When courts impose a sentence, “imprisonment” does not always mean time in prison. The imprisonment may be “suspended” or you might be released on parole. “Actual custody” refers to the period of time you may serve as a part of that period of imprisonment.

When facing a term of actual custody, your thoughts might turn to the impact your imprisonment may have on children or other family members. For the court to take into account hardship faced by your family, you will need to demonstrate how your imprisonment will cause exceptional or extreme hardship above what can usually be expected.

If your lawyer is going to argue your family will face extreme hardship should you be required to serve a period of actual custody, it will be highly important your lawyer can provide the court with medical records and other supporting materials to give weight to that argument. Talking with a lawyer can assist with identifying if extreme hardship will be faced and what materials should be gathered to ensure the point is properly considered by the court.

For the lawyers:

Hardship to family, loved ones and other people caused by the court imposing a custodial sentence on a defendant is not a relevant consideration unless there is exceptional or extreme circumstances R v D'Arrigo; ex parte Attorney-General of Queensland [2004] QCA 399 at 5 – 6. In R v Stewart [2008] QSC 208 the defendant's daughter suffered from a myriad of brain issues requiring full-time care. The Defendant was the sole care provider and no additional support on a long-term basis was available through family or otherwise. This was taken to be an exceptional circumstance where the court could take hardship caused to others as a factor to moderate the sentence.

Consider:

• What hardships will be faced by the family or dependants?
• What materials need to be provided?

Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation.

If you need legal assistance. See a lawyer.