New South Wales Supreme Court CITATION : R v Podesta [2008] NSWSC 1204 HEARING DATE(S) : 18 August 2008 - 1 September 2008, 17 October 2008 JUDGMENT DATE : 14 November 2008 JUDGMENT OF : McCallum J DECISION : The offender is sentenced to imprisonment with a non-parole period of 5 years commencing on 22 November 2006 and a balance of term of 3 years. The earliest date on which the offender will be eligible for release on parole is 21 November 2011. CATCHWORDS : Sentence - offence of manslaughter - partial defence of substantial impairment by abnormality of mind LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Bartlett [2001] NSWSC 685 R v Blacklidge (30/11/1995 NSWCCA, unreported) R v Doff [2005] NSWCCA 119 R v Engert (1995) 84 A Crim R 67 R v Gagalowicz [2005] NSWCCA 452 R v Hucker [2002] NSWSC 1068 CASES CITED : R v Lever [2001] NSWSC 1131 R v Potts [2001] NSWSC 753 R v Previtera (1997) 94 A Crim R 76 Regina v Hawkins [2110] NSWSC 420 Regina v Mabbott [2002] NSWSC 502 Regina v Mawson [2007] NSWSC 1473 Veen v R (No.2) (1988) 164 CLR 465 PARTIES : Regina Jason Podesta FILE NUMBER(S) : SC 0004/2008 COUNSEL : Mr C Maxwell QC (Crown) Mr A Webb (Offender) SOLICITORS : Director of Public Prosecutions Legal Aid - 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCALLUM J 14 NOVEMBER 2008 0004/08 R v Jason PODESTA SENTENCE 1 HER HONOUR: Jason Podesta was tried before me for the murder of Steven Lee Bannister on 22 November 2006. It was not disputed in the trial that he caused Mr Bannister's death. The essential issue was the offender's psychiatric condition at the time of the killing, which raised the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900. The jury found him not guilty of murder but guilty of manslaughter. 2 Much of the factual evidence in the trial was not in dispute. I am satisfied as to the following facts relevant to sentencing the offender. The deceased was the boyfriend of the offender's mother, Cathy Podesta. The deceased was aged in his early twenties, while Mrs Podesta was in her early forties. They had been in a relationship for two or more years. 3 On the evening of 21 November 2006, the offender went with his mother, his brother Aiden and a friend, Natalie Gajdos, to visit a family friend, Danielle Panucci. They took a cask of wine and a bottle of orange juice with them. The offender had some of the wine but there were widely varied accounts as to the amount he drank and conflicting evidence as to the extent to which he was affected by it. I am unable to make a finding one way or the other as to the extent to which his capacities were impaired by the effect of alcohol at the time of the killing. 4 During the evening, Mrs Podesta received a number of prank calls. The calls were made by Corey Elsey and Harmony King. Mr Elsey posed as the boyfriend of the deceased and gave a graphic description of sexual relations between him and the deceased. Mr Elsey also said that he had the AIDS virus and that he had given it to the deceased. He suggested that Mrs Podesta should have a test to confirm whether she had contracted the disease. 5 The calls were made on Ms King's mobile phone. She has known the Podestas for many years and had a brief relationship with the offender. She believes that the offender is the father of her child. At the time she gave evidence in the trial, she was proposing to have tests undertaken to confirm that belief. No evidence was adduced at the sentence hearing as to the results of any such tests. 6 I assume the prank callers did not anticipate that they would set in train a series of events that would end in the death of Steven Bannister but their conduct was, nonetheless, stupid and irresponsible. At the very least, they must have anticipated the risk that they would put Mrs Podesta in fear that her boyfriend had not only been unfaithful to her but had exposed her to a fatal disease. I cannot begin to understand what would motivate a person to play such a prank. 7 Mrs Podesta was understandably distraught by the calls. She and the offender returned with Aiden Podesta and Ms Gajdos to the motel where they were staying. They confronted the deceased and he also became distraught, not only by the false accusations against him but by the fact that the Podestas appeared to believe they were true. He protested his innocence but the Podestas did not believe him. 8 The Podestas and Ms Gajdos began to argue with the deceased and he became very emotional. He tried to leave the motel room but was pressured by Ms Gajdos to stay. Ms Gajdos gave evidence that the offender was quite angry and wanted to know if the deceased had AIDS and if he had given it to Mrs Podesta. The argument continued out into the parking area of the motel until the manager told them that if they did not keep the noise down he was going to call the police. 9 The deceased tried to leave the motel again and said that he was going back to his mother's place. At that stage the offender and Aiden Podesta called him back and asked him to come and sort things out with their mother before he left. He came back and by this stage was crying, telling Mrs Podesta he loved her and questioning why they did not believe him. He left again and the offender and Aiden Podesta followed him away from the motel for a couple of blocks. It was there that the offender stabbed him. Altogether there were 21 wounds and cuts to the deceased. Four of those were stab wounds to the chest, which caused his death. He died by the road. 10 The Crown invited me to make a finding that the deceased was trying to escape from the offender at the time he was killed. The only evidence in support of that contention was that some of the deceased's wounds were defensive wounds. I cannot be satisfied beyond reasonable doubt as to what the deceased was doing when he was attacked. 11 The offender and Aiden returned to the motel and told their mother and Ms Gajdos to pack their things. They all went back to the offender's flat where they agreed upon a version of events to tell police. 12 According to Ms Gajdos, they were to say that the deceased left the motel threatening to "come back with some blokes" and that he was collected shortly afterwards by some men in a white van. The part about the white van was false. However, her evidence was ambiguous as to whether, so far as she knew, the threat by the deceased that he was coming back with other people was in fact made, or whether that was also part of the concocted version. 13 The offender did not give evidence before the jury or on sentence. He participated in a lengthy interview with police, during which he told them about a threat made by the deceased to Mrs Podesta that he had people coming to "get" the Podestas, that is, to attack the family. The offender told police that he was trying to persuade the deceased to come back to talk to Mrs Podesta when a man in a white jeep or ute arrived and told the offender and Aiden Podesta to "piss off". He said he and Aiden then returned to the motel. His only accounts of the killing in evidence in the trial were the histories he gave to the two psychiatrists who gave expert evidence. 14 The evidence of substantial impairment by abnormality of mind was given by a forensic psychiatrist, Dr Olav Nielssen. Dr Nielssen's diagnosis was that the offender suffers from schizophrenia, the symptoms of which had been present for at least a year before the offence. Part of the history given to Dr Nielssen by the offender was that the offender and his brother, Aiden, had been assaulted by the deceased during a home invasion in 2004. The deceased and two other men had smashed their way into the Podesta's house with baseball bats and attacked both the offender and his brother. Aiden Podesta sustained a serious head injury during that attack and subsequently developed a relapsing psychotic illness. The offender was hit on the arm with an iron bar. As extraordinary as it may seem, it was after that assault on her two sons that Mrs Podesta formed a romantic relationship with the deceased. 15 Dr Nielssen recorded that the offender's reason for stabbing Mr Bannister was a combination of anger at the belief that Mr Bannister may have knowingly passed the AIDS virus on to Mrs Podesta and fear that Mr Bannister planned to arrange for associates to assault the Podesta family. Dr Nielssen attributed that fear to the earlier assault and the effect of symptoms of psychotic illness in the period before the offence. 16 Dr Nielssen stated that the early phase of schizophrenia is known to be associated with a greatly increased risk of violence arising in false beliefs and impaired reasoning and emotional control. 17 As submitted on behalf of the offender, the jury's verdict carries with it an acceptance that the impairment to the offender's capacity in one or more of the three areas identified in s 23A was so substantial as to warrant his liability for murder being reduced to manslaughter. However, the jury could have reached their verdict by a number of paths. 18 Dr Nielssen's evidence addressed each of the capacities referred to in s 23A. First, he expressed the opinion that the offender had a significant impairment in his perception of events because of the belief that he was about to be assaulted by the deceased's associates. Secondly, Dr Nielssen said that the offender's false beliefs may have impaired his capacity to judge right from wrong. Finally, he said that there was likely to have been "significant impairment in [the offender's] capacity to control his actions because of the increased arousal and illogical thinking that is associated with the early phase of psychotic illness". 19 I am satisfied, on the balance of probabilities, that the offender's capacity in each of the three areas referred to in s 23A was substantially impaired by his schizophrenia. 20 The offender's mental illness gives rise to potentially competing considerations in determining the appropriate sentence. On the one hand, it reduces his moral responsibility for the offence, which is a basis for imposing a shorter sentence. It is also a basis for placing relatively less weight on the considerations of deterrence: R v Engert (1995) 84 A Crim R 67. On the other hand, if his mental illness indicates that he is potentially dangerous to the community, that is a basis to impose a longer sentence, but not longer than that which would have been imposed if there were no mental abnormality: Veen v R (No.2) (1988) 164 CLR 465 at 472-3. 21 The task of assessing the measure of the offender's responsibility for the killing in the present case is a difficult one. As stated by the Court of Criminal Appeal in R v Blacklidge (30/11/1995 NSWCCA, unreported), he is to be sentenced on the basis that he is responsible for a deliberate act, which took the life of another person and which, but for the abnormality of mind, would bear the character of murder. Further, his reduced criminal responsibility on account of his mental illness is in part reflected in the reduced verdict. 22 In Blacklidge, Gleeson CJ said; "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability". 23 The Crown pointed to a number of factors which he submitted indicate that although the offender's capacity was impaired substantially, the impairment was not extreme. Subject to one matter, I think there is force in that submission. First, when the offender was questioned by police, he told an exculpatory story. That shows he was astute enough to the nature of his actions to seek to avoid responsibility for them. 24 Secondly, he was able to participate in a lengthy interview with police shortly after committing the offence and to give comprehending and responsive answers. 25 Thirdly, although there was evidence, accepted by the jury, that the offender was operating under a delusional belief that the deceased was going to come back with other people to attack the offender and his family, he was also acting in anger as a result of what his mother had been told by the prank callers. What he learned from them was false, but not a delusion in his mind. The unlikelihood that anyone would make up such an allegation appears to have prompted him to react, as any son would, with anger at what he thought the deceased had done to his mother. 26 In respect of the third matter, however, I am mindful of Dr Nielssen's evidence as to the impairment in reasoning and emotional control associated with early schizophrenia. The number and force of the stab wounds the offender inflicted on the deceased does demonstrate that the killing was fuelled by anger, for which the offender must bear a measure of responsibility, but is at the same time a clear indication that his capacity to control his actions was impaired to a very substantial degree. 27 Further, I accept, as submitted by Counsel for the offender, that there may be a level of artificiality in attempting to separate the state of mind of a person suffering from schizophrenia into delusional and non-delusional components. 28 The Crown did not invite me to make a finding that the offender represents a significant danger to the community so as to justify consideration of the protection of the community as a factor in determining sentence. Dr Nielssen's evidence in the trial suggested that the offender has responded well to anti-psychotic medication. 29 There was also a report prepared by a psychologist, John Taylor, which was tendered on behalf of the offender in the hearing on sentence. Dr Taylor was not cross-examined. He assessed the offender as having a low to moderate risk of recidivism. Dr Taylor's opinion was based on both actuarial analysis and clinical judgment. It was his opinion that the offender has reasonably good prospects for rehabilitation provided that his schizophrenic disorder can be successfully treated and managed and also providing that he is able to resolve substance abuse. 30 That evidence indicates that the offender does not represent a significant risk to the community so long as he receives appropriate supervision upon his release. His mental illness, his youth and the need for supervision are clearly special circumstances which justify some variation in the statutory proportion of the non-parole period to the total term of the sentence: see s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 31 Both the Crown and Counsel for the offender referred me to a number of comparable sentencing decisions. The Crown referred to R v Connolly [2001] NSWSC 787; R v Bartlett [2001] NSWSC 685 and R v Lever [2001] NSWSC 1131. Counsel for the offender referred me to Regina v Mawson [2007] NSWSC 1473; R v Hucker [2002] NSWSC 1068; Regina v Mabbott [2002] NSWSC 502; R v Potts [2001] NSWSC 753 and Regina v Hawkins [2110] NSWSC 420. I have been assisted by those decisions. However, I am mindful of the remarks made by the Court of Criminal Appeal in R v Gagalowicz [2005] NSWCCA 452 at [47-52] and particularly the Court's conclusion that, from any review of sentences imposed in other cases of manslaughter, "inevitably the need arises to return to the facts and circumstances of the particular case and, whilst heeding its subjective features, to make an assessment of the gravity of its objective circumstances". 32 The objective circumstances in the present case were serious, but less so in my view than in the two cases referred to above which attracted the longest sentences, Lever and Gagalowicz. 33 At the sentence hearing, I received evidence of a victim impact statement prepared by the deceased's mother. Mrs Bannister attended every day of the trial but felt unable to cope with the sentence hearing and her statement was read by a representative of the Homicide Victim's Support Group. The Court acknowledges the important support that group provides to members of the community. 34 As noted by the Crown, a victim impact statement that deals with the effect of death on family members of the deceased is to be dealt with in accordance with the principles outlined by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 87. It cannot be relied upon to increase the sentence of an offender. However, Mrs Bannister's statement was a moving reminder of the tragedy brought into the life of a mother who loses a son. What was particularly moving, and heartening, was Mrs Bannister's acknowledgement that the offender has had a hard life, as did her son. That remark exhibits a measure of strength and good grace, which I hope will stand well for Mrs Bannister in her grief. The Court expresses its sympathy and understanding to Mrs Bannister and her family. 35 The offender is now 21 years old. He was 19 at the time of the offence. He was convicted of assaulting a police officer in the execution of his duty two months before this offence and was on a 2-year good behaviour bond at the time of the offence, which is to be taken into account as a matter of aggravation under s 21A of the Crimes (Sentencing Procedure) Act. That is the only offence of violence on his criminal record, which otherwise consists of minor driving offences. There was evidence in the trial suggesting that, before the present offence, the offender had taken some steps to get his life in order after that bond was imposed. 36 Although the offender indicated his intention to raise the partial defence of substantial impairment prior to the trial, there is no evidence that he offered a plea of guilty to the offence of manslaughter at any stage. Nonetheless, his trial was conducted efficiently and on the basis that he accepted responsibility for the killing. That is a factor which, whilst not demonstrating contrition, shows a willingness to facilitate the course of justice and is appropriately taken into account for the purpose of sentencing: see R v Doff [2005] NSWCCA 119 at [58]. 37 Dr Taylor's report states that the offender was raised in what appears to have been a "very chaotic, dysfunctional and abusive family environment". Both his parents used illicit drugs and the family has been the object of a number of violent home invasions, perhaps as a result of that circumstance. 38 The offender is a young adult and I accept that he has reasonably good prospects of rehabilitation. I also accept that, with appropriate treatment and supervision, he does not appear to pose a significant risk to the community. 39 Taking into account the objective facts and all the subjective circumstances, and the principles to which I have referred, I have concluded that the following sentence should be imposed. 40 Jason Podesta, I sentence you to imprisonment with a non-parole period of 5 years commencing on 22 November 2006 and a balance of term of 3 years. The earliest date on which you will be eligible for release on parole is 21 November 2011. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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