Citation: Imbornone v R [2017] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 5 July 2017
Judges: Hoeben CJ at CL, R A Hulme J, Wilson J
Background
The applicant pleaded guilty to a series of serious offences arising from two separate incidents of violence in the Newcastle area in 2014 and 2015. The first incident involved aggravated break and enter, detention of a victim for advantage, and reckless wounding in company. The second involved assault occasioning actual bodily harm and stealing a motorbike from a person. The applicant was also dealt with for breaching a bond for an earlier driving offence.
The District Court sentenced the applicant to an aggregate term of nine years' imprisonment with a non-parole period of five years and six months. The applicant received a 25 per cent discount for his early guilty pleas to the first set of offences and a lesser 10 per cent discount for his late guilty pleas to the second set, entered the day after his trial was listed to commence.
The applicant sought leave to appeal, contending that the sentencing judge had erred in his treatment of remorse, mental illness, and the need for rehabilitation, and that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by giving insufficient weight to the applicant's remorse, which was established only through assertions made to a third party (a forensic psychologist) rather than by the applicant directly in evidence.
- Whether the sentencing judge gave insufficient weight to the applicant's mental illness, specifically a diagnosis of post-traumatic stress disorder (PTSD), in mitigating sentence.
- Whether inadequate weight was given to the need for rehabilitation as a sentencing consideration.
- Whether the aggregate sentence was manifestly excessive.
Decision
On the question of remorse, Wilson J held that the sentencing judge made no error. The applicant had not given evidence at the sentence hearing. His expressions of remorse were conveyed only through assertions recorded in a forensic psychologist's report. The court confirmed the applicable principle: untested statements made to third parties are of limited evidentiary weight and may appropriately be treated with scepticism, particularly where the assertions are self-interested and incapable of verification. The sentencing judge had taken those expressions into account but was not obliged to accept them at face value.
On mental illness, the court found that the sentencing judge had properly considered the applicant's PTSD diagnosis and its relevance to his moral culpability and likely experience of custody. However, the sentencing judge was not required to go further, given that the forensic psychologist's opinion about the impact of custody appeared to conflict with what the applicant had told the doctor himself, namely that his mental health had been "pretty good" while in custody. The court noted the established principle that mental illness is relevant to sentencing but does not operate as a fixed mitigating factor in every case.
The rehabilitation ground failed on similar reasoning. The applicant had told the author of his pre-sentence report that drug use was not a problem for him and that he did not need assistance. Evidence also showed that he had previously abandoned a residential drug rehabilitation programme after one week and had relapsed into drug use on the day of his release from an earlier period of custody. The sentencing judge had nonetheless found special circumstances to extend the non-parole period, which the Court of Criminal Appeal considered generous in the circumstances.
With the individual grounds having failed, the manifest excess ground also failed. The Court of Criminal Appeal concluded that the aggregate sentence was within the proper exercise of the sentencing discretion and that no error had been established.
Orders Made
- Leave to advance Ground 1 (remorse) refused.
- Leave to appeal otherwise granted, but the appeal dismissed.
Key Takeaways
- Assertions of remorse made to third parties, such as forensic psychologists, and not tested by cross-examination carry reduced evidentiary weight; a sentencing judge is not obliged to accept them, though cannot entirely disregard them either.
- The Court of Criminal Appeal confirmed the tension between two lines of authority on untested affidavit or third-party evidence of remorse: the majority in Van Zwam v R [2017] NSWCCA 127 held that such evidence cannot be rejected outright in the absence of challenge, while the approach in R v Harrison [2001] NSWCCA 79 endorses treating purely self-interested and unverified assertions with scepticism.
- Mental illness is a relevant but not determinative mitigating factor in sentencing; where an expert opinion conflicts with the offender's own account of his condition, the sentencing judge is not required to treat the diagnosis as more significantly mitigating than the evidence supports.
- A late guilty plea, entered the day after a trial was listed to commence, attracted only a 10 per cent discount in this case, compared to 25 per cent for early pleas entered in the Local Court.
- In dismissing the appeal, the Court of Criminal Appeal reinforced that findings of special circumstances and adjustments for rehabilitation remain matters within the sentencing discretion, and generous findings in those areas do not create a platform for further reduction on appeal.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 35(3), 59(1), 94, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 53A
- Road Transport Act 2013 (NSW), s 54(1)(a)
Cases
- Van Zwam v R [2017] NSWCCA 127
- R v Harrison (2002) 121 A Crim R 380; [2001] NSWCCA 79
- DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
- R v Engert (1995) 84 A Crim R 67
- R v Palu (2002) 134 A Crim R 174
- R v Qutami [2001] NSWCCA 353
- Butters v R [2010] NSWCCA 1
- Pfitzner v R [2010] NSWCCA 314
- Munro v R [2006] NSWCCA 350
- R v Elfar [2003] NSWCCA 358
- R v McGourty [2002] NSWCCA 335
- Srikantharajah v R [2012] NSWCCA 209