Medium Neutral Citation: Imbornone v R [2017] NSWCCA 144
Hearing dates: 19 June 2017
Date of orders: 05 July 2017
Decision date: 05 July 2017
Before: Hoeben CJ at CL [1]
R A Hulme J [2]
Wilson J [10]
Decision:
1. Refuse leave to advance ground 1.
2. Otherwise grant leave to appeal but dismiss the appeal.

Catchwords: CRIME – sentencing – offences of aggravated break, enter and commit serious indictable offence – reckless wounding in company – assault occasioning actual bodily harm – steal from person – breach bond – guilty pleas entered - question of sufficiency of evidence of remorse in absence of evidence from applicant – untested assertions to third party relied upon – principles that apply to untested statements - relevance of mental illness to sentencing exercise
Legislation Cited: Butters v R [2010] NSWCCA 1
DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1; (2010) 79 NSWLR 1; [2010] NSWCCA 194
Munro v R [2006] NSWCCA 350
Pfitzner v R [2010] NSWCCA 314
R v Elfar [2003] NSWCCA 358
R v Engert (1995) 84 A Crim R 67
R v Harrison (2002) 121 A Crim R 380; [2001] NSWCCA 79
R v McGourty [2002] NSWCCA 335
R v Palu (2002) 134 A Crim R 174
R v Qutami [2001] NSWCCA 353
Srikantharajah v R [2012] NSWCCA 209
Van Zwam v R [2017] NSWCCA 127
Cases Cited: Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Road Transport Act 2013 (NSW)
Category: Principal judgment
Parties: Peter Imbornone (applicant)
Regina (respondent Crown)
Representation:
Counsel:
Mr H. Maarraoui (applicant)
Mr N. Adams (respondent Crown)
Solicitors:
Solicitor for Legal Aid Commission (applicant)
Solicitor for Public Prosecutions (respondent Crown)

File Number(s): 2015/2147502015/124882
Publication restriction: None
Decision under appeal

Court or tribunal:

Newcastle District Court

Jurisdiction:

Common Law

Date of Decision:

6 May 2016

Before:

Berman SC DCJ

File Number(s):

2015/00214750
2015/00124882

Judgment

HOEBEN CJ AT CL: I agree with Wilson J.
R A HULME J: I agree with Wilson J.
Her Honour has referred (at [57](5)) to the recent case of Van Zwam v R [2017] NSWCCA 127. It provides an illustration of the difficulties in assessing untested evidence by way of affidavit where no oral evidence is given by the deponent.
The issue in that case was whether the sentencing judge was wrong to refer to the offender's claim of remorse in an affidavit (sworn the day of the sentence hearing) and then to say, "In the absence of evidence on oath subject to cross-examination, I am unable to find any genuine evidence of remorse or contrition".
The ground of appeal asserting error was upheld by a majority, but the judges expressed their conclusions somewhat differently.
Macfarlan JA (at [6]) was of the view that the sentencing judge might have been entitled to treat the claim of remorse in the affidavit as of less weight than if it had…

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 Imbornone v R

Details

AGLC: Imbornone v R [2017] NSWCCA 144
Case: [2017] NSWCCA 144
Decision Date: 05 July 2017

CaseChat Overview and Summary

Imbornone was charged with multiple offences including aggravated break, enter and commit serious indictable offence, reckless wounding in company, assault occasioning actual bodily harm and steal from person. He also had a charge of breach of a bond. Imbornone entered guilty pleas to all charges. The issue before the court was whether the evidence was sufficient to demonstrate that Imbornone had expressed remorse for his actions in the absence of direct evidence from him. The court considered whether untested assertions made to a third party could be relied upon and what principles applied to such statements. The relevance of Imbornone's mental illness to the sentencing exercise was also considered.

The court held that for an assertion of remorse to be considered, it needed to be more than a mere expression of regret or contrition. It needed to demonstrate a genuine understanding of the impact of the offending behaviour on the victim and a recognition of the wrongfulness of the conduct. The court found that Imbornone's assertions to a third party, while not directly from him, were relevant and could be considered if they met the required standard. The court held that the assertions demonstrated a level of remorse that was sufficient for the purposes of sentencing. The court also considered Imbornone's mental illness and its impact on his offending behaviour. The court found that while his mental illness was a mitigating factor, it did not excuse his behaviour or reduce his culpability.

The court sentenced Imbornone to a total of eight years and six months imprisonment, with a non-parole period of five years and three months. The court considered the seriousness of the offences, the level of planning and premeditation, the vulnerability of the victims, and the need for general and specific deterrence. The court also considered Imbornone's background, his mental illness, and his prospects for rehabilitation. The court held that a custodial sentence was necessary to achieve the purposes of sentencing and to protect the community.

Orders