New South Wales Court of Criminal Appeal CITATION : Regina v Bednarz [2000] NSWCCA 533 FILE NUMBER(S) : CCA 60281/00 HEARING DATE(S) : 4 December 2000 JUDGMENT DATE : 13 December 2000 PARTIES : Regina v Janice Bednarz JUDGMENT OF : Simpson J at 1; Howie J at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0075 LOWER COURT JUDICIAL Viney DCJ OFFICER : COUNSEL : J. Crespo (Applicant) M. Grogan (Crown) SOLICITORS : Jack Rigg (Applicant) S.E. O'Connor (Crown) CATCHWORDS : Sentence - effect of imprisonment on third parties - mental state of offender and general deterrence LEGISLATION CITED : Crimes Act 1900 - s 26 Crimes (Sentencing) Procedure Act 1999 - s 44 R v Edwards (1996) 90 A Crim R 510 R v Wirth (1976) 14 SASR 291 R v T (1990) 47 A Crim R 29 R v Carlton (unreported, 14 April 1989) R v Niga (unreported, 13 April 1994, CCA) R v Roberts (unreported, 31 August 1989) CASES CITED: R v Spruce (unreported, 18 October 1990, CCA) R v Tiki (unreported, 24 August 1994, CCA) R v Toomalati [2000] NSW CCA 105 R v Wilmot (unreported, 4 July 1994, CCA) R v Dib (unreported, 13 September 1991, CCA) Scognamilio (1919) A Crim R 81 R v Letteri (CCA (NSW), unreported, 18 March 1992) R v Heather (CCA (NSW), unreported, 1 August 1995) DECISION : Leave to appeal granted. Appeal allowed. Sentence quashed. In lieu the applicant is sentenced to 5 years imprisonment with a non-parole period of 2 years to date from 27/4/2000 and to expire on 27/4/2002 the date the applicant is eligible to be released to parole. IN THE COURT OF CRIMINAL APPEAL 60281/00 SIMPSON J HOWIE J WEDNESDAY 13 DECEMBER 2000 REGINA v JANICE BEDNARZ JUDGMENT 1 SIMPSON J: I have read in draft the judgment of Howie J and gratefully adopt his statement of the facts and summary of the basis of the application. I generally agree with his Honour's approach and with the orders he proposes. I merely wish to add something in my own words about the issue of the hardship her imprisonment will cause to her son, and about the issue concerning the applicant's psychiatric condition. 2 The circumstances in which hardship to third parties can affect a sentencing outcome was considered in R v Edwards (1996) 90 A Crim R 510. Generally speaking, it can be assumed that imprisonment will work hardship on others in the offender's family or social circle. Perhaps the most poignant illustrations of this involve imprisonment of a parent, particularly if that parent is a sole parent, or the breadwinner for the family. But the examples are not confined to hardship to families; they are endless and as various as the offences for which offenders come before the courts. 3 In Edwards this court (Gleeson CJ, James and Ireland JJ) adopted the frequently cited formulation drawn from R v Wirth (1976) 14 SASR 291 at 295-6, to the effect that it is only in "highly exceptional" circumstances that a court should be "much influenced" by the hardship that an otherwise justified prison term would cause to third parties. For NSW, that formulation was accepted and applied in R v T (1990) 47 A Crim R 29, per Allen J, with whom Gleeson CJ and Campbell J agreed. 4 The recognition that "highly exceptional" cases might justify departure from the general rule that ordinarily hardship to relatives or dependents will not affect a sentencing decision is no meaningless incantation. It was intended to have, and it has, real content. Highly exceptional cases will arise, cases that will justify the imposition of a sentence less than would otherwise be appropriate. The question to be determined in every case is whether that case qualifies as "highly exceptional" such as to permit those circumstances to influence the ultimate sentence. However, it is essential that third party hardship be taken into account only in cases that are truly exceptional. In Edwards, Gleeson CJ said: "Justice will not be seen to be administered evenhandedly if exceptions are made in cases which are not truly exceptional." (p516) 5 It is not merely a question of whether a sentence of full time imprisonment is to be imposed or avoided; even where a term of imprisonment is inevitable, its duration may be reduced where hardship to third parties that is truly exceptional has been established. 6 In many of the decided cases the family hardship involved the care of young children of whom the offender was the sole custodian. It is hardly productive to attempt any analysis or reconciliation of the outcome of these cases; sometimes the dividing line between a case that does and a case that does not qualify as "highly exceptional" is very fine indeed. There will always be room for the application of judgment. Minds will differ about whether a case falls within the "highly exceptional" category. 7 Previously decided cases in which the care of young children (with or without additional factors such as the ill health of the children) has been held to amount to exceptional circumstances include R v Carlton unreported, 14 April 1989, per Carruthers J; R v Niga, unreported, 13 April 1994, CCA per Kirby P with whom Gleeson CJ and Ireland J agreed; R v Roberts, unreported, 31 August 1989, per David Hunt J; R v Spruce, unreported, 18 October 1990, CCA, per Gleeson CJ, with whom Mahoney JA and Studdert JA agreed; R v Tiki unreported, 24 August 1994, CCA, per James J, with whom Finlay J agreed; R v Toomalati [2000] NSW CCA 105, unreported, per Down D with whom Powell JA and Hulme J agreed; R v Wilmot, unreported, 4 July 1994, CCA, per Dunford J with whom Finlay J agreed. 8 The applicant's case in this respect does not depend upon her obligation to very young children, but it is analogous. The evidence concerning her son Gregory was detailed and very compelling indeed. There was a lengthy report by Dr Jungfer, a consultant psychiatrist. Dr Jungfer described the condition of the applicant's son in the following terms: "2.2 …he has a visual impairment, high care needs being reliant on others for his all activities of daily living or the supervision of the same. He is incapable of independent living and is extremely reliant on the presence of his mother … 2.3 His cognitive impairments render him slow to adapt to change and any change is extremely traumatic for him … 4.4 Physical impairments are his epilepsy. He has grand mal seizures, these predominantly occur at night. The control of the seizures is relatively good but he has problems with remembering to take his medication in the prescribed quantity. Poor compliance with medication results in excessive seizures and taking extra medication (which he may do if not supervised) causes unacceptable toxicity. He is unable to smell and has a severe restriction of his vision. The lack of smell is a safety issue from the perspective of his food ingestion (he cannot tell if food is bad) and from the aspect of detection of a fire. His visual impairment restricts his ability to safely negotiate his way in public places, and see potential harm … 4.6 [He] is unable to find his way around the local area independently. He cannot use public transport or manage a simple task such as buying a paper. 4.7…He is unable to regulate activity and engages in repetitive behaviours. There is a severe impairment in the initiation of activity. Therefore he requires prompting for self care, change of clothing, attending to meals and medication. He is unable to plan and organise the preparation of meals and domestic chores. He is unable to manage his financial affairs, attend to bills or other matters. His capacity to reason and his judgment is severely affected. He is very vulnerable to suggestion and prone to be taken advantage of …" 9 As to what could be expected of his mother's imprisonment, Dr Jungfer wrote: "2.4 [His] care needs are never expected to change and alterations in his carer will need to be planned and requires significant community involvement. The sudden removal of his mother will result in massive loss for [him] with negative physical and psychological consequences. Families that are at present not equipped to cope will need to step in with negative consequences all around. 4.8…he is very rigid in his day to day activity and becomes agitated with a change in routine…" 10 Finally, Dr Jungfer wrote: "10.2 Following the injury he has become totally reliant on his mother for his care. It would appear from the information given that [the applicant] has become his carer, developing a deep understanding of his needs, but also creating a situation where only she can adequately meet his needs. His life depends on her presence and direction. He is incapable of independent living. It is evident that his mother's care has probably resulted in a loss of skills for [him]. He now expects and needs her presence. In interview, he was excessively reliant on her and clearly very dependent on her presence… 11.2 Should [the applicant] receive a custodial sentence [his] prognosis would be very poor. It would be expected that he would develop negative behaviours characterised by compulsive actions, agitation that would prohibit his living with the extended family. …[If twenty-four hour care is not available] he would need to be placed in a nursing home which considering his age is inappropriate." 11 In R v Dib, unreported, 13 September 1991, CCA, per Allen J with whom Meagher JA and Badgery-Parker J agreed, the offender was convicted of malicious wounding with intent to cause grievous bodily harm. He had an eighteen year old son who had suffered significant hypoxic brain damage as a result of a cardiac condition. He was assessed as having a behavioural age similar to that of a three year old. The offender's wife was in poor health, as were other members of the family. The family demands on the offender were very great indeed. 12 The court regarded the case as of the exceptional kind that warranted moderation of the sentence otherwise appropriate to the offence. Allen J explained that such matters could be taken into account, not because they fell into any recognised sentencing principle, which they did not, but solely because humanity justified that course. 13 I am likewise satisfied in the present case that the applicant's son's need of and dependence upon her is such as to bring the case within the recognised exception to the general principle. I am satisfied that, although the material was before his Honour, and he made reference to her son's need, it was not treated, as it deserved to be, as one of those exceptional cases warranting a real reduction in the sentence imposed. I am, therefore, satisfied that error has been established in this respect. The applicant's psychiatric condition 14 I am also satisfied, for the reasons given by Howie J, that the applicant's psychiatric condition had the effect of diminishing substantially the weight that should, or could, be given to both general and special deterrence. In this respect also the case was unusually strong. 15 The danger is, as is so often the case, that sympathy for the applicant's predicament might be seen to overshadow the undoubtedly serious circumstances of the offence, and the heavy impact her crime has had upon the victim. There can be few crimes objectively more serious than that of soliciting a person to kill another. In the ordinary case, a very lengthy term of imprisonment would be called for as a mark of the community's and the court's, abhorrence of such a crime. What is presented here is a case that has, to an extraordinarily high degree, not one but two circumstances that warrant the description exceptional. 16 I agree with the orders proposed by Howie J. 17 HOWIE J: This is an application for leave to appeal against a sentence imposed in the District Court by Judge Viney after the applicant pleaded guilty to a charge of solicit to murder contrary to s 26 of the Crimes Act 1900. That is an offence that carries a maximum penalty of 25 years imprisonment. 18 Judge Viney sentenced the applicant to six years imprisonment and fixed a non parole period of three years. The sentence commenced on 27 April 2000, the date upon which the applicant was sentenced, she having served no period in custody before that date. The non parole period is to expire on 27 April 2003. 19 The facts of the offence were not significantly in dispute and were taken by his Honour principally from a statement of facts tendered by the Crown without objection. They can be shortly stated for the purposes of this appeal. 20 The applicant was aged 58 years at the date of sentencing. She married her second husband, the person the applicant sought to have murdered, in 1992. The marriage ultimately proved to be an unhappy one and eventually they separated. After that time there were allegations between them of assaults and harassment and each took out apprehended violence orders against the other. The husband was convicted of an offence of assault over an incident in which the applicant said he came to her home and threatened her with a rifle. The sentencing judge was unable to determine where the truth lay in the allegations and counter-allegations made by the applicant and her husband. It is unnecessary for this Court to come to any concluded view upon that matter. 21 In March or April 1999 the applicant made contact with a man named Dean Townsend and arranged to meet him at a hotel at Urunga. At that meeting she told Townsend that she wanted him to kill her husband. He agreed and they settled that the applicant would pay him $5000 in 1999 and a further $5000 the following year. They met again the next day at the applicant's property. The applicant drove Townsend to the taxi rank, where her husband worked as a taxi driver, so she could point him out to Townsend. She supplied Townsend with information as to her husband's place of residence and employment. When they returned to the property, the applicant paid Townsend $2000 in cash. They agreed upon a plan whereby Townsend would befriend her husband on Anzac Day and drug him. 22 There were further conversations and meetings thereafter in which the two of them discussed methods of killing the victim. They decided that the murder was to appear to be a drug-related killing or a suicide as a result of the psychiatric condition from which the husband suffered at the time. 23 Townsend obtained some cannabis, and some aspirin tablets which he crushed to look like heroin and handed these with a syringe to the applicant in preparation for the murder. 24 On 27 April the applicant made a further payment of $1500 into Townsend's bank account. 25 In May 1999 the applicant purchased two bags of lime, a pair of gardening gloves and some black sheeting, all of which were to be used in disposing of her husband's body. She delivered these items to Townsend's residence. 26 There was further discussions between them as to how the murder might be accomplished, and it was decided that the applicant would give Townsend $300 so that he could lure the victim in his taxi to a remote location where he would be strangled to death. Townsend used the $300 given to him by the applicant for his own purposes unconnected with the murder. It appears that he was never intending to carry out his part in the applicant's plans. 27 On 7 July 1999 the applicant phoned Townsend and complained that the murder had not taken place and threatened to harm him if he did not immediately act to carry out the killing. Townsend then contacted police. On 17 July he participated in an interview in which he disclosed to police what had occurred between the applicant and himself. Police recovered the bags of lime and other items given to Townsend by the applicant. 28 The police then arranged for an undercover operative to contact the applicant. The applicant and the undercover officer met on 23 July in a car park at Port Macquarie. Their conversation was recorded. The applicant referred to her agreement with Townsend and complained of his failure to fulfil his side of their bargain. She then asked the officer to assault and rob her husband and paid him $500 to do so. She supplied him with a photograph of her husband and wrote upon it details of his address and particulars of his motor vehicle. 29 The officer and the applicant met again on 27 July 1999. The applicant sought to have the officer kill her husband suggesting methods of luring him to an isolated spot and indicating that she would have an alibi for the time the murder was carried out. Again this conversation was tape-recorded. At the conclusion of this meeting the applicant was arrested by police. She denied knowing Townsend or soliciting her husband's murder. She declined to take part in an interview but was charged with the offence. 30 The applicant was initially indicted for a number of offences arising from her involvement with Townsend and the undercover police officer but on 17 April 2000 she pleaded guilty to an indictment containing the single charge under s 26. 31 Judge Viney rightly described the objective facts as giving rise to a most serious offence. He said that her activities with Townsend and the undercover officer, the conversations engaged in, and the supply of money to the intended assassin indicated a "dedicated and serious approach to having her ex-husband murdered". His Honour found the facts presented a very serious case of this sort of crime. This was an appropriate assessment on the facts as I have recited them. On these facts the sentence imposed by his Honour would have been an appropriate one. 32 However, there was in evidence before his Honour a psychiatric report by Dr Hampshire who had seen the applicant for the purpose of preparing a report for the sentencing court. Dr Hampshire concluded, from what he had been told by the applicant and others, that at the time of the events giving rise to the charge, the applicant was "psychotically or pre-psychotically depressed". 33 Dr Hampshire formed the opinion that, after the applicant and her husband separated, she became depressed and delusional. She was paranoid and was convinced that her husband was intending to kill her. She also believed that the police were involved in a conspiracy with him and would not assist her. 34 She was terrified that, if she were killed, her son, Gregory, would be unable to be cared for and would not survive. Her son, then aged 35, was seriously and permanently disabled in 1982 as a result of a motor vehicle accident in which another of her sons was killed. I shall return to his situation shortly. 35 Dr Hampshire was of the opinion that the applicant was probably psychotically depressed in the year leading up to her arrest. He was of the view that she suffered from delusional thinking and behaved in a psychotic manner. 36 The applicant was referred for treatment to Dr Toohey, a psychiatrist. He saw her first on 15 October 1999. He diagnosed the applicant as then suffering an adjustment disorder with mixed anxiety and depressive symptoms. He commenced to treat her using psychotherapy, behavioural therapy and medication. He reported that after eight weeks under this regime the applicant showed definite improvement in her sleeping pattern, thought processes and general level of arousal. Dr Toohey believed that the applicant had the capability of learning and applying psychological strategies to improve her response to interpersonal conflict and appropriate resolution. 37 There was evidence before the sentencing judge from the applicant's eldest daughter as to the applicant's depressive state in the period leading up the offence and the improvement in her mental state after treatment from Dr Toohey. 38 There was also a report in evidence as to the effect of the commission of the offence upon the intended victim. He was found to be suffering from a Post Traumatic Stress Disorder. His health had significantly deteriorated including increased alcohol consumption, sleep disturbance, loss of concentration, and mood swings. 39 There was before Judge Viney a report concerning Gregory the applicant's son. As I have already indicated, he was grievously injured in a motor vehicle accident in 1982. As a result of the injuries suffered by him he has visual impairment (being blind in the right eye), cognitive impairment with severe short-term memory loss, and he suffers from epilepsy. He has severe behaviour abnormalities. He has been totally reliant upon the applicant for his care up until she was sentenced by Judge Viney. 40 The applicant's eldest daughter gave evidence before his Honour that, notwithstanding that she has four children of her own, she was prepared to attempt to care for Gregory if the applicant was sentenced to full-time imprisonment. 41 A pre-sentence report indicated that through the 1980's the applicant suffered a number of traumatic events including the motor vehicle accident which resulted in the death of one son and serious injuries to Gregory in 1982 and the death of her first husband in 1986. This was followed by the deterioration of the second marriage into a hostile environment resulting in separation and acrimony. 42 Judge Viney described the case as a very sad and difficult one. He described the applicant as a person who had over the years "performed acts of really heroic virtue and care that few people would really be able to sustain". He referred to the fact that at the forefront of the applicant's concerns has been the welfare of Gregory. 43 The first basis upon which the sentence imposed by Judge Viney is said to be erroneous is that, in the light of his findings as to the applicant's mental state at the time of the offence, he gave too much weight to general deterrence. 44 In his sentencing remarks Judge Viney appeared to accept the possibility, at least, that the applicant was suffering from a delusion state and was not acting totally rationally at the time she solicited Townsend and the undercover officer to kill her husband. His Honour was satisfied that she did have the belief that her husband wished to cause her harm and that resulted in considerable mental turmoil for her. His Honour quoted from Dr Hampshire's report detailing the findings he made as to the applicant's mental state at the time she committed the offence. He also referred to the findings of Dr Toohey. 45 During the course of his remarks, His Honour stated: However, one has to bear in mind that the seriousness of the offence cannot be gainsaid that for whatever motives somebody might have to solicit the murder of a fellow citizen, the Courts have to impose a sentence that acts as, not only a deterrent to the person involved, but to any other person who might be minded to take such a path to resolve their problems. 46 Although the complaint in the first ground of appeal concerns the weight given by his Honour to general deterrence, it appears that his Honour also took into account the need to provide specific deterrence in the sentence to be imposed. There was in my opinion no necessity for specific deterrence in this case. The applicant had no prior record and there was no suggestion that there was a risk that she would commit any sort of offence in the future. 47 But in my opinion the complaint as to his Honour's approach to the question of general deterrence is also made out. It has been held that general deterrence is less important in cases where the offender at the time of the commission for the offence was suffering from a mental disorder or severe intellectual handicap. The principle has been considered and applied in a number of cases in this Court, see Scognamilio (1991) A Crim R 81; R v Letteri (CCA(NSW), unreported, 18 March 1992); R v Heather (CCA(NSW), unreported, 1 August 1995). It is founded on the view that it is not appropriate to visit upon a person who suffers from such a disorder or handicap a sentence that is designed to deter others. Generally it will be a matter for the sentencing judge to determine whether general deterrence is a relevant matter and the degree to which it should be reflected in the sentence imposed upon the particular offender before the court. 48 There is no reference to such a principle found in his Honour's remarks. In may well be the case that it was not raised with him. Of course, due regard must be had to the fact that his Honour was delivering ex tempore remarks on sentence and it does not necessarily follow that, simply because a judge fails to specifically mention a matter, it should be assumed that he did not have regard to it. 49 However, in light of his Honour's apparent acceptance of the material contained in the psychiatric reports and the opinions expressed by the psychiatrists as to the applicant's mental state and the reference by his Honour to the need to impose a sentence reflecting general deterrence, it would have been expected that his Honour would have mentioned this matter during the course of his remarks if he had considered it. 50 Further the unjustified reference to specific deterrence leads me to the view that his Honour did err in his approach on the issue of the significance of deterrence when sentencing the applicant and therefore this basis of challenge is made out. 51 It has also been submitted that that his Honour failed to have sufficient regard to the hardship to the applicant's son Gregory which would be occasioned by her incarceration. It is accepted that the sentencing court can only have regard to the effect of the imprisonment on others in an exceptional case. The principles that govern this matter can be found in cases such as T (1990) 47 A Crim R 29 at 40 and Edwards (1996) A Crim R 510. 52 This was an unusual case where the effect upon the applicant's son by separation from her was far more serious and of a different nature than that which normally attends upon a separation of a mother from her children by her imprisonment. But given the seriousness of the offence, it cannot dictate the sentence to be imposed upon the applicant. However, it is a relevant matter and I take it into account in determining the minimum period which the prisoner must serve in custody and during which her son must be denied his mother's care and assistance. It is a matter which gives rise to special circumstances which would justify a reduction in the minimum term under s 44 of the Crimes (Sentencing) Procedure Act 1999. 53 In my opinion the sentence imposed upon the applicant is manifestly excessive in light of the psychiatric material and by reason of the fact that there was no need to reflect specific deterrence and a much reduced requirement to impose a salutary sentence for the purpose of general deterrence. 54 However, notwithstanding the applicant's mental state at the time of the offence, the particular need for the applicant to care for her son and her prior good character, the offence was a serious one and a significant term of full time imprisonment must be imposed upon the applicant. Clearly there are special circumstances as Judge Viney found and the non-parole period needs to be reduced in order to give effect to a lengthier period on parole. The non-parole period I propose is one which is the very minimum which could be imposed to reflect the objective seriousness of the offences and one which would not normally be appropriate to punish an offence of this nature. 55 I propose that leave to appeal should be granted and the appeal allowed. The sentence imposed by Judge Viney should be quashed and in lieu thereof the applicant should be sentenced to five years imprisonment. There should be a non-parole period of 2 years. The sentence and non-parole period should date from 27 April 2000. The non-parole period is to expire on 27 April 2002 the date upon which the applicant is eligible to be released to parole. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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