I INTRODUCTION
This chapter presents the outcomes of the state and territory study into family hardship. A methodical and systematic study of the sentencing case law on family hardship in Australia was conducted for this dissertation.906 The study dealt with
both first instance sentencing remarks and appellate court decisions of superior courts throughout Australia. Nonetheless, as indicated in Table 1, in Chapter One, there were very few first instance sentencing remarks identified through the ‘exhaustive shepardizing’ approach adopted for the study of the case law. The purpose of this study was to isolate the consideration of a specific mitigating factor (family hardship) and to trace the development of sentencing principles related to this sentencing factor.907
As described in Chapter Three, family hardship has been a listed sentencing factor in legislation in the Federal jurisdiction and in South Australian and the Australian Capital Territory. The legislative articulation of family hardship is: ‘the probable effect that any sentence or order under consideration would have on any of the person's family or dependants’.908 Whilst most Australian states and territories
have not specifically identified this factor in sentencing legislation, the impact of a sentence upon an offender’s family and dependants may be taken into account as a mitigating factor at sentencing under the common law.909
906 See Chapter One ‘Method for Study of the Case Law’.
907 As explained in Chapter One, this study does not seek to provide results on the number of times family
hardship has been raised for consideration in sentencing decisions in each jurisdiction.
908Crimes Act 1914 (Cth) s 16A(2)(p) and Crimes (Sentencing) Act 2005 (ACT) s 33(1)(o). Very similar
language is adopted in South Australia see Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n) – ‘the probable effect that any sentence under consideration would have on dependants of the defendant’.
The aim of the study of the case law was to identify sentencing principles and the prevailing practice in respect of family hardship as a mitigating factor in each state and territory within Australia. This chapter will set out the results of the state and territory study and present the key findings of the qualitative analysis of this body of case law. The research questions, addressed by the study of the state and territory case law, were:
How have courts historically dealt with family hardship under the common law?
Where family hardship has received legislative recognition, has this affected judicial sentencing practice?
What are the influential cases on family hardship in Australia and what influence have these had on sentencing principles and practice?910
There were four key findings:
Finding 1: Body of Cases that Meaningfully Engage with Family Hardship In accordance with the method adopted for this study (see Chapter One), a body of case law was identified in Australia. The table of cases that
meaningfully engaged with family hardship as a mitigating factor in each jurisdiction is one of the outcomes of this study and is available in Appendix A. The number of citations each case received throughout Australia is also an important outcome of this study and these data are represented below and in the tables within Appendix A.
Finding 2: Reveal the Development of Sentencing Jurisprudence on Family Hardship
Through a systematic and qualitative analysis of case law on family hardship within Australia, this study has revealed the development of sentencing jurisprudence on family hardship. These findings are set out in this Chapter.
This Chapter also explains that a result of the study of the case law was the identification of legal narratives in the law. Prominent legal narratives were mercy and gender and these narratives added confusion and tension within superior courts as to the appropriate role of family hardship in sentencing. The relationship of family hardship with mercy and gender is considered in more detail in Chapter Six. A review of the research literature in Chapter Six highlights that gender and mercy are intimately connected with family hardship as a sentencing factor and are held to be the source of controversy regarding judicial consideration of family hardship at sentencing.
Finding 3: Identification of Cases with a High Juristic Status
By studying the arguments presented to superior courts, as expressed in the sentencing remarks and judgments, the place and relevance of hardship to family and dependants in sentencing can be revealed. Horizontal and vertical checks have been conducted for each case included within the study.911 Therefore, as a result of this research, this chapter presents where
adversarial debate has focused its attention and identifies influential cases in the Australian common law jurisprudence.
The identification of particular state and territory approaches to family hardship as a mitigating factor under the common law was another
important outcome of the qualitative analysis of the case law. The results of this analysis are set out below. Chapter Five also looks at these findings in the context of the body of federal case law on family hardship.
Finding 4: Evaluation of the Impact of Legislative Recognition
In Chapter Three, I demonstrated that the inclusion of family hardship as a sentencing factor was a deliberate move by the legislatures to affect and adjust judicial sentencing practices. The adoption of a legislative list of factors was seen as an approach that would encourage greater consistency in sentencing. An important question that this study of the case law sought
to address is whether legislative recognition of this factor did, in fact, affect judicial sentencing practice.
In the first part of this chapter the jurisdictions of South Australia and the Australian Capital Territory will be discussed. The analysis of the federal jurisdiction has been separated out to the next chapter (see Chapter Five). This separation of analysis enables reflection upon the state and territory sentencing practices and permits comparison with the federal sentencing practices on family hardship. The findings of this study in relation to the evaluation of the impact of legislative recognition will be addressed in Chapter Five.