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[2009] NSWCCA 97
mixed. Appeal granted in part: sentence for s 316 (concealing a serious indictable offence) quashed and varied to a fixed term of 12 months imprisonment commencing 18 December 2007 and expiring 17 December...
Podesta was convicted of concealing a serious indictable offence (s 316) and of perverting the course of justice (s 319) after events surrounding a stabbing death. The Court of Criminal Appeal found the s 316 sentence was outside the appropriate range (mid-range offending) and varied it to a fixed 12 months term, concurrent with the existing sentence. The s 319 sentence was upheld: the Court held that protecting a family member is a relevant but limited mitigating factor, and given the seriousness, continuity of concealment, failure to plead guilty and substantial criminal history, the sentence for perverting the course of justice was not manifestly excessive.
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1,773 words · generated 26/06/2026
The applicant, Cathryn Lehane Podesta, was tried and convicted of two offences arising from events surrounding the death of Stephen Bannister at the Pop‑in Motel, Casula. She faced convictions for: (1) concealing a serious indictable offence (s 316 Crimes Act 1900), maximum two years imprisonment; and (2) doing an act with intent to pervert the course of justice (s 319 Crimes Act 1900), maximum 14 years imprisonment (McClellan CJ at CL [1]).
No linked legislation citations have been extracted yet.
Factual matrix, distilled from the trial judge’s summary accepted by this Court, is as follows. Bannister’s body was found on 22 November 2006 with numerous stab wounds near the motel (paras [3]-[4]). The applicant and her sons, Jason and Aiden Podesta, had been present in Room 30. After an argument about prank calls alleging Bannister had AIDS, Jason and Aiden followed Bannister from the motel and Bannister did not return; the Crown alleged Jason stabbed him (paras [5]-[7]). The applicant left the scene with Jason, realised she had Bannister’s key cards and attempted to dispose of them (para [9]); those present had agreed on a “story” omitting incriminating facts before leaving (para [9]).
The applicant gave multiple police interviews. In those interviews she omitted or gave false information (including denying that Jason or Aiden followed Bannister), and later sought to influence a witness, Natalie Gajdos, over intercepted telephone calls (paras [8], [10]-[14]). The jury rejected her claim that police had threatened her to obtain admissions in later interview (para [13]). The sentencing judge imposed concurrent sentences: for s 316 a non‑parole period of 12 months and a balance of term of 12 months; for s 319 a non‑parole period of 12 months and total term of 2 years and 6 months, with the s 316 sentence ordered wholly concurrent (paras [2], [18]). The applicant appealed to the NSW Court of Criminal Appeal.
Two distinct sentencing questions were before the Court.
Sentence for s 316 (concealing serious indictable offence). McClellan CJ at CL concluded the s 316 offending fell within the mid‑range of objective seriousness (para [20]). Given that a more serious sentence had already been imposed for s 319 and that the s 316 sentence was wholly concurrent, the Chief Justice considered a fixed term of 12 months imprisonment appropriate. He observed that although the variation was practically of no effect, appellate intervention was appropriate to correct a sentence outside the appropriate range (para [20]). The result: the appeal in relation to the s 316 sentence was allowed; that sentence was quashed and the applicant resentenced to a fixed 12 months term commencing 18 December 2007 and expiring 17 December 2008 (Orders at para [24]).
Sentence for s 319 (perverting course of justice). The Court rejected the applicant’s submission that the s 319 sentence was manifestly excessive. Key strands of the Court’s reasoning (paras [21]-[24]):
On this basis the Court upheld the s 319 sentence as not manifestly excessive and dismissed the appeal in relation to that count (para [24]).
Before this decision, the settled principles were:
Podesta restates and applies those established principles rather than innovating new law. It emphasises two practical points:
Thus, after Podesta, practitioners should expect the Court to apply a consistent framework: assess objective seriousness, limit the weight of family‑protection motives in serious obstruction cases, and give meaningful weight to deterrence and criminal history when no plea is entered.
"To my mind the circumstances of the offence would have placed this offence within the mid range of objective seriousness." [20]
"the 'protection of the system of criminal justice should not be significantly less vigilant where its diversion is attempted for reason of family ties, rather than the expectation of monetary gain.'" [21] (quoting Nguyen)
"Any offence against s 319 has a tendency to seriously impact upon the order of our society. Unless members of the community cooperate with the authorities in the investigation of crime, particularly major criminal offences, the rule of law maybe undermined." [24]
"She is no stranger to the criminal justice system ... It is a record which disentitles her to leniency." [17]
Podesta’s reasoning will be engaged where:
Practitioners should apply Podesta when arguing mitigation based on familial protection in obstruction cases and when advising about likely appellate review of concurrent sentences.
This judgment is an application of established sentencing principles rather than a new doctrinal pivot. It cites Nguyen and R v Mitchell and Gallager to constrain the mitigating effect of familial motive and relies on Veen for deterrence and the treatment of recidivists (paras [21], [23]). Later authorities considering family‑motivated obstruction of justice will treat Podesta as confirming that motive of family protection is relevant but of limited weight and that public interest in preserving investigatory integrity can justify substantial sentences. Where appellate courts are asked to intervene in concurrent sentences that are practically ineffective, Podesta stands as an example that correction remains competent where the original sentence was outside the appropriate range (para [20]).
(Practitioners should check subsequent case law for specific citations of Podesta in later sentencing decisions to track any refinement of these themes. Podesta itself cites Nguyen, Mitchell and Veen; it neither overrules nor departs from those authorities.)
Degree of weight for family protection in borderline cases. Podesta holds that family protection is a mitigating factor of limited weight in serious cases (para [21]). But the decision does not set precise quantitative guidance for borderline cases where offending is less serious; sentencing judges retain broad discretion. How to calibrate weight in those mid‑seriousness situations remains fact‑sensitive.
Appellate intervention where consequence is practically ineffective. The Chief Justice intervened though the varied s 316 sentence was concurrent and of no practical effect (para [20]). This leaves open a practical question: when should appellate courts exercise prerogative to correct a sentence that will not change actual time served, particularly given finite appellate resources? Podesta indicates correction is appropriate to maintain principled sentencing ranges, but provides no limiting criteria.
Interaction with guilty pleas and plea bargaining. Podesta emphasises the lack of a guilty plea as reducing mitigation (para [23]). How much discount should be expected in cases where a family protector pleads guilty early, versus those who delay or contest, invites further judicial clarification.
Relative weight of continued conduct to conceal versus initial acts. The Court placed significance on the prolonged, consistent purpose to conceal (para [22]). The line between a single act of concealment and extended interference will remain fact‑based; further appellate guidance may refine how sustained concealment escalates objective seriousness.
Use of telephone intercept evidence as aggravating. The Court relied on intercepted call evidence showing attempts to influence a witness (para [14]). The decision does not provide a template for the aggravating weight of covert communications; future cases will need to specify when such evidence meaningfully increases sentence.
Conclusion: Podesta is a practical sentencing decision reiterating established principles. It underlines appellate willingness to correct sentences outside correct ranges even when concurrent and reinforces limitations on familial‑protection mitigation in obstruction cases. Lawyers should take from Podesta that factual persistence, witness interference and criminal history substantially reduce mitigation, while appellate courts will enforce consistency in sentencing ranges.
JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 25; Rothman J at 26
CATCHWORDS: CRIMINAL LAW - appeal against sentence - particular offences - conceal serious indictable offence - pervert the course of justice - protection of family member as relevant consideration
Nguyen (2004) NSWCCA 332; 149 A Crim R 343 CASES CITED : R v Mitchell and Gallager [2007] 11 A Crim R 94 Veen v The Queen [No 2] (1987-1988) 164 CLR 465
PARTIES: Cathryn Lehane Podesta (Applicant) The Crown
COUNSEL: M Johnston (Applicant) J Dwyer (Crown)
SOLICITORS: Brenda Duchen Solicitor (Applicant) Director of Public Prosecutions (Crown)
IN THE COURT OF CRIMINAL APPEAL 2007/14436
McCLELLAN CJ at CL BUDDIN J ROTHMAN J
WEDNESDAY 8 APRIL 2009 PODESTA, Cathryn Lehane v R Judgment 1 McCLELLAN CJ at CL: The applicant was tried and found guilty of two offences. The first offence was that of concealing a serious indictable offence contrary to s 316 of the Crimes Act 1900. The maximum penalty for that offence is two years imprisonment. She was also convicted of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act for which the maximum penalty is 14 years imprisonment. 2 The sentencing judge sentenced the applicant in relation to the s 316 offence to a non-parole period of 12 months imprisonment with a balance of term of 12 months. In relation to the s 319 offence the applicant was sentenced to a non-parole period of 12 months with a balance of term of 18 months. The sentence for the offence contrary to s 316 was made wholly concurrent with that in relation to the s 319 offence. The sentences commenced on 18 December 2007 and accordingly the non-parole period has now expired. Her Honour found special circumstances having regard to the applicant's need for a lengthy period of supervision. 3 The sentencing judge summarised the relevant facts. The applicant is the mother of Jason and Aiden Podesta. She was the partner of Stephen Bannister, the deceased. The body of the deceased was discovered in the early hours of the morning on 22 November 2006. He was found lying on the footpath on the Hume Highway at Casula. He had numerous stab wounds. 4 His body was found adjacent to the Pop-in Motel. Room 30 in the motel was occupied by the applicant and her son Aiden. The deceased had stayed there. 5 On the evening before Mr Bannister's death the applicant had received prank phone calls suggesting that Mr Bannister was suffering from AIDS. The applicant had previously been concerned about this possibility and had asked the deceased to have a test. The call distressed her. It also caused concern to other members of her family. Jason Podesta became angry and was heard to say: "I'll stab him through the heart." He said this to Warren Grey who persuaded him that he should make sure whether the deceased had AIDS and rather than kill him "just give him a bashing." However, Jason Podesta was not diverted and took a kitchen knife and together with the others returned to the Pop-in Motel. Jason Podesta intended to confront the deceased about the phone calls. After the group had returned there was an argument inside room 30 which continued into the motel car park. The applicant later informed the police that she observed Jason to be in possession of the knife at the motel. 6 During the arguments in the car park the deceased left the group a number of times. He was distressed at being unable to persuade the group that he did not have AIDS. The final time he left the group he was followed by both Aiden and Jason Podesta. He did not return. It was the Crown case that the deceased was stabbed to death by Jason Podesta. 7 After the deceased had left the group a scream was heard and Jason and Aiden Podesta returned to the vicinity of room 30. Jason said "Let's go." There was evidence that Aiden Podesta "appeared devastated" and that Jason looked and spoke angrily and walked "very solid." 8 In her third interview with the police the applicant admitted hearing someone saying that the deceased was dead. 9 The applicant left the scene in a vehicle driven by Jason Podesta. When they arrived at their destination the applicant realised she still possessed the deceased's key cards. She started to panic and said "Oh my god, I still have Steven's cards, I'm going to get rid of them, I'm going to throw them into the drain." She was observed to take steps to throw them away. Between 2.00 and 3.00 am the applicant and Aiden left the premises. Before they did those present agreed on a "story" which involved an outline or framework of events which left out certain incriminating facts. 10 On 22 November 2006 the applicant was interviewed by the police. It was during this interview that she gave false information. She was asked whether she had any knowledge of the incident and said "I don't know anything about him being - something happened to him or that - no." When giving an account of her movements she deliberately left out significant information. She gave an account of events which suggested that the deceased was still alive when she left the motel premises with the others. She told the police "no-one followed Steven when he left." In particular she said that "Jason didn't follow Steven" at any time and that "Aiden didn't follow Steven at any time." She was asked whether she could tell the police anything about the circumstances of the murder of Steven Bannister. She answered "No", which the Crown alleged was a deliberately false answer. 11 It was the Crown case that at her first interview the applicant concealed the murder by omitting some important facts and at the second interview concealed the offence by providing the police with deliberately false information to cast suspicion on someone other than her son. 12 On 24 November 2006 the applicant telephoned the police and said that she wanted to provide additional information. She was reinterviewed during which she said that Warren Grey had said "I'll stab him through the heart" and that her son Jason did not say those words. She repeated this allegation a number of times. She also gave the police false information about the movements of her son. 13 The applicant gave her third interview to the police on 28 August 2007. By this time she had been arrested and charged. On this occasion she provided the police with a mixture of admissions and further untruths in an attempt to shield Aiden and to a lesser extent Jason. In her evidence she said she was threatened by police before and after she gave her interview but this was clearly rejected by the jury. 14 The trial judge found that the applicant had in all three interviews attempted to conceal the offence from the police. Her conduct had extended over a lengthy period of time and showed a consistency of purpose and firm resolve to conceal any involvement of her son Jason in the killing. In the course of the investigation the applicant's telephone had been lawfully intercepted and she was recorded as having attempted to influence Natalie Gajdos, who was a witness to the events. She said: "Applicant: Don't say anything more Luv." NG: Because when he left he went to the car. When they went that way they went to the car. They went to get the car. Applicant: Remember. NG: No, remember what? Applicant: Just don't say anything else and ask for a solicitor if anything happens." 15 The applicant was aged 45 years when sentenced. Although an adopted child she was raised in a supportive family environment. She lived with the father of her sons, Jason and Aiden, for 17 years but that relationship ended. Aiden suffers from bipolar disorder and border-line schizophrenia. Jason has not suffered from any form of mental health issues but began exhibiting anti-social tendencies at about age 17. 16 The applicant has had problems with both heroin and amphetamines. She was also placed at one stage on a methadone program. Although she has been employed, her employment record is intermittent and has been affected by her drug use. She has at times turned to crime to finance her drug habits. 17 The applicant's criminal history was described in terms which were not disputed by her counsel in the appeal. Her Honour said: "The offender is no stranger to the criminal justice system. She has convictions for larceny; failing to appear; break, enter and steal; attempted break and enter; break and enter with intent; accessory after the fact to break, enter and steal; receiving; drug offences; harbouring an escapee; goods in custody; resisting arrest; escaping lawful custody; stealing from a dwelling; obtaining property by deception; assaulting police; using offensive language and making a false representation resulting in a police investigation. It is a record which disentitles her to leniency, It is littered with convictions for offences against law enforcement either by escaping lawful custody; harbouring an escapee; resisting arrest; assaulting police and making a false representation resulting in a police investigation." 18 The sentencing judge was not satisfied that the applicant has good prospects for rehabilitation. However, because of the identified need for counselling and supervision she made a finding of special circumstances. Her Honour was satisfied that sentences of full time custody were necessary to satisfy the requirements of general and specific deterrence and the protection of the public. 19 The applicant submitted that by imposing the maximum term of imprisonment for the offence against s 316 her Honour far exceeded the appropriate range. In response the Crown accepted that the offence was not in the worst category and could not have justified the maximum term of imprisonment. 20 To my mind the circumstances of the offence would have placed this offence within the mid range of objective seriousness. Having regard to the fact that the applicant would be sentenced for the more serious s 319 offence, a sentence which provided a fixed term of 12 months for the s 316 offence was appropriate. Although it is of no practical effect I propose that this Court should intervene and vary the sentence accordingly. 21 With respect to the offence contrary to s 319 the situation is different. The maximum penalty for this offence was 14 years imprisonment. Her Honour imposed a non-parole period of 12 months with a total term of imprisonment of 2 years and 6 months. The applicant's motivation was to assist her son and her Honour had regard to this matter when imposing sentence. This Court has accepted that the fact that a person is protecting a family member is a relevant consideration when sentencing for this offence. However, as the Chief Justice made plain in Nguyen (2004) NSWCCA 332; 149 A Crim R 343 at [55] the "protection of the system of criminal justice should not be significantly less vigilant where its diversion is attempted for reason of family ties, rather than the expectation of monetary gain." Furthermore as Howie J said in R v Mitchell and Gallager [2007] 11 A Crim R 94 at [31]-[32] "the more serious the offence committed the less weight that can be given to motive as a mitigating factor." 22 In the present case the offence which had been committed was serious and the applicant continued in her offending for a significant period of time. The applicant engaged in conduct designed to ensure that the police were not able to successfully investigate and prosecute her son. Although she did not act for the purpose of personal gain and her actions did not involve any threat of violence she knowingly suggested that Ms Gajdos should give a false account of the events to the police. 23 The sentence imposed was also required to reflect the applicant's personal circumstances. She did not plead guilty and accordingly was not entitled to any discount. As I have earlier related the applicant has a serious and lengthy criminal history involving public justice offences. As a consequence her Honour was required to impose a sentence which reflected the applicant's continuing disobedience of the law and provide a more significant component for personal deterrence Veen v The Queen [No 2] (1987-1988) 164 CLR 465 at 477-8. 24 Any offence against s 319 has a tendency to seriously impact upon the order of our society. Unless members of the community cooperate with the authorities in the investigation of crime, particularly major criminal offences, the rule of law maybe undermined. Given the serious nature of the offence and after giving consideration to the applicant's personal situation I am not persuaded that the sentence for the s 319 offence was manifestly excessive. The orders I propose are:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Podesta
R
Appeal granted in part: sentence for s 316 (concealing a serious indictable offence) quashed and varied to a fixed term of 12 months imprisonment commencing 18 December 2007 and expiring 17 December 2008; otherwise the appeal dismissed and the sentence for s 319 (perverting course of justice) affirmed (McClellan CJ at CL Orders [20], [24]).