Anissa Sypher appears for sentence in respect of a single offence; that is, doing an act intending to pervert the course of justice contrary to s 319 of the Crimes Act. The maximum penalty available for such an offence is 14 years' imprisonment and there is no standard non-parole period applicable.
The actual text of the charge, as I understand it, is between 9th May 2019 and 24 May 2019 at Kingsgrove in the State of New South Wales did conspire with Christopher Heaven, Tamsin Elliff and Jaya Daetz to do an act with the intention of perverting the course of justice.
The offender entered a plea of guilty on 6 February 2020 at the Central Local Court and is accordingly entitled to having her plea accepted as being at the earliest opportunity which entitles her to a 25% discount for the utility of the plea alone as provided by s 25D of the EAGP scheme.
The facts are agreed and are as follows:
The co-offenders are Christopher Heaven, Anissa Sypher and Tamsin Elliff.
Heaven and Sypher were in a domestic relationship.
Elliff was in a domestic relationship with Jaya Daetz.
Daetz had known Heaven and Sypher for some time, however, Elliff only met Heaven and Sypher for the first time in February 2019.
At approximately 12.20am on Friday 10 May 2019 Heaven was stabbed in the chest with a knife. The knife blade penetrated the lining of his heart and lungs. Multiple witnesses orally identified Daetz as the person responsible for the stabbing including Sypher. Sypher told police that she would provide a statement regarding the stabbing and agreed to attend Kogarah police station at 8am on Friday 10 May 2019 for that purpose.
At approximately 1.30am the same morning Daetz was arrested and charged with reckless wounding for stabbing Heaven and conveyed to Kogarah police station. Daetz denied committing the offence and told police he had been with Elliff for the entire evening.
At approximately 3.35am the same morning a police officer spoke to Elliff who said she had been with Daetz the entire evening. This information that Elliff provided to police was a lie that she later admitted in a signed statement to the police. Elliff had not been with Daetz since approximately midday on Thursday 9 May 2019 and had not seen or spoken to him since then.
The same day, 10 May 2019, Elliff found out that Daetz had been arrested for stabbing Heaven and that he was bail refused.
Sypher did not attend the Kogarah police station on Friday 10 May 2019 to provide a statement to police.
Between Saturday 11 May 2019 and Wednesday 15 May 2019 Elliff found out that Daetz's parents were going to pay $10,000 for a lawyer to represent him. That money was due to be paid to the lawyer on Friday 17 May 2019.
Elliff came up with an idea to use the $10,000 allocated to the lawyer to pay Heaven instead. The money would be paid to Heaven on two conditions:
(1) that he would not give a formal statement to police about the stabbing; and
(2) that he would not attend Court as a victim/witness.
Heaven was interviewed by police at the hospital on Monday 13 May 2019 where he made a short video statement stating that Daetz had stabbed him. There is no evidence as to when Sypher became aware of Heaven's video statement.
Between Monday 13 May 2019 and Thursday 23 May 2019 police attended Sypher's unit five times leaving a card on the door at least three times for Sypher to contact police. Sypher never provided police with a statement about the stabbing.
On Wednesday 15 May 2019 Elliff made the offer to Sypher and Heaven. Sypher and Heaven told Elliff they would need some time to think about it. Later that same day Elliff sent Sypher the following text message:
"You home yet? Message me when you guys have talked about it but try decide as quick as you can cause otherwise the lawyer will get it. The parents will send it to me and I either have to give it to you or lawyer by Friday," (17 May 2019).
Sometime between Wednesday 15 May 2019 and Friday 17 May 2019 the deal was accepted by Sypher and Heaven. At 7.42am on Friday 17 May 2019 Heaven sent the following text message to Elliff:
"It's Chris (Heaven) I've stuck to my end of the deal. I expect the money to be put into Anissa's (Sypher) bank."
Approximately 30 minutes later Sypher sent the following text message to Elliff:
"Sis, I'm just clarifying that the money will be sorted today. It's Friday like organised. Just let me know what's going on, A (Heaven) is starting to flip check facey." (Facebook).
Between Friday 17 May and Sunday 19 May 2019 numerous Facebook and SMS messages were exchanged between Sypher and Elliff regarding the payment of the $10,000 with Elliff concerned that because Heaven was simply not providing a written statement to police and agreeing not to attend at any potential trial that there was a lack of security in exchange for the $10,000. Sypher tried to reassure Elliff, however Elliff then spoke to Daetz and sent the following message to Sypher on Sunday 19 May 2019:
Elliff: "Heah he (Daetz) said he needs a statement cause then he can apply for bail and get it cause there's new evidence.
...
cause there's no new evidence like he can't reapply for bail so if there's a statement then he can get out.
Sypher: "Okay I'm on my way to report, I'll do mine (statement) swear on my life. If I go in n fuck up (Heavens) recover n this isn't sorted by 5 I'll make (Daetz's) situation look like child's play n he's going to wish right now is all he still had to worry about."
Elliff: "Huh? I don't think (Daetz) needs u to do one, just (Heaven) because (Heaven) is the victim. Don't do (a statement) yet until I find out what (Daetz) wants okay but pretty sure just (Heaven) you don't want to involve yourself."
On Wednesday 23 May 2019 Sypher and Heaven invited Elliff to their unit in Kingsgrove to discuss Daetz's new requirement that Heaven provide a statement to police in exchange for the $10,000. Elliff arrived at approximately 7pm the same day. Also present in the unit were two friends of Sypher and Heaven, Peter Schaffer and his partner Cathryn Milstead.
Shortly after Elliff's arrival at the unit an argument developed over the fact Elliff had not honoured the original agreement and paid the $10,000 and that Daetz was now requiring an actual statement from Heaven telling police it was not Daetz who had stabbed him.
By this stage Heaven and Sypher had also become sceptical that Elliff even had the $10,000 and told her to "get the fuck out of the unit" because she was "full of shit".
Elliff, in an attempt to calm the situation and keep the deal alive, transferred $500 using a mobile phone to Sypher. Sypher confirmed to Elliff that she had received the sum.
After some further discussion between the parties, Heaven told Elliff that he was not prepared to provide a statement to police and that the deal was off. He told Elliff that "his life was worth a lot more than $10,000".
Around the same time Peter Schaffer started talking to Elliff about $30,000 that Daetz owed him (which was most likely a drug debt). Elliff did not have that kind of money and became increasingly scared that she may be physically harmed if she remained in the unit and shortly thereafter fled the unit and ran to the nearby Kingsgrove Hotel.
Hotel security called the police who arrived a short time later.
[2]
POLICE INVESTIGATION
25. Later that evening Elliff provided a nine page statement to police in which she (falsely) claimed:
(a) 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;
(b) when she went to the unit she was barricaded in by a lounge that had been moved in front of the door;
(c) Sypher threatened to cut her unborn baby from her stomach with a screwdriver if she did not give her the $10,000;
(d) 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.
26. 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:
(a) Daetz's parents had given Elliff $10,000 to bribe Heaven so he would not provide a statement to police;
(b) Heaven went along with it and told Elliff he needed the money for medical bills;
(c) all of this was recorded on Facebook;
(d) Elliff came to her 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".
(e) Daetz owes a sum of money to Schaffer and that is why Elliff got scared;
(f) things started getting a little bit heated, the two of them went for a chat in the bathroom and she told Elliff to get out of there, which she did.
27. 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.
28. 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:
(a) it was Elliff who had approached Sypher and Heaven with the offer of $10,000 so Heaven would not give a statement to police;
(b) that Heaven agreed to whatever Elliff wanted (including providing an exonerating statement) knowing Elliff had "no clue" that Heaven had already given a video statement;
(c) she never threatened to harm Elliff or her unborn child;
(d) 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 her that she really did have $10,000, so she transferred $500 through to Sypher's account.
29. During her ERISP Sypher also had the following exchange with police.
Question 88:
"Q. And when you said I'm going to the police now and I'll give a statement saying Jaya didn't--"
Question 89:
"Q. --stab Chris--"
Question 90:
"Q. --what were you do, where you go, what were you going to do, were you really going to go to the police?
A. I was, I - I - I was, of course I was, I was really going to go to the police, like - what she wanted to hear".
Question 91:
"Q. Sorry, I didn't - you were or you weren't?
A. I'm fucking coughing, I was just telling her what she wanted to hear".
Question 92:
"Q. So were you going to go to the police and make a statement?
A. Yes, I was, but not gunna go so she thinks I was going to--"
Question 94:
"Q. Did you have any intentions of giving a police statement about (Daetz)?
A. Yes, I do. I come into that stat(?) what a f'ing pull-up your f'ing station and then no officers wanted to deal with me asking for the detective".
Question 96:
"Q. I'm talking about just your comment you've made.
A. Okay, I'll make it a bit f'ing clearer, like cause I haven't given a statement on it yet I'm not - I just told you five times I was tell her what she wanted to hear".
30. During her ERISP Sypher showed police her Facebook conversation with Elliff, extracted later in the agreed facts.
31. Sypher was subsequently refused bail and remanded in custody.
32. That same day Heaven also voluntarily participated in an ERISP and provided the following account to police:
(a) Daetz stabbed him in the chest;
(b) he had not yet give a written statement to police about the stabbing but had provided a video statement to detectives when he was in the ICU;
(c) Elliff had been given $10,000 by Daetz's parents to either pay for a barrister for Daetz or to give to him to keep quiet about the stabbing;
(d) this was all captured in a Facebook Messenger conversation between Sypher and Elliff;
(e) it was Elliff who had approached them offering the $10,000;
(f) Elliff had come to the unit to discuss this;
(g) when Elliff came to the unit she demanded he provide a statement to police, he explained to Elliff that if he was to give a police statement it would be silly and would jeopardise everything;
(i) he told Elliff he was not going to go through with it, telling her "his life is worth a lot more than $10,000";
(j) he never demanded any money from Elliff;
(k) Elliff likely became scared when talking to Schaffer and Milstead and left the unit as a result.
33. Heaven was subsequently refused bail and remanded in custody.
34. On 28 May 2019 police requested the Facebook Messengers 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.
35. On 3 June 2019 Schaffer was arrested and charged with demanding money in company with menaces. Schaffer voluntarily participated in an ERISP at which he provided an account consistent with that of Heaven and Sypher.
36. Schaffer was subsequently bail refused and remanded in custody.
37. Cellebrite analysis of exhibit X624 (black Huawei mobile phone) revealed that it was used by both Sypher and Heaven. Of particular note were the following text messages.
17 May 2019, 5.42pm message from Heaven to Elliff:
"It's Chris (Heaven) I've stuck to my end of the deal I expect the money to be put into Anissa (Sypher) bank."
6.13pm message from Sypher to Elliff:
"Sis I'm just clarifying that the money will be sorted today it's Friday like organised just let me know what's going on. C (Heaven) is starting to flip, check Facey (Facebook)."
7.22pm message from Heaven to Elliff:
"I've stuck to my word, now you're fucking me around read what you wrote the lawyer or I will get it by Friday I'm in a really bad way and the only thing I have is my word I'm putting out and you can take this up with me I need to pay medical bills, this maybe jupudise (sic) my compensation I can't go to on Monday so I can't even try to help my girl put her electricity back on, I'm pulling out, me n Niss (Sypher) trusted you n all along you're fishing for info nunj (Daetz) r playing games, play games from gaol, I am sorry you're pregnant but not sorry enough my fucking life matters n I am fucked up enough from this whole thing I can barely breathe I can't go outside n I got sucked into feeling sorry for the cause."
7.28pm message from Elliff to Heaven/Sypher:
"Let me know if you guys are pulling out because then I need to give it to lawyer."
7.28pm message from Elliff to Heaven/Sypher:
"Hey sorry I didn't see my phone till now I'm sorry I didn't say clearly my fuck-up like Friday was when I had to give it to the lawyer so I meant I needa know what you guys are doing before then so I don't give it to the lawyer but I can't give it to you guys yet because like there's no statement or anything you know like it's not my money or anything I can't just hand it out I needa have the thumbs up from J (Daetz)."
7.36pm message from Elliff to Heaven/Sypher:
"I'm not with J (Daetz) I'm just getting instructions from him what he needs me to do. I don't care if it goes to you guys or the lawyer, neither way it impacts me. But I've already given you guys a bit of the money which is a bit frustrating when I put my neck out by doing that when I wasn't meant to, so now I'm going to have to pay the lawyer some out of my own pocket for this shit that's not even got anything to do with me."
9.14pm message from Sypher to Elliff:
"It's Anissa I'll fix up what was taken out last night."
9.14pm message from Elliff to Heaven/Sypher:
"Thank you."
38. Sellbrite analysis of Sypher's mobile phone revealed the following Facebook Messenger exchange between Sypher and Elliff between 17 and 19 May 2019.
Friday 17 May 2018 (approx).
"SYPHER: Sis (Heaven) starting to flip hard he thinks (Daetz) is trying fuk him over can you do what was agreed on n do half now n the other half a bit further down the road, like it's true but Sis (Heaven) has been really resilient n strong in himself just to get through the trauma his body is going through I don't think it's good for him mentally to be stressing about whether (Daetz) is trying to fuck him ovr I just wnnu make sure he stays calm (Daetz) is def going to be okay he'll be out in no time can you please just keep me updated ASAP please Sis just let me know what to say to (Heaven).
ELLIFF: Hey sorry yeah I'll let you know when I know what's going on I got to speak to (Daetz) first tell (Heaven) that (Daetz) isn't going to fuck him around like I've got it and I'm not going to fuck u around I just want this mess over with but I just haven't been able to speak to (Daetz) yet so I can't do anything I got to speak to him which will hopefully be tomorrow but I don't even know where he is at this point...
SYPHER: Sis it was organised that if (Heaven) did his part it would be sorted by Friday, (Heaven) was under the impression (Daetz) was the one who organised it if anything it's you that's got good news for (Daetz) that he's going to be getting out but (Heaven) just feels like he's been taking for a row, you n me are both being middle men but (Daetz) is sweet sis he's been in before you only get one welfare call sis that's when you first go in if (Daetz) said to organise this then (Heaven) said to say what's going on he thinks it's fishing he's not taking it out on u he just doesn't trust (Daetz) bub.
ELLIFF: Yeah no it's just last time I spoke to him was ages ago and I haven't even got to tell him that everything is going good cos like last thing I want to do is to have him chasing me for shit like before he said all of it afterwards like I assume when he gets out so I haven't even spoke to him about anything like about doing half now n half after you know but once I speak to him he'll probably give thumbs up I just want to make sure that I'm doing what he's asking me to do and I'm not fucking it up cos it's hard to communicate properly over the phone when he's in there so when I speak to him I'll let u know what he says just tell (Heaven) to chill atm (at the moment) and that we're taking care of everything I also don't know how (Daetz) will be I can't prove what (Heaven) said to the igpays (police).
SYPHER: Can't you send something sis so (Heaven) relaxes I'm being put in shittiest position (Heaven) has walked away if anything goes wrong which it won't I'll fix it.
K please, just us sort tonight out then I'll get him to sit quiet to you do what you gotta do. I'm deleting last msg.
ELLIFF: I can't do anything Jude I'm sorry (screenshot message sent from the accused to Sypher, Wednesday, 15 May 2019.)
Not referred to in the facts, but I assume that the person referred to as the accused in that phrase is Elliff.
"R u home yet? Message me when u guys have talked about it but try decide as quick as u can 'cause otherwise the lawyer will get it. The parents will send it to me and I either have to give it to u or lawyer by Friday.
ELLIFF: Hey did u get my message on text? I worded wrong and that was my bad - like, I meant I had to give it to the lawyer Friday if I didn't hear from u guys. All I'm saying is I got to speak to (Daetz) because like u guys didn't do statement so I have no proof or anything but I need to make sure it's okay with him, but let me know if u guys r pulling out."
"Because then I gotta get the lawyer like I hate being in the middle, I'm just passing on (Daetz's) message. This shit has nothing to do with me and doesn't bother me who I give it the $ to. If u guys don't want to do it that's fine I'll just get lawyer.
Saturday, 18 May 2019 (approx)
"SYPHER: Have you spoken to (Daetz)?
ELLIFF: Yeah, barely. Why?
SYPHER: Did you ask him? Did he say to do it or not 'cause (Heaven) has to go to court otherwise.
ELLIFF: Huh? I thought you guys already said no? I didn't speak to him about it 'cause I thought I was just going to get the lawyer.
SYPHER: I should have msgd you when I was alone. M said just speak to him 'cause court isn't far off. I know (Heaven) is being a full on but sis I can't blame thing it's a big thing. Speak to (Daetz) tomz n say (Heaven) won't go to court, nobody has done statements against him anyway n what I said about the boys going outside to see who was yelling downstairs. K I know you will say that it's ag (all good) to go ahead with it, but speak to him so you know. Km I'll take care of things my side.
ELLIFF: All right I'll ask him when I speak to him tomorrow but to be honest I reckon he's gonna want a statement you know? for security even tho doing a statement would be shit for everyone I just reckon he's going to be really sketchy but I'll speak to him. Court's not for a couple of weeks and (Heaven) won't have to go to that one anyway, he'll just be asked to go to the hearing which will be in at least a month. If I can't really speak to him I'm going to try and get a visit for this week and can talk to him then. But yeah make sure you let me know what's going on and I'll keep u updated to x.
SYPHER: Sis (Daetz) will agree n he'll be happy there is no statements trust me we know what we're talking about n tell (Daetz) he should know me better than that k you just gotta say it exactly how I have said k so (Daetz) understands, k bub let me know asap please, n don't stress for a second I'll fix the difference being something goes wrong."
Sunday, 19 May 2019 (approx)
"ELLIFF: Hey he's said he needs a statement 'cause then he can apply for bail and will get it 'cause there's new evidence.
SYPHER: Did you say to him that he went outside to see who was yelling.
ELLIFF: Yeah I said that, he said that was good but 'cause there's no new evidence like he can't reapply for bail so if there's statement then he can get out.
SYPHER: Okay, I am on my way to report. I'll do mine swear on my life if I go in n fuckup (Heaven's) recover n this isn't sorted by 5 I'll make (Daetz's) situation look like child's play n he's going wish right now is all he's still had to worry about.
ELLIFF: Huh? Don't think he needs u to do one just (Heaven) because (Heaven) is the victim. Hope to get until I find out what (Daetz) wants okay but pretty sure just (Heaven). You don't want to involve yourself."
I note that this matter came before me at 2pm on 15 June 2020 as a result of the fact that I had previously sentenced the co‑offender Christopher Heaven on 3 April 2020 despite the fact that I was not part heard in respect of this matter, but at the insistence of the Crown Prosecutor.
At the outset, I requested the Crown Prosecutor to inform me if there was any variation in the facts from those in respect of which I had sentenced Christopher Heaven. In essence, he was unable to tell me the differences, however, I note that the last part of para 5 that I have referred the words, "Sypher told police that she would provide a statement regarding the stabbing and agreed to attend Kogarah Police Station at 8am on Friday, 10 May 2019 for that purpose" was not included in the facts in relation to the co‑offender.
Similarly, the whole of para 9, "Sypher did not attend Kogarah Police Station on Friday, 10 May 2019 to provide a statement to police" was also not part of the facts before me in respect of Heaven.
In addition, paras 12 and 13 were not before me, those relating to the fact that Heaven had made a short video statement, and that between 13 May 2019 and 23 May 2019, police had attended at Sypher's unit on five occasions, leaving cards on three occasions but that she had never contacted the police to make the statement she had previously agreed to make.
In addition, what is referred to in the current facts at para 29 being extracts from the ERISP with the offender Sypher was not before me, nor were at all paras 35 to the conclusion of the agreed facts document being essentially the whole of pp 6 through to 10.
To some extent some of the referred to messages were otherwise contained in earlier parts of the facts. I did not have the time at 2 o'clock, having dealt with other matters during the course of the morning, to read the Crown sentence summary, the facts, the criminal history or any of the material provided although of course I was aware and had in my mind the fact that I had sentenced Mr Heaven.
Also tendered during the course of the hearing was a bundle of documents which became Exhibit S1, materials tendered on behalf of the offender Sypher. Again in respect of that material I did not have the opportunity in order to progress the matter without delay to read it before dealing with submissions. In addition, written submissions have been provided by the Crown and by Mr Williams on behalf of the offender. I had not had the opportunity to read either the Crown's or the defence submissions. Having reserved the matter until today to give it proper consideration after hearing the submissions I have in the meantime received by email with the consent of the Crown further documentation including emails from Amarande Chauvet, the solicitor for the offender, emails from Detective Mikhail Apostolakis and a Statement of a Witness, being Anissa Sypher, as provided to Officer Apostolakis on 26 May 2020. That material was added to Exhibit S1. An email from Officer Apostolakis to Ms Chauvet of 26 May 2020 included in Exhibit S1 indicated that a five page statement had been obtained from Anissa Sypher in respect of the assault and other potentially relevant interaction between Mr Daetz and Mr Heaven. I indicated on 15 June 2020 that I was not prepared to take into account as any form of assistance an email from a police officer which did not appear to accord with the ordinary procedure in relation to police officers providing evidence of assistance. In the intervening period a further email was provided from Officer Apostolakis dated 17 June 2020 to Ms Chauvet again dealing with the provision of a statement and making certain comments about it.
[3]
Subjective matters.
Before the court is the report of Dr Furst, psychiatrist, dated 11 June 2020, the report of Ms Dombrowski, psychologist, dated 30 March 2020, a bundle of Justice Health documents from 2018 and 2019, a bundle of medical reports and summaries, a letter from the offender to the court signed 10 June 2020, an affidavit of the offender's mother, Penny‑Ann Sypher sworn 11 June 2020 and as I have previously referred to, the emails from Detective Apostolakis dated 26 May 2020 and further email of 17 June 2020 as well as the statement provided to the police dated 26 May 2020. Subjective matters have been drawn from that material.
The offender is 31 years of age and of indigenous ancestry. She was living in a Housing New South Wales residence with the co-offender Heaven at the time of the offending. She had been involved with him in a de facto relationship of approximately four years duration. She has never been married but had a previous relationship which had resulted in the birth of a daughter, Jayla, who is now approximately twelve years of age. The offender's parents remain together and living at Ramsgate. She has two older brothers and one younger brother. She was in receipt of a Disability Support Pension at the time of her arrest and has been in receipt of such a pension for a significant number of years. She was born in Toowoomba, Queensland and subsequently moved with her parents to Maroubra when her father, a serving officer of the Royal Australian Army was deployed to Sydney.
She has stated to the psychiatrist and the psychologist that she was sexually and physically abused by her older brother in the family home. She attended South Coogee Public School and South Sydney High School. She is said to have apparently had features of ADHD and did not do well at school but did not have an intellectual disability. She left school at the age of fourteen and was living on the streets for the following four years. She first developed apparent symptoms of psychosis at the age of eighteen while pregnant with her daughter. She was admitted to the Kiloh Unit, being an acute mental health unit at Prince of Wales Hospital, Randwick for a period of four months.
She was said to have at the time been experiencing auditory hallucinations and very paranoid. She has apparently had some nine to ten subsequent admissions to the Kiloh Unit and a further admission to the acute mental health unit at Sutherland Hospital over the following ten to 12 year period suffering from recurrent symptoms of psychosis including auditory hallucinations and paranoid delusions. She has been medicated with a significant number of medications relevant to the treatment of schizophrenia and particularly what is referred to as treatment resistant schizophrenia. In recent years she has been under the care of the St George Hospital Community Mental Health Team at Kogarah on a voluntary basis. While the psychiatric report indicates that she has been largely compliant with medication and appointments that does not appear to agree with what is contained in the breach report.
As a juvenile she had worked at McDonald's, KFC and IGA but her last paid employment was approximately ten years ago working for a gold company in an advertising/promotions role. She commenced smoking cannabis at the age of 13 and that habit continued up until the age of 18 when she fell pregnant. She had support from Mission Australia at the time of her pregnancy and when her daughter was in her infancy. However, her daughter was then removed by the Department of Community Services as a consequence of Ms Sypher's severe mental illness and her apparent inability to properly care for her daughter that had led to a relapse into drug use, especially cannabis abuse. When Ms Sypher was 19 years of age her use of cannabis was associated with increased paranoid thoughts and destabilisation of her psychophrenic illness. At the age of 15 she had also commenced using methylamphetamine or "ice" in respect of which she had a regular habit in her teens and twenties and especially in the four years preceding her arrest in respect of this matter. Both she and the co-offender, Heaven, used prohibited drugs on a regular basis. It is said that he was also violent towards her just as her first partner, the father of Jayla had been. In 2016 she is said to have suffered a back injury and was prescribed opiate based pain killing medications such as Oxycodone, Endone and Targin. She became addicted to the opiates and subsequently commenced using heroin in 2018 and 2019 as it was cheaper and in her view more effective. She has never been treated with methadone or buprenorphine although she has used non-prescribed Suboxone (buprenorphine) while in custody on remand.
The New South Wales Department of Corrective Services Conviction, Sentences and Appeals report, being part of Exhibit 1, indicates that on 15 September 2019 she was found in possession of a drug implement and three days later, on 18 September 2019, she failed a prescribed drug test and I note, as already referred to, during the period that she was on bail and attending Odyssey House between 11 November 2019 and 19 December 2019 she was again using drugs improperly as a result of her addiction. She is said to have no major medical problems apart from her chronic back pain although it is evident that she has a significant mental health problem in relation to schizophrenia.
Before her arrest she was, as previously indicated, using drugs including ice and heroin and had ongoing psychotic symptoms in the form of auditory hallucinations and "thought broadcasting". As she was on a disability support pension she saw the money that was offered to her and her partner "as a means of relief and escape which was likely the main motivation behind her offending conduct." Her breach of the Odyssey House regulations was that she was detected smoking a pain medication that had been prescribed for her for oral dosing. Dr Furst refers to the Justice Health medical records and to a number of medical practitioners who have dealt with her while she has been in custody.
On 20 June 2019 Dr Baker, a psychiatrist, diagnosed her as having schizophrenia, a borderline personality disorder and a poly substance use disorder.
When reviewed on 2 August 2019 Dr Callun-Smith diagnosed her as having chronic schizophrenia. She was commenced on the depot anti-psychotic medication Colopixol and her daily dose of Olanzapine was increased.
There was a further review by Dr Martin Reading on 21 August 2019 which noted that her symptoms of hallucinations and paranoia had improved "somewhat". He, again, diagnosed her as suffering from chronic schizophrenia, borderline personality and a substance abuse disorder.
She has previously been prescribed Clozapine while in the community which is an antipsychotic medication restricted to use in people with treatment resistance schizophrenia and is strictly monitored because of its potential life threatening side effects. Her treatment with that medication had been discontinued due to her non-compliance with her medication.
She was reviewed by a mental health nurse on 12 September 2019 and she was said to be continuing to experience auditory hallucinations, paranoid thinking and thought broadcasting.
A drug and alcohol assessment was conducted with Dr Karen Cheung on 24 September 2019. Dr Cheung documented a history of chronic pain and ongoing substance abuse. She has said to have been smoking between 0.5 and 1 gram of heroin per day over the previous four years, 2016 to 2019, and taking relatively high doses of prescription opioid analgesic medication prior to her arrest in 2019, namely, Targin, Endone and Pregabalin with methylampetamine use in the order of 1 gram per day which she was smoking. She was also noted to be injecting diverted Suboxone (Buprenorphine) in custody on a regular basis in the months after her arrest.
Dr Furst opined that,
"In my opinion it is more likely than not Ms Sypher's offending conduct was the result of confluence, her multiple different mental health problems, her addiction and the social circumstances she found herself in after her partner, Christopher, was stabbed which contributed to her poor decision and the failure to properly anticipate the consequences and agreeing to accept the money offered to her."
Because of her treatment resistant schizophrenia, he also opined that a custodial sentence for her would be more onerous than for the "theoretical average female inmate in New South Wales" and that she needed to remain in the care of a psychiatrist and mental health nurses working for Justice Health with review on a regular basis as well as prescription of appropriate medication. He opined that the medication she was currently receiving while in custody had not led to a complete resolution of her psychotic symptoms but that the medications she was being supplied with were reasonable in the circumstances. He also opined that she needed specialist drug and alcohol input to prevent her from relapsing into using heroin and/or methylamphetamine use when released from custody. Apparently, while in custody she was reasonably engaging in assessment of treatment measures as outlined by him in his report and he opined that they would be "likely be of benefit in managing her mental illness and addictive disorder thereby reducing her risk of reoffending." In the report of Ms Dombrowski she has said to have informed the psychiatrist of the following,
"When she was approached by this man's partner and offered a sum of money on the condition that they not provide information to police regarding who stabbed her partner, she felt angered. She told me she agreed to accept the payment but had no intention of personally withholding information from police in return for the payment rather she was primarily motivated by the opportunity to financially disadvantage the man who wounded her partner and financially benefit from it herself. Ms Sypher expressed regret for her offending behaviour, "I'm very sorry for it...I shouldn't have taken the law in my own hands...when I thought I was going to lose him (i.e. her partner) I got so angry that they were trying to buy my partner's life, I was in such a bad place at the time...I should have just stayed out of it."
That is an explanation for her conduct which, in my view, cannot be accepted but is merely a self-serving statement designed to reduce her moral culpability for the offending conduct.
There is no such reference to Dr Furst being informed of such motivation or any motivation other than financial reward. She also informed the psychologist that she was "largely coping well in custody although she has experienced some difficulty assessing adequate pain management medication while in prison." A significant bundle of medical reports have been provided and it seems to me having read carefully all of the material that's been provided, that while I accept that she has pain from her back injury that Ms Sypher is someone who is addicted to the consumption of at least opiate painkillers, heroin and methylamphetamine and I note that she has made numerous complaints while in custody about pain in her back or elsewhere.
I have formed the view that she is simply a person who does not appreciate where her pain stops and her addiction begins, and that her complaints, while in custody, are designed to achieve the provision to her of significant opioid painkillers to feed her addiction rather than treat her pain.
As to her schooling, she completed Year 9 but was suspended a number of times during secondary school for smoking, swearing and fighting. She achieved "really bad grades". She was never placed in a specialised class with children with learning difficulties or required to repeat a grade. She has been in receipt of a disability support pension since 2010. She stated to the psychologist that her child was removed from her care because of her partner's violence. However that appears to be inconsistent with other material, although that may have been one factor taken into account in removing the child, it was not the only reason.
The psychologist opined that her offending behaviour (past and present) is largely driven by her personality disorder, her history of complex trauma and her poorly controlled substance use. I note of course in relation to her chronic schizophrenia that it is well recognised that the use of prohibited drugs, such as marijuana, and methylamphetamine, or "ice" in particular, may cause psychosis particularly in those who are already vulnerable. The offender has known for a long time that she has a mental health problem in relation to schizophrenia which has been difficult to treat in the past yet continues to take prohibited drugs which are only likely to exacerbate the problem or at least trigger further incidences of psychosis. The psychologist also found that she was motivated by financial reward. She is said to have "expressed regret for her offending behaviour and decision making at that time".
The psychologist also stated,
"While I note that she was not taking her medication regularly during the offending period and was continuing to experience daily hallucinations she provided no information during the assessment to suggest that her offending was in any way connected with these symptoms of psychosis."
I am unable to find in either the report of Dr Furst or Ms Dombrowski any support for the proposition that her mental health condition was in any way causative in respect of this offending. Although it remains relevant as a personal circumstance is to be taken into account. As to remorse and contrition I have already referred to the reference in Ms Dombrowski's report,
"She expressed regret for offending behaviour and decision making at that time."
I have not found anything in Dr Furst's report other than what I have already quoted,
"I feel bad about it...I didn't see how it would affect things. Chris had already done his statement, I was just going to take the money. I'm very poor, I was thinking of the money",
which does not in my view raise issues such as remorse and contrition other than feeling "bad".
The offender has written a letter to the Court. I note in that respect that she did not give evidence on sentence so was not subject to cross-examination in respect of any issue in relation to the expression of contrition and remorse. The letter to the Court is approximately two and one third pages in length in relatively small print. It commences with the word "I am writing this letter to express my remorse for my actions and to explain a little bit about myself and what was going on in my life when I committed this offence.
The letter continues for the most part, only referring to what she says was explaining a little bit about herself and what was going on in her life. Until the final paragraph where she states,
"I am really sorry for what I have done. It is the really wrong thing to do. I take responsibility. I do not want to make any excuses for it. Chris's stabbing was really serious and it was not up to us to take matters into our own hands. I get that now".
Particularly in view of the assertions she made to Ms Dombrowski about her participating in the offending conduct as a way of in effect revenging herself on behalf of Mr Heaven on Mr Daetz by making him pay for stabbing Mr Heaven I am unable to accept that there is any acceptable evidence of remorse or contrition contained in the documentation.
There is also an affidavit from her mother who states that before Anissa was returned to custody she was living with her. I presume that was for the period that she was released from Odyssey House or perhaps before her original arrest, the affidavit is not clear, but she is said to have been an excellent help, never leaving her mother's side and being extremely helpful. At para 10 she states:
"Anissa has expressed her remorse to me. She has told me she is really sorry about what happened. She said she would not have done it but for how she felt for Chris at the time. I believe she understands now how wrong what she did is."
At para 16:
"I know she knew what she was doing but I believe he was a very bad influence on her."
Again, I am unable to find that the material contained in her mother's affidavit provides acceptable evidence of genuine remorse and contrition. I have no doubt that the offender now regrets what she did because it has resulted in her being in custody and still awaiting sentence at this time. A plea of guilty in itself does not necessarily reflect remorse or contrition although that is frequently a submission made on behalf of offenders. In this matter the offender was obviously capable of providing some information to the police from the outset and having made an agreement to attend the police station to do so failed to do so although she subsequently tries to excuse that in her letter to the Court by saying that she went to the wrong police station on numerous occasions.
As previously referred to, the offending occurred between 9 and 24 May 2019. She was arrested on 24 May 2019 and she made no statement to the police in relation to the matter until approximately one year after she had been charged, that is, on 26 May 2020. Having been committed for sentence on 6 February 2020 she made no statement to the police until 26 May 2020, some three months after she had entered her plea of guilty. Also of significance in relation to the timing of her subsequent statement is the fact that she waited until such time as Mr Heaven had been sentenced on 3 April 2020.
I have not referred in detail to her criminal history but I have noted that it does not aggravate the offence, it simply disentitles her to leniency. It is not insignificant in relation to the number of offences which largely appear to be related to her addiction to prohibited drugs and use of them. That is, the offences are by and large consistent with the type of offences that one finds in respect of persons who have addiction problems.
By way of comparison in respect of the issue of parity with Mr Heaven her criminal history is not as significant as his but I found in relation to his criminal history that it similarly was one which did not aggravate the sentence but disentitled him to leniency. The statutory aggravating circumstances in relation to this matter are that the offender was on conditional liberty in relation to the three concurrent Community Corrections Orders of 18 months which had been imposed only approximately four months before committing this offence and of course in addition that the offence was committed for financial gain. Neither of those statutory aggravating circumstances applied to Mr Heaven as the offence with which he was charged was one of witness agreed to accept benefit to procure an acquittal of a person of a serious indictable offence. So that financial gain was an element of the offence. An offence contrary to s 319 is of course more serious when it is committed for financial gain.
As to the financial gain to the offender the evidence is uncertain. She has accepted that she was participating for financial gain, $500 was in fact transferred to her bank account as what I have previously referred to as a sign of good faith. I anticipate or infer that her account was used because she and Mr Heaven were aware that it would be unwise for moneys to go from Mr Daetz or his partner, Ms Elliff, to an account of Mr Heaven's if he had one, that it was better to have it disguised by way of an intermediary's account.
What benefit she may have expected may have been no more than the expectation that when the $10,000 was available in her account, which I expect the balance would have been transferred if the agreement had gone through, it would have been spent by both her and her partner drawing on those funds in cash for their daily living including for their necessary expenditure on prohibited drugs to feed each of their addictions.
So in that sense the particular financial reward that she was expecting is uncertain although she was expecting one. 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 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 392.
In Marinellis v R [2006] NSWCCA 307 it was noted by Simpson J that sentenced imposed in relation to offences of this nature in the past have failed to properly match their seriousness. Simpson J in Khoury v R [2011] NSWCCA 88 said,
"Sentences the subject of the statistics do not appear to reflect the serious view this court has repeatedly consistently expressed concerning the gravity of offences of this kind".
In particular the cases of Taouk and Marinellis as well as R v Einfeld (2009) NSWSC 119 and Einfeld v R [2010] NSWCCA 87 were referred to. Her Honour's observations were later endorsed by Hoeben CJ at CL with Hulme and Holmes JJ agreeing in Reid [2006] NSWCCA 151 at (45).
In Cross v R [2016] NSWCCA 214 at (96), in referring to offences contrary s 323 and 324 of the Crimes Act although relevant also to offences contrary to s 319, it was stated,
"The integrity of justice is placed at risk if individuals arrogate to themselves the role of determining what evidence will or will not be given in court and whether that evidence will or will not be truthful in circumstances where the individual is seeking to promote their own self-interest."
The proper administration of justice is a fundamental element in our democratic system of government and central to the proper administration of justice is the provision of candid and truthful evidence of witnesses in judicial proceedings which is why the Court of Criminal Appeal has consistently held that public justice offences require strong deterrent sentences and must be severely punished whenever detected.
Of course despite the comments of Simpson J that I have previously referred to about the statistics inadequately reflecting the seriousness with which such offences are regarded, I must however take account of actual sentences that have been imposed and I have done so.
I omitted to refer earlier in these reasons on sentence to Imbornone [2017] NSWCCA 144 at [55] where it was stated:
"This Court has frequently said that untested out of court statements made with third parties should be treated with caution although it should be a principle that is well known and understood it seems necessary to re-state it. The following statements are derived from the authorities."
I do not intend to quote the following statements here. There are five following statements. I note the final statement is as follows:
"Affidavits relied upon in the absence of oral evidence on oath, frequently contain self-interested assertions of a character which makes them almost possible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition. To treat this evidence with anything but scepticism represents a trial of hope over experience." R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].
I have already referred to the fact that the offender did not give evidence on sentence and that, in my view, there is no acceptable evidence of remorse or contrition. I have accepted that she suffers from a serious mental health problem. I accept that that is likely to have some affect to her disadvantage while serving a sentence of imprisonment.
However in this matter both specific deterrence and general deterrence remain important factors to take into account when establishing an appropriate sentence. Indeed in addition the concept of parity must be taken into account although I note in respect of the sentence I imposed on Mr Heaven that that took into account a further offence contained on a Form 1 and that there is no Form 1 in relation to this offender.
I accept that because of her mental health problem and her addiction to prohibited drugs and/or prescription drugs being opiate-based and the fact that this is her first period of custody with the exception of short periods where she has been arrested and released on bail that it is appropriate to find special circumstances and I have done so for those reasons. I note that at least while in custody receiving depot anti-psychotic medications there has been some improvement in her mental health on an ongoing basis.
It is evident that I accept what is contained in Dr Furst and Ms Dombrowski's reports that she will need ongoing assistance when released from custody, in particular in relation to her mental health and also significantly in relation to her addiction to either prohibited drugs or prescription drugs, whether prescribed for her or not and that there should be accordingly some variation in the statutory relationship between the non-parole period and the full term of imprisonment.
In view of Ms Sypher's criminal history, addiction to prescribed and prohibited drugs as well as here mental health problems it cannot be said that there is a low risk or reoffending and for those reasons and in addition because of her failure to comply with requirements designed to assist her with her problems it cannot be said that there is a good prospect of rehabilitation. Until such time as Ms Sypher can overcome her drug problem and accept help with a real determination to address her issues her life is likely to continue in the same vein as is already apparent.
I have taken into account all of the matters that I have referred to and I have taken into account s 3A on the purposes of sentencing. It is accepted appropriately by Mr Williams on behalf of the offender that there is no alternative but to a period of full time custody in relation to this matter. Having considered all of those matters I am able to find some distinction between her and her co-offender, Christopher Heaven.
Accordingly Ms Sypher you are convicted in relation to the offence of an act intending to pervert the course of justice contrary to s 319 of the Crimes Act. You are sentenced to a term of imprisonment with a non-parole period of one year and nine months and a balance of term of one year and three months. To take account of the period of time that you have been in custody solely in relation to this matter being a broken period the sentence will date from 30 June 2019. That is the date on which the non-parole period commences 30 June 2019, the non-parole period will expire on 29 March 2021. The balance of term, having found special circumstances, is a period of one year and three months and the total sentence will have been served on 29 June 2022. I have reduced the statutory relationship of the non-parole period by a period of some six months to your benefit.
Now is there anything further?
WILLIAMS: No your Honour.
HIS HONOUR: No doubt Ms Sypher, Mr Williams will contact you in due course to speak to you about the sentence.
OFFENDER: All right Judge, thank you.
HIS HONOUR: I hope you understand that.
OFFENDER: I don't understand no.
HIS HONOUR: All right, well I have just told you the dates, do you need those repeated?
OFFENDER: Yes please sir.
HIS HONOUR: All right.
WILLIAMS: Your Honour I am happy to try and contact her to explain her, if that assists.
HIS HONOUR: Your sentence has been back-dated to take account of the time you have previously spent in custody in relation to this matter alone. So it commences on 30 June 2019 and you will be first eligible for parole on 29 March 2021. However you will not necessarily be released on that date because it is up to the authorities to determine whether it is appropriate to release you then. That means it is important for you to take account of the fact that your behaviour while in custody is a relevant matter for the authorities to take into account as to whether they will release you on that date. So if by way of example in the intervening period up to 29 March 2021 you continue to use prohibited drugs while in custody or make use of prescribed drugs that are not prescribed for you then it is unlikely that you will be released on parole on 29 March 2021 or any other breach of prison regulations. Do you understand that?
OFFENDER: Yes.
HIS HONOUR: All right. So it is really in your hands to ensure that you are released at the earliest time possible which is 29 March 2021. If released on that date you will then be subject to parole for a further period of one year three months, that will no doubt be subject to conditions imposed by the Parole Board as to your complying with orders for supervision and/or treatment and I note your previous inability to comply with the terms of the Community Corrections orders. So if you are fortunate enough to be released at the earliest date but you were then discovered either committing further offences of using prohibited drugs while on parole you will inevitably find yourself back in custody, do you understand that, for the balance of the parole period.
OFFENDER: Yes sir.
HIS HONOUR: All right thank you.
WILLIAMS: Thank you.
[4]
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Decision last updated: 14 September 2020
As I have indicated earlier today, there is a procedure adopted by the New South Wales Police Force in relation to providing letters of assistance where assistance has been provided and the emails that have been provided to the Court do not comply with that procedure. Indeed, Mr Williams on behalf of the offender this morning when the issue was raised indicated although a Letter of Assistance had been requested in proper form the New South Wales Police Force the officer refused to provide it.
The purpose of referring to that material at length is for the purpose of saying that although I was not familiar with the intimate detail of this matter on 15 June 2020 prior to hearing submissions I have taken the opportunity in the intervening period to read all of the material that has been provided on sentence by each of the parties on more than one occasion.
In respect of the sentence provided for the co-offender I should say in relation to the much more lengthy version of facts that have been provided they essentially make no difference to the real thrust of the agreed facts rather than providing greater detail of SMS or text messages between the relevant parties, that is, Christopher Heaven was sentenced on essentially the same facts as are now before the Court in greater detail.
I sentenced Christopher Heaven on 3 April 2020, in those circumstances, but in relation to an offence of a witness agreeing to accept a benefit to procure the acquittal of a person of a serious indictable offence contrary to s 321 (2)(a)/324 of the Crimes Act 1900. The maximum penalty provided for an offence contrary to s 321(2)(a) is ten years' imprisonment however where an offence under that section is in relation to a serious indictable offence s 324 comes into play and the potential sentence is increased to a maximum of 14 years which is of course the same penalty as is available in relation to the offence that Ms Sypher is before the Court in respect of.
I sentenced Christopher Heaven, after applying the 25% discount for the utility of the plea, to imprisonment for a non-parole period of two years' nine months and 21 days, representing 75% of the total term which was a sentence of three years' nine months, not having found special circumstances. It is necessary to refer to that sentence in relation to any question of parity in relation to this offender.
In this case it was not the offender who initialised the criminal conduct but rather the co-offender, Tamsin Elliff and/or her partner, Jaya Daetz. The purpose of the accused Jaya Daetz in stabbing the offender Heaven and seriously injuring him is unknown. This offender was however an integral part of the offending conduct as she liaised between Elliff on behalf of Daetz and Heaven in order to put in place an arrangement whereby Heaven, her partner, would receive a payment of $10,000 to pervert the course of justice. Initially on the basis that he would not provide a statement at all to the police as to the offence alleged against Mr Daetz and that he would not turn up for any hearing in respect of such an offence.
During the course of the arrangements it became clear that Mr Daetz, through Ms Elliff, was requiring a greater degree of participation, that is the supply of an exculpatory statement which was outside the terms of the original agreement and the arrangement broke down because of that additional requirement and also because of the lack of trust in Ms Elliff as to whether she in fact had available the funds to make good on the arrangement.
Agreement was not immediately struck when the arrangement was first raised but after consideration agreement was reached, this was not a spontaneous criminal offending but one that was considered by each of the parties and Ms Sypher was an integral part of making those agreed arrangements. The fact that the arrangement eventually broke down does not lower the objective seriousness or moral culpability of the offending. The charge strikes at the agreement to pervert the course of justice rather than whether it was successful or not.
As part of her role the offender repeatedly prompted Elliff to transfer the money, she resorted to threats to secure the payment towards the end and she reassured Elliff that Daetz would be out of gaol in no time, she also requested that Elliff deposit, as what I would refer to as a sign of good faith, $500 into her account which occurred. She herself undertook to "take care of things my side" and that she will "fix the difference (if) something goes wrong". She also offered or promised to provide a statement to police herself by way of an extra inducement to go through with the arrangement, although such statement had not been required.
The original agreement was designed to assist Mr Daetz in dealing with a charge of recklessly wounding contrary to s 35 of the Crimes Act which carries a maximum penalty of seven years' imprisonment. The actual injury received by Mr Heaven was a serious injury being a stabbing of his chest where the knife blade penetrated the lining of his heart and lungs. Ms Sypher was aware of the seriousness of the offence in terms of the injury occasioned because she attended on her partner at the hospital shortly after he underwent surgery. Heaven was of course a key prosecution witness, being the victim and the offender must have appreciated that the effect of the agreement of which she was an organising party would be a significant problem in the Crown's case and thereby improve Daetz's prospects of being acquitted or having the charges against him withdrawn and/or obtaining bail as a result of the change of available evidence.
While the agreement was never completed by being put into effect it has no doubt nonetheless had the effect of undermining the credibility of Heaven as a witness as well as the credibility of Ms Sypher if there was anything relevant that she could have said about the alleged offending conduct of Mr Daetz. In this matter the agreement broke down because of the additional requirement of the provision of a false statement to the police by Mr Heaven and the distrust of Ms Elliff being able to provide the agreed sum. It did not fail because of Mr Heaven or Ms Sypher recognising the criminality of what they were doing and electing to withdraw before completion.
As to the offender's motivation, by anticipating in the offence, it has been made clear in the material before the Court, in particular the psychiatric report of Dr Furst provided on behalf of the offender, that her purpose in participating was for financial gain. In my view, although not required in relation to an offence that has no standard non-parole period applicable, if I were to place this matter on a range of seriousness I would, as I found in respect of Mr Heaven, place it within the mid-range of objective seriousness. There is in my view little to distinguish, in terms of the offending conduct, between herself and Mr Heaven.
In respect of this offender there are a number of aggravating factors provided by the Crimes (Sentencing Procedure) Act. The offender's record consists primarily of drug, dishonesty and weapon offences. However her criminal history is not an aggravating history (s 21A(2)(d)) but does disentitle her to leniency that otherwise might have been afforded,. The offender at the time of this offending was on conditional liberty, being at the time subject to three separate but concurrent 18 month community correction orders to date from 17 January 2019 and expire on 16 July 2020 for three offences, being use offensive weapon with intent to commit an indictable offence, resist officer in the execution of duty and possess/attempt to prescribe restricted substance. all of those offences essentially arising from offences committed by her on 12 April 2018 when she attended a medical centre, which she normally attended in order to obtain necessary prescription drugs and using a knife, threatened to kill herself if she was not provided with further medication as she was normally prescribed.
Of note in relation to those three Community Correction orders, as I have said were concurrent and required her to report to Community Corrections officers at times and places as directed and to participate in any programs, treatment, intervention, or related activity specified in the order or by a Community Corrections officer during the period of the Community Correction order and also to participate in such drug rehabilitation and mental health programs as considered appropriate. A breach report of the Community Corrections order was prepared and dated 23 May 2019, that is it was prepared the day before she was in fact arrested for this offence on 24 May 2019, the offence taking place between 9 and 24 May 2019.
The relevance of the breach report is that it indicates that the offender had failed to provide any real participation or abide by the orders that had been made to her benefit. On 23 May 2019 the recommendation made was that a warrant be issued. She had failed to attend on many occasions, either on the Community Corrections office or acknowledged in any way written warning letters or complied with verbal warnings. Contact with her mental health and alcohol and other drug treatment providers indicated that she had not engaged in any contact with their service up to 23 May 2019. The reason for the recommendation that a warrant be issued is stated as follows:
"Community Corrections has made this recommendation given Ms Sypher's complete disregard for her order and the requirements of her supervision with Community Corrections".
The breach report was dealt with by Magistrate Mottley on 11 June 2019 by way of completing the tick the box administrative document. The box ticked indicates that the Magistrate had determined to revoke the supervision on 11 June 2019. Of course at that stage the offender was in custody as a result of being arrested for this offence and remained at least in custody prior to receiving bail on 11 November 2019, a period of 172 days from 24 May 2019. Having been released on bail for the purpose of attending Odyssey House to assist her in dealing with her drug problems she unfortunately failed to comply with the abstinence regulations imposed by Odyssey House in relation to drug use and was evicted from the course and approximately eleven weeks later on 19 December 2019 was back in custody as a result. She has been in custody from then until today, still only in relation to this offence.