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

1. PAYNE JA: I agree with Fullerton J.

2. 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 factor was the use of a weapon, being a meat cleaver. A discount of 25 per cent was applied for the plea of guilty.

3. One count of intimidation with the intention of causing fear of physical harm was taken into account on a Form 1.

4. The applicant has been in custody since the date of his arrest on 8 April 2016.

5. The sentence was ordered to commence from 7 November 2016 at the expiration of a non-parole period of 6 months imposed in the Local Court on 8 April 2016 for offences of driving whilst disqualified and driving a conveyance without consent, the latter offence being the use of a motorcycle on 13 December 2015 in the course of which the applicant suffered a traumatic brain injury.

6. The applicant is eligible for release to parole on 6 May 2021. The balance of term will expire on 6 November 2022.

The facts

7. The applicant was sentenced on the basis of an agreed statement of facts which were summarised in the reasons for sentence as follows:

8. At approximately 1:00am on 8 April 2016, the occupants of a residence at Bonnyrigg were woken by the sound of breaking glass. As the male occupant got to the bottom of the stairs and tried unsuccessfully to turn the lights on, he called out and the sound of breaking glass stopped. The street lights illuminated the living room and revealed that one of the windows had been broken. Both occupants left through the front door, leaving it open. The screen door closed automatically behind them.

9. The applicant was standing near the letter box at the front of the house. He was wearing a black hoodie, a mask, a beanie, sunglasses and gloves.

10. He walked up to the occupants and said, “Don’t call the cops - back off!” He had a screw driver and a meat cleaver in his hands. The male backed away and in doing so, stumbled over some bushes and fell to the ground. As he was calling out, “Back off! Back off!”, the applicant continued to walk towards him, holding the screwdriver and pointing it at him. The applicant then stood over him and said, “If you call the cops, we know where you live”. (This is the conduct the subject of the offence on the Form 1).

11. At this point, the applicant’s two co-offenders walked around from the side of the house. One of them demanded money. The male got to his feet and ran towards their neighbour’s property with his wife. They called their neighbour for help and asked that they call police.

12. The applicant and one of his co-offenders then opened the screen door and entered the premises. The third co-offender stayed outside and a short time later ran off. Whilst the applicant and the co-offender were inside the house, the male occupant tried to turn the power back on, however it appeared that the power box had been damaged. The remaining co-offender then left the house and walked away leaving the applicant inside. The police arrived a short time later.

13. As the police approached the front door, the applicant approached the door from the inside. Senior Constable Fraser said, “It’s police come out!” The applicant said, “I live here”. Senior Constable Fraser then opened the screen door. The applicant turned around and ran towards the back door, but was unable to open it. Senior Constable Fraser drew his taser and directed the applicant to get to the ground. The applicant complied. He was then arrested and cautioned.

Other evidence tendered on sentence

14. A number of photographs were tendered by the Crown, including a photograph of the window at the rear of the premises the lower pane of which was shattered, presumably with a view to effecting entry into the house before being disturbed by the occupants. There was no evidence that there was any “entry” at that time. It would seem that the “breaking and entry” the subject of the charge was effected when the applicant and one of his co-offenders opened the screen door to the house and entered while the occupants were outside raising the alarm. There is no evidence as to what the applicant did, if anything, inside the house before the arrival of police. By his plea he acknowledged an intention to steal. There was no evidence anything was taken or disturbed. For reasons which are not explained, the applicant was not interviewed by police.

15. The sentencing court was also provided with the applicant’s criminal record. Aside from a number of entries for offences of break, enter and steal committed when the applicant was a juvenile, none of the multiple entries thereafter involve offending of that kind. The great majority of entries are for driving offences or offences involving motor vehicles (offending which extends from 2000 to 2015). In March 2008 the applicant committed a number of firearms offences (each of which involved the sale of a firearm as distinct from its use) for which he was sentenced to concurrent terms of imprisonment of 6 years with a non-parole period of 4 years.

16. Upon his release to parole in 2013, he reoffended by the illegal taking or use of motor vehicles, including the offences in December 2015 in the course of which he sustained a diffuse axonal injury when a motorcycle he was riding at 180km/h crashed into a tree. He also suffered a right femoral fracture and a thoracic spinal fracture in the accident. He emerged from post-traumatic amnesia (a measure of the severity of his brain injury) after six weeks. He discharged himself from hospital four days later against medical advice.

17. The applicant also has multiple entries on his criminal record for possession of prohibited drugs and one offence of supply which attracted a sentence of imprisonment for 12 months (a non-parole period of 9 months) in 2008.

Dr Ashkar’s report

18. The applicant tendered a report from Dr Peter Ashkar, forensic psychologist and clinical neuropsychologist, dated 20 February 2017 and a letter from his mother in which she made observations of changes in her son’s behaviour after he sustained the brain injury in December 2015. That material, together with a comprehensive neurological assessment, was the subject of detailed consideration in Dr Ashkar’s report. It was the foundation for his ultimate opinion which is encapsulated in the following extract:

[The applicant] is a 35-year-old man with a history of severe traumatic brain injury who is facing sentencing on one count of ‘aggravated break and enter with intent to steal’ and one count of ‘intimidation’. He has a long history of offending behaviour, which appears to have its origins in his history of Attention Deficit/Hyperactivity Disorder (that being said, other factors such as peer group associations and substance use were clearly at play because most children with ADHD do not go on to become persistent offenders). However, much of his offending history is minor in nature and he is not by nature a violent offender. The current offences appear to be somewhat out of character and influenced by his co-offenders (and to a lesser extent his poorly controlled substance use). His traumatic brain injury is an important contributing factor to the extent that it limits his thinking and judgement (which makes him especially vulnerable to the negative influences of unscrupulous people) and limits his ability to control his substance use (above and beyond his pre-existing history of poorly controlled substance use). He expressed considerable regret and remorse for his behaviour and he appeared genuine in this regard.

The findings from his assessment demonstrate that [the applicant] has pronounced and widespread cognitive deficits arising from his traumatic brain injury in 2015. These include deficits in information processing speed (eg he is very slow to process information), verbal and language skills (eg he has difficulty retrieving words from his lexicon, there is loss of semantic material), memory (eg he has difficulty learning new material and retrieving stored material), and higher-level thinking (eg planning, organisation, self-monitoring, complex/divided attention, inhibition/impulse control, and abstract reasoning). He has significant rehabilitative needs (ie physical, emotional/psychiatric, and cognitive) and he requires a high level of management and support. His treatment needs cannot be met in a custodial setting due to the widespread impairments in his cognition and the limited resources available to him there (he has special needs that need to be managed by clinicians who have experience managing the behavioural, emotional, cognitive, and physical sequelae of traumatic brain injury) and he requires specialised treatments to support his recovery.

The Westmead Hospital Brain Injury Rehabilitation Service know him and he will be able to access the treatment that he needs through this service when he returns to the community (the sooner the better for his recovery). He is struggling to come to terms with the breakdown of his relationship and his estrangement from his children, and supportive counselling that helps him to work through this aspect of his life will be extremely important in his management and rehabilitation (NB: all stress will compromise his ability to focus on his treatment). His risk of suicide is elevated because of the mood disturbance and impulsivity associated with his traumatic brain injury and close monitoring of his mental state by psychiatry and/or psychology is strongly advised until he is able to demonstrate emotional/ psychiatric stability. Treatment compliance may be an issue (this is a common difficulty in patients with traumatic brain injury) and he will require close monitoring and professional support (such as that offered by Probation and Parole Services) to ensure his stable and adaptive functioning within the community.

(Emphasis added.)

19. In another part of his report, Dr Ashkar recorded the applicant informing him that he was “probably using methamphetamine (and possibly also heroin)” at the time of the offending. Dr Ashkar went on to note:

[The applicant] told me he barely knew his co-offenders and did not know his victims. He said he “just went along” with his co-offenders for the money: “I thought I was going to get some money to live, for food … I freaked out … I wanted to go (after arriving at the crime scene)”.

20. In informing Dr Ashkar that he had no memory of the motorcycle accident or his hospitalisation, the applicant reported:

… persistent difficulties with memory and other forms of thinking (eg expressing ideas in his head), increased difficulties with behavioural regulation (eg he reported he becomes angry, frustrated and aggressive more easily), headache, disturbance to his sleep-wake cycle, and ongoing difficulties with fatigue at the time of his review at the Westmead Brain injury Rehabilitation Service (08.03.16).

21. On the applicant’s presentation for the purposes of preparing his report but prior to final neurological assessment, Dr Ashkar noted the following:

[The applicant] was taking Tramadol (opioid) for the management of pain and Epilim (anticonvulsant) as a prophylaxis to protect against seizures (anticonvulsants are commonly prescribed to protect against seizures following serious traumatic brain injury). He did not impress as anxious or clinically depressed and he denied being so. There was no evidence of disordered thinking or psychosis. His behaviour was largely subdued and his affect was somewhat flat and restricted (although not entirely without variation). He was socially disinhibited at times (eg he commenced tasks before instructions were complete, he pulled down his pants to show me a scar on his behind) and he presented with glimpses of childlike immaturity. He was oriented to self and place but he was only partly oriented to time (eg he knew it was morning and he knew it was February but he could not tell me the day of the week or the date of the month and he said the year was 2016). His thinking impressed as inordinately slow. He had difficulty focusing and sustaining his attention and he required redirection to stay on task. Difficulties with language were evident (eg he struggled to express his thoughts and ideas, he had difficulty reading and understanding questions from a true-false questionnaire written at a Grade 6 reading level, and he had difficulty understanding instructions on occasions). His memory for facts and personally experienced events appeared poor (particularly in terms of detail and time).

The findings of the sentencing judge

22. The sentencing judge made a number of findings of fact which informed the exercise of his sentencing discretion. These included his consideration of a number of statutory aggravating factors and a number of mitigating factors in ss 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

23. Important amongst them were the following:

1. The applicant’s criminal record was described as “extensive” which the sentencing judge treated as a matter of aggravation in the sense that he was entitled to take the applicant’s record into account in considering the need for the sentence to address issues of retribution, deterrence and the protection of society (R v Johnson [2004] NSWCCA 76 was cited by the sentencing judge as authority for that proposition).

2. At the time of offending, the applicant was on bail for the driving offence in which he sustained the traumatic brain injury in December 2015 and for an offence of possessing a prohibited drug in March 2013.

3. The offence was committed for financial gain. In making that finding, the sentencing judge relied upon what the applicant told Dr Ashkar, namely that he committed the offence “to get some money to live, for food” (Hejazi v R [2009] NSWCCA 282 at [9]-[15] was cited as authority for that finding).

4. The sentencing judge accepted that remorse had been established based upon what the applicant told Dr Ashkar in the following passage extracted from his report:

I feel like shit … because I don’t do that … I don’t like rob people … They (the victims) shouldn’t have to go through what they went through … people coming to their house and robbing them.

Dr Ashkar went on to note:

[The applicant] expressed considerable regret and remorse for his behaviour and he appeared genuine in this regard.

24. After considering the evidence bearing upon the question of the applicant’s prospects of rehabilitation, including his age (36 at the time of sentence), his poor educational and vocational skills (he was expelled from school in Year 8 and has worked predominantly as a scaffolder since then) and his entrenched drug use, the sentencing judge concluded that the applicant’s prospects of rehabilitation were guarded. His Honour did acknowledge and accept that the applicant had been accepted into the Lifetime Care and Support Scheme which will fund his rehabilitation and the provision of care services upon his release. He also acknowledged that the applicant was regarded as a “management problem” as an inmate.

25. The sentencing judge gave separate consideration to the significance of the applicant’s traumatic brain injury; not in the context of an assessment of the objective seriousness of the offending per se but in considering the submission, advanced on the applicant’s behalf, that his moral culpability for the offending was reduced such that general deterrence, retribution and denunciation carried less weight in the sentencing exercise.

26. It is useful to set out his Honour’s assessment of the significance of the traumatic brain injury in full:

30. The offender’s mother disclosed in her statement dated 23 January 2017, that the offender had a major accident on a motor bike on 18 December 2015. In that accident, he injured his chest, spine, femur and brain. He was put into an induced coma for three weeks and was in hospital for two months. The offender discharged himself against doctors’ orders because of his brain and spinal injuries. Mrs Isbitzki observed that the offender’s bipolar disorder has become worse since the accident and “his balance is no good and when he walks he wobbles.” She states that the offender cannot remember which hospital he was in for recovery. Further, she states that the offender lost 14 kilograms in hospital and became more angry, frustrated and aggressive more easily since the accident. Finally, she states that he still continues to suffer from pain in the right leg and back pain causing him trouble sleeping.

31. There is no medical history of significance before the offender’s traumatic brain injury. Dr Ashkar notes that he has a significant ongoing rehabilitative need associated with his injury, being musculoskeletal therapy, occupational therapy and clinical psychology. He also notes a history that the offender has a history of heroin overdose since the injury, one being accidental and the other was when he had an episode of depression.

32. Dr Ashkar records:-

“His traumatic brain injury is an important contributing factor to the extent that it limits his thinking and judgement (which makes him especially vulnerable to the negative influences of unscrupulous people) and limits his ability to control his substance use (above and beyond his pre-existing history of poorly controlled substance use) …

The findings from this assessment demonstrate that Mr Isbitzki has pronounced and widespread cognitive defects arising from his traumatic brain injury in 2015. These include deficits in information processing speed (eg he is very slow to process information), verbal and language skills (eg he has difficulty retrieving words from his lexicon, there is loss of semantic material), memory (eg he has difficulty learning new material and retrieving stored material) and higher-level thinking (eg planning, organisation, self-monitoring, complex/divided attention, inhibition/impulse control and abstract reasoning) …”

27. Of the authorities, his Honour said:

36. … an offender’s mental condition can have the effect of reducing their moral culpability so that matters such as general deterrence, retribution and denunciation have less weight.

37. In R v Engert (1995) 84 A Crim R 67, Gleeson CJ:-

“… The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public …”

38. In R v Wright (1997) 93 A Crim R 48, the Court held that it was an accepted principle in terms of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality, because such an offender was not an appropriate medium for making an example to others. However, if an offender acts with knowledge of what he or she is doing and with knowledge of the gravity of the actions, the moderation need not be great.

39. As the offender’s submissions acknowledged, there was no evidentiary basis to suggest that the offender was not aware of the wrongfulness of his offending. In my view, any moderation for general deterrence should not be significant and greater significance attaches to specific deterrence and protection of the public. (Emphasis added.)

28. His Honour also considered the applicant’s mental and physical health in determining whether a finding of special circumstances should be made:

52. Dr Ashkar notes that the offender has “significant rehabilitative needs and requires a high level of management and support which cannot be met in a custodial setting due to widespread impairments in his cognition and the limited resources available to him there” as he requires specialised treatment to support his recovery.

53. Dr Ashkar also opines that on release the offender will require close monitoring and professional support to ensure his stable and adaptive functioning within the community. So much can be accepted. However Dr Ashkar does not opine as to the offender’s prospects of being rehabilitated.

54. I accept that the offender has strong family support. Nevertheless his significant needs, previous poor compliance with treatment, limited education and skills, poor record of compliance when previously on parole and lengthy substance abuse do not provide a basis to find that prospects of rehabilitation will be assisted with a longer period on parole.

55. In my view this is not an appropriate basis to find special circumstances and I decline to do so.

(Emphasis added.)

29. Finally, his Honour made an assessment of the objective seriousness of the offending as within the mid-range despite the fact that his Honour accepted that larceny, as the serious indictable offence the subject of the offending against s 113(2) of the Crimes Act, is an offence at the lower end of the scale of offences contemplated by the section.

30. In imposing sentence and using the maximum penalty of 14 years as a guidepost, his Honour said:

Having regards to the purposes of sentencing in s 3A of the [Crimes (Sentencing Procedure)] 1999 Act, the need for punishment and general deterrence remains even taking account of the offender’s circumstances. The need for personal deterrence, denouncement and protection of the community loom large. This was a serious offence. The offence was committed in company with an offensive weapon when the victims were at home. The offender needs to be made accountable for his actions and the harm to the victims recognised.

31. In taking into account the offence on the Form 1, the sentencing judge gave greater weight to personal deterrence and retribution.

The appeal

32. The applicant relies upon five grounds of appeal.

1. His Honour erred in finding that the offence was aggravated by reason of the fact that:

1. the applicant “knew that the victims were in the immediate vicinity of the premises where the offence was committed” (s 105A(1)(f) of the Crimes Act); and/or

2. the offence was “committed at the victims’ home” (s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act.

2. His Honour erred in failing to have proper regard to the applicant’s traumatic brain injury.

3. His Honour erred in failing to find special circumstances.

4. His Honour erred in wholly accumulating the sentence on earlier sentences.

5. The sentence imposed was otherwise manifestly excessive.

33. For the reasons which follow, I am not of the view that the first ground of appeal has been made out. However, I am satisfied that the second and third grounds of appeal should be upheld. Even were there no error of sentencing principle, I would have upheld the fifth ground of appeal. In my view, a discounted sentence of imprisonment of 6 years with a non-parole period of 4 years and six months is a sentence which, given its severity and structure, is “unreasonable or plainly unjust” (see R v Hughes [2018] NSWCCA 2).

34. In responding to the complaint the subject of the second, third and fourth grounds of appeal, the Crown submitted that each of the impugned findings were made in the proper exercise of the judge’s sentencing discretion and, that being the case, the applicant must identify a House v The King error.

35. In Markarian v the Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] Gleeson CJ, Gummow and Callinan JJ said of a House v The King error:

As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?)

The first ground of appeal

36. I have not have found error in the sentencing judge’s treatment of the offending as aggravated under either s 105A(1)(f) of the Crimes Act or s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act in the way complained of in the first ground of appeal. It was conceded by the applicant’s legal representatives at the sentencing hearing that the occupants were in the immediate vicinity of the premises (being outside their home but in a neighbouring property) when the offence of breaking and entering with intent was committed (presumably by the applicant opening the screen door of their home and entering it with intent). This is a sufficient basis to make out the aggravating factor in s 105A(1)(f) of the Crimes Act. Additionally, while by his plea of guilty the applicant admitted entering “a dwelling house”, it was open to the sentencing judge to find, as a separate aggravating feature, that the offence was committed in the home of the victims, as provided for in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act.

The second ground of appeal

37. The argument advanced by the applicant in support of the second ground of appeal is not a challenge to the exercise of the judge’s sentencing discretion. Rather, the error is said to source from the failure to appreciate the significance of what Dr Ashkar considered was a causal connection between the applicant’s traumatic brain injury and his offending, leading to a failure to make any proper assessment of the applicant’s moral culpability for the offending and an informed assessment of the objective seriousness of the offence.

38. The applicant submitted that Dr Ashkar’s finding of pronounced and widespread cognitive deficits suffered by the applicant as a result of the brain injury and which, in his unchallenged opinion, contributed in a casual sense to the offending, inter alia by impacting adversely on the applicant’s “thinking and judgment” and making him vulnerable to the negative influences of others, provided a sound basis for significant moderation in the weight to be given to both general and specific deterrence in the sentencing exercise. Additionally, the applicant submitted it is a sentencing error for the sentencing judge to have held that “the need for personal deterrence…loom[s] large” when sentencing a person suffering the sequelae of a traumatic brain injury at the time of the offending.

39. Although his Honour acknowledged that the applicant submitted that his moral culpability was reduced because of the causal connection between the offending and the traumatic brain injury, I am satisfied his Honour did not deal with that submission in a principled way.

40. In Aslan v R [2014] NSWCCA 114 at [34], Simpson J (as her Honour then was) (Adams and McCallum JJ agreeing), in referring to the principles which had been the subject of lengthy elucidation by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 said:

It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. (Emphasis added.)

41. In Yun v R [2017] NSWCCA 317 at [47] Latham and Bellew JJ said:

It is apparent that this Court has invariably determined since Muldrock (with the possible exception of Badans and Subramaniam) that an offender’s mental condition at the time of the commission of the offence is a critical component of “moral culpability” which in turn affects the assessment of “objective seriousness”. For these reasons, and in the absence of clear guidance from the High Court, the appellant’s contention that an assessment of objective seriousness of a standard non-parole period offence, post Muldrock, precludes consideration of the offender’s mental state, duress, provocation, and mental illness (where causally related to the commission of the offence) must be rejected.

42. In Tepania v R [2018] NSWCCA 247, Johnson J reviewed the concept of moral culpability as that concept is understood and applied in the law of sentencing. His Honour said:

113. …The term may be found in several decisions of the High Court. In Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14, it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability.

114. In Muldrock v The Queen (at 140 [58]), it was observed that the applicant’s limited moral culpability may mean that retribution and denunciation did not require significant emphasis.

…

117. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, French CJ, Bell, Keane and Nettle JJ said at 72 [70]:

“Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability.”

118. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL (at 43 [177]) observed that, where a person’s mental health contributed to the commission of an offence in a material way, the person’s moral culpability may be reduced.

43. I am unable to discern where in sentencing remarks the sentencing judge made any assessment of the impact of the applicant's traumatic brain injury, whether in his assessment of the objective seriousness of the offence or the offender’s moral culpability for the offending. Although he gave consideration to Dr Ashkar’s report, he did not refer, expressly or impliedly, to what I regard as a central tenet in the report, namely the causative role the applicant's traumatic brain injury played in his involvement with his co-offenders in the commission of the offence and in the offending itself. To the contrary at [39] the sentencing judge posed and answered a different question, namely whether there was an evidentiary basis to find the offender was “not aware of the wrongfulness of his offending”.

44. I am satisfied that the error the subject of the second round of appeal has been made out and, accordingly, that the applicant should be resentenced.

45. My reasons for concluding that the error the subject of the third ground of appeal has been made out and for concluding that the fourth ground of appeal has not been made out follow.

The third ground of appeal

46. The third ground of appeal concerns what is said to be error in the sentencing judge’s failure to find special circumstances. The applicant submitted that what Dr Ashkar described as the applicant’s “significant rehabilitative needs” and the “high level of management and support” including “specialised treatments to support his recovery” from his traumatic brain injury at the Westmead Hospital Brain Injury Rehabilitation Service where the applicant was well known, was a compelling basis to adjust the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act, and that the exercise of his Honour’s sentencing discretion had miscarried in declining to make that finding. It was submitted that an adjustment in the statutory ratio between the non-parole period and balance of term would preserve the need for the non-parole period to reflect the other purposes of sentencing whilst allowing for the provision of community-based services, directed specifically to the applicant’s ongoing adjustment to his cognitive incapacity and to regulating the risk of him reoffending, thereby addressing rehabilitation as a sentencing objective.

47. As the collected authorities on the question of special circumstances make clear, the extent of any adjustment to the statutory ratio provided for in s 44 of the Crimes (Sentencing Procedure) Act is a matter within the sentencing judge’s discretion.

48. In this case, the basis upon which a finding of special circumstances was sought was limited to the need for the applicant to have an extended period on parole to avail himself of specialist rehabilitation services and resources to both treat his traumatic brain injury and to provide for his stable and adaptive functioning in the community as a person with a disability by accessing community-based services. That being the case, it is incumbent upon the applicant to demonstrate a House v The King error.

49. I reject the Crown's submission that “the applicant has 4 years and 6 months during which rehabilitation can be effected and [that] there would be a significant period under [sic] which the applicant would be supervised” on parole. From that submission, I take the Crown to mean that the applicant has in fact been provided with appropriate resources and treatment in custody over the sentence he has secured to date to address his significant rehabilitation needs, in recognition of the need for a high level of management and support identified by Dr Ashkar in his report, and that the balance of term of 18 months on parole at the expiration of the non-parole period will allow for his rehabilitation to continue.

50. Save for one statement in the reasons for sentence where his Honour said that “[the applicant's] treatment needs are being serviced under the auspices of Justice Health”, I can discern nothing in the reasons for sentence or in the evidence tendered in the sentence proceedings to either support the Crown’s submission or his Honour’s finding. The evidence that was directed to the applicant's rehabilitative needs is to the contrary. Dr Ashkar reported as follows:

His treatment needs cannot be met in a custodial setting due to the widespread impairments in his cognition and the limited resources available to him there, (he has special needs that need to be managed by clinicians who have experience managing the behavioural, emotional, cognitive, and physical sequelae of traumatic brain injury) and he requires specialised treatments to support his recovery.

51. It was in this context that Dr Ashkar nominated the Westmead Hospital Brain Injury Rehabilitation Service as a community-based resource and a service with which the applicant was familiar. As Dr Ashkar said, this service is available to the applicant “when he returns to the community (the sooner the better for his recovery)”.

52. I am satisfied that that an error of that kind has been made out. In my view, the evidence supporting a finding of special circumstances was so overwhelming that his Honour’s approach to the fact-finding exercise which is engaged in determining that question reveals error.

The fourth ground of appeal

53. This ground of appeal as with the third ground appeal is directed to the structure of the sentence, albeit directed to the commencement date of the sentence as part of the sentencing order.

54. Although on the hearing of the appeal argument addressed what was said by the applicant to be a misapplication of totality principles, it seems to me that the ground of appeal also involves a consideration of the application of s 24 of the Crimes (Sentencing Procedure) Act, perhaps predominantly so.

55. It is not necessary to set out the section in the full. Suffice to note that while the section does not operate to oblige the Court to backdate a sentence, the Court must take into account the pre-sentence custody served by an offender “in relation to the offence” the subject of sentence when deciding whether it should commence the sentence before the sentence date (see Kaderavek v R [2018] NSWCCA 92 at [20]). When a sentence is not backdated, a sentencing judge should also give reasons for not taking into account some or all of an offender’s pre-sentence custody (see R v Newman; R v Simpson [2004] NSWCCA 102).

56. The applicant’s custodial history reveals that he was sentenced on 16 May 2016 to concurrent terms of one month imprisonment for possessing a prohibited drug on 23 March 2016 (that offence was committed two weeks before the break, enter and steal offence). That sentence expired on 7 May 2016. It also appears that sentence was imposed whilst the applicant was bail refused for the break, enter and steal offence and, it would seem, bail refused for the driving offences committed in December 2015 (the evidence adduced on sentence establishes he was on bail for those offences when he committed the break, enter and steal offence in April 2016).

53. On 19 August 2016 (also whilst in custody, bail refused), the applicant was sentenced to concurrent terms of imprisonment of 12 months for the 2015 driving offences. That sentence was ordered to commence on 8 May 2016, that is, at the expiration of the sentence imposed for the drug offences which had, by the date of sentence, been fully served. The sentence for the driving offences attracted a non-parole period of 6 months commencing on 8 May 2016 and expiring on 7 November 2016. The balance of the term for that offence expired on 7 May 2017.

54. The sentencing judge “backdated” the sentence he imposed so that it commenced at the expiration of the concurrent non-parole period for the driving offences, despite that sentence commencing some months into his remand for the break, enter and steal offence. There is nothing in the custodial record or otherwise in the evidence to indicate whether the sentence for the driving offences was backdated. The sentencing judge did note that “but for” the applicant’s remand on the break, enter and steal offence on 8 April 2016, he would have been on parole. That does not logically follow since the sentence imposed for the driving offences was imposed seven months into the applicant’s remand for the break, enter and steal offence. Nonetheless, his Honour concluded that the sentence should commence from 7 November 2016, that is, at the expiration of the non-parole period for the driving offences.

55. His Honour did not give reasons for making no allowance for the two months the applicant was in custody, bail refused, on the break, enter and steal offence before he was sentenced to terms of imprisonment for the drug offending and then later the driving offences. Nor did he appear to give any consideration to totality principles, to the extent that they were invoked in the sentencing process.

56. On the hearing of the appeal, s 24 of the Crimes (Sentencing Procedure) Act was not raised by the parties or the Court. That being the case, I am unable to reach a concluded view as to whether the sentencing order was in strict compliance with the section and in accordance with the authorities concerning its operation, or not.

57. I am also not able to reach a concluded view that principles of totality have been breached given the very considerable flexibility in the exercise of the sentencing discretion when questions of accumulation or concurrency are under consideration.

58. In those circumstances, I would not have upheld the fourth ground of appeal but would have invited further submissions from the parties. However, since the error the subject of Grounds 2 and 3 is made out obliging the Court to resentence, it is unnecessary to do so.

Resentence

63. The applicant relied on an affidavit from his solicitor, Ms Jasmin Kumar sworn 9 September 2019 to which she exhibited, inter alia, a compendium of materials tendered before Buscombe DCJ at a fitness hearing convened on 8 August 2017 at which the applicant was found to be unfit to be tried on an indictment that involved alleged offending in December 2014.

64. In the considered view of Buscombe DCJ, and in substantial reliance upon the opinions expressed by Dr Ellis and Dr Adams in their reports of July 2017 tendered at the hearing, the applicant's cognitive impairment, his lack of any real understanding of the charges or the proceedings and a compromised capacity to follow and understand the evidence sufficiently or to properly instruct his counsel, rendered the applicant “unfit” to stand trial. The applicant was referred to the Mental Health Review Tribunal in accordance with s 14 of the Crimes (Forensic Procedures) Act 2000 (NSW).

65. This Court was informed from the bar table that within the statutory 12 month period the Tribunal found the applicant fit to stand his trial. He was subsequently acquitted by a jury.

66. What is significant in the materials tendered on the fitness hearing on resentence is the psychiatric diagnosis of major neurocognitive disorder reached by Dr Ellis in his report of 12 July 2017. That diagnosis followed a clinical interview with the applicant on 9 July 2017 (that is, five months after he was sentenced by Hatzistergos DCJ). That diagnosis related directly to the applicant's traumatic brain injury and was entirely concordant with the findings of Dr Ashkar in his report of 20 February 2017 which was tendered on sentence. Dr Ellis’s clinical findings were also concordant with Dr Ashkar’s findings, including memory impairment, impairment of orientation, and impairments of praxis and executive function. The applicant was also unable to perform preserved tasks of cognitive function. No evidence of exaggerated or feigned cognitive performance was detected.

67. Dr Ellis went on to observe:

Although [the applicant] can function in the highly structured environment of the prison, the documents from his rehabilitation physicians indicate that there are pervasive problems with activities of daily living associated with this change in cognitive function.

68. Dr Adams, who was retained by the Crown at the fitness hearing, did not come to any different conclusion to that reached by Dr Ellis.

69. I also note Dr Adams made the following remarks:

In my view it is paramount that [the applicant] receives adequate input from the relevant services whilst he remains incarcerated. Hopefully he is known to services such as the Additional Support Unit and psychological services. I would be able to comment more specifically on management strategies if the Justice Health medical record is made available.

70. No information was apparently forthcoming from Corrections NSW or Justice Health since no mention is made of it by Buscombe DCJ. No information from either source was tendered by the Crown on the appeal in the event of resentence.

71. Also exhibited to Ms Kumar’s affidavit is an updated report from Dr Ellis of 14 March 2019. The contents of that report are extremely concerning. They include the following:

1. The applicant has been moving between the Long Bay and Nowra correctional centres and is housed in the general prison population.

2. He is not undertaking any education, prison work or therapy.

3. He continues to take the prescribed sodium valproate as a mood stabiliser and anticonvulsant medication. There is no suggestion of substance abuse.

4. His energy and motivation is poor; he sometimes forgets to eat; he needs other inmates to help him remember things; he wishes he was not alive; he has thoughts of self-harm but has no plans or intent to actually inflict harm as he wants get out of prison and see his family; he watches television but finds it difficult to concentrate.

72. Ultimately, Dr Ellis found there was no change in the diagnosis of a major neurocognitive disorder he reached in 2017. He reported that given the natural history of a major neurocognitive disorder stemming from a traumatic brain injury, and given that the cognitive deficits that the applicant was displaying in 2017 when he was found unfit to be tried were present from the time of the injury in December 2015, were the question of his fitness raised in the sentencing proceedings a similar conclusion would likely have been reached.

73. Although the question of fitness was not raised for the consideration of the sentencing judge, on resentence the severity of the applicant’s neurological dysfunction and his associated cognitive disabilities (according to Dr Ellis, disabilities that were present and prevailing at the time of his offending and continuing to the present time) is of crucial significance. There is nothing in the materials to suggest that the applicant suffered any significant decline in his mental capacity from the time he sustained the brain injury in December 2015, through to the time of his offending in April 2016 and ultimately through to his sentence in March 2017, and thereafter to a finding of unfitness in August 2017, and through to resentence.

74. That state of affairs compels a finding that in all the circumstances, the applicant’s moral culpability for the offence of break, enter and steal committed in April 2016 was significantly reduced by reason of the traumatic brain injury he sustained four months earlier and that the objective seriousness of that offending is moderated for the same reason. While I am obliged to take into account the offence on the Form 1 when resentencing for that offending, I also regard the applicant’s impaired cognitive capacity across a range of indices as providing some context for that offending.

75. In undertaking a synthesis of all factors relevant to the fixing of sentence, I do not discount those features of the offending that warrant denunciation, including the time at which the offence was committed, namely in the early hours of the morning; the place where the offence was committed, namely a private home and the fact that the offence was associated with property damage, being the broken window. I do not regard the fact that the offence was committed for financial gain as a statutory aggravating feature. In my view, his motive is adequately encompassed by the intent accompanying the commission of the offence, namely an intention to steal. Together with those considerations, I also take into account the fact that the breaking and entering was constituted by opening the screen door to the house and entering with a co-offender at a time when the occupants were not in the home, albeit close by seeking the help of neighbours. Finally, I also take into account Dr Ashkar’s view that the applicant’s cognitive impairment and his general disordered state of mind and behaviour after the motor accident as described by his mother, in all probability, influenced him to engage with the co-offenders who I accept were people not well known to him. The extent to which he was led by them to commit the offence is unclear. What remains, however, is a clinical assessment which leaves that finding well open, and one which I am prepared to find established on the probabilities.

76. The applicant's subjective circumstances are, unsurprisingly, relatively static. He has been in custody bail refused for the break, enter and steal offence from April 2016 and then as a sentenced prisoner for that offence since March 2017. What has changed since that time is a deterioration in his mood and functioning, largely, I venture to suggest, because he has received nothing even vaguely commensurate with the treatment needs identified by Dr Ashkar in his report furnished two and half years ago. Certainly there has been nothing tendered by the Crown that will allow me to come to any different view. Whether the community-based rehabilitation services identified by Dr Ashkar and the subject of particular mention by the sentencing judge remain available to the applicant upon his release, is also unknown.

77. I propose to make a finding of special circumstances on the basis that the applicant's rehabilitation needs are demonstrably better addressed in the community during an extended period on parole under supervision thereby enhancing his prospects of rehabilitation and adaptive functioning in the community.

78. I propose the following orders:

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.

79. ADAMSON J: I agree with Fullerton J.

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Decision last updated: 22 October 2019