R v Elliff

District Court of NSW|2020-11-30

Mr M Johnston SC; Mr T Hammond; (Counsel for the offender)

Mr N Leach (Solicitor for the Office of the Director of Public Prosecutions)

Mr D Lestal (Solicitor for the offender, Santone Lawyers) File Number(s): 2019/333639

Agreed Facts

Christopher Heaven and Anissa Sypher were in a domestic relationship. The offender, at the relevant time, was in a relationship with Jay Daetz and was three months pregnant.
After midnight on Friday 10 May 2019 Heaven was stabbed in the chest with a knife. The blade penetrated the lining of his lungs and heart. Witnesses to the stabbing identified Daetz, the offender's partner, as the person responsible. At 1:30am Daetz was arrested and charged with reckless wounding. Daetz denied committing the offence and told Police he had been with the offender the entire evening.

Sequence 001 (Form 1) Do act intending to pervert the course of justice

At approximately 3:45am that same morning a police officer called the offender to confirm Daetz's alibi. The officer told the offender that Daetz had been arrested, and that the offender had been nominated by Daetz as his alibi witness. In response, the offender told police she had been with Daetz for the entirety of the evening at their residence.
The offender later admitted to police in a signed statement that this was a lie having last seen or spoken to Daetz at midday the day before.

Sequence 003 Do act intending to pervert the course of justice

At 12:35pm Saturday 11 May 2019 the offender informed police she was present with Daetz on the 10 May 2019 at the time the stabbing took place. The offender further told police she observed someone retrieve a knife whilst a fight took place between Daetz and three other individuals, but could not recall what happened to the knife. The offender then witnessed Heaven yelling he had been stabbed at which point an ambulance was called. This was recorded in an official police notebook, however was unsigned. On 16 May 2019 the offender confirmed with police that the version of events provided on the afternoon of 11 May 2019 was correct.
This was later admitted to be a lie in an unsigned statement to police provided on 23 May 2019.

Sequence 004 Offer to confer benefit with intent to procure acquittal of serious indictable offence

Sometime between Sunday 11 May 2019 and Wednesday 15 May 2019 the offender became aware that Daetz's parents were to pay his solicitor $10,000 for legal representation. This was due Friday 17 May 2019. Alternatively, this money would be paid to Heaven on the basis he would not provide a formal statement to police.
On Wednesday 15 May the offender sent Sypher a text message asking the following: '[Message] me when u guys have talked about it. But try decide as quick as [you] can [because] otherwise the lawyer will get it. The parents will send it to me & I either have to give it to you or lawyer by Friday [17 May 2019]'.
On Friday 17 May 2019 Heaven confirmed via text message that he 'stuck too [his] end of the deal' and 'expect[ed] [t]he money to be put in to anissa [Sypher] bank'.
Approximately 30 minutes later Sypher sent a text message confirming whether 'the money will be sorted today…'.
Between Friday 17 May 2019 and Sunday 19 May 2019 several messages were exchanged between the offender and Sypher regarding the payment of $10,000, whereby Sypher attempted to reassure the offender.
On Wednesday 23 May 2019 Sypher and Heaven invited the offender to their unit in Kingsgrove. Also present were Schaffer and Milstead, friends of the co-offenders.
On this occasion, the offender transferred $500 to Sypher using her mobile phone in order to calm the situation.
Shortly thereafter, the offender left the unit and attended Kingsgrove Hotel as a result of feeling threatened by Schaffer. Schaffer informed the offender that Daetz owed him $30,000.
Police were called to the Kingsgrove Hotel.

Police Investigation

On the evening of 23 May 2019 the offender provided a statement to police stating that it was Sypher's idea to pervert the course of justice by giving him the $10,000. She further told police she was barricaded in the unit, when Sypher threatened to cut her unborn baby from her stomach if the $10,000 wasn't transferred to Sypher's bank. She further told police Schaffer threatened to harm her if she didn't provide for the $30,000 owed to him by Daetz, including working in a brothel to pay off this debt.
Sypher and Heaven were arrested and refused bail on 24 May 2019. Schaffer was subsequently arrested on 3 June 2019 and bail refused.

Mobile Analysis

Cellebrite analysis confirmed that Sypher and Heaven had used the mobile phone used in relation to the conversations mentioned above.
Further messages from the offender were sent to Heaven and Sypher, including the offender confirming with the parties whether they were 'pulling out cos [she] then need[s] to give it to [the] lawyer'.

Sequence 005 Make omission intending to pervert the course of justice

On 28 May 2019 police requested Facebook messages from the offender detailing the conversations had with Sypher. The offender emailed a sub-set of the conversations that had taken place, deliberately omitting any that were inculpatory.
These messages include a message from Sypher asking the offender to 'do what was agreed on [a]n do half now [a]n the other half a bit further down the road…'. To which the offender assured Sypher that '[she's] got it, and [she's not] gonna fuck around…'.
Other messages were retrieved to this effect and were not provided to Police when requested.

Disputed Facts

As will appear below, Judge King sentenced the co-offenders on the basis of agreed facts which stated that it was Elliff's idea to offer a reward to Heaven in an attempt to procure the acquittal of Daetz.
In this case, the offender disputed that it was her idea, and gave evidence on the issue. In an affidavit she denied that it was ever her idea to pay $10,000 intended for Jaya's lawyer to Heaven instead. On 10 May 2019 she received messages and calls from Sypher, who she knew to be erratic, schizophrenic and psychotic. When they met at Kingsgrove Sypher was drug affected and said "I am going to kill [Jaya] Daetz when he gets out of prison." This made her feel intimidated and scared.
On 12 May Sypher asked her if she had spoken to Jaya about repaying a debt that he owed to her but she said she knew nothing about this. The topic of the victim, Heaven, not making a statement was raised by Daetz in a call with the offender at about 1pm on 15 May 2019. She was not receptive to the idea and said, "because that's like tampering with evidence, so I'm not going to do that. Okay?… It's not good to make people do something that they don't have to… They have to decide if they want to they don't want to…".
After that phone call, which made her feel pressured and coerced to make sure that Heaven did not give a statement to Police, she received another phone call from Sypher and went to her apartment. Sypher said that if she got the money from the lawyers and gave it to Heaven then she could make sure that Heaven would not speak to police. She said she did not propose to Sypher that the payment was conditional on Heaven not attending court, and she had no intentions of paying Sypher the $10,000 that she had requested as she had no access to that amount, and she thought that the $6000 had already been paid to lawyers. She accepts that she should not have continued to message Sypher to discuss this proposal even if she did not have access to the money. She regrets becoming involved and says that she was under pressure from Daetz and his requests for her to ensure that Heaven would not speak to police. She also said she was intimidated by Sypher and she wanted to reduce the risk of her becoming angry and placing her in danger.
On 17 May she received a call from Heaven who said "I've gone to the police station and told the officers that Jaya didn't stab me. I didn't give a statement, I just told the officers that it wasn't Jaya. Now you've gotta send me $10,000 straight away as I've done this for you".
Shortly after she received a message from Sypher demanding money. She was scared of her, so she sent her $50. She again acknowledges that she should not have engaged in these conversations about payment of the monies regarding police statements. By 19 May she says that she was scared and was attempting to stall things when she received a call from Heaven who told her he was going to make a false statement to police. She told him not to, and that she could not pay him. He replied that he was then going to make a statement telling police that Jaya had stabbed him and he would make sure that he does not get out of jail for 15 years.
She spoke to Daetz and told him that she did not want to involve herself with Heaven and Sypher. She was very stressed and anxious but felt conflicted because she did not want him to be in gaol.
The agreed facts, and the statement of the offender dated 23 May 2019, set out what happened on 23 May 2019. She received a call from Sypher and, at her request, went to her place. She saw Sypher, Heaven and another male and female. The male was very intimidating, with many tattoos, and told her that he had killed someone before and gone to jail for murder. She said she was terrified he told her that she had to get $30,000 for them otherwise he would send her to work in a brothel in Edgecliff to pay off the debt. He was trying to get her to take drugs and drink. She sent $500 to Sypher's phone number in response to a request for some money. She escaped and ran out of the apartment and sought refuge at the Kingsgrove Hotel under the protection of security guards and ultimately police. She said that she was petrified that the man would hurt or kill her and her unborn baby if she did not pay Sypher and Heaven the money in question and she was also worried for the safety of Jaya in prison.
The Crown submitted, ultimately fairly faintly, that it was open to the court to find beyond reasonable doubt that the scheme was instigated by the offender, and in the alternative submitted that given the improbability of the circumstances and the evidence of her continuing dishonesty towards police, the court could not find on balance (in favour of the offender) that she was not the instigator of the idea.
Ultimately, this is one of those cases where it is not possible for the court to be satisfied beyond reasonable doubt of the primary proposition put by the Crown, nor satisfied on balance of probabilities of the alternative position, favourable to the offender, that she was not the instigator of the idea. The agreed facts do not describe how the agreement came into existence. There is no direct evidence from the co-offenders, Sypher or Heaven, as to how the particular agreement developed, while this offender has given evidence and been cross-examined.
Her position is that she denied approaching Sypher with the offer of $10,000. There is some evidence to support a finding that the person who instigated the topic of Heaven not giving a statement was Daetz. The transcript of the 15 May 2019 phone call is consistent with her affidavit evidence at [32], that "the phone call with [Daetz] made me feel pressured and coerced to make sure that Chris did not give a statement to police about the incident on 10 May 2019".
However it is unnecessary to make that finding of fact. I proceed on the basis that the evidence on this point establishes, to the requisite standard, nothing further than what appears at [12] and [13] of the agreed facts. That is, between 11 and 15 May 2019, the offender became aware that Daetz's parents were going to pay $10,000 for a lawyer, but the money would be paid to Heaven on condition that he would not give a formal statement to police about the stabbing.
The Crown submits that it was an unlikely coincidence that the offender visited Sypher's residence on 15 May, not long after having spoken to Daetz, and that the court should find that the offender must have raised the prospect of the agreement with Sypher, rather than the other way round. However the Crown concedes that the follow-up message later that day was equally supportive of either version. As the offender submitted, it is also necessary to view the events of that day in the context of the previous communications between Sypher and the offender, and that Sypher had numerous convictions for dishonesty, making it more likely that she was pulling the strings for the "deal".

Objective seriousness

Mr Johnston SC, for the offender, accepts that all offences involving in interference with the administration of justice are serious, especially offences of intending to pervert the course of justice.
In relation to sequence three, he acknowledges that the offender provided a false notebook statement to Police on 11 May 2019 in an attempt to exculpate her then partner. Although she did not sign the statement, she reiterated it and did not correct it for 12 days. She committed this offence after falsely claiming that Daetz was with her at the time of the stabbing, when he was not. On 23 May she provided police with a signed statement in which she admitted that the previous information was a lie. I accept that that offence falls towards the lower end of the range of objective seriousness.
In relation to sequence four, the offender accepts that she played an integral role liaising between Daetz, Sypher and Heaven. Although she was motivated to secure the release of her then partner on bail, the offer could never realistically have come to fruition as she did not have access to the money. She did not act for the purpose of personal gain, unlike Sypher or Heaven. There was no threat of violence. I accept that that offence falls below midrange in terms of objective seriousness.
Sequence five involves an omission in an attempt to not disclose the full extent of her communications with Sypher, and falls towards the lower end of the range of objective seriousness.
In short, her actions took place over a period of about two weeks in May 2019. She did not stand to directly benefit from the offences: R v Giang [2001] NSWCCA 276 at [26]-[27]. The primary motivation arose out of a misguided sense of loyalty for her former partner, the father of her unborn child, and an attempt to have him released from custody. She was in a dysfunctional, unstable and abusive relationship with Daetz, having already endured a similar relationship with the father of her two other children. I accept that the pressure she felt was justified, particularly given that there was Apprehended Domestic Violence Order in place at the time to protect her from Daetz, made only nine days prior to the initial conversation. It is clear that she was overborne to some extent.
Attempting to protect a family member is a relevant consideration when sentencing for an offence under section 319 of the Crimes Act 1900: Podesta v R [2009] NSWCCA 97 at [21]. I accept that she had got into something out of her depth. She was pregnant, vulnerable and unable to control the situation in which she found herself. She was terrified and was threatened by Sypher with a screwdriver to harm her unborn child. This is corroborated by a phone call between Heaven and his mother on 16 June in which he said, "… We were at Anissa's [Sypher] house and Annissa - Annissa pulled a knife on the girl and said 'I'm going to cut that baby out of your stomach if you don't give --- give - give us money'".
Police also saw a screwdriver on the table at the premises on 23 May. In short, the external pressures being put upon the offender by Sypher and Heaven are taken into consideration when assessing her motivation, moral culpability and the objective seriousness of her actions.

Parity and Moral Culpability

The question of parity obviously looms large in this case.
Heaven was sentenced by King SC DCJ for an offence contrary to ss 321(2)(a) & 324 of the Crimes Act 1900 of witness agreeing to accept benefit to procure the acquittal of a serious indictable offence. The offence carries a maximum penalty of 14 years imprisonment with no standard non-parole period. A further offence of larceny, contrary to s 117 of the Crimes Act 1900, was taken into account on a Form 1. The sentence was subject to a 25% discount for the early guilty plea
Heaven was sentenced on agreed facts which are, in summary, that following an incident in which the offender was stabbed he agreed to not provide a formal statement to police and would not attend court as a witness in order to assist Daetz in avoiding a conviction for reckless wounding in exchange of $10,000. Ultimately only $500 was received, paid by Elliff as a show of good faith when further cooperation was required by Daetz in providing an exculpatory statement, rather than merely not co-operating with the police investigation. Heaven and Sypher withdrew from the arrangement when the terms were changed unilaterally by Daetz and Elliff.
In relation to assessing objective seriousness, King SC DCJ accepted that Elliff was the instigator of the act, and that the arrangement sought to achieve an acquittal on a serious indictable offence. Also relevant to his Honour's assessment was the importance of Heaven as a witness in the case and the degree of planning and pre-meditation. His Honour ultimately found Heaven's offending to within the mid-range of objective seriousness.
His Honour highlighted the importance of general and specific deterrence for offences such as this, and took account of the "long line of cases which indicate that sentences imposed in relation to offending of this nature must have a strong deterrent value."
Heaven had a lengthy criminal history, disentitling him to leniency and his Honour was did not accept that the offender demonstrate any genuine remorse or contrition and that his plea of guilty was more reflective of the strength of the Crown case.
Taking into account the Form 1 matter, Heaven was sentenced to a term of imprisonment of three years, nine months with a non-parole period of two years, nine months and 21 days.
Sypher was sentenced by King SC DCJ for a single offence contrary to s 319 of the Crimes Act 1900 of doing an act to pervert the course of justice. The offence carries a maximum penalty 14 years imprisonment with no standard non-parole period.Tthe sentence was subject to a 25% discount for the early guilty plea.
Sypher was sentenced on agreed facts which were essentially no different to the facts upon which Heaven was sentenced, but provided substantially more detail in relation to the communications exchanged between Sypher and Elliff. In assessing objective seriousness, his Honour took into account that Sypher was not the initiating party to the attempted arrangement; however she was an integral part of the offending conduct, acting as the liaison with Elliff. The offending was not spontaneous and the fact that the arrangement eventually broke down did not lower the objective seriousness of the offence. These factors, as well as the importance of Heaven as a witness in the Crown case led to King SC DCJ assessing this offence as with in the mid-range of objective seriousness, finding "little to distinguish, in terms of offending conduct, between herself and [Mr] Heaven"
Sypher also had lengthy criminal history, disentitling her to leniency, and was on conditional liberty at the time of the offence and the offence was committed for financial gain. His Honour found no acceptable evidence of remorse or contrition and accepted that she suffers from a serious mental health issues which would be disadvantageous during her time in custody.
Sypher was sentenced to a term of imprisonment of three years with a non-parole period of one year, nine months. This sentence was reduced on appeal with the Court of Criminal Appeal finding that the sentencing judge erred in the assessment of the offender's moral culpability by failing to appropriately take into account the offender's deprived upbringing and social circumstance and in not appropriately reducing the offender's moral culpability and mitigating the weight given to general deterrence by reason of her significant mental illness. Sypher was re-sentenced to a term of imprisonment of 2 years, 6 months with a non-parole period of 18 months.
The Crown submits that the misguided loyalty of the offender does not greatly mitigate her moral culpability. While acknowledging the complexity of her family situation, it submits there is something illogical about casting her motive as one of altruism while she was expressing love for Daetz, suggesting that her motive was really that she just wanted him out of jail and back in her life.
The Crown refers to what was said in Podesta v R [2009] NSWCCA 97 at [21], namely that … [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 … the more serious the offence committed the less weight that can be given to motive as a mitigating factor.
The Crown submits that her moral culpability is greater than the other two on the basis that her commission of the first two offences (sequence 2 and sequence 1 (Form 1) laid the platform for the commission of sequence 4 where she took the lead role in creating the situation which led to the two offenders to be placed in a situation of temptation.
While the Crown does not dispute that she ultimately "got out of her depth" her actions in passing on the request for a positive statement from Heaven exonerating Daetz evinces a higher degree of moral culpability than that of either co-offender. The Crown submits that the eventual danger that presented to the offender and her own vulnerability should not cloud the very serious level of own moral culpability up until things got out of hand and she was threatened on 23 May.
As to the other offences, they were essentially committed "off her own bat", with the Crown submitting that it was premeditated and calculated to provide another person with an alibi for a serious offence of violence in circumstances where she had no reason to believe that his cause was meritorious.
As to sequence five she had already admitted to a degree of criminality, yet persisted in misleading the police so that her motive was then purely self-protection rather than for the protection of another.
The offender submits that she is distinguished from Sypher and Heaven having regard to genuine remorse, lack of criminal history, misplaced loyalty/no financial motive, and coercion. I accept, having seen her evidence, that she was truthful and is genuinely remorseful, in contrast to the position of the co-offenders who did not give evidence. They also had an extensive criminal history, whereas this offender had only one driving offence.
Mr Johnstone SC distinguishes Podesta v R [2009] NSWCCA 97 by noting that that was an attempt to cover up an alleged premeditated murder, and the offending involved several interviews over a nine-month period, and the sentence was imposed after trial.
Brief submissions were directed to evidence of an incident in August 2018 where the offender told Daetz to return a mobile phone which had been taken from a hotel, but this does not demonstrate that he had any control over the offender. In fact she simply passed on the bar manager's request to have the phone returned, but Daetz refused to do so.
In short, the offending followed pressure applied from two directions: first, Daetz applied emotional pressure around the length of time that he might spend in gaol, and secondly she feared the co-offenders Heaven and Sypher. She was a young woman, vulnerable, pregnant and caught between a rock and a hard place and found that she was unable to control the situation. The incident at the Kingsgrove unit on 23 May 2019 was relevant because it demonstrates the threats made to her and the type of people making demands upon her. There is, as already noted, significant evidence to corroborate her version, namely finding the screwdriver, the admission by Heaven to his mother and the fact that Sypher has convictions for using an offensive weapon and custody of a knife, as well as a record for dishonesty which casts doubt upon her credibility.

Subjective Circumstances of the Offender

The subjective case for the offender comprises of the affidavit of the offender dated 27 August 2020; the affidavit of Karen Elliff (the offender's mother); the affidavit of Edward Elliff (the offender's father); the report of psychologist Dr Sharon Klamer; her employment contract with the Automotive Group and correspondence confirming a further appointment with Dr Salena Bhanji, in addition to the oral evidence given by the offender on 30 November 2020, all of which was largely unchallenged by the Crown.
The offender, now aged 23, has three children. Her eldest children aged 6 and 7 share a father and their care/parenting arrangements are currently subject to Federal Circuit Court proceedings. Currently the children spend alternating weeks/weekends with each parent. Her youngest child, fathered by Daetz, is 14 months old.
She lives with her parents at Artarmon.
The history described in the subjective material details a troubled adolescence, in which she suffered from anorexia and depression for which she received treatment. She experienced the traumatic loss of a childhood friend in a house fire and a sexual assault at the age 12. She was hospitalised on four separate occasions due to her anorexia and on at least one occasion had a feeding tube inserted. She was also hospitalised after experiencing paranoia consuming LSD, she was diagnosed with bipolar disorder and prescribed anti-psychotic and anti-depressant medication. The diagnosis of bipolar disorder was eventually modified by her treating psychiatrist to substance Induced Psychosis and she has not reported any further abnormal perceptual phenomenon since this incident.
She describes her relationship both with Daetz and her former partner (the father of her eldest children) as controlling and abusive. Her former partner is awaiting trial dates in the District Court for offences of violence perpetrated against her. She also detailed incidents of violence in her relationship with Daetz. She says that she is no longer in a relationship with Deatz and is in the process of making custodial arrangements for their shared child.
She acknowledges her poor choices, but she continues to move forward with the support of her family and the relationship with her children is her first priority.
She has been attending appointments with a counsellor fortnightly and has found them beneficial in improving her confidence, self-esteem and decision making ability. She has participated in programs to improve her parenting and is seeking treatment to deal with the trauma of a childhood sexual assault.
She has commenced a psychology degree, which was put on hold following the birth of her most recent child.
She describes being employed in a number of roles since the birth of her first child; mostly roles she could undertake whilst caring for her children including bar work, work as a nanny and working as a customer satisfaction officer for a finance company. She as has recently commenced casual employment in a call centre with The Automotive Group.
She expresses remorse for her offending behaviour and understands how wrong her decisions and actions were. She reports having matured since committing these offences and has actively worked to improve herself, so as to not put herself in similar situations in the future.
She expresses concern about the effect of a full-time custodial sentence upon her children, describing the consequences as "dire", stating that she has "been their primary attachment figure since birth and they do not cope well without me." Her potential youngest child is currently breastfeeding, and is wholly dependent on her; the child has no contact with her father who is currently in custody. Her potential incarceration risks the custodial arrangements for the care of her older children, with the offender expressing concern that her former partner would prevent the children having contact with the maternal family.
Both her former partners, the fathers of her children, face potentially lengthy terms of imprisonment, jeopardising negotiated custodial arrangements and leaving the care of her children to her parents and siblings. While the offender's parents are supportive and provide assistance to the offender, it is Ms Elliff who takes overwhelming responsibility for the care of her children. Any term of imprisonment would result in exceptional hardship to her parents who would take on the role of full-time parent to an infant child, as well as the significant and substantial care of her two older children, causing significant mental, physical and financial stress.
She also expresses concern about the effect of a full-time custodial sentence on her mental health given her history with depression and anorexia.
The psychologist's report of Dr Sharon Klamer dated 25 September 2020 further corroborates her personal history. In short, the psychologist concludes that the offender presented as a young woman raised in a supportive, pro-social family who experiences ongoing difficulties managing her self-esteem and self-worth which led to the development of an eating disorder, associations with negative peers and substance use at an early age, normalising anti-social behaviours. Her underlying, unresolved psychological issues and personality traits cause her to continue to be exposed to ongoing negative peers and anti-social behaviour and remain in abusive relationships. She was assessed as having a very low risk of re-offending.
The Crown emphasises the seriousness with which the community regards offences against justice referring to the Second Reading Speech for the Crimes (Public Justice) Amendment Bill (Legislative Assembly, hansard, 17 May 1990) in which the then Attorney General said, "Offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice, and to this end it must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties. Not only do offences concerning the administration of justice affect individuals, but the community as a whole has an interest in ensuring that justice is properly done"
The Crown submits that general deterrence is to be emphasised in this type of case: R v Giang [2001] NSWCCA 276.
The Crown does not challenge the evidence tendered in support of the subjective case but maintains that the extent of the offending requires full-time custodial sentences because of the degree of offending and the need to observe parity.
The Crown accepts that hardship to third parties, which is less than exceptional, may still be taken into account in terms of reducing penalty and if the hardship is truly exceptional it may lead in a particular case to a non-custodial penalty. The Crown does not dispute that the potential effects on third parties in this case may in the totality amount to exceptional circumstances.
The Crown refers to the jurisprudence in this area summarised by Hidden JA in R v Shortland [2018] NSWCCA 34 at [105] - [125]. It also refers to the recent case of R v Lee [2019] NSWCCA 15, where an offender's 10-year-old son would be left without a parent but even accepting that hardship would be highly exceptional this must be balanced against the need for a sentence imposed to reflect the purposes of sentencing. A generous finding of the discount of the non-parole period to 37% was to minimise the amount of time the offender would be separated from his son.
The Crown also refered to R v Kember [2020] NSWCCA 152, in relation to the process the court must undertake in determining whether an ICO is appropriate in a given case. In R v Kimber the sentencing judge at first instance did not regard a sentence of more than three years was necessary. His Honour nevertheless observed, at [29] that he "cannot do justice to how objectively serious this offence was by imposing a sentence other than a full‑time custodial sentence." An appeal against full-time custody was dismissed. Bellew J outlined at [39]-[40] the process a sentencing judge must following when considering the imposition of an ICO There is no doubt that when considering the imposition of an ICO, a sentencing judge must follow a three step process. The first step is to determine, pursuant to s 5 of the Sentencing Act, that no penalty other than imprisonment is appropriate. The second step is to determine the length of the sentence. The third and critical step is to determine whether the sentence should be served by way of an ICO. In taking the third step, and although s 66 mandates (inter alia) that community safety is the paramount consideration, a sentencing judge must weigh and assess that consideration against the entirety of the facts, matters and circumstances which are relevant to the sentencing task, applying the instinctive synthesis approach. In my view, in sentencing the present applicant, the sentencing judge did precisely that in those passages of his judgment set out above. Having expressly considered community safety and the risk of reoffending, his Honour proceeded to take into account a range of factors, including (i) the applicant's role in the offending; (ii) the purposes of sentencing for offending of this nature; (iii) the emphasis which has been placed by superior courts on the seriousness with which the community views offending of this kind, and the weight which is required to be given to both general and specific deterrence; (iv) the fact that the delay in the proceedings had already had a personal deterrent effect on the applicant; (v) the fact that the applicant chose to act in complete defiance of his legal obligations in circumstances where those obligations were known to him; (vi) the fact that trade in firearms must be strictly regulated, and that any breach of the law is regarded as a very serious offence; and (vii) the role of mitigating factors to be taken into account.
Ultimately the Crown submits that imposition of an intensive correction order would underplay the overall criminality and overvalue the subjective case, particularly bearing in mind the additional offences for this offender.
The offender acknowledges that a term of imprisonment is justified (so it is unnecessary for me to consider any alternatives under s 5 of the Crimes (Sentencing Procedure) Act 1999), but ultimately submits that the sentence should be served in the community. By analogy with the earlier statements of Whealy J in Dipankear v R [2010] NSWCCA 156 at [34], the offender submits that if a custodial sentence is required, but there is evidence of extreme hardship a court may take into account the extraordinary features of the case by imposing an ICO. The offender submits that a full-time custodial sentence would occasion severe hardship to her children and her the parents and that such hardship would be truly exceptional for a young woman of only 23 years of age with three young children and no contact with the fathers of those children. The fact that the offender is the mother of small children is a relevant factor to be taken into account: R v Togias (2001) 127 A Crim R 23; R v SLR (2000) 116 A Crim R 150; HJ v R [2014] NSWCCA 21.
The court R v Togias (2001) 127 A Crim R 23 affirmed the relevance of hardship to children to the sentencing exercise and was wholly concerned with the effect of a custodial sentence on a child. The court whilst dealing primarily with the unique circumstances of that case, noted that "hardship to a child had to be classified as 'exceptional' before it could be given substantial weight."
In HJ v R [2014] NSWCCA 21 Garling JA observed at [76], … it is a matter of relevance and importance to the sentencing Judge to have regard to the fact that the applicant was the mother of a young baby, and the effect of separation from her baby needed to be considered, both in respect to the applicant herself, and the degree to which the separation would have impacted upon the hardship of her period in custody; secondly, if exceptional circumstances could have been shown it was relevant to have regard to any effect on the applicant's child
The power to impose an ICO is not confined to offenders who are in need of rehabilitation or are at risk of reoffending. The purposes of sentencing must be borne in mind together with the recently legislated paramount consideration of community safety. There is no suggestion that community safety would be endangered in this case.
As Harrison J said in R v Pullen [2018] NSWCCA 264, where an offender's prospects of rehabilitation are high and where the risk of reoffending will be better managed in the community an ICO may be available, and here the offender acknowledges that additional conditions such as home detention may be imposed.
As indicated by the Court in R v Wany [2020] NSWCCA 318 a sentencing judge is required to form a view as to which method of serving the sentence of imprisonment - by ICO or in custody - is more likely to address an offender's risk of re-offending: at [61]. This determination is to be made without any pre-conception in favour of incarceration as the only path to rehabilitation: at [65].
However, even if I reach a conclusion on that issue favouring an ICO, I do not necessarily have to make such an order. I have to weigh that determination with all other matters that are required or permitted to be taken into account, including the other manifest purposes of sentencing. I must then synthesise all those considerations and make a discretionary judgment aimed at imposing a just and appropriate sentence: s 66(3) Crimes (Sentencing Procedure) Act 1999; R v Fangaloka [2019] NSWCCA 173 at [65]; Wany v DPP [2020] NSWCA 318.
No aggravating facts have been identified by the parties, or are apparent.
Findings favourable to the offender are made in the light of the genuine expressions of remorse, very favourable prospects of rehabilitation, and extremely low risk of reoffending. I conclude that the term of imprisonment should be served in the community.

Orders

The orders that I make are as follows: 1. The offender is convicted of each offence. 2. The indicative sentences are: 1. Sequence 3, taking into account the Form 1 matter (sequence 1): 18 months 2. Sequence 4: 22 months 3. Sequence 5: 16 months 1. I impose an aggregate term of imprisonment of 2 years, 3 months, with an indicative non-parole period of 10 months. 2. I refer the offender to CCS for a sentence assessment report relating to imposition of a home detention condition and suitability for an ICO generally, pursuant to s 17D(3) of the Crimes (Sentencing Procedure) Act 1999. 3. Pursuant to s 17C(2)(a) of the Crimes (Sentencing Procedure) Act 1999 the term of imprisonment is stayed pending the completion of the assessment. 4. The offender is to report the OIC at St Leonards CCS by 5pm, Friday 22 January 2021 5. I adjourn the matter part-heard to Friday 12 March 2021 at the Downing Centre Sydney. 6. BTC-not varied. 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. Decision last updated: 03 May 2021

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (12)