Isbitzki v The Queen - [2019] NSWCCA 247

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Isbitzki v R [2019] NSWCCA 247
Hearing dates: 27 September 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Before: Payne JA at [1]
Fullerton J at [2]
Adamson J at [80]
Decision:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The sentence imposed in the District Court on 10 March 2017 is quashed.
4. In lieu thereof, a sentence of imprisonment of 3 years and 9 months is imposed commencing on 8 May 2016 and expiring on 7 February 2020 with a non-parole period of 2 years and 3 months expiring on 8 August 2018.

Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to one count of aggravated break and enter with intent to commit a serious indictable offence – further offence of intimidation taken into account on sentence – head sentence of 6 years’ imprisonment – whether the sentencing judge erred in their treatment of the offending as aggravated – sufficient basis to make out aggravation – whether the sentencing judge failed to give proper regard to the applicant’s traumatic brain injury – where the applicant had previously sustained a diffuse axonal injury – whether the sentencing judge should have found special circumstances – where the applicant has significant rehabilitative needs in light of his brain injury – Court obliged to resentence – applicant resentenced to head sentence of 3 years and 9 months’ imprisonment
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Forensic Procedures) Act 2000 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: 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
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
Category: Principal judgment
Parties: Jason Mark Isbitzki (Applicant)
The Crown (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
D Patch (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for the Public Prosecutions (Crown)

File Number(s): 2016/106961
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

10 March 2017

Before:

Hatzistergos DCJ

File Number(s):

2016/106961

Judgment

PAYNE JA: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal a sentence of imprisonment of 6 years comprised of a non-parole period of 4 years and 6 months and a balance of term of 18 months imposed by Hatzistergos DCJ on 10 March 2017 after pleading guilty in the Local Court to one count of aggravated break and enter with intent to commit a serious indictable offence, namely larceny, contrary to s 113(2) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 14 years. The aggravating…

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 Isbitzki v The Queen

Details

AGLC: Isbitzki v The Queen [2019] NSWCCA 247
Case: [2019] NSWCCA 247
Decision Date: 18 October 2019

CaseChat Overview and Summary

The case of Isbitzki v The Queen involved an appeal against sentence. The applicant, Isbitzki, had pleaded guilty to one count of aggravated break and enter with intent to commit a serious indictable offence, and a further offence of intimidation was taken into account during sentencing. The primary issue before the court was whether the sentencing judge had erred in their treatment of the offending as aggravated, and whether the judge failed to give proper regard to the applicant's traumatic brain injury in determining the sentence. Additionally, the court had to consider whether special circumstances should have been found, given the applicant's significant rehabilitative needs arising from his brain injury.

The court found that the sentencing judge had a sufficient basis to characterise the offending as aggravated. However, it was determined that the sentencing judge did not adequately consider the impact of the applicant's traumatic brain injury, specifically a diffuse axonal injury, on his capacity for rehabilitation. The court held that the sentencing judge should have found special circumstances due to the applicant's significant rehabilitative needs, which stemmed from his brain injury. Consequently, the court was obliged to resentence the applicant.

Following the court's re-evaluation of the case, the applicant was resentenced to a head sentence of 3 years and 9 months’ imprisonment, reflecting the need to take into account his brain injury and rehabilitative needs. The court's decision underscores the importance of considering mitigating factors, such as significant health issues, in the sentencing process.

Orders