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Court of Criminal Appeal 18 October 2019

Isbitzki v R

[2019] NSWCCA 247

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE HEAD SENTENCE OF 6 YEARS’ IMPRISONMENT COURT OBLIGED TO RESENTENCE

Citation: Isbitzki v R [2019] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 18 October 2019
Judges: Payne JA, Fullerton J, Adamson J

Background

The applicant pleaded guilty in the Local Court to one count of aggravated break and enter with intent to commit larceny, contrary to s 113(2) of the Crimes Act 1900 (NSW), which carries a maximum of 14 years' imprisonment. The aggravating factor was the use of a weapon: a meat cleaver and screwdriver. A further offence of intimidation was taken into account on a Form 1 (meaning it was considered when fixing the sentence without a separate conviction being recorded).

The offence occurred in the early hours of 8 April 2016, when the applicant and co-offenders entered a Bonnyrigg residence after waking its occupants. Before entering, the applicant confronted the male occupant while holding weapons and made threats. The applicant was arrested inside the premises when police arrived shortly afterwards.

At the time of the offending, the applicant was serving a sentence for driving offences arising from a December 2015 motorcycle crash in which he sustained a severe diffuse axonal brain injury. Expert neuropsychological evidence before the sentencing court identified pronounced cognitive deficits flowing from that injury. The District Court imposed a head sentence of 6 years with a non-parole period of 4 years and 6 months. The applicant sought leave to appeal that sentence.

  • Whether the sentencing judge erred by treating the offending as aggravated, given the circumstances of the entry
  • Whether the sentencing judge failed to give proper weight to the applicant's traumatic brain injury as a mitigating factor
  • Whether special circumstances existed that warranted a departure from the standard non-parole period ratio, given the applicant's significant rehabilitation needs

Decision

On the aggravation ground, the Court of Criminal Appeal found there was sufficient basis to make out the aggravated nature of the offence. The use of a meat cleaver was established on the facts, and this ground of appeal did not succeed.

On the brain injury ground, the Court found the sentencing judge had not given proper weight to the applicant's traumatic brain injury and its effects on his cognitive functioning, judgment, and susceptibility to negative influences from co-offenders. Expert evidence from the forensic neuropsychologist Dr Ashkar established pronounced and widespread cognitive deficits, including impaired impulse control, memory, processing speed, and higher-order reasoning. The Court accepted that these deficits, in all probability, contributed to the applicant's involvement with co-offenders and to the commission of the offence.

On special circumstances, the Court found that the applicant's demonstrable rehabilitation needs, which could not adequately be met in custody, were better addressed through an extended period on parole under supervision in the community. This justified a departure from the standard non-parole period ratio. The Court was also satisfied that the applicant's condition had deteriorated during custody, largely because he had not received treatment remotely consistent with what Dr Ashkar had identified as necessary. These errors collectively obliged the Court to resentence the applicant.

The head sentence was reduced from 6 years to 3 years and 9 months, with a non-parole period of 2 years and 3 months. A 25 per cent discount for the early guilty plea was maintained.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed in the District Court on 10 March 2017 quashed
  • In lieu thereof, a sentence of imprisonment of 3 years and 9 months imposed, commencing 8 May 2016 and expiring 7 February 2020, with a non-parole period of 2 years and 3 months expiring 8 August 2018

Key Takeaways

  • A severe traumatic brain injury with documented cognitive sequelae, including impaired impulse control and susceptibility to outside influence, can constitute significant mitigation that a sentencing court must properly weigh when determining the appropriate head sentence.
  • Special circumstances can be established where an offender has pronounced rehabilitative needs that are demonstrably better addressed through extended community-based supervision on parole, particularly where custody has failed to provide adequate treatment.
  • The Court of Criminal Appeal confirmed that deterioration in an offender's condition during custody, arising from inadequate treatment, is a relevant consideration on resentencing.
  • Where expert neuropsychological evidence before the original sentencing court was not adequately reflected in the sentence imposed, an appellate court will be obliged to resentence rather than simply adjust the existing orders.
  • A finding that co-offenders likely exploited an offender's cognitive impairment does not eliminate moral culpability, but it is a matter the sentencing court must weigh in assessing the extent of that culpability.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113(2)
- Crimes (Forensic Procedures) Act 2000 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Aslan v R [2014] NSWCCA 114
- Hejazi v R [2009] NSWCCA 282
- Kaderavek v R [2018] NSWCCA 92
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- R v Hughes [2018] NSWCCA 2
- R v Johnson [2004] NSWCCA 76
- R v Newman; R v Simpson [2004] NSWCCA 102
- Tepania v R [2018] NSWCCA 247
- Yun v R [2017] NSWCCA 317