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District Court 22 June 2020

R v Sypher

[2020] NSWDC 528

Public order & justice offences
CRIME PUBLIC JUSTICE OFFENCES SENTENCE SERIOUSNESS OF OFFENCE DETERRENCE ROLE

Citation: R v Sypher [2020] NSWDC 528
Court: District Court of New South Wales
Date: 22 June 2020
Judge(s): King SC DCJ

Background

The offender was a 31-year-old woman of Indigenous ancestry who pleaded guilty to a single charge of doing an act intending to pervert the course of justice, contrary to section 319 of the Crimes Act 1900. The charge arose from events between 9 and 24 May 2019, when the offender conspired with three others, including her de facto partner Christopher Heaven, Tamsin Elliff, and Jaya Daetz.

The underlying scheme centred on a stabbing. Daetz faced a charge of recklessly wounding Heaven, who had suffered a serious chest wound. Through the offender, Daetz and Elliff arranged to pay Heaven $10,000 to stay silent: not to give a statement to police and not to attend any court hearing. The arrangement ultimately broke down, primarily because Daetz demanded an additional false exculpatory statement from Heaven and because there was distrust about whether the funds were actually available.

The offender had already been sentenced separately in April 2020 for his role in the scheme. This decision concerned the offender's sentence, with the court required to address parity with the co-offender's sentence while accounting for differences in the offending roles and personal circumstances.

Legal Issues

  • What was the appropriate objective seriousness of the offence, and how did the offender's role compare with that of her co-offender?
  • What aggravating circumstances applied, including offending while on conditional liberty and offending for financial gain?
  • What weight, if any, should be given to the offender's mental health condition, substance addiction, and personal history as subjective mitigating factors?
  • Whether there was acceptable evidence of remorse and contrition?
  • Whether special circumstances existed to vary the statutory relationship between the non-parole period and the balance of term?
  • What sentence was required to achieve parity with the co-offender while reflecting the differences between the two offenders?

Decision

Objective seriousness and the offender's role

The court placed the offence in the mid-range of objective seriousness, consistent with the finding it had made in sentencing the co-offender Heaven (at [23]). The offender was an integral organiser of the arrangement: she acted as a go-between for Elliff and Heaven, repeatedly pressed for the money to be transferred, made threats to secure payment, and volunteered to provide a false statement to police herself as an extra inducement (at [20]). The court noted that the agreement failing before completion did not reduce the offender's moral culpability, because the charge targets the agreement itself rather than its success (at [19]).

Aggravating factors

Two statutory aggravating factors applied. First, the offender committed the offence for financial gain, which the court treated as an aggravating circumstance under section 319 (at [60]). Second, she was on conditional liberty at the time, subject to three concurrent 18-month community correction orders imposed only about four months earlier (at [24]). Neither of those circumstances had applied to Heaven because his charge under section 321(2)(a) incorporated the financial benefit element as part of the offence itself (at [60]). The breach report dated 23 May 2019, one day before her arrest, showed she had consistently failed to engage with mental health and drug treatment as required under those orders (at [25]-[26]).

Subjective matters: mental health, addiction, and remorse

The court accepted that the offender has a serious and treatment-resistant schizophrenic illness with a long history of auditory hallucinations and paranoid delusions, and that a custodial sentence would be more onerous for her than for a theoretical average inmate (at [71], [73]). However, the court found no causal connection between her mental health condition and the offending itself (at [49]). The court also found no acceptable evidence of genuine remorse or contrition, notwithstanding her letter to the court and her mother's affidavit. The court found her stated explanation for participating, that she was motivated by a desire to seek some form of redress against Daetz on Heaven's behalf, to be self-serving and inconsistent with the evidence, which pointed plainly to financial motivation (at [43], [54]).

Parity and special circumstances

The court identified genuine distinctions between the offender and Heaven, including the additional aggravating factors that applied to her and the absence of a Form 1 offence that had been considered when sentencing Heaven (at [72]). The court found special circumstances on the basis that this was the offender's first significant period of custody, that her serious mental health and addiction problems meant she would require extended supervised support on release, and that a longer parole period was appropriate to assist her rehabilitation in the community (at [73]-[74]). The court varied the statutory relationship between the non-parole period and the balance of term by approximately six months in the offender's favour.

Orders Made

  • Convicted of doing an act intending to pervert the course of justice contrary to section 319 of the Crimes Act 1900.
  • Special circumstances found: first time in prison, need for a longer period of supervised parole to assist with drug rehabilitation and mental health management in the community.
  • Sentenced to a total term of imprisonment of 3 years, comprising:
  • Non-parole period of 1 year and 9 months, commencing 30 June 2019 and expiring 29 March 2021.
  • Balance of term of 1 year and 3 months, commencing 30 March 2021 and expiring 29 June 2022.

Key Takeaways

  • Offences of perverting the course of justice carry a maximum of 14 years' imprisonment and consistently attract strong deterrent sentences because they strike at the integrity of the criminal justice system; the District Court reaffirmed that general and specific deterrence are important sentencing considerations even where an offender has significant mental health problems (at [63], [67], [72]).

  • An agreement to pervert the course of justice is criminally complete at the point of agreement; the fact that the arrangement breaks down before it is carried out does not reduce the objective seriousness or the moral culpability of those involved (at [19]).

  • Committing a public justice offence while already subject to community correction orders is a statutory aggravating factor and, on the facts here, was treated as an additional distinguishing feature when assessing parity with a co-offender for whom that circumstance did not arise (at [60]).

  • Where a co-offender's charge incorporates financial benefit as an element of the offence itself, financial gain cannot be treated as a separate aggravating circumstance for that offender; the position differs for an offender charged under section 319, where financial gain remains an available aggravating factor (at [60]).

  • Special circumstances justifying variation of the statutory non-parole period ratio may be established where an offender is serving their first significant custodial sentence and has serious, interconnected mental health and addiction problems that will require structured support during an extended period of supervised parole (at [73]-[74]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Cross v R [2016] NSWCCA 214
- Einfeld v R [2010] NSWCCA 87
- Khoury v R [2011] NSWCCA 88
- Marinellis v R [2006] NSWCCA 307
- Imbornone [2017] NSWCCA 144
- R v Einfeld (2009) NSWSC 119
- R v Harrison [2001] NSWCCA 79
- R v Kim NSWCCA [5 September 1996 unreported
- R v Taouk (1992) 65 A Crim R 392.
- R v Reid [2006] NSWCCA 151