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District Court 10 March 2017

R v Isbitzki

[2017] NSWDC 41

Theft & propertyFirearms & weaponsDomestic & family violence
CRIMINAL LAW OFFENDER ARMED INTIMIDATION SENTENCE OBJECTIVE SERIOUSNESS OF THE OFFENCE AGGRAVATING FACTORS MITIGATING FACTORS

Citation: R v Isbitzki [2017] NSWDC 41
Court: District Court of New South Wales
Date: 10 March 2017
Judge: Hatzistergos DCJ

Background

In the early hours of 8 April 2016, an offender and two co-offenders broke into a residential property at Bonnyrigg while the occupants were asleep. The occupants were woken by breaking glass, came downstairs, and encountered the offender outside the premises. He was masked and disguised, carrying a screwdriver and a meat cleaver, and threatened the male victim with violence and warned both victims not to call police.

The offender and one co-offender then entered the premises while the third co-offender stood watch. The offender was ultimately found inside the house by police, who arrested him at the rear door. A large rusted meat cleaver was found on the ground beside him.

The offender was committed to the District Court for sentencing on a charge of aggravated break and enter with intent to commit larceny, whilst armed with an offensive weapon, under s 113(2) of the Crimes Act 1900 (NSW). A related intimidation offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was taken into account on a Form 1 (a procedure allowing the court to take additional offences into account when passing sentence on the principal offence).

  • What was the objective seriousness of the offence, taking into account the nature of the target offence (larceny), the presence of victims, weapons, planning, and commission in company?
  • What aggravating factors applied, including the offender's criminal history and the fact that he was on bail at the time?
  • Whether the offender's drug addiction constituted a mitigating factor in the sentencing exercise.
  • Whether the offender's traumatic brain injury reduced his moral culpability.
  • What weight to give to an early guilty plea, demonstrated remorse, and prospects of rehabilitation.
  • Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and head sentence.

Decision

Hatzistergos DCJ assessed the offence as falling well within the mid-range of objective seriousness. Although larceny sits at the lower end of the "serious indictable offences" captured by s 113(2), the overall circumstances elevated the seriousness considerably. The offence was committed at 1 am in an occupied dwelling, in company, with disguise and pre-planned disruption of the power supply, against victims who were directly confronted and threatened with weapons.

Several aggravating factors applied under the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender's extensive criminal history involving property and drug matters; and the fact that he committed this offence while on bail for multiple earlier charges. The court did not find the offence was aggravated under s 21A(2)(g) (actual physical harm) due to an absence of supporting facts, but it did accept that the offence was committed against the victims in their home, engaging s 21A(2)(eb).

On the question of addiction, the court accepted that the offender's longstanding dependence on heroin and methamphetamine was relevant context, but did not treat addiction alone as a mitigating factor. Similarly, the court considered medical evidence concerning the offender's traumatic brain injury (sustained before the offending), which affected impulse control and decision-making. The court found this had some bearing on moral culpability, though not a decisive one given the degree of planning demonstrated.

Mitigating factors accepted by the court included the early guilty plea (to which a discount was applied under s 22(1) of the Crimes (Sentencing Procedure) Act 1999), demonstrated remorse, the offender's difficult personal history, and some prospects of rehabilitation. No special circumstances were found to justify varying the standard non-parole period ratio.

Orders Made

• An additional term commencing 7 May 2021 and expiring 6 November 2022
• Offender eligible for parole release at the earliest on 7 May 2021
• Referral to the Drug Court of NSW pursuant to s 18B(2)(b) of the Drug Court Act 1998 (NSW) to determine whether the offender should be subject to a compulsory drug treatment order

Key Takeaways

  • The District Court confirmed that the seriousness of the underlying "serious indictable offence" (here, larceny) is relevant but not determinative when assessing objective seriousness under s 113(2) of the Crimes Act 1900; all circumstances of the offence must be weighed.
  • Drug addiction is not automatically a mitigating factor in sentencing; the court must examine the relationship between the addiction and the offending conduct, and addiction that merely provides a backdrop to planned criminal activity carries less weight.
  • A traumatic brain injury affecting impulse control can bear on an offender's moral culpability, but its mitigating effect will be tempered where the offending involved a degree of planning and deliberate preparation.
  • Committing an offence while on bail constitutes a statutory aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, and the court applied this without controversy.
  • No special circumstances were found, meaning the standard ratio between the non-parole period and the total head sentence was maintained.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 105A(1), 113(2), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(3), 22(1), 32
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Drug Court Act 1998 (NSW), s 18B(2)(b)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 (2002) 56 NSWLR 146
- Bichar v R [2006] NSWCCA 1
- Dang v R [2013] NSWCCA 246
- Hayek v R [2016] NSWCCA 126
- Hejazi v R [2009] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Palijan v R [2010] NSWCCA 142
- Porter v R [2008] NSWCCA 145
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Huynh [2005] NSWCCA 220
- R v Johnson [2004] NSWCCA 76
- R v Lulham [2016] NSWCCA 287
- R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Wright (1997) 93 A Crim R 48
- Williams v R [2010] NSWCCA 15