R v Heaven

POLICE INVESTIGATION 1. Later that evening Elliff provided a nine page statement to police in which she (falsely) claimed 1. It was Sypher who had come up with the idea to use the $10,000 to pervert the course of justice by giving it to Heaven. 2. When she went to the unit she was barricaded in by a lounge that had been moved in front of the door. 3. Sypher threatened to cut her unborn baby from her stomach with a screwdriver if she did not give her the $10,000. 4. Schaffer also threatened to harm her if she did not give him $30,000 and that he would have her working in a brothel to pay off Daetz's drug debt. 1. As a result of this statement, Sypher and Heaven were arrested early the following morning. After being cautioned and prior to being taken to St George Police Station, Sypher provided police with the following account: 1. Daetz's parents had given Elliff $10,000 to bribe Heaven so he would not provide a statement to police. 2. Heaven went along with it and told Elliff that he needed the money for medical bills. 3. All this was recorded on Facebook. 4. Elliff came to their unit and she told Elliff "Look you're from the North Shore, next time you want to fucking play games and you want to walk into my house and try to buy my partner's life for $10,000, you should think twice, man, if you know what I mean." 5. Daetz owes a sum of money to Schaffer and that is why Elliff got scared to know. 6. Things started getting a little bit heated. 7. That the two of them went for a chat in the bathroom and she told Elliff to get out of there, which she did. 1. Both Sypher and Heaven were then conveyed to St George Police Station, where at approximately 2.50am they were both charged with demanding property in company with menaces. 2. Shortly after 1pm that same day, 24 May 2019, Sypher voluntarily participated in an ERISP where she provided the same account given to police earlier that morning, adding 1. It was Elliff who had approached Sypher and Heaven with the offer of $10,000 so Heaven would not give a statement to police. 2. She was prepared to go to the police station and provide a statement stating that Daetz did not stab Heaven. 3. She never threatened to harm Elliff or her unborn child. 4. She told Elliff to "Get the fuck out of the unit, because it was all a fucking joke", and Elliff then offered to transfer $500 to show that she really did have $10,000, so she transferred $500 through to Sypher's account. 1. During her ERISP, Sypher also showed police her Facebook conversations (referred to above at para 15) with Elliff. 2. Sypher was subsequently refused bail and remanded in custody. 3. That same day Heaven also voluntarily participated in an ERISP and provided the following account to police: 1. Daetz stabbed him in the chest. 2. He had not yet given a written statement to police about the stabbing, but had provided a video statement to detectives when he was in the ICU. 3. Elliff had been given $10,000 by Daetz's parents to either pay for a barrister for Daetz or to give him to keep quiet about the stabbing. 4. This was all captured in a Messenger conversation between Sypher and Elliff. 5. It was Elliff who had approached them offering the $10,000. 6. Elliff had come to the unit to discuss this. 7. When Elliff came to the unit she demanded he provide a statement to police. 8. He explained to Elliff that if he was to give a police statement it would be silly and would jeopardise everything. 9. He told Elliff he was not going to go through with it, telling her "his life is worth a lot more than $10,000". 10. He never demanded any money from Elliff 11. Elliff likely became scared when talking to Schaffer and Milstead, and left the unit as a result. 1. Heaven was subsequently refused bail and remanded in custody. 2. On 28 May 2019, police requested Facebook messages from Elliff detailing the conversations she had had with Sypher. That same day Elliff emailed through a very small subset of the conversations between herself and Sypher, deliberately omitting any messages that inculpated her in the conspiracy to pervert the course of justice. 3. On 3 June 2019, Schaffer was arrested and also charged with demanding property in company with menaces. Schaffer voluntarily participated in an ERISP in which he provided the following account to police: 1. He and his wife Catherine Milstead went around to the unit that evening. 2. Sypher and Heaven were there. 3. He found out Heaven and been stabbed - Heaven showed him the stab wound to his chest. 4. "Some chick showed up" - "she was short and fat." 5. That "pretty much off the bat" they were discussing $10,000, that she was owing the $10,000 to Heaven to do a statement...her boyfriend...withdraw a statement... ...Sypher, .that's fine...get paid get...please has to be done, so...even after...parents the...I know that much they're the ones who are offering...or some shit to get this over and done." 1. The bloke's parents wanted to see a copy of the statement. 2. The chick was smoking ice in the unit. 3. The chick stole $300, his house keys and mobile phone from the table. 4. He went to the pub to get his property back from the chick. 5. He denied making any threats towards Elliff. 6. He never saw a screwdriver in Sypher's hands. 1. Schaffer was subsequently bail refused and remanded in custody.

1. I note in respect of the agreed statement of facts signed by a solicitor from the Office of the DPP and Mr Hall on behalf of the offender, that there is some material which may well have been relevant for the prosecution, or the agreed facts in relation to Sypher, Elliff, Daetz or Schaffer, which in my view, should not have been contained in these agreed facts. This matter has come before me on short notice this morning. I will have regard on sentence only to those matters which are relevant to this offender, even though on his behalf the facts in their total have been accepted as agreed. In essence, the offender, having been stabbed with a knife which penetrated the lining of his heart and lungs on 10 May 2019, subsequently agreed that he would not provide a formal statement to police about the stabbing and that he would not attend court as a victim/witness to assist Mr Daetz in avoiding conviction for a serious indictable offence, which was originally charged by the police in respect to Mr Daetz of reckless wounding contrary to s 35 of the Crimes Act, which carries a maximum period of seven years' imprisonment, thereby qualifying as a serious indictable offence.
2. In fact, there was a payment made of $500 as a matter of good faith to try and keep the deal alive in the circumstances, when through Elliff, Daetz was requiring a greater degree of cooperation than had been the subject of the original agreement, that is that the offender would provide a statement which exculpated Mr Daetz entirely rather than simply not providing any statement and making himself unavailable as a witness or victim. The offender had agreed to a benefit intending to procure the acquittal of Daetz for the sum of $10,000, although as a result of the change of the arrangement it never occurred and only $500 was received of the promised amount. My view of the facts is that the offender only withdrew from the arrangement because it had not been honoured as entered into, and because the terms were sought to be changed unilaterally by Daetz through Elliff.
3. The offence committed by Mr Daetz was a serious form of an offence of reckless wounding.
4. Offences of this nature must be regarded as serious, as is indicated by the fact that a maximum period of 14 years' imprisonment is provided. It has frequently been remarked, not only in the Attorney General the Honourable John Dowd's second reading speech on the introduction of the relevant legislation, but in many cases that have been before the courts, particularly in relation to observations by the NSW Court of Criminal Appeal, that the offence of perverting the course of justice is an offence that recognises the importance of protecting the integrity of the criminal justice system as offences contrary to this provision strike at the heart of the judicial system, (R v Kim NSWCCA (5 September 1996 Unreported); R v Taouk [1992] 65 A Crim R 3392.
5. In Marinellis v R [2006] NSWCCA 307 it was noted by Simpson J that sentences imposed in relation to offences of this nature in the past have failed to properly match their seriousness.

• The offender's criminal history,
• A New South Wales Department of Corrective Services Conviction Sentence and Appeals Report,
• A Sentence Assessment Report under the hand of Eric Spark, dated 12 March 2020, it being part of exhibit SA.
• A letter from the offender's elderly mother, Robyn Heaven, dated 9 March 2020, she being in her early seventies, and in her letter pleading for him to be released from custody so that she could have the benefit of his assistance and asserting that he is sorry for what he has done and has learnt his lesson. Attached to her letter is a patient health summary, indicating that consistent with her age, she is taking a raft of medications for her various medical problems.
• In addition there is a transcript of academic record from TAFE as at 16 December 2019, indicating the offender had been found competent in relation to safety testing of electrical cord connected equipment.
• A further statement of attainment from TAFE, dated 11 December 2019, indicating that he had attained competency in a number of subjects, part of what is referred to as "ground maintenance planting".
• A certificate from the John Morony Correctional Centre, being an award for demonstrating positive attitude with a willingness to participate in a polite and respectful manner, dated 22 August 2019.
• A certificate of attendance for a one day program titled "Health Survival Program" on Monday 26 August 2019.
• Finally, a certificate of completion of having successfully graduated from the "Prisoners' Journey a program of Prison Fellowship International", it clearly being a program of some religious orientation. I note from Mr Hall's submissions, apparently Catholic.

1. Subjective matters are drawn from that material.
2. I note the offender has not given evidence on sentence.
3. In addition there is some subjective material referred to in the submissions of Mr Hall on behalf of the offender, including requests that the Court should take into account the offender's medical condition at the time of the offence, his financial position and his heavy use of the drug ice: "I ask your Honour to take into account the offender's medical condition at the time of the offence, his financial position, his heavy use of the drug ice. He almost died and was released from hospital only after five days. In addition he was heavily medicated and suffering from withdrawals from ice. He was also in dire financial straits. His state of mind was fragile. When the offer of money was made to him he readily agreed, although he had already made a statement to the police. He did not think it through. If he had, he would have realised he could not do what was agreed to. When the money was not forthcoming, he withdrew from the agreement. The negotiations had been mainly between Anissa Sypher and Tamsin Elliff, it is doubtful if the agreed money would have been paid."
4. I accept that the offer was made and accepted at a time shortly after the offender had been released from hospital. There is, in fact, no evidence that he was in any way at the time of accepting the offer heavily medicated or suffering from withdrawals from ice; or that he was in dire financial straits or that his mind was fragile. The fact that he did not think through what he was doing, if correct, does not diminish the significance of the offending. It is the equivalent of saying if an offence is committed in an incompetent or unthinking fashion it somehow reduces the degree of moral culpability of the offender, a premise which I do not accept. I note that the content of Mr Hall's submissions were very similar in nature to what he put from the bar table on the last occasion that the matter was before Woods ADCJ, and in relation to which the then Crown, Mr Lever, made oral submissions very much alike to the submissions made today by the current Crown dealing with the matter, Mr Waldman.
5. I note that the offender's partner was Ms Sypher. The Sentence Assessment Report indicates that prior to his arrest he had been living with his mother in the Mascot area, but frequently staying with Ms Sypher in the preceding 12 months, a relationship which he described to the sentence assessment officer as "toxic". It is, however, indicated that they have maintained regular contact through the mail while he has been in custody.
6. He has apparently not had any fulltime employment in the past four years. At the time of the offending, he was in receipt of Centrelink New Start Allowance benefits which were his primary source of income.
7. Although he has only a single juvenile offence of common assault in 2000, he has a lengthy history of offending involving assaults, illicit drugs, driving, domestic violence and theft. In addition, one offence of escape police custody. He has had at least six recorded institutional misconduct charges for disobedience, violence, property damage and possession of prohibited goods.

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