell a sufficiently compelling story to invoke the court’s mercy.

In Victoria,i State-based offences require that that “exceptional circumstances” exist in order for family hardship to be taken into account as a mitigating factor in sentencing.ii The situation is different for Commonwealth-based offences where there is currently a debate about whether exceptional circumstances apply.

This means that lawyers for the accused facing Victorian offences need to demonstrate that the hardship that family members will suffer as a result of an accused’s sentence will be extreme and extraordinary. Only then is the court likely to be satisfied that an exercise of mercy is warranted. In Commonwealth cases, there may be scope to make an argument that the threshold for hardship is less than that which applies to State-based offences.

The exceptional circumstances requirement is based on the principle that – in imposing a sentence – the consequences of an individual’s actions are to be borne by them alone, despite the fact that their imprisonment may have a significant impact on those close to them. It is a fundamentally egalitarian principle. Magistrates and Judges are regularly required to sentence people who are the breadwinners of family, carers of children, or elderly relatives. In some ways it could seem unfair if any person with a family who would be distressed by their incarceration was given an automatic discount in their sentence, whilst a person without such a family was not. For these reasons, it is only in the most “irresistible” cases that the Court can take into account the impact of family hardship.

Generally, the more serious the crime, the more difficult it will be to demonstrate that family hardship is sufficiently exceptional to keep a person out of gaol. Even if the court is satisfied, there may be instances where it simply reduces the length of a gaol term rather than being a person’s “passport to freedom”.

So, when has the court been satisfied that exceptional circumstances of family hardship exist? Broadly speaking, cases involving particularly vulnerable children who would otherwise be left without parental care will most commonly satisfy the exceptional circumstances test. Examples of where the court has taken into account the impact on family members include:

  • A woman who had an 11 year old son with autism and no other family in Australia, who was to be placed in foster care upon his mother’s incarceration.iii
  • A man whose partner was profoundly deaf and had full-time care of two children, one of whom had Autism spectrum disorder, where there were no other relatives to support the family.iv
  • A man who had a young child, and his wife, the primary carer, was hospitalised for cancer treatment.v

However, if vulnerable children can be placed in acceptable alternative care (for example, with extended family), then the court is unlikely to be satisfied that the requisite threshold has been met.

There are also other less common examples, including where an accused person is a primary care-giver for a partner who is gravely ill or disabled. For example, a man whose elderly partner was gravely ill and had to be placed into supported accommodation upon his

Case study

Our client was in her mid-30s and was pleading guilty to a number of dishonesty-related offences. She was the mother and primary carer of a 5-year-old child and 4-month-old baby, who she was exclusively breastfeeding. Her marriage had been marred by family violence perpetrated by her husband, both whilst she was pregnant and in the presence of the children.

At her plea hearing, we relied upon the hardship that would potentially flow to her children that arose from this protracted family violence she had suffered at the hands of her husband. We had extensive evidence of the family violence, including previous Intervention Orders, court records where her partner had been found guilty of assaulting her, photographs of her injuries and abusive and threatening text messages. We also called evidence from a forensic psychologist who found that there was a risk of harm to the children if our client was imprisoned and they were left in the care of their father. The sentencing Judge was not satisfied that family hardship reached the exceptional threshold and sentenced her to a term of imprisonment. We immediately filed an appeal against sentence, which was expedited due to the concerns around the care of the children. Ultimately, the Court of Appeal found that the fact that the older child would be exposed to the influence of her abusive husband (even where there was no evidence that he had ever harmed the children) and that our client was breast-feeding her baby, together were sufficient to establish exceptional circumstances. She was sentenced to a Community Correction Order and immediately released from custody.


If you or a family member have a case where you believe family hardship may be a relevant matter for the court to consider, contact our office and arrange to have a discussion with one of our experienced lawyers today.

[i] Totaan v R [2022] NSWCCA 75.
[ii] Markovic v R [2010] VSCA 105; 30 VR 589.
[iii] Trinh & Ors v R [2016] VSCA 307.
[iv] R v Gerrard [2011] VSCA 200.
[v] Phillippou v R [2020] SASCFC 21.
[vi] MGP v R [2011] VSCA 321.

Date Published: 22 September 2022

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