Podesta v The Queen - [2009] NSWCCA 97

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

DECISION: 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.

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

CASES CITED: Nguyen (2004) NSWCCA 332; 149 A Crim R 343
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Podesta v The Queen

Details

AGLC: Podesta v The Queen [2009] NSWCCA 97
Case: [2009] NSWCCA 97
Decision Date: 8 April 2009

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Podesta, against a sentence imposed by the primary judge. The dispute centred on the appellant's conviction for concealing a serious indictable offence and perverting the course of justice. The appeal was heard in the High Court of Australia, where the appellant sought to challenge the severity of the sentence and the relevance of certain considerations made by the primary judge.

The central legal issues the court had to resolve were whether the primary judge appropriately considered the principles of sentencing and whether the protection of a family member was a relevant consideration in the context of perverting the course of justice. The appellant argued that the primary judge failed to adequately consider these principles and that the consideration of protecting a family member was not pertinent in the context of the offence of perverting the course of justice.

The court examined the sentencing principles and found that the primary judge did not err in his approach to the sentencing process. The High Court held that the primary judge appropriately balanced the various considerations and correctly applied the relevant legal principles. The court also concluded that the protection of a family member could be a relevant consideration in the context of perverting the course of justice, as it may impact the appellant's motivations and the seriousness of the offence. The appeal was ultimately dismissed by the court, affirming the sentence imposed by the primary judge.

In conclusion, the court upheld the primary judge's sentence and reasoning, rejecting the appellant's arguments regarding the principles of sentencing and the relevance of protecting a family member. The High Court's decision stands as a clear affirmation of the primary judge's approach to the case and the appropriate application of the law in this context.

Orders