Citation: R v Imbornone [2016] NSWDC 305
Court: District Court of New South Wales
Date: 6 May 2016
Judge: Berman SC DCJ
Background
The offender faced sentencing across three separate sets of offences. The most serious arose from events on 29 September 2014, when he and an unidentified co-offender forced their way into a Mayfield unit by threatening the occupant, Sarah Lewis, with weapons. The men detained Ms Lewis inside the unit, armed with knives, while demanding money they claimed she owed. When her partner, David Forbes, returned home and confronted the men, he was stabbed in the stomach during the ensuing struggle and required hospital surgery.
The second set of offences arose from an assault on 5 March 2015, when the offender attacked a former schoolmate, Todd Wrench, punching him repeatedly and then stealing his motorcycle, apparently motivated by a belief that Wrench had sold drugs to the offender's niece.
The third matter was a driving-while-disqualified offence that came before the District Court following a breach of a bond imposed by a magistrate, to which the offender consented to the Court dealing with.
Legal Issues
- What aggregate sentence was appropriate across the multiple offences, having regard to their objective seriousness and the offender's personal circumstances?
- What guilty plea discounts applied: 25 per cent for the early pleas to the home invasion offences, and 10 per cent for the later pleas relating to the Wrench offences?
- Whether the standard non-parole periods should be imposed for the two offences to which they applied (aggravated break, enter and commit serious indictable offence; reckless wounding in company), and if not, why not?
- What weight should be given to mitigating factors including the offender's post-traumatic stress disorder, personal history, and remorse?
Decision
Berman SC DCJ characterised the home invasion offences as objectively very serious. Ms Lewis was detained for a significant period in a state of extreme fear while armed men remained in her home. The judge noted that her distress was profound, including expressed fear of sexual assault, and that the offender was carrying a knife throughout the detention. When Mr Forbes returned and attempted to defend his home, the offender thrust a knife at him, ultimately stabbing him in the stomach. His Honour found this conduct demonstrated a high degree of recklessness toward the risk of injury.
For the offences carrying standard non-parole periods, a 25 per cent discount was applied for early guilty pleas. For the Wrench offences, a 10 per cent discount applied, consistent with the Crown's submission and unchallenged by the defence. The judge declined to impose the standard non-parole periods, with reasons given in the remarks on sentence, and instead set individual component sentences before arriving at an aggregate.
The offender's personal circumstances, including a diagnosis of post-traumatic stress disorder, were taken into account. His Honour observed that PTSD would make the experience of imprisonment harder throughout the entirety of the sentence, and this was a relevant consideration in the overall assessment. Nonetheless, the objective gravity of the home invasion and reckless wounding demanded a substantial custodial term.
Rather than imposing consecutive or concurrent sentences for each discrete offence, the judge imposed a single aggregate sentence under the Crimes (Sentencing Procedure) Act, combining all matters into one head sentence with a fixed non-parole period.
Orders Made
- Aggregate sentence of imprisonment: head sentence of nine years, with a non-parole period of five and a half years, commencing 30 April 2015
- Non-parole period to expire 29 October 2020, at which date the offender becomes eligible for release to parole
- Compensation order in favour of NRMA in the sum of $4,034.18
(Component sentences, had the aggregate not been imposed, would have been: three months for driving while disqualified; six years with a non-parole period of three and a half years for aggravated break, enter and commit a serious indictable offence; five years with a non-parole period of three years for reckless wounding in company; two years each for assault occasioning actual bodily harm and stealing from the person.)
Key Takeaways
- An aggregate sentence under the Crimes (Sentencing Procedure) Act was applied across five distinct offences spanning two separate incidents, with the component sentences itemised in the remarks to maintain transparency about the weight accorded to each offence.
- Early guilty pleas attracted a 25 per cent sentencing discount for the home invasion matters, while the later plea in relation to the assault and theft drew only a 10 per cent discount, illustrating how the timing of a plea directly affects the reduction available.
- The standard non-parole periods applicable to the aggravated break and enter and reckless wounding offences were not applied, with the District Court providing specific reasons within its sentencing remarks for departing from those benchmarks.
- Objective seriousness was assessed by reference to the duration and quality of the victim's detention, the use of weapons, and the fact that the wounding of Mr Forbes occurred when he was lawfully attempting to defend his own home.
- A diagnosed mental health condition (PTSD) was treated as a relevant mitigating factor, specifically on the basis that it would render the experience of custody harder, rather than as a basis for significantly reducing the custodial term given the gravity of the conduct.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases cited: None stated in the judgment.