Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
R v Hannan; Ex parte Attorney-General (Qld)  
Unreported Citation: [2018] QCA 201
EDITOR'S NOTE

This case involved an appeal against sentence brought by the Attorney-General. It was contended that the wholly suspended sentence imposed for money laundering was manifestly inadequate. The Court of Appeal agreed, concluding that the trial judge had erred by allowing the effect of a period of imprisonment upon dependent children to overwhelm the sentencing discretion. The court imposed a new sentence that included five months of actual incarceration.

Fraser and Morrison and Philippides JJA

31 August 2018

Background

Sarah Hannan was convicted of the offence of money laundering. She was sentenced to three years’ imprisonment, which was wholly suspended. [2].

The money laundering offence arose out of the operation of a drug syndicate. The syndicate involved growing wholesale quantities of cannabis hydroponically at two properties in Willow Vale. [5]. Sarah Hannan’s role in this operation was attempting to legitimise the money by creating a total of 45 false invoices, totalling $649,189, over a period of just under two and a half years. [15], [25]-[26].

The Attorney-General (‘AG’) appealed against the sentence on the ground that it was inadequate. It was argued that the seriousness of the offence required a further period of actual incarceration. In particular, the AG contended that the sentencing discretion had miscarried because the trial judge had placed too much weight on the hardship that would be caused to Ms Hannan’s three children if she were to be incarcerated. [38].

The approach to sentencing of the trial judge

In sentencing Ms Hannan, the trial judge (Lyons SJA) outlined a number of factors that were taken into account. The mitigating factors included that Ms Hannan had pleaded guilty, had lost most of her assets, had previous good character, and indicated genuine remorse. [30]-[33]. Her Honour also placed particular weight on the impact that a period of further incarceration would have on Ms Hannan’s children – three daughters aged five, three and a half, and 21 months at the time of sentencing. [34], [55]. Her Honour said that hardship to children may be taken into account in exceptional circumstances. Her Honour concluded that “there are some exceptional circumstances here”. [34].

The approach of the Court of Appeal

Morrison JA gave reasons with which Fraser and Philippides JJA  agreed. [1], [74]. His Honour began by outlining the principles applicable when considering the impact of a sentence upon dependent children, as stated in R v Chong [2008] QCA 22. That decision states that “the preponderance of authority is to the effect that this consideration may be brought to account only in exceptional or extreme circumstances” and that if it is to be a relevant consideration “it must not overwhelm others such as the need for deterrence, denunciation and punishment”. [45].

His Honour proceeded to analyse the facts of Chong, and of a number of other decisions in which it was applied. [46]-[49]. The key thread running through these cases was that the effect on children would be severe if the parent was incarcerated. In Chong for example, the mother was the responsible mother of seven children, including a child she was still breast feeding, and her incarceration would require her removal to the mainland (from Mornington Island) and would result in the children being without any practical means of personal contact or visits with her. [46].

His Honour then turned to consider the facts of this case. His Honour noted that the sheer size of the drug operation, Ms Hannan’s knowledge of the criminal activity, and the extent of her money laundering, were all factors pointing to a “need for denunciation, deterrence and punishment”. [53]. His Honour then compared the likely effect on the children of Ms Hannan being incarcerated, compared to Chong and the other authorities discussed. His Honour concluded that “[u]nlike Chong, this is not a case where the children will be left without proper care”. [56]. The mother of Ms Hannan, and to some extent her parents-in-law, were able and willing to care for the children. [59]. Further, in general the children were “happy and healthy” and speech treatment for one of the children was “progressing well”. [60], [61].

Conclusion of the Court of Appeal

Morrison JA concluded that this case was “well removed from the sort of circumstances evident in Chong” and the other cases referred to. [63]. The effect on the children in this case was not exceptional. Accordingly, the trial judge had fallen into error by permitting “the hardship to the children to overwhelm the punishment which would otherwise have been appropriate”. [63].

His Honour proceeded to resentence Ms Hannan. There was no challenge to the appropriateness of the head sentence of three years. [65]. However, his Honour considered that the circumstances required “a sentence which includes a period of actual custody”. [67]. Taking account of the mitigating circumstances, his Honour concluded that the period of five months’ imprisonment should be imposed. [69]. His Honour refused to exercise the residual discretion to dismiss the appeal because doing so would send “entirely the wrong message to the community” if offending of this kind were not to attract “the appropriate penalty”. [72].

Accordingly, the appeal was allowed and Ms Hannan was resentenced to a period that would include five months of actual incarceration. [73].

W Isdale