Citation: Podesta v R [2009] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 8 April 2009
Judge(s): McClellan CJ at CL, Buddin J, Rothman J
Background
The appellant was the mother of Jason and Aiden Podesta and the partner of the deceased, Steven Bannister. Following Mr Bannister's death by multiple stab wounds in November 2006, the Crown alleged that Jason Podesta was responsible for the killing. The appellant was present at the motel where events unfolded and subsequently sought to protect her son from police investigation.
Across three police interviews conducted between November 2006 and August 2007, the appellant provided false information, omitted key facts, and deflected suspicion away from Jason and toward another person. She also took steps to dispose of the deceased's key cards and was recorded encouraging a witness to withhold information from police.
A jury convicted the appellant of two offences: concealing a serious indictable offence under s 316 of the Crimes Act 1900 (maximum penalty two years imprisonment) and doing an act with intent to pervert the course of justice under s 319 (maximum penalty 14 years imprisonment). The District Court sentenced her to concurrent terms, with a non-parole period of 12 months on each count.
Legal Issues
- Whether the sentence imposed for the s 316 concealment offence was lawful, given the two-year maximum penalty
- Whether the sentence for the s 319 perversion of justice offence was manifestly excessive
- What weight should be given to the appellant's motive of protecting a family member when sentencing for offences of this kind
- How the appellant's significant criminal history, including prior public justice offences, bore on the appropriate sentence
Decision
The Court of Criminal Appeal upheld the appeal in one respect only. The sentencing judge had imposed a non-parole period of 12 months with a balance of term of 12 months for the s 316 offence, producing a total sentence of 24 months. This exceeded the two-year statutory maximum, rendering that sentence unlawful. The Court quashed it and substituted a fixed term of 12 months imprisonment.
On the s 319 offence, the Court dismissed the appeal. McClellan CJ at CL acknowledged that the appellant acted out of a desire to protect her son rather than for personal gain, and that no threats of violence were involved. However, the Court drew on established authority holding that the criminal justice system's interest in preventing obstruction is not materially diminished simply because the motivation is family loyalty rather than financial reward.
The Court also noted that the more serious the underlying offence, the less weight motive carries as a mitigating factor. Here, the underlying offence was a homicide, the appellant's conduct extended over many months with consistent purpose, and she had actively attempted to influence a witness. These factors weighed against a finding of manifest excess.
The appellant's personal circumstances, including her history of drug dependency and intermittent employment, were considered. However, she did not plead guilty, so no discount applied, and her lengthy criminal history involving prior public justice offences required the sentence to reflect the need for personal deterrence.
Orders Made
- Leave to appeal granted
- Appeal against the sentence for the s 316 concealment offence upheld; sentence quashed and replaced with a fixed term of 12 months imprisonment, commencing 18 December 2007 and expiring 17 December 2008
- Appeal otherwise dismissed
Key Takeaways
- A family member's motive to protect a loved one is a relevant consideration on sentencing for concealment and perversion of justice offences, but does not warrant significantly reduced sentences where the underlying offence is serious.
- Established authority confirms that the criminal justice system's interest in deterring obstruction applies with near-equal force whether the offender was motivated by family loyalty or by financial gain.
- Where the offence being concealed is a homicide, the seriousness of that crime limits the mitigating weight that can be attached to motive.
- A sentence for the s 316 concealment offence that, in aggregate, exceeds the two-year statutory maximum is unlawful and must be quashed, regardless of how the non-parole period and balance of term are structured.
- An offender's prior criminal history involving public justice offences is a legitimate basis for imposing a sentence with a stronger personal deterrence component, consistent with the principles in Veen v The Queen [No 2].
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 316 and 319
Cases
- Nguyen (2004) NSWCCA 332; 149 A Crim R 343
- R v Mitchell and Gallager [2007] 11 A Crim R 94
- Veen v The Queen [No 2] (1987-1988) 164 CLR 465