Imbornone v R

1. The applicant entered pleas of guilty for the first set of offences in the Local Court and he was afforded the full utilitarian value of 25 per cent for those pleas by the sentencing judge. Pleas of guilty to the offences of 5 March 2015 were not entered until the day after the applicant's trial was listed to commence, and the lesser utilitarian value of the late plea was reflected by a discount on the sentence that would otherwise have been imposed of 10 per cent.

The Crown Case on Sentence

1. In the proceedings on sentence the Crown tendered a statement of facts which outlined the details of the offences. The facts were not disputed by the applicant, and his Honour found the facts in accordance with the Crown's statement.
2. The offences of 29 September 2014 occurred in the inner Newcastle suburb of Mayfield. At about 4pm that day Ms Sarah Lewis left her unit. She closed the front door and was in the process of locking a screen door when she was approached by the applicant and another unidentified man. The men knew her name and spoke to her, telling her that they needed to "have a chat to you and Dave", "Dave" being a reference to David Forbes, Ms Lewis' partner, with whom she lived.
3. Ms Lewis was told "we need you inside. We need to talk to you both about what is going on." Ms Lewis was frightened and did not want to go inside the unit with the two men. She refused several times, instead offering to wait outside or go to a nearby park. At that point the applicant pulled out a metal pole from his calico carry bag and showed it to Ms Lewis, whilst his companion produced a knife from his pocket. The co-offender said "let us in, open the door, Sarah." Ms Lewis started crying and pleaded with the men "Please don't make me let you in. This is not my place. Please wait for David. Please don't rape me." Ms Lewis ultimately succumbed to the threats and opened the door. She and the men went inside.
4. Ms Lewis was very frightened. Physically shaking, she repeatedly asked the men if they were going to hurt her. The applicant, who by this time, was armed with a knife, replied, "We are not going to hurt you. We need to have a chat with you. We will wait for Dave." The applicant then told Ms Lewis that she owed them $1000.00, a supposed debt she knew nothing about.
5. Ms Lewis asked to use one of the men's phones to call Mr Forbes, and the applicant dialled the number on his mobile phone. Ms Lewis spoke to Mr Forbes, asking him to come home immediately. As she spoke to her partner, the co-offender put a knife to Ms Lewis' throat and, with the blade touching her skin, directed her to end the call.
6. Desperate to escape, Ms Lewis asked if she could get a drink of water or use the bathroom, but she was not permitted to do either. She was made to wait on a lounge. It is the detention of Ms Lewis that is reflected by the s 112(2) offence.
7. Mr Forbes arrived at the unit soon after. He saw the applicant holding a knife, the second man holding a metal pole, and Ms Lewis hysterically crying. The offenders told Mr Forbes they needed to have a chat about money said to be owed by Ms Lewis, but Mr Forbes forcefully told them "She doesn't owe you anything. […] Who do you think you are being in my house? Get the fuck out."
8. He picked up a baseball bat and again told the men to get out of his house. The co-offender lunged at Mr Forbes with the metal pole whilst the applicant moved toward him with the knife, thrusting it at him.
9. During the commotion Ms Lewis managed to escape and ran to a neighbouring unit for aid.
10. Mr Forbes also managed to get outside, trying as he escaped to close the screen door of the unit to trap the offenders. Realising he could be stabbed through the screen he ran away, with the offenders pursuing him. Mr Forbes was able to strike a blow against one of the men with the bat, but it broke, leaving him unarmed. The co-offender struck him to the back of the head, and Mr Forbes ran into a carport, intending to take refuge in his boat. He picked up a ladder to use as a shield, after which the co-offender threw the metal pole at him, although missing Mr Forbes. The two assailants then ran off down the driveway. They got into a car driven by a female and sped away.
11. It was only then that Mr Forbes realised that he had been stabbed in the stomach by the applicant. This was reflected by the charge of reckless wounding.
12. Mr Forbes was taken to John Hunter Hospital where laparoscopic surgery determined that he had suffered a single incision to the left side of the abdomen, although without penetrating the abdominal cavity or the outer protective sheath around the muscles.
13. The evidence left behind by the two men led police to the applicant. The evidence included DNA recovered from the applicant's baseball cap and calico bag which he had left at the unit, and telephone records recording the call to Mr Forbes from the applicant's phone. There was also video footage from an encounter between the applicant and highway patrol police earlier that day which showed the applicant wearing a "strikingly similar" cap to the one left at the Mayfield unit.
14. On his arrest, the applicant denied any involvement in the offences.
15. The sentencing judge found that Ms Lewis had been detained, in terror, for a significant period of time. He concluded that the applicant had acted with a high degree of recklessness resulting in the stabbing of Mr Forbes.
16. The second set of offending for which the applicant was sentenced occurred on 5 March 2015. The applicant was at that time subject to the s 9 good behaviour bond for which he was called up.
17. The victim of these offences was Todd Wrench. Mr Wrench had ridden his motorcycle to a friend's house in Bellbird where he spent the evening. At about 8.40pm Mr Wrench was in the backyard when he heard the applicant yelling "I am going to smash you." Mr Wrench recognised the applicant as they had attended the same high school some years before. Accusing Mr Wrench of having provided drugs to a family member, the applicant punched him in the head a number of times, causing minor bruising.
18. After striking Mr Wrench, the applicant walked away, but not before informing him that he was going to take his motorcycle. He then produced a piece of paper and constructed a makeshift receipt for the "sale" of the motorcycle. The applicant took the keys to the bike and rode off with it.
19. The bike was recovered later that night but it was so badly damaged as to be written off by the insurance company, with Mr Wrench paid its value of a little over $4,000.
20. The applicant's criminal history was before the District Court as part of the Crown case. It contained entries beginning in 2005 for driving offences, and followed by drug offences in 2007, domestic violence offences including stalking or intimidation, using a carriage service to menace, and assault occasioning actual bodily harm in 2009, and further domestic violence offences including common assault in 2010, and in 2013. There were further driving offences in 2009, 2012, 2013, and 2015. The applicant had spent time in custody for some of these offences.

The Applicant's Case

1. The applicant, who was aged 26 at the time of sentence, did not give evidence before the sentencing court.
2. He tendered a psychiatric report from Dr Christopher Bench, which had been prepared for the purposes of sentence proceedings, and a copy of a Pre-sentence Report which had been earlier prepared for a sentence hearing in the Local Court in 2015.
3. Dr Bench obtained a history from the applicant setting out his family circumstances and details of his childhood and upbringing, including having been the victim of sexual abuse from about age 9 to age 13. The applicant had not previously made complaint of abuse, and his family remained unaware of it.
4. The applicant said that he finished his education in Year 9, because of escalating drug use. He had never held anything other than occasional casual employment.
5. The applicant had previously been in a relationship of some six years duration, and had a daughter who lived with his former partner. He acknowledged "a little bit" of domestic violence during the course of this relationship.
6. The applicant used both alcohol, and prohibited drugs, having commenced using the former at about age 12 and the latter (cannabis) at age 9. The applicant's drug use escalated to amphetamines at age 13. He reported problematic use of alcohol, with daily consumption from age 12 to 14, and "alcohol blackouts". At the time of seeing Dr Bench the applicant was using the prescribed opiate Buprenorphine, as well as illicit Suboxone. He gave a history of having been diagnosed with "drug induced bi-polar" disorder and Attention Deficit Disorder at 14 years of age. He reported some current depressed feelings.
7. As to his crimes, the applicant claimed to have no real memory of the offences of 29 September 2014, amnesia he attributed to heavy drug use. He acknowledged the facts of the offences of 5 March 2015 but claimed that they had occurred because the victim had provided a family member with "ice". Of the offences generally, he said "I regret it that's for sure".
8. Dr Bench concluded that the applicant met the diagnostic criteria for Polysubstance Dependence, Post Traumatic Stress Disorder ("PTSD") and Cluster B Personality Disorder with antisocial and borderline traits. Dr Bench's conclusion concerning the first two disorders was based wholly upon the applicant's self-report. The third was based upon the history obtained, together with information as to the applicant's offending behaviour.
9. Dr Bench was asked by the respondent's legal representatives to address in his report the question of any nexus between mental illness and the offending behaviour. He said, "It is the evaluator's opinion that the most significant factor causally related to the index offences was his substance dependence. It is noted that the defendant had very little ability to fully detail the circumstances with regard to his mental health or the index offences themselves. As such, drawing any direct correlation between the mental health conditions and offending behaviours is impossible."
10. He referred however to the applicant's reported use of large quantities of amphetamines at around the time of both sets of offences but, because of paucity of detail from the applicant, concluded that it was not possible to provide any further opinion with a reasonable degree of medical certainty.
11. The doctor did note, in response to a specific question asking whether "a custodial sentence would weigh more heavily" on the applicant, that the PTSD from which he suffered and the consequential hypervigilance around males, would make a custodial environment more difficult for the applicant, "aggravating" his PTSD.
12. The 2015 Pre-sentence Report set out some background information concerning the applicant, including a history obtained from the applicant somewhat different to that given to Dr Bench, of commencing illicit drug use with amphetamines at age 14 years. He asserted that he had never used alcohol to excess. No reference to childhood sexual abuse is recorded.

The Conclusions of the Sentencing Judge

1. Of the September 2014 offences, the sentencing judge concluded that they were crimes of "significant seriousness". Of those of March 2015 his Honour set out all of the features relevant to an assessment of seriousness, noting that it was not possible to know why the offences had been committed. He declined to find that the applicant had been provoked by the victim's supposed supply of drugs to another person, noting that a hearsay account to a psychiatrist was not a basis for such a finding.
2. His Honour accepted that there could be a correlation between PTSD and drug use, but observed that that did not necessarily mean that there was a link between the applicant's PTSD and the commission of the offences. He noted that the offences were likely to have resulted in part from the applicant's drug use. His Honour concluded that prospects of rehabilitation were closely linked to the applicant's capacity to give up illicit drugs and, on that basis and favourably to the applicant, found that special circumstances existed pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. He found that the applicant's disorder would cause him anxiety throughout his sentence, making his time in custody harder. In the absence of evidence from the applicant, his Honour was not prepared to find that the applicant was remorseful, as contemplated by s 21A(3)(i) of that Act.

The Application for Leave to Appeal Against Sentence

1. The applicant seeks to rely on four grounds of appeal: 1. "His Honour erred in not accepting remorse as a mitigating factor; 2. His Honour erred by not appropriately considering the Appellant's mental illness and how specific deterrence and general deterrence should apply; 3. His Honour erred by not appropriately considering the degree of the harshness of the sentence of imprisonment on the Appellant because of his mental illness, and how imprisonment would adversely impact on both his mental health and prospects for rehabilitation; 4. His Honour erred in imposing an aggregate sentence that was manifestly excessive."

Ground 1: His Honour erred in not accepting remorse as a mitigating factor

1. The applicant complains that the sentencing judge wrongly concluded that there was insufficient evidence to satisfy the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, because the applicant did not himself give evidence. The Crown submits that his Honour was not obliged to accept the account of remorse contained in the psychiatric report, and the conclusion of the court was entirely open.
2. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides: "(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: […] (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)"
3. The only evidence before the sentencing judge that could be relevant to a finding of remorse was what the applicant said to Dr Bench when being interviewed by him preparatory to writing a report for use on sentence. Dr Bench recorded: "When asked as to how he feels about the offences now, the defendant noted, 'I regret it, that's for sure…I'm not usually like that with people.' He noted that the offences could have, 'affected them in the worst sort of way possible…it could have traumatised them really'."
4. Referring to the applicant's assertion of regret, the sentencing judge said, "The offender expressed his remorse to Dr Bench but, once more, in the absence of evidence from the offender, I am not prepared to make a finding that he has expressed that type of remorse which is identified in s 21A of the Crimes (Sentencing Procedure) Act."
5. The use of the phrase "once more" by his Honour harked back to earlier observations about provocation, and the question of the motivation for the 2015 offences. The applicant relies upon what his Honour then said as demonstrative of error in the application of s 21A(3)(i). The relevant remarks are as follows: ""I should interpolate at this stage that one of the submissions put by Ms Court on behalf of her client is that I should make a finding that the offender was provoked by the circumstance that Mr Wrench had been selling drugs to [his family member]. I am unable to find that on the balance of probabilities. The offender gave no evidence. The only evidence tendered before me on behalf of the accused was a pre-sentence report and a report of a psychiatrist. The hearsay account in the psychiatrist's report is no basis on which a finding could be made."
6. And later, "Quite why these [2015] offences were committed is difficult to understand. As I mentioned, the offender did not give evidence before me. He was spoken to by Dr Christopher Bench who prepared a report, at the request of the offender's lawyers, in which the reasons for committing the offences were explored."
7. The applicant's complaints cannot be accepted. The conclusions of the sentencing judge as to remorse, and also in declining to find that the applicant was provoked to commit the 2015 offences, were entirely in accordance with authority and open to him.
8. His Honour did not conclude that, for there to be evidence of remorse the applicant was obliged to give evidence. Rather, he found that the evidence that had been provided by the applicant on this aspect of the matter - that of the untested hearsay claim to Dr Bench - was insufficient for him to find on the balance of probabilities that the applicant was in fact remorseful in the way referred to in s 21A(3)(i). His Honour's conclusion is well supported by authority.
9. This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities: 1. Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58] - [59]. 2. Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] - [25]. 3. It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. 4. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19]. 5. Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, "to treat this evidence with anything but scepticism represents a triumph of hope over experience": R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].
10. In the present case there was good reason for his Honour to decline to accept the applicant's self-serving assertions to Dr Bench on the question of remorse. Firstly, the applicant was aware of the purpose for which Dr Bench's report would be put - that is, it was to be tendered to a court in support of his case on sentence. Secondly, in the absence of evidence from the applicant, in chief and under cross-examination, there was no opportunity for the sentencing judge to assess the applicant's demeanour and the genuineness of the asserted remorse. Thirdly, in the two documents tendered by the applicant in his case on sentence there were differing accounts recorded of what the applicant had said about matters of significance (such as drug and alcohol use), calling into question his veracity and reliability. Fourthly, whilst the applicant told Dr Bench that he was "not usually like that with people", he had convictions for violence in his criminal history, somewhat belying his assertion, and again raising doubt as to his reliability. Fifthly, Dr Bench noted that the account given to him by the applicant of material matters was lacking in detail and appeared to suffer from a "generalised lack of recollection".
11. His Honour's conclusion that the applicant's assertions to Dr Bench could not be relied upon as providing proof on the balance of probabilities of remorse was entirely open to him; indeed, it was the only sensible conclusion that could be reached.
12. No error has been established by the applicant and, in light of the well settled principles that apply to this ground, I would not grant leave to advance it.

Ground 2: His Honour erred by not appropriately considering the Appellant's mental illness and how specific deterrence and general deterrence should apply

1. In support of this ground the applicant contends that the sentencing judge did not appropriately consider his mental illness and its relevance to deterrence, wrongly proceeding on the basis that "a link" was necessary between the mental illness and the commission of the offences to take illness into account, rather than by treating it as relevant to moral culpability.
2. In his ex tempore judgment the sentencing judge did not directly refer to specific and general deterrence, perhaps because the applicant made no submission on sentence to the effect that there should be reduced emphasis on deterrence as a consequence of mental illness. As was observed by R A Hulme J in Srikantharajah v R [2012] NSWCCA 209 at [33], "It is difficult for the applicant to make good the contention that less weight should have been given to general deterrence when it is not possible to say how much weight was given to it. A bare reference to a list of "purposes of sentencing" that includes general deterrence does not indicate anything about the extent to which it influenced the assessment of sentence. The reference by the judge to other ways in which a mental condition may be relevant indicates that the experienced judge was alive to the relevant principles. The absence of specific reference to the weight to be given to general deterrence may well be explicable because (a) the sentencing remarks were delivered ex tempore, and (b) no submission was made on the subject."
3. As in Srikantharajah, the very experienced sentencing judge was clearly alive to the potential relevance of a mental illness because he referred to one of the ways in which a mental illness could mitigate sentence, in concluding that the applicant would find a custodial sentence more onerous because of his PTSD.
4. The mere fact that an offender has a mental illness or disorder does not automatically operate to mitigate penalty. As was stated by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68, it is erroneous in principle to approach sentencing, "as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise."
5. Where there is evidence that an offender has a mental illness, the illness may (but not necessarily will) be relevant in the ways outlined in DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1; (2010) 79 NSWLR 1, at [177]: "Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. ● It may reduce or eliminate the significance of specific deterrence. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence [references and citations omitted]."
6. Here, there was no evidence that the applicant's various conditions bore any relevance to the commission of the offences, or to the sentencing exercise more broadly, other than in the way the sentencing judge concluded that it did, by having an adverse impact on the applicant's experience of a custodial environment. Dr Bench had specifically disavowed being able to express any real opinion as to a causal connection between the disorders he referred to and the offending behaviour, noting that the most significant factor was the applicant's substance dependence. Even that was dependent upon the applicant's assertions that he had been using amphetamines at the time of the commission of the offences.
7. There being no evidence of a causal link between the various disorders identified by Dr Bench and the offences, there could be no basis upon which to reduce the applicant's moral culpability for the crimes.
8. Nothing about the circumstances of the commission of the applicant's crimes suggested that mental illness played any role at all in his offending conduct. There was nothing in the evidence that pointed to a conclusion that the applicant was not an appropriate vehicle for general deterrence and, conversely, the applicant's criminal history suggested that there was a need for specific deterrence. No submissions were made to the contrary to the sentencing judge.
9. This ground has not been made good.

Ground 3: His Honour erred by not appropriately considering the degree of the harshness of the sentence of imprisonment on the Appellant because of his mental illness, and how imprisonment would adversely impact on both his mental health and prospects for rehabilitation

1. The sentencing judge made clear reference to the interplay between the applicant's PTSD and his experience of a custodial environment, but the applicant contends that the reference was no more than a "statement of fact" and not a considered conclusion.
2. His Honour said, "I should also mention that the offender's post-traumatic stress disorder will make his time in custody harder. Prisons are not gentle places. The offender's PTSD will cause him to be anxious about prison life during the entirety of his sentence."
3. His Honour clearly gave thought to the applicant's likely sufferings in custody, and took that into account favourably to the applicant in mitigating the sentence. There was no basis in evidence for his Honour to do more. Dr Bench had expressed the opinion that the applicant's PTSD would be aggravated and "triggered" by his custodial surroundings, but that opinion appeared to ignore what the applicant himself had told the doctor, that being that his mental health had been "pretty good" whilst he had been in custody, and he had not used drugs.
4. The applicant had asserted to Dr Bench that he had not used illicit drugs or alcohol during his most recent incarceration, from January to March 2015, but had relapsed into drug use on the very day of his release to the community. Those assertions undermined any basis upon which the sentencing judge could have concluded that incarceration would adversely impact upon drug rehabilitation. Further, the applicant had told the author of the 2015 pre-sentence report which he had tendered that his drug use was not problematic, and he did not require assistance to remain drug free.
5. There was also evidence in the pre-sentence report to establish that, when in the community in 2013 and given the opportunity of a full time residential drug rehabilitation programme, the applicant left after one week, having presented to staff at the programme as lacking the resolve to complete it.
6. The sentencing judge had regard to the issue of rehabilitation, (perhaps generously) making a finding of special circumstances on the basis of the need for the applicant to be supported in that regard. There was no basis in the evidence to do more.
7. This proposed ground is without merit.

Ground 4: His Honour erred in imposing an aggregate sentence that was manifestly excessive

1. The applicant submits that the sentencing judge failed to give sufficient weight to remorse and to his mental illness such that the aggregate sentence was manifestly excessive.
2. I have already concluded that his Honour was not in error in his treatment of the issues of remorse and mental illness. On that basis, this ground cannot be made good.
3. In my view the sentence imposed was within the proper exercise of the sentencing discretion, and no error has been demonstrated.
4. The orders I propose are: 1. Refuse leave to advance ground 1. 2. Otherwise grant leave to appeal but dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2017