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Sypher v R

Sypher v R

Case [2020] NSWCCA 336 17 December 2020

Sentencing

Mens Rea & Intention

Unconscionable Conduct

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sypher v R [2020] NSWCCA 336
Hearing dates: 4 December 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Before: Basten JA at [1]
Johnson J at [7]
Davies J at [8]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the sentence imposed by Judge King SC in the District Court on 22 June 2020.
(4) In lieu, sentence the appellant to a non-parole period of 18 months commencing 30 June 2019 and expiring 29 December 2020 with a balance of term of 12 months expiring 29 December 2021.
Note that the appellant is entitled to be released on parole on 29 December 2020.

Catchwords:
SENTENCING - appeal against sentence - doing an act intending to pervert the course of justice - where applicant’s subjective circumstances revealed profound disadvantage and dysfunction - whether sentencing judge failed to find that the applicant’s moral culpability was reduced by reason of her disadvantaged background and mental health - where ample evidence of relationship between appellant’s circumstances and offending - where sentencing judge acknowledged personal subjective circumstances but did not take into account when sentencing - where merely referencing circumstances is insufficient - where sentencing judge ought to have mitigated the weight to be given to general deterrence

Legislation Cited:
Crimes Act 1900 (NSW) ss 319, 321, 324

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dang v R [2013] NSWCCA 246
Dellow v R [2020] NSWCCA 301
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Egan v R [2017] NSWCCA 206
Kentwell v R (No 2) [2015] NSWCCA 96
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Prince v R [2020] NSWCCA 268
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Millwood [2012] NSWCCA 2
R v Sypher [2020] NSWDC 528
Wood v R [2019] NSWCCA 309

Texts Cited:
Nil

Category: Principal judgment
Parties: Anissa Sypher (Applicant)
Crown (Respondent)
Representation:
Counsel:
R Mathur (Applicant)
C Young (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/163144
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Sypher [2020] NSWDC 528

Date of Decision:

22 June 2020

Before:

King SC DCJ

File Number(s):

2019/163144

Judgment

BASTEN JA: This application for leave to appeal against sentence related to an offence of doing an act with intention to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The act was agreement for a sum of money not to provide a statement to police, or give evidence, implicating the offender in the stabbing of the applicant's partner. The sentence imposed a non-parole period of 1 year 9 months, with a total sentence of 3 years. The two grounds of appeal asserted that the sentencing…

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 Sypher v R

Details

AGLC: Sypher v The Queen [2020] NSWCCA 336
Case: [2020] NSWCCA 336
Decision Date: 17 December 2020

CaseChat Overview and Summary

The case of Sypher v R involved the appellant, who was appealing against the sentence imposed for committing an act intended to pervert the course of justice. The appellant's background was marked by significant disadvantage and dysfunction, which the court needed to consider in the sentencing process. The appeal was heard by the court, which was tasked with determining whether the sentencing judge had erred by not adequately considering the appellant's disadvantaged background and mental health as mitigating factors in the sentencing.

The primary legal issue before the court was whether the sentencing judge failed to sufficiently account for the appellant's personal circumstances, which included profound disadvantage and dysfunction, when determining the appropriate sentence. The court needed to assess if the sentencing judge's acknowledgment of these circumstances was sufficient or whether it was necessary to further mitigate the weight given to the general deterrence aspect of the sentence. The court considered whether the sentencing judge's recognition of the appellant's circumstances was adequate or if it fell short of the legal requirement to incorporate these factors into the sentencing decision.

The court found that the sentencing judge had acknowledged the appellant's personal circumstances but had not appropriately factored them into the sentencing process. The court held that merely referencing the appellant's circumstances was insufficient; instead, these factors should have been used to mitigate the weight given to general deterrence. The court concluded that the sentencing judge ought to have applied the appellant's background and mental health as mitigating factors, thereby reducing her moral culpability. Consequently, the appeal was allowed, and the case was remitted to the sentencing court for reconsideration.

The final orders of the court were that the appeal against the sentence was allowed, and the case was to be remitted to the sentencing court for a re-sentencing hearing. The court instructed the sentencing judge to take into account the appellant's disadvantaged background and mental health as mitigating factors, thereby appropriately reflecting the appellant's reduced moral culpability in the final sentence.

Orders