Medium Neutral Citation: R v Isbitzki [2017] NSWDC 41
Hearing dates: 21 February 2017
Date of orders: 10 March 2017
Decision date: 10 March 2017
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
1) The offender is convicted;
2) The offender is sentenced to a term of imprisonment of 6 years, comprised of a minimum term of 4 years and 6 months and an additional term of 1 year and 6 months;
3) The sentence is to commence from 7 November 2016. The minimum term will expire on 6 May 2021 and the additional term will commence on 8 April 2021 and expire on 7 January 2023. The offender will be eligible to be released to parole on 7 May 2021; and
4) On the application of the offender, not opposed by the Crown, pursuant to s 18B(2)(b) of the Drug Court Act 1998 (NSW), I refer the offender to the Drug Court of NSW to determine whether he should be the subject of a compulsory drug treatment order.

Catchwords:
CRIMINAL LAW – aggravated break and enter with intent to steal – offender armed – intimidation
SENTENCE – objective seriousness of the offence – aggravating factors – mitigating factors –early guilty plea – remorse demonstrated – whether circumstance of addiction is a mitigating factor – whether traumatic brain injury reduces moral culpability – prospects of rehabilitation – likelihood of reoffending – whether offender can receive treatment in prison – no special circumstances
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2), 21A(3), 22(1) and 32
Crimes Act 1900 (NSW) ss 4, 105A(1), 113(2) and 117
Drug Court Act 1998 (NSW) s 18B(2)(b)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (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
Category: Sentence
Parties: Regina (Crown)
Mr Jason Mark Isbitzki (Offender)
Representation: Solicitors:
Solicitor for the Director of Public Prosecutions (Crown)
Mr S Devine (Offender)

File Number(s): 2016/106961

Judgment

Mr Jason Mark Isbitzki was committed for sentence to this Court on 26 October 2016 in respect of an offence of aggravated break and enter, with intent to commit a serious indictable, being larceny, whilst armed, pursuant to s 113(2) of the Crimes Act 1900 (NSW).

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 R v Isbitzki

Details

AGLC: R v Isbitzki [2017] NSWDC 41
Case: [2017] NSWDC 41
Decision Date: 10 March 2017

CaseChat Overview and Summary

The defendant, Isbitzki, was charged with aggravated break and enter with intent to steal, with the aggravating factor that he was armed during the commission of the offence. The case was heard in the Supreme Court of New South Wales. Isbitzki pled guilty to the charge, and the court had to determine his sentence, considering the objective seriousness of the offence, any aggravating or mitigating factors, and other relevant circumstances.

The court had to consider various factors in determining the appropriate sentence. These included the objective seriousness of the offence, the aggravating factor of the defendant being armed, the mitigating factor of his early guilty plea and demonstrated remorse, the circumstances of his addiction, the potential impact of a traumatic brain injury on his moral culpability, and his prospects of rehabilitation and likelihood of reoffending. Additionally, the court had to assess whether the defendant could receive treatment in prison and if there were any special circumstances to be taken into account.

The court found that the objective seriousness of the offence was high due to the nature of the crime and the presence of the aggravating factor. However, the mitigating factors of the defendant's early guilty plea and demonstrated remorse were also significant. The court considered the defendant's addiction and traumatic brain injury but ultimately decided that these circumstances did not sufficiently reduce his moral culpability. The court also took into account the defendant's prospects of rehabilitation and likelihood of reoffending, as well as the possibility of receiving treatment in prison. The court concluded that there were no special circumstances that warranted a departure from the usual sentencing principles.

The court sentenced the defendant to a term of imprisonment of 6 years, with a minimum term of 4 years and 6 months and an additional term of 1 year and 6 months. The sentence was to commence from 7 November 2016. The minimum term would expire on 6 May 2021, and the additional term would commence on 8 April 2021 and expire on 7 January 2023. The defendant would be eligible for release to parole on 7 May 2021. The court also referred the defendant to the Drug Court of New South Wales to determine whether he should be the subject of a compulsory drug treatment order.

Orders

Orders of the court

1) The offender is convicted;

2) The offender is sentenced to a term of imprisonment of 6 years, comprised of a minimum term of 4 years and 6 months and an additional term of 1 year and 6 months;

3) The sentence is to commence from 7 November 2016. The minimum term will expire on 6 May 2021 and the additional term will commence on 8 April 2021 and expire on 7 January 2023. The offender will be eligible to be released to parole on 7 May 2021; and

4) On the application of the offender, not opposed by the Crown, pursuant to s 18B(2)(b) of the Drug Court Act 1998 (NSW), I refer the offender to the Drug Court of NSW to determine whether he should be the subject of a compulsory drug treatment order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Isbitzki [2017] NSWDC 41

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

R v Lulham
[2016] NSWCCA 287 Para 51

…In considering the relevant principles, Bathurst CJ in R v Lulham [39] stated:- 39. [2016] NSWCCA 287…
R v Dashti
[2016] NSWCCA 251 Para 84

…only to make the following brief observations in respect of the question of special circumstances. [9] As this Court explained in R v Dashti [2016] NSWCCA 251 at [84] a finding of special circumstances is integrally linked with the determination of an appropriate parole period. Although the statement of Bellew J to…
Hayek v R
[2016] NSWCCA 126 Para 33

…f ADHD. However, the drug use has now continued for around 24 years. In my view, it does little to mitigate the crime committed. [27] 27. Hayek v R [2016] NSWCCA 126 at [81] – [83] (Wilson J with Bathurst CJ and Schmidt J agreeing)…
Dang v R
[2013] NSWCCA 246

…he Crimes (Sentencing Procedure) Act 1999 (NSW) (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 Enge…
Muldrock v The Queen
[2011] HCA 39 Para 34

…bility so that matters such as general deterrence, retribution and denunciation have less weight. [28] 28. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53]…
Palijan v R
[2010] NSWCCA 142 Para 12

…lder under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [7] 7. Hereinafter referred to as the “1999 Act” and Palijan v R [2010] NSWCCA 142 at [19] – [22] (Barr AJ with McCllelan CJ at CL and Hislop J)…
WILLIAMS v R
[2010] NSWCCA 15 Para 15

…that the planning involved in this instance did not involve a degree of sophistication or organisation contemplated by the section. 8. Williams v R [2010] NSWCCA 15 at [14] – [22] (McClellan CJ at CL with Simpson and Hidden JJ agreeing)…
Hejazi v R
[2009] NSWCCA 282

…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; […
Porter v R
[2008] NSWCCA 145 Para 19

…until after the date of this offence of 8 April 2016. This constitutes an aggravating factor under s 21A(2)(d) of the 1999 Act . [10] 10. Porter v R [2008] NSWCCA 145 at [86] (Johnson J with Bell JA and McCallum J agreeing)…
Bichar v R
[2006] NSWCCA 1 Para 34

…in Bichar v R that self-medication by the use of prohibited drugs to overcome psychological or physical trauma is not a mitigating factor:[26] 26. [2006] NSWCCA 1 at [23] – [25] (Howie J with Basten JA and Hall J agreeing)…
R v Huynh
[2005] NSWCCA 220 Para 10

…nge of offences of its kind which come before the Court. [3] 1. Hereinafter referred to as the “1900 Act” 2. s 4 of the 1900 Act 3. R v Huynh [2005] NSWCCA 220 at [27] (Simpson J with Barr and Latham JJ agreeing)…
R v Johnson
[2004] NSWCCA 76 Para 18

…bmission is made that the offender is entitled to have his sentence mitigated pursuant to s 21A(3)(e) of the 1999 Act . 9. See generally: R v Johnson [2004] NSWCCA 76…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 58

…imes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002, [42] noting the greater weight to personal deterrence and retribution in sentencing. 42. (2002) 56 NSWLR 146…
R v Simpson
[2001] NSWCCA 534 Para 58

…stances is appropriate to assist or promote an offender’s rehabilitation. As Spigelman CJ explained in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [58], that may be an appropriate approach to the question of special circumstances in a given case: see generally the discussion in Dashti at [81]-[91].”…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 21

…is conceded that he is entitled to the maximum discount of 25%. [12] 12. s 22(1) of the 1999 Act; and R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 21

…st opportunity and it is conceded that he is entitled to the maximum discount of 25%. [12] 12. s 22(1) of the 1999 Act; and R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309…
Regina v Simpson
[1999] NSWCCA 367

…ing of special circumstances is appropriate to assist or promote an offender’s rehabilitation. As Spigelman CJ explained in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [58], that may be an appropriate approach to the question of special circumstances in a given case: see generally the discussion in Dashti at…
R v Henry
[1999] NSWCCA 111 Para 29

…clouded by his use of drugs, that can have little mitigation as it was self-induced by his abuse of drugs. [21] 21. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [194] – [202] (Spigelman CJ)…
R v Henry
[1999] NSWCA 111 Para 29

…udgment may have been clouded by his use of drugs, that can have little mitigation as it was self-induced by his abuse of drugs. [21] 21. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [194] – [202] (Spigelman CJ)…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A(2), 21A(3), 22(1), 32, 3A 6 mentions (from Para 12)
Crimes Act 1900 (ACT)
105A(1), 113(2), 117, 4 5 mentions (from Para 1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
13(1) 2 mentions (from Para 9)
Drug Court Act 1998 (NSW)
18B(2)(b) 2 mentions (from Para 63)

Medium Neutral Citation:	R v Isbitzki [2017] NSWDC 41
Hearing dates:	21 February 2017
Date of orders:	10 March 2017
Decision date:	10 March 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	1) The offender is convicted; 2) The offender is sentenced to a term of imprisonment of 6 years, comprised of a minimum term of 4 years and 6 months and an additional term of 1 year and 6 months; 3) The sentence is to commence from 7 November 2016. The minimum term will expire on 6 May 2021 and the additional term will commence on 8 April 2021 and expire on 7 January 2023. The offender will be eligible to be released to parole on 7 May 2021; and 4) On the application of the offender, not opposed by the Crown, pursuant to s 18B(2)(b) of the Drug Court Act 1998 (NSW), I refer the offender to the Drug Court of NSW to determine whether he should be the subject of a compulsory drug treatment order.
Catchwords:	CRIMINAL LAW – aggravated break and enter with intent to steal – offender armed – intimidation SENTENCE – objective seriousness of the offence – aggravating factors – mitigating factors –early guilty plea – remorse demonstrated – whether circumstance of addiction is a mitigating factor – whether traumatic brain injury reduces moral culpability – prospects of rehabilitation – likelihood of reoffending – whether offender can receive treatment in prison – no special circumstances
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2), 21A(3), 22(1) and 32 Crimes Act 1900 (NSW) ss 4, 105A(1), 113(2) and 117 Drug Court Act 1998 (NSW) s 18B(2)(b)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (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
Category:	Sentence
Parties:	Regina (Crown) Mr Jason Mark Isbitzki (Offender)
Representation:	Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Mr S Devine (Offender)
File Number(s):	2016/106961