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District Court 15 January 2021

R v Elliff

[2021] NSWDC 153

Public order & justice offences

Citation: R v Elliff [2021] NSWDC 153
Court: District Court of New South Wales
Date: 15 January 2021
Judge: M L Williams SC DCJ

Background

The offender was the pregnant partner of a man charged with recklessly wounding another person following a stabbing in May 2019. In the hours after her partner's arrest, she provided police with a false alibi, and later repeated and confirmed that false account in a signed statement.

Separately, the offender became involved in efforts to prevent the stabbing victim from providing a formal statement to police. She acted as an intermediary in arranging a $10,000 payment to the victim (which was intended to secure his silence), transferred $500 to a co-offender as a down payment, and later provided police with an incomplete set of her Facebook messages, deliberately withholding those that implicated her.

Two co-offenders had already been sentenced on agreed facts that described the offender as the originator of the scheme to pay the victim. The offender disputed that characterisation and gave evidence to that effect, contending she had acted under duress and coercion from one of the co-offenders.

  • Whether the offender was the instigator of the scheme to pay the victim, or whether she acted under duress, and what factual basis should govern her sentence
  • The appropriate weight to give mitigating factors including genuine remorse, good character, mental health considerations, pregnancy and the interests of children, and prospects of rehabilitation
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) with a home detention condition, rather than full-time custody
  • How to treat the offender consistently with, but distinctly from, her co-offenders who had been sentenced on different agreed facts

Decision

The court conducted a disputed facts hearing in relation to whether the offender had originated the payment scheme. Williams SC DCJ accepted the offender's evidence that the idea to pay the victim did not originate with her, distinguishing her sentence from those of her co-offenders who had been sentenced on facts attributing that role to the offender. The court found that resolving this dispute in the offender's favour reduced her moral culpability compared to the factual basis on which the co-offenders had been sentenced.

The court identified no aggravating factors. It found significant mitigating factors, including genuine remorse, very favourable prospects of rehabilitation, and an extremely low risk of reoffending. The offender received a 25 percent discount on sentence pursuant to section 25D of the Crimes (Sentencing Procedure) Act 1999 for her early plea of guilty.

On the question of how the sentence should be served, the court applied the principle from R v Wany [2020] NSWCCA 318 that a sentencing judge must assess whether an ICO or full-time custody is more likely to address the risk of reoffending, and must do so without any presumption in favour of imprisonment. Weighing the offender's strong rehabilitation prospects, low reoffending risk, and personal circumstances against all relevant purposes of sentencing, the court concluded that the term of imprisonment should be served in the community. The matter was adjourned for a sentence assessment report before a final ICO order was made.

The aggregate sentence imposed was 2 years and 3 months imprisonment, with an indicative non-parole period of 10 months, stayed pending the community corrections assessment.

Orders Made

  • The offender was convicted of each offence (sequences 3, 4, and 5)
  • Indicative sentences: 18 months (sequence 3, including Form 1 matter), 22 months (sequence 4), and 16 months (sequence 5)
  • Aggregate term of imprisonment of 2 years and 3 months, with an indicative non-parole period of 10 months
  • Referral to Community Corrections Service (CCS) for a sentence assessment report regarding suitability for an ICO and a home detention condition
  • The term of imprisonment was stayed pending completion of the assessment
  • The offender directed to report to the Officer in Charge at St Leonards CCS by 5pm on 22 January 2021
  • Matter adjourned part-heard to 12 March 2021 at the Downing Centre, Sydney

Key Takeaways

  • Where co-offenders have been sentenced on agreed facts that attribute a particular role to a third party, that third party is not bound by those agreed facts at their own sentencing and may dispute them by giving evidence.
  • A sentence imposed on a co-offender on a different factual basis does not automatically govern the sentence for a subsequent offender; consistency in sentencing must accommodate different factual findings.
  • Under R v Wany [2020] NSWCCA 318, a sentencing court assessing ICO eligibility must weigh which method of serving imprisonment is more likely to address reoffending risk, and must approach that assessment without a presumption favouring full-time custody.
  • Even where an ICO assessment favours community service, the sentencing court retains a discretion and must weigh that finding against all other relevant sentencing purposes before making a final order.
  • Strong evidence of genuine remorse, good character, high rehabilitation prospects, and very low reoffending risk can together support a conclusion that a term of imprisonment is appropriately served in the community rather than in custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 319, 321(1)(a), 324
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 17C(2)(a), 17D(3), 25D, 66(3)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (guideline judgment on Form 1 offences)
- R v Wany [2020] NSWCCA 318
- R v Giang [2001] NSWCCA 276
- Podesta v R [2009] NSWCCA 97
- R v Shortland [2018] NSWCCA 34
- R v Lee [2019] NSWCCA 15
- R v Kember [2020] NSWCCA 152
- Dipankear v R [2010] NSWCCA 156
- R v Togias (2001) 127 A Crim R 23
- R v SLR (2000) 116 A Crim R 150
- HJ v R [2014] NSWCCA 21
- R v Pullen [2018] NSWCCA 264