New South Wales Court of Criminal Appeal CITATION: Podesta v R [2009] NSWCCA 97 HEARING DATE(S): 23 March 2009 JUDGMENT DATE: 8 April 2009 JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 25; Rothman J at 26 1. Application for leave to appeal granted. DECISION: 2. Appeal in relation to the sentence for the offence of concealing a serious indictable offence contrary to s 316 of the Crimes Act is upheld and the sentence quashed. The applicant is sentenced to fixed term of 12 months imprisonment commencing 18 December 2007 and expiring on 17 December 2008. 3. Otherwise the appeal is dismissed. CATCHWORDS: CRIMINAL LAW - appeal against sentence - particular offences - conceal serious indictable offence - pervert the course of justice - protection of family member as relevant consideration LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment Nguyen (2004) NSWCCA 332; 149 A Crim R 343 CASES CITED : R v Mitchell and Gallager [2007] 11 A Crim R 94 Veen v The Queen [No 2] (1987-1988) 164 CLR 465 PARTIES: Cathryn Lehane Podesta (Applicant) The Crown FILE NUMBER(S): CCA 2007/14436 COUNSEL: M Johnston (Applicant) J Dwyer (Crown) SOLICITORS: Brenda Duchen Solicitor (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/21/3346 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 24 April 2008 IN THE COURT OF CRIMINAL APPEAL 2007/14436 McCLELLAN CJ at CL BUDDIN J ROTHMAN J WEDNESDAY 8 APRIL 2009 PODESTA, Cathryn Lehane v R Judgment 1 McCLELLAN CJ at CL: The applicant was tried and found guilty of two offences. The first offence was that of concealing a serious indictable offence contrary to s 316 of the Crimes Act 1900. The maximum penalty for that offence is two years imprisonment. She was also convicted of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act for which the maximum penalty is 14 years imprisonment. 2 The sentencing judge sentenced the applicant in relation to the s 316 offence to a non-parole period of 12 months imprisonment with a balance of term of 12 months. In relation to the s 319 offence the applicant was sentenced to a non-parole period of 12 months with a balance of term of 18 months. The sentence for the offence contrary to s 316 was made wholly concurrent with that in relation to the s 319 offence. The sentences commenced on 18 December 2007 and accordingly the non-parole period has now expired. Her Honour found special circumstances having regard to the applicant's need for a lengthy period of supervision. 3 The sentencing judge summarised the relevant facts. The applicant is the mother of Jason and Aiden Podesta. She was the partner of Stephen Bannister, the deceased. The body of the deceased was discovered in the early hours of the morning on 22 November 2006. He was found lying on the footpath on the Hume Highway at Casula. He had numerous stab wounds. 4 His body was found adjacent to the Pop-in Motel. Room 30 in the motel was occupied by the applicant and her son Aiden. The deceased had stayed there. 5 On the evening before Mr Bannister's death the applicant had received prank phone calls suggesting that Mr Bannister was suffering from AIDS. The applicant had previously been concerned about this possibility and had asked the deceased to have a test. The call distressed her. It also caused concern to other members of her family. Jason Podesta became angry and was heard to say: "I'll stab him through the heart." He said this to Warren Grey who persuaded him that he should make sure whether the deceased had AIDS and rather than kill him "just give him a bashing." However, Jason Podesta was not diverted and took a kitchen knife and together with the others returned to the Pop-in Motel. Jason Podesta intended to confront the deceased about the phone calls. After the group had returned there was an argument inside room 30 which continued into the motel car park. The applicant later informed the police that she observed Jason to be in possession of the knife at the motel. 6 During the arguments in the car park the deceased left the group a number of times. He was distressed at being unable to persuade the group that he did not have AIDS. The final time he left the group he was followed by both Aiden and Jason Podesta. He did not return. It was the Crown case that the deceased was stabbed to death by Jason Podesta. 7 After the deceased had left the group a scream was heard and Jason and Aiden Podesta returned to the vicinity of room 30. Jason said "Let's go." There was evidence that Aiden Podesta "appeared devastated" and that Jason looked and spoke angrily and walked "very solid." 8 In her third interview with the police the applicant admitted hearing someone saying that the deceased was dead. 9 The applicant left the scene in a vehicle driven by Jason Podesta. When they arrived at their destination the applicant realised she still possessed the deceased's key cards. She started to panic and said "Oh my god, I still have Steven's cards, I'm going to get rid of them, I'm going to throw them into the drain." She was observed to take steps to throw them away. Between 2.00 and 3.00 am the applicant and Aiden left the premises. Before they did those present agreed on a "story" which involved an outline or framework of events which left out certain incriminating facts. 10 On 22 November 2006 the applicant was interviewed by the police. It was during this interview that she gave false information. She was asked whether she had any knowledge of the incident and said "I don't know anything about him being – something happened to him or that – no." When giving an account of her movements she deliberately left out significant information. She gave an account of events which suggested that the deceased was still alive when she left the motel premises with the others. She told the police "no-one followed Steven when he left." In particular she said that "Jason didn't follow Steven" at any time and that "Aiden didn't follow Steven at any time." She was asked whether she could tell the police anything about the circumstances of the murder of Steven Bannister. She answered "No", which the Crown alleged was a deliberately false answer. 11 It was the Crown case that at her first interview the applicant concealed the murder by omitting some important facts and at the second interview concealed the offence by providing the police with deliberately false information to cast suspicion on someone other than her son. 12 On 24 November 2006 the applicant telephoned the police and said that she wanted to provide additional information. She was reinterviewed during which she said that Warren Grey had said "I'll stab him through the heart" and that her son Jason did not say those words. She repeated this allegation a number of times. She also gave the police false information about the movements of her son. 13 The applicant gave her third interview to the police on 28 August 2007. By this time she had been arrested and charged. On this occasion she provided the police with a mixture of admissions and further untruths in an attempt to shield Aiden and to a lesser extent Jason. In her evidence she said she was threatened by police before and after she gave her interview but this was clearly rejected by the jury. 14 The trial judge found that the applicant had in all three interviews attempted to conceal the offence from the police. Her conduct had extended over a lengthy period of time and showed a consistency of purpose and firm resolve to conceal any involvement of her son Jason in the killing. In the course of the investigation the applicant's telephone had been lawfully intercepted and she was recorded as having attempted to influence Natalie Gajdos, who was a witness to the events. She said: "Applicant: Don't say anything more Luv." NG: Because when he left he went to the car. When they went that way they went to the car. They went to get the car. Applicant: Remember. NG: No, remember what? Applicant: Just don't say anything else and ask for a solicitor if anything happens." 15 The applicant was aged 45 years when sentenced. Although an adopted child she was raised in a supportive family environment. She lived with the father of her sons, Jason and Aiden, for 17 years but that relationship ended. Aiden suffers from bipolar disorder and border-line schizophrenia. Jason has not suffered from any form of mental health issues but began exhibiting anti-social tendencies at about age 17. 16 The applicant has had problems with both heroin and amphetamines. She was also placed at one stage on a methadone program. Although she has been employed, her employment record is intermittent and has been affected by her drug use. She has at times turned to crime to finance her drug habits. 17 The applicant's criminal history was described in terms which were not disputed by her counsel in the appeal. Her Honour said: "The offender is no stranger to the criminal justice system. She has convictions for larceny; failing to appear; break, enter and steal; attempted break and enter; break and enter with intent; accessory after the fact to break, enter and steal; receiving; drug offences; harbouring an escapee; goods in custody; resisting arrest; escaping lawful custody; stealing from a dwelling; obtaining property by deception; assaulting police; using offensive language and making a false representation resulting in a police investigation. It is a record which disentitles her to leniency, It is littered with convictions for offences against law enforcement either by escaping lawful custody; harbouring an escapee; resisting arrest; assaulting police and making a false representation resulting in a police investigation." 18 The sentencing judge was not satisfied that the applicant has good prospects for rehabilitation. However, because of the identified need for counselling and supervision she made a finding of special circumstances. Her Honour was satisfied that sentences of full time custody were necessary to satisfy the requirements of general and specific deterrence and the protection of the public. 19 The applicant submitted that by imposing the maximum term of imprisonment for the offence against s 316 her Honour far exceeded the appropriate range. In response the Crown accepted that the offence was not in the worst category and could not have justified the maximum term of imprisonment. 20 To my mind the circumstances of the offence would have placed this offence within the mid range of objective seriousness. Having regard to the fact that the applicant would be sentenced for the more serious s 319 offence, a sentence which provided a fixed term of 12 months for the s 316 offence was appropriate. Although it is of no practical effect I propose that this Court should intervene and vary the sentence accordingly. 21 With respect to the offence contrary to s 319 the situation is different. The maximum penalty for this offence was 14 years imprisonment. Her Honour imposed a non-parole period of 12 months with a total term of imprisonment of 2 years and 6 months. The applicant's motivation was to assist her son and her Honour had regard to this matter when imposing sentence. This Court has accepted that the fact that a person is protecting a family member is a relevant consideration when sentencing for this offence. However, as the Chief Justice made plain in Nguyen (2004) NSWCCA 332; 149 A Crim R 343 at [55] the "protection of the system of criminal justice should not be significantly less vigilant where its diversion is attempted for reason of family ties, rather than the expectation of monetary gain." Furthermore as Howie J said in R v Mitchell and Gallager [2007] 11 A Crim R 94 at [31]-[32] "the more serious the offence committed the less weight that can be given to motive as a mitigating factor." 22 In the present case the offence which had been committed was serious and the applicant continued in her offending for a significant period of time. The applicant engaged in conduct designed to ensure that the police were not able to successfully investigate and prosecute her son. Although she did not act for the purpose of personal gain and her actions did not involve any threat of violence she knowingly suggested that Ms Gajdos should give a false account of the events to the police. 23 The sentence imposed was also required to reflect the applicant's personal circumstances. She did not plead guilty and accordingly was not entitled to any discount. As I have earlier related the applicant has a serious and lengthy criminal history involving public justice offences. As a consequence her Honour was required to impose a sentence which reflected the applicant's continuing disobedience of the law and provide a more significant component for personal deterrence Veen v The Queen [No 2] (1987-1988) 164 CLR 465 at 477-8. 24 Any offence against s 319 has a tendency to seriously impact upon the order of our society. Unless members of the community cooperate with the authorities in the investigation of crime, particularly major criminal offences, the rule of law maybe undermined. Given the serious nature of the offence and after giving consideration to the applicant's personal situation I am not persuaded that the sentence for the s 319 offence was manifestly excessive. The orders I propose are: 1. Application for leave to appeal granted. 2. Appeal in relation to the sentence for the offence of concealing a serious indictable offence contrary to s 316 of the Crimes Act is upheld and the sentence quashed. The applicant is sentenced to fixed term of 12 months imprisonment commencing 18 December 2007 and expiring on 17 December 2008. 3. Otherwise the appeal is dismissed. 25 BUDDIN J: I agree with McClellan CJ at CL. 26 ROTHMAN J: I agree with McClellan CJ at CL. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.