Sypher v R - [2020] NSWCCA 336 - NSWCCA 2020 case summary — Zoe

NSWNSWCCA

Sypher v R

[2020] NSWCCA 336

Court of Criminal Appeal (NSW)|2020-12-04|Before: Basten JA, Johnson J, Davies J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-12-04

Before

Basten JA, Johnson J, Davies J

Catchwords

[2010] NSWCCA 194 Egan v R [2017] NSWCCA 206 Kentwell v R (No 2) [2015] NSWCCA 96 Muldrock v The Queen (2011) 244 CLR 120
[2011] HCA 39 Prince v R [2020] NSWCCA 268 R v Henry (1999) 46 NSWLR 346

Source

Original judgment source is linked above.

Catchwords

[2010] NSWCCA 194 Egan v R [2017] NSWCCA 206 Kentwell v R (No 2) [2015] NSWCCA 96 Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39 Prince v R [2020] NSWCCA 268 R v Henry (1999) 46 NSWLR 346

Judgment (13 paragraphs)

[1]

Judgment

BASTEN JA: This application for leave to appeal against sentence related to an offence of doing an act with intention to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The act was agreement for a sum of money not to provide a statement to police, or give evidence, implicating the offender in the stabbing of the applicant's partner. The sentence imposed a non-parole period of 1 year 9 months, with a total sentence of 3 years. The two grounds of appeal asserted that the sentencing judge failed to accept that the applicant's moral culpability was reduced by reason of (i) her disadvantaged background, (ii) her mental illness and (iii) a history of substance abuse.
There is no doubt that the judge set out, and therefore had regard to, relevant evidence in respect of these matters. In some cases it will be possible readily to infer that the setting out in reasons for judgment of mitigatory circumstances will permit the court to be satisfied that those factors were properly taken into account - See, eg, Wood v R [2019] NSWCCA 309 at [121]-[123]. However, whether such an inference should be drawn in a particular case does not depend upon precedent, but on a proper analysis of the circumstances of the case and the judge's reasons.
While setting out the relevant evidence in a judgment will usually demonstrate that the judge has "had regard to" that material, in some cases it may not be possible to infer how it was relied on. There will be cases, of which this is one, where, on its face, the mitigatory material has significant weight for a particular purpose, but where it was addressed for another purpose, and there is no indication that it was given appropriate weight for another purpose. For example, one can have regard to evidence of mental illness in different contexts. The judge, having set out the psychiatric and psychological evidence in some detail, stated: "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 [and thus] is to be taken into account."

[2]

The offending

The sentencing judge sentenced the applicant on the basis of a statement of agreed facts. Those facts may be summarised as follows.
The applicant and Christopher Heaven were in a domestic relationship. A woman named Tamsin Elliff was in a domestic relationship with Jaya Daetz. Mr Daetz had known Mr Heaven and the applicant for some time but Ms Elliff only met them for the first time in February 2019.
Early in the morning of 10 May 2019, Mr Heaven was stabbed in the chest with a knife. Mr Heaven was interviewed by police at the hospital on 13 May 2019 where he made a short video statement saying that Mr Daetz had stabbed him. Many witnesses identified Mr Daetz as the person responsible. He was arrested and charged with reckless wounding. He denied it saying that he had been with Ms Elliff for the entire evening. When police spoke to her she confirmed that.
Sometime between 11 May and 15 May 2019 Ms Elliff found out that Mr Daetz's parents were going to pay $10,000 for a lawyer to represent him. The money was due to be paid to the lawyer on 17 May 2019. Ms Elliff came up with an idea to use the money to pay Mr Heaven instead, on the basis that he would not give a formal statement to the police about the stabbing and that he would not attend court as a witness.
The applicant had told police that it was Mr Daetz who had stabbed Mr Heaven, and she said that she would attend Kogarah Police Station to provide a statement to that effect. Between 13 and 23 May police attended the applicant's premises five times leaving cards for her to contact them. She did not provide a statement to the police about the stabbing until three months after she pleaded guilty to the offence.
On 15 May 2019 Ms Elliff made the offer of $10,000 to the applicant and Mr Heaven. They said they would need some time to think about it. At some time between 15 May and 17 May they accepted the deal.
Between 17 and 19 May numerous Facebook and SMS messages were exchanged between the applicant and Ms Elliff regarding the payment of the $10,000. Ms Elliff became concerned that, because Mr Heaven was simply agreeing not to provide a written statement to the police and not to attend any potential trial, there was a lack of security in exchange for the $10,000. Although the applicant tried to reassure Ms Elliff about the matter, Ms Elliff then asked for Mr Heaven to make a statement saying, in effect, that Mr Daetz was not responsible for the stabbing. That statement was to be used by Mr Daetz to be granted bail.
A meeting took place on 23 May 2019 between the applicant, Mr Heaven and Ms Elliff at the apartment in Kingsgrove where the applicant and Mr Heaven lived. There were two other persons present who were friends of the applicant and Mr Heaven.
An argument developed over the fact that, while Ms Elliff had not honoured the original agreement and paid the $10,000, she was asking for a statement from Mr Heaven saying that it was not Mr Daetz who had stabbed him. Further, both the applicant and Mr Heaven had become sceptical that Ms Elliff even had the $10,000.
In an attempt to calm the situation and keep the deal alive, Ms Elliff transferred $500 to the applicant using her mobile phone. After some further discussion between the parties, Mr Heaven told Ms Elliff that he was not prepared to provide a statement to police and that the deal was off. He said that his life was worth a lot more than $10,000.
One of the other persons present then told Ms Elliff about a debt of $30,000 that Mr Daetz owed him. This was most likely a drug debt. Ms Elliff became increasingly scared that she might be physically harmed if she remained in the unit. She ran to the nearby Kingsgrove Hotel where the hotel security called the police.
Ms Elliff provided a statement to police in which she claimed that it was the applicant who had come up with the idea to use the $10,000 to pervert the course of justice by giving it to Mr Heaven, and that the applicant had threatened to cut her unborn baby from her stomach with a screwdriver if she did not give her the $10,000.
As a result of that statement the applicant and Mr Heaven were arrested the following morning. The applicant gave an account in which Ms Elliff approached the applicant with the offer of $10,000 so that Mr Heaven would not give a statement to the police. She then voluntarily participated in an ERISP where she gave a similar account of the events, adding that Mr Heaven agreed to whatever Ms Elliff wanted, knowing that she had no idea that Mr Heaven had already provided a video statement.
The applicant was charged with perverting the course of justice, and Mr Heaven was charged with being a witness agreeing to accept a benefit to procure the acquittal of a person of a serious indictable offence contrary to ss 321(2)(a) and 324 of the Crimes Act. That offence carries a maximum penalty of 14 years' imprisonment, the same maximum as perverting the course of justice, and there is no standard non-parole period.
On 3 April 2020 Judge King SC sentenced Mr Heaven, taking into account an offence of larceny on a Form 1. His Honour said that his notional starting point was five years' imprisonment, but applying a 25% discount for an early plea, the sentence was to be three years and nine months with a non-parole period of two years, nine months and 21 days.

[3]

The applicant's subjective matters

The applicant did not give evidence at the sentence proceedings although she wrote a letter to the Court which set out some of her background. The applicant's mother provided an affidavit but she only said this concerning the applicant's background: When Anissa got to about 12 she started running away from home and using marijuana. It seemed to have affected her brain. She was diagnosed with paranoid schizophrenia at Randwick Hospital at probably 14 or 15 years old.
The main evidence about the applicant's background came from the reports of a psychologist, Julie Dombrowski, and a psychiatrist, Dr Richard Furst. His Honour made detailed reference to what was contained in those reports. The following is a summary of that material as identified by the sentencing judge.
The offender was 31 years of age and Indigenous. She had two older brothers and one younger brother.
The applicant's father was in the Australian Defence Force until he sustained a back injury and received a medical discharge. This occurred when the applicant was aged about nine years. After her father's injury the family experienced significant hardship and a sustained period of housing instability. They lived in low budget tourist accommodation and temporary housing for six years until she turned 15. During that time she regularly had insufficient clothing or access to food and ate just one meal a day.
She was sexually and physically abused by her older brother in the family home when she was very young. The sexual abuse stopped when she resisted at the age of nine, although her brother continued to abuse her physically when her parents were not around.
At school she was said to have exhibited features of ADHD. She did not do well at school but she was not diagnosed with an intellectual disability. She left school at the age of fourteen, and was living on the streets for the following four years. She commenced smoking cannabis at the age of 13, and that continued until the age of 18 when she became pregnant with her daughter.
At the age of 15 she had also commenced using methylamphetamine. That was a regular habit in her teens and twenties, and especially in the four years preceding her arrest.
It was during her pregnancy that apparent symptoms of psychosis first emerged. She was admitted to the Kiloh Unit, an Acute Mental Health Unit at Prince of Wales Hospital Randwick, for a period of four months. She was experiencing auditory hallucinations and was very paranoid.
She had some nine or 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 was treated with medications for the treatment of schizophrenia, particularly treatment resistant schizophrenia.
As a result of her mental illness, her daughter was removed from her care by the Department of Community Services. She attempted to have the child returned to her care but was unsuccessful. In 2015 she was told that an adoption order had been made by another family and the child would never be returned to her care. It was at that time that she commenced to use illicit drugs again after remaining abstinent for some eight years.
The applicant had been in a number of relationships with men who had physically assaulted her including Mr Heaven. She had a three-year relationship between the ages of 16 and 18 with a man who regularly abused her. She had a child to this man when she was 18 years old.
In 2016 she suffered a back injury and was prescribed opiate based pain killing medications including Oxycodone, Endone and Targin. She became addicted to opiates, and subsequently commenced using heroin in 2018 and 2019 because it was cheaper and, in her view, more effective.
She was diagnosed by a number of psychiatrists in 2019 as having schizophrenia, borderline personality disorder and substance use disorder.

[4]

The Sentencing Remarks

The sentencing judge set out what appears above.
In the course of setting out the history of the applicant and what had been noted by the psychologist and the psychiatrist, the sentencing judge at [41] quoted part of Dr Furst's report where he said: 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 of agreeing to accept the money offered to her.
The sentencing judge noted at [42] that Dr Furst opined that a custodial sentence for the applicant would be more onerous than for the theoretical average, female inmate in New South Wales. He noted Dr Furst's view that in custody the applicant was reasonably engaging in assessment of treatment measures as outlined by him in his report.
The sentencing judge then referred at [42] to an aspect of Ms Dombrowski's report where the applicant told Ms Dombrowski that she agreed to take the money that was offered because she was angry that the offender and his partner were trying to buy Mr Heaven's life. She said she had no intention of withholding information from the police. The sentencing judge rejected at [43] that explanation for her conduct, noting that there was nothing similar contained in Dr Furst's report.
The sentencing judge next referred at [44] to medical reports concerning her back injury and her addiction to opiate pain killers. His Honour said: [45] 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. [46] 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. [47] 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". [48] 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." [49] 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.
After dealing with issues of remorse, aggravating factors and comparable sentences for the offence of perverting the course of justice, his Honour said: [71] … I have accepted that she suffers from a serious mental health problem. I accept that that is likely to have some affect (sic) to her disadvantage while serving a sentence of imprisonment. [72] However in this matter both specific deterrence and general deterrence remain important factors to take into account when establishing an appropriate sentence.
His Honour found special circumstances. He found that there was not a low risk of reoffending, and that there were not good prospects of rehabilitation. Finally, before imposing the sentence, his Honour said: [76] 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.

[6]

Submissions

The applicant drew attention to what was said in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and a number of cases which followed Bugmy including Kentwell v R (No 2) [2015] NSWCCA 96, R v Millwood [2012] NSWCCA 2 and Dang v R [2013] NSWCCA 246.
She submitted that her subjective circumstances revealed profound disadvantage and dysfunction in her early life and in her continuing social circumstances.
The applicant made reference to the conclusions of Dr Furst where he referred to there being a strong relationship between being sexually abused in childhood and the subsequent onset of mental disorders in adult life including her borderline personality disorder and dependence on drugs of abuse. The applicant submitted that Dr Furst's opinions were consistent with those of Ms Dombrowski. The applicant submitted that the material provided a strong foundation for concluding that her moral culpability ought to have been reduced on account of her background.
The applicant submitted that although the sentencing judge referred to some of the evidence of the applicant's disadvantaged background his Honour gave no consideration to whether that background afforded the applicant any mitigation on sentence. She submitted that his Honour made no finding that she had a significantly deprived background, or that her moral culpability was reduced as a result. She submitted that at no time did the sentencing judge refer to the applicant's background when distinguishing between the subjective cases of the applicant and Mr Heaven.
The applicant submitted that at no time did the sentencing judge expressly pay regard to the principles in Bugmy, and nor can any regard be inferred from the totality of his reasons.
The respondent submitted that the sentencing judge had summarised the reports of Dr Furst and Ms Dombrowski, setting out material from those reports which detailed the applicant's deprived background. The respondent submitted that although the sentencing judge did not explicitly refer to Bugmy or to the applicant's moral culpability, his Honour did so implicitly. The respondent submitted that there was no issue in the proceedings that Bugmy principles were relevant to the sentencing of the applicant. The applicant's counsel made reference in his written submissions to the sentencing judge to that effect, and the Crown did not make any contrary submission.
The respondent submitted that the sentencing judge was not required to refer explicitly to the concept of moral culpability, and made reference to what was said in Egan v R [2017] NSWCCA 206 and Wood v R [2019] NSWCCA 309.
The respondent pointed to what the sentencing judge said at the conclusion of his remarks that he had taken into account all of the matters that he had referred to. Those matters included the applicant's disadvantaged background. The respondent pointed out, however, that the sentencing judge referred to Ms Dombrowski's conclusion in relation to her schizophrenia that there was no evidence to "suggest that her offending was in any way connected with these symptoms or psychosis".

[7]

Determination

Counsel for the applicant before the sentencing judge provided detailed written submissions, and addressed his Honour at length. One section of his submissions was headed "Dysfunctional Background of Offender". The introduction to that part of the submissions referred to Bugmy and said that those types of considerations were relevant to the applicant. Some detail was set out, and reference was made to relevant parts of the reports of Dr Furst and Ms Dombrowski. The submissions said that it was open to find that the applicant's moral culpability was reduced on account of the identified matters. Reference was made to what Simpson J said in R v Millwood [2012] NSWCCA 2 at [69].
In his oral submissions at the sentencing proceedings counsel for the applicant again raised what he described as "Bugmy-type considerations". The respondent accepted that the Crown did not make any submissions to the sentencing judge contrary to what had been raised about the applicant's dysfunctional childhood and her background.
The sentencing judge did not engage with these submissions. Although he mentioned some aspects of the applicant's background, his Honour did not relate these matters to the issue of the applicant's moral culpability for her offending. It may be accepted that the use of labels is not what matters provided the issues are dealt with in substance (Prince v R [2020] NSWCCA 268 at [47]; Dellow v R [2020] NSWCCA 301 at [45]), but as was said in Wood v R at [123]: It would have been helpful if his Honour had specifically referred to moral culpability and the effect of the applicant's background on that concept, …
The sentencing judge's remarks do not show, unlike in Wood at [122], that he took the applicant's background into account on the question of her moral culpability. His Honour only twice referred to moral culpability, once when saying that the fact that the agreement broke down did not lower the moral culpability of the offending, and once when dismissing the applicant's explanation given to Ms Dombrowksi for her actions.
His Honour made a finding against there being any relationship between the applicant's mental health issues and her offending. Whilst he summarised some of the evidence concerning the applicant's childhood and background, his Honour thereafter said nothing about that background. That was despite setting out Dr Furst's conclusion (at [35] above), which related her mental health problems, her addiction and her social circumstances to the offending, and despite quoting Ms Dombrowski's conclusion that her offending behaviour was largely driven by her personality disorder, her substance use and "her history of complex trauma".
In Millwood Simpson J said at [69]: I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been "tragic and dysfunctional". That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.
The importance of such background information was reaffirmed and amplified subsequently in Bugmy.
Where these types of considerations were clearly raised by the applicant, and detailed submissions made both orally and in writing, it was incumbent on the sentencing judge to reach a conclusion on the extent, if at all, the applicant's background impacted on her moral culpability. It is not enough for factual matters to be set out with a statement towards the end of the judge's remarks saying "I have taken into account all of the matters that I have referred to". Where significant matters are raised both by the evidence and in the submissions, a lack of any analysis of those matters or any conclusion about how they impact on the applicant's moral culpability leads to the view that the judge has overlooked the matter.
In my opinion ground 1 is made out.

[9]

Submissions

The applicant drew attention to what was said in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 about the impact of mental health on sentence. Reference was made also to the issue of causation in respect to mental illness and offending in Kentwell (No 2).
The applicant submitted that the sentencing judge wrongly relied on a portion of Ms Dombrowski's report which said there was no information provided by the applicant to suggest that her offending was in any way connected with her symptoms of psychosis, to conclude that there was nothing in the material from either the psychiatrist or the psychologist that the applicant's mental health condition was causative of her offending. The applicant submitted that the sentencing judge made no reference to other portions of Ms Dombrowski's report that were consistent with Dr Furst's conclusion that her offending was caused by her mental health problems and other matters.
The applicant submitted that the sentencing judge did not afford any mitigation for the applicant's mental illness other than with respect to the more onerous nature of her time in custody. The applicant submitted that his Honour ought to have mitigated the weight to be given to general deterrence by reason of her mental health issues.
The respondent submitted that the question of whether a causal connection existed between the applicant's conditions and her offending was in issue between the parties during the sentencing proceedings. The respondent submitted that whether a mental condition contributed to an offence in a material way is a question of fact. The respondent submitted that it was open to his Honour to find that the applicant had not established a causal connection on the balance of probabilities.
The respondent submitted that the sentencing judge found that the offending was not spontaneous but one that was considered by each of the parties. The respondent submitted that his Honour found also that the applicant was aware of the seriousness of the reckless wounding offence, and 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 the prospects of Mr Daetz being acquitted.
The respondent submitted that it was open to the sentencing judge to find that a causal nexus had not been established between the applicant's mental health condition and her offending, after the sentencing judge explicitly referred to the reports of the psychiatrist and the psychologist.
The respondent submitted that a comparison between the sentences imposed on Mr Heaven and the applicant supported the contention that some reduction in weight for deterrence was made. This was because, although Mr Heaven had a Form 1 matter, the applicant had two aggravating factors that Mr Heaven did not. These were that she was on conditional liberty at the time of the offending, and that the offence was committed for financial gain. The respondent submitted that it was open to find that any distinction drawn between Mr Heaven and the applicant in her starting point before discount (one year less) incorporated her background and mental health issues and their impact on deterrence.

[10]

Determination

In R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 Wood CJ at CL said of the principle that a mental disorder diminishes the relevance of general deterrence: [254] The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.
In DPP v De La Rosa McClellan CJ at CL referred at [177] to sentencing principles relevant to offenders suffering from a mental illness, intellectual handicap or other mental problems. Amongst those principles is that such an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. Similar comments had been made in Kentwell (No 2) at [44] and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53].
His Honour's conclusion of a link between the applicant's mental health conditions and the offending was this: 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.
In my opinion, that conclusion was not supported by the expert evidence. First, the sentencing judge had earlier quoted the passage from Dr Furst where he said: 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.
Secondly, in the paragraph preceding his Honour's conclusion, the sentencing judge said: 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.
Instead, his Honour appears to have focused on a statement made by the psychologist that the applicant: … provided no information during the assessment to suggest that her offending was in any way connected with these symptoms of psychosis. However, it is apparent from the context of that remark that the psychologist was discussing the daily hallucinations that the applicant had been experiencing because she did not take her medication regularly during the period of the offending. Certainly, the applicant did not suggest that her offending was brought about by obedience to the auditory hallucinations that she was experiencing. That is a significantly different matter from whether her mental health conditions were relevant to a consideration of the offending and to her moral culpability.
Both Dr Furst and Ms Dombrowski considered that her mental health conditions were related to her offending, with Dr Furst suggesting that the combination of her mental health, her addiction and her background were responsible, and with Ms Dombrowski being of the view that her personality disorder was causally related. His Honour did not explain why, having quoted that evidence, he reached a different conclusion.
Nor did his Honour explain why, when he accepted that she suffered from a serious mental health problem, he considered that general deterrence remained an important factor to take into account. The authorities certainly suggest otherwise, and it cannot be discerned from comparison of the sentences given to the applicant and Mr Heaven, as the respondent suggests, that his Honour has made any allowance for minimising general deterrence as a result of her mental health issues in the sentence he imposed. Certainly, he did not say that he had done so.
In my opinion, ground 2 is made out.

[11]

Re-sentence

Error has been established by the judge's failure to have regard to relevant matters, namely the applicant's disadvantaged background and her mental health issues in conjunction with her substance abuse. It is, therefore necessary to exercise the sentencing discretion afresh.
For the reasons given by the sentencing judge, the offending was serious. It was aggravated by being committed for financial gain and in circumstances where the applicant was on three concurrent community correction orders. She had already breached those orders prior to the present offending. Her criminal record generally entitled her to no leniency.
Her offending is, however, mitigated to some extent by both her dysfunctional background, and certainly by her mental health issues in conjunction with her substance abuse.
Additional evidence was placed before the Court which dealt with the applicant's progress in custody. There is an affidavit from the applicant and one from her solicitor. The evidence discloses that the applicant has completed a number of courses in custody including two EQUIPS programs for addiction and aggression. She has been seeing a psychiatrist regularly, and a change in her medication for her schizophrenia appears to have stabilised her to some extent.
She refers to the fact that this has been her first time in custody and how hard that has been for her, particularly with her physical and mental problems. At the same time, she said that the courses she has done have helped her to reflect on her offending and how it affected the community. She said that she is sorry for what she did. I am prepared to accept that, unlike at her initial sentencing, she is remorseful for her offending.
These matters are likely to have a favourable impact on her rehabilitation and risk of reoffending. In the circumstances, I consider that her prospects of rehabilitation are reasonable, but only if she is able to distance herself from the people with whom she was living and mixing at the time of the offending. Her risk of reoffending is very much related to a change in her circumstances on her release to parole.
She should be accorded a discount of 25% for her early plea. I would find special circumstances from a combination of factors being her first time in custody, her mental health issues and her substance abuse issues which will need a longer period under supervision to be adequately dealt with on her release.
I consider that a lesser sentence is warranted than that imposed by Judge King SC. In my opinion she should be sentenced to a non-parole period of 18 months commencing 30 June 2019 and expiring 29 December 2020 with a balance of term of 12 months expiring 29 December 2021.

Sypher v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (16)

Cited By (5)