R v Isbitzki

OBJECTIVE SERIOUSNESS

1. Serious indictable offences embraced by s 113(2) of the Crimes Act 1900 (NSW) [1] extend from offences punishable by up to 5 years imprisonment to those punishable by life. [2] The serious indictable offence in this case is larceny, which pursuant to s 117 of the 1900 Act is punishable by up to five years imprisonment. Such a serious indictable offence is at the lower end of the offences contemplated by the section. However, whilst the seriousness of the "serious indictable offence" is an appropriate matter to take into consideration, this factor alone is not determinative of the objective seriousness of the offence, which depends on all the facts and circumstances of the offence and the range of offences of its kind which come before the Court. [3]
2. In this instance the offender acknowledges that the offence was aggravated by reason of the fact that it was in company, [4] and further admits he knew that the victims were in the immediate vicinity of the premises where the offence was committed. [5] Furthermore, he was clearly armed at the time with an offensive weapon. [6]
3. The offence was committed at 1:00 am, when it was more likely that the victims were at home. The offence was also committed at the victims' home which the offender acknowledges was a violation of the victims' reasonable expectations of safety and security. The fact that the offence of break and enter any dwelling house with intent to commit a serious indictable offence does not prevent the Court from taking into account that the offences took place against the householder under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [7]
4. The offender concedes that it was likely that emotional harm would be greater than would have been the case if the offence had been committed on commercial premises. However, in the absence of any information in the agreed facts, I am unable to find that the offences are aggravated pursuant to s 21A(2)(g) of the 1999 Act.
5. So far as planning was concerned, the offender acknowledges that there was a degree of planning, demonstrated by the following:- 1. There were three offenders; 2. The offender was wearing a black hoodie, a bandana as a mask, beanie, sunglasses and gloves to disguise his appearance; 3. The offender was armed with a screw driver and a meat cleaver; and 4. The power box to the premises had been damaged thereby disrupting power to the premises.
6. The Court takes into account that the offence required steps to be taken before the offence was committed, even though it may not have met the description in s 21A(2)(n) of the 1999 Act - being a planned and organised criminal activity. [8] I accept that the planning involved in this instance did not involve a degree of sophistication or organisation contemplated by the section.
7. Having said that, the offence involved two victims with the offender and co-offenders continuing the offence after becoming aware of the victims' presence and after being challenged by one of them on the front driveway area. There was some damage to the premises, but no evidence of the victims suffering any actual trauma or injury.
8. Overall, I would regard the offence as falling well within the mid-range of objective seriousness.

Aggravating factors

1. The offender has an extensive criminal record including previous offences involving property and drug-related matters. This is a matter which the Court is to take into account in sentence by way of need to provide retribution, deterrence and protection of society. [9] No submission is made that the offender is entitled to have his sentence mitigated pursuant to s 21A(3)(e) of the 1999 Act.
2. It is not in issue that at the time of the commission of the offence, the offender was on bail for various offences with which he was charged on 23 May 2015, 14 December 2015 and 22 March 2016, but in respect of which he was not sentenced 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]
3. The offender concedes that the offence was committed for financial gain is a aggravating matter on sentence under s 21A(2)(o) of the 1999 Act. [11]

Early plea of guilty

1. The offender entered pleas of guilty at the earliest opportunity and it is conceded that he is entitled to the maximum discount of 25%. [12]

Remorse

1. In a report prepared by Dr Peter Ashkar, forensic psychologist and clinical neuropsychologist, dated 20 February 2017, [13] the offender is recorded as having stated:- "He expressed considerable regret and remorse for his behaviour. [The offender stated: '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.'" [14] … He expressed considerable regret and remorse for his behaviour and he appeared genuine in this regard." [15]
2. I am satisfied that remorse has been established within the terms of s 21A(3)(i) of the 1999 Act, in the sense that the offender has acknowledged the injury, loss or damage he has caused. There is no evidence that the offender has made any reparations.

Previous drug use

1. The offender began using cannabis at or near the age of 12 years, and thereafter used and injected amphetamines more regularly. Dr Ashkar records that the offender kept using it because of his attention deficit hyperactivity disorder (ADHD) and because it made him calm and quiet. Dr Ashkar also records that the offender started using heroin at or near the age of 20 years, to "see what it was like" and reported heavy use in the years that followed. Dr Ashkar records that he eventually slowed down on heroin and started using methamphetamines and that the offender was smoking as well as injecting methamphetamines regularly before he was arrested. [16]
2. It was submitted that the offender was probably using methamphetamines and possibly also heroin at the time of the offence. He was otherwise unemployed and living with his mother, and according to the offender, the offence was committed to "… get some money to live, for food …" [17]
3. In light of Dr Ashkar's report, the offender drew attention to the decision of Basten JA in Dang v R, [18] where his Honour stated at [30]:- "[30] The circumstance of addiction is also accepted as potentially relevant to moral culpability. A person in the grip of an addiction has less freedom of choice than would otherwise be the case. Moral culpability is a function of perceived freedom of choice …"
4. Dang v R referred to circumstances of trafficking drugs to feed an addiction, rather than for commercial gain. The comments of Basten JA should be read subject to what Adams J said at [57] - [58] and Latham J at [111]. Even so, the evidence of Dr Ashkar did not establish that at the time of the offence the offender was in the "grip of addiction" such that he would have less choice than would otherwise be the case. Although Dr Ashkar records that the offender informed him that he was probably using methamphetamine and possibly heroin at the time he notes: "He 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 want to go (after arriving at the crime scene).'" [19]
5. Indeed in his summary Dr Ashkar states the "current offences were influenced by his co-offenders (and to a lesser extent his poorly controlled substance use). [20]
6. Even if the offender's judgment 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]

Traumatic brain injury

1. The offender's mother disclosed in her statement dated 23 January 2017, [22] 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.
2. 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. [23]
3. 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) …" [24]
4. It was submitted that the offender's moral culpability was reduced because of the above matters and accordingly, he was not a suitable vehicle for general deterrence by reason of his brain injury. [25]
5. So far as the offender's claims that he uses illicit drugs to manage the pain caused by the motorcycle accident, this needs to be read in the context of what was said 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]
6. Furthermore the offender's drug use commenced at a very young age prior to his brain injury. He said he did so because it helped control his symptoms of ADHD. However, the drug use has now continued for around 24 years. In my view, it does little to mitigate the crime committed. [27]
7. Nevertheless 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. [28]
8. In R v Engert, [29] 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 …" [30]
9. In R v Wright, [31] 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. [32]
10. 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.

Prospects of rehabilitation and likelihood of re-offending

1. The offender was born in Australia and is 36 years of age. His use of illicit drugs has extended for around 24 years. His education is poor and he has no skills.
2. In Dr Ashkar's report it is recorded that he denied any history of trauma or abuse during his childhood. [33] According to his mother, Mrs Magda Isbitzki, [34] the offender was diagnosed with ADHD at age 10, but was otherwise a healthy child. Since Year 6, the offender demonstrated behavioural difficulties and was suspended on numerous occasions before being expelled from school in Year 8. He did not complete any other schooling. In light of his behaviour, he was placed in "Boys Town" - a school for children with behavioural difficulties.
3. Dr Ashkar records that the offender could not recall what he did after leaving school, but informed him that he worked pre-dominantly in scaffolding (but also in car detailing). [35]
4. I accept the offender's submissions that he grew up in a loving and stable family and continues to enjoy their support. I further note that he has been accepted into the Lifetime Care and Support Scheme which will fund rehabilitation and care services, and that the offender remains remorseful for his conduct .
5. In considering the offender's likelihood to re-offend and his prospects of rehabilitation, [36] the offender's submissions acknowledge that his traumatic brain injury, his record and his history of drug abuse, and his long association with criminal peers and lack of appropriate social supports outside the family suggest that he faces considerable hurdles with respect to rehabilitation.
6. His response in a correctional setting appears to have been positive as he has been working as a sweeper and is generally well liked by staff and not regarded as a management problem. His treatment needs are being serviced under the auspices of Justice Health.
7. However, on multiple occasions, including as recently as 2015, the offender after being paroled, had his parole revoked.
8. Overall I would regard the offender's prospects of rehabilitation as at best guarded.

Difficulties in prison

1. The offender refers to Dr Ashkar's report, which states that the offender has had difficulties with other inmates as a result of his problems and that his treatment needs "cannot be met in a custodial setting …" [37] However, Dr Ashkar notes that treatment compliance might be an issue as was demonstrated when the offender voluntarily discharged himself from the Westmead Hospital Brain Injury and Rehabilitation Service and has since engaged in illicit drug use.
2. The report notes that the offender has made a positive adjustment despite the impact of his traumatic brain injury and that he is likely to benefit with the structure and routine of the incarceration setting in this regard. A suggestion that he had been involved with an incident involving other inmates for no reason comes from the offender himself. However, Dr Ashkar notes that the correctional officers he spoke to, told him that the offender was generally well-behaved, liked amongst staff and was not a management problem. Further, Dr Ashkar notes that the offender gets along well with other inmates generally and avoids trouble when he can. [38]
3. On balance, I am not satisfied on the evidence that his treatment needs cannot be need in a custodial environment and consider that the close monitoring of his mental state in a custodial setting is appropriate.

Special circumstances

1. In considering the relevant principles, Bathurst CJ in R v Lulham [39] stated:- "[7] … I agree there must be evidence on which a finding of special circumstances is based. However, in dealing with rehabilitation, it seems to me a judge would be entitled to find special circumstances if there is evidence before him or her that demonstrates that the offender has prospects of rehabilitation and that these prospects would be assisted if a longer parole period was allowed. I agree, however, with Bellew J that in the present case there was no evidence before the sentencing judge on which such a conclusion could be based." Beazley P stated:- "[8] I have had the advantage of reading in draft the reasons of Bathurst CJ and Bellew J and N Adams J. Save for the observations made by Bellew J at [54] that "a sentencing judge must be satisfied that there exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful as opposed to a mere possibility", I agree with his Honour's reasons and proposed order. I also agree with the additional reasons of the Chief Justice and N Adams J. I wish 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 which I have referred in the previous paragraph is supported by authority, regard must always be had to the context in which a particular statement is made. The seemingly unqualified nature of his Honour's observation would not be appropriate in every case. [10] An obvious, but not the only circumstance where his Honour's observation may not be appropriate, is in the case of a long prison sentence where the prospects of rehabilitation may be difficult to assess or, at that stage, even be non-existent. The Court may nonetheless be satisfied that a finding 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 [81]-[91]." Hall J agreed with Bathurst CJ on the issue of special circumstances. N Adams J agreed with Bathurst CJ, Beazley P and Hall J.
2. 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. [40]
3. 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. [41] So much can be accepted. However Dr Ashkar does not opine as to the offender's prospects of being rehabilitated.
4. 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,
5. In my view this is not an appropriate basis to find special circumstances and I decline to do so.

SENTENCE

1. The offence carries a maximum penalty of 14 years imprisonment.
2. Having regards to the purposes of sentencing in s 3A of the 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.
3. The facts of the offence of intimidation are encompassed in the charge the subject of the Form 1, which I have been requested to take into account pursuant to s 32 of the 1999 Act. I do so in accordance with the judgment of the Court of Criminal Appeal delivered by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002, [42] noting the greater weight to personal deterrence and retribution in sentencing.
4. But for the plea of guilty I would have imposed a sentence of 8 years. Taking into account the plea of guilty, I impose a minimum term of 4 years and 6 months, an additional term one year and six months making a total term of 6 years.
5. The offender is currently serving a period of imprisonment of 12 months, in respect of which the non-parole of 6 months concluded on 7 November 2016. But for these matters, the offender would have remained on parole. However, parole has not been revoked, but he has remained in custody, bail refused, since 7 November 2016.
6. In the circumstances, it is appropriate to commence the sentence in this case from 7 November 2016. The minimum term will expire on 6 May 2021. The additional term will commence on 7 May 2021 and expire on 6 November 2022.
7. The offender will be eligible to be released to parole at the earliest, on 7 May 2021.
8. 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.

Endnotes

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)
4. s 105A(1)(b) of the 1900 Act
5. s 105A(1)(f) of the 1900 Act
6. s 105A(1)(a) of the 1900 Act
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)
8. Williams v R [2010] NSWCCA 15 at [14] - [22] (McClellan CJ at CL with Simpson and Hidden JJ agreeing)
9. See generally: R v Johnson [2004] NSWCCA 76
10. Porter v R [2008] NSWCCA 145 at [86] (Johnson J with Bell JA and McCallum J agreeing)
11. Written Submissions by the solicitor for the offender dated 20 February 2017 at p 4; see also Hejazi v R [2009] NSWCCA 282 at [9] - [15] (Basten JA with Howie and Hislop JJ agreeing)
12. s 22(1) of the 1999 Act; and R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
13. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017
14. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 6 at [12]
15. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 10 at [22]
16. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 5 at [10]
17. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 6 at [12]
18. [2013] NSWCCA 246
19. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 6 at [12]
20. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 10 at [22]
21. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [194] - [202] (Spigelman CJ)
22. Exhibit 1, Statement of Mrs Magda Isbitzki dated 23 January 2017
23. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at pp 5 - 6 at [11]
24. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 10 at [22] - [23]
25. This could be relevant to s 21A(3)(j) of the 1999 Act
26. [2006] NSWCCA 1 at [23] - [25] (Howie J with Basten JA and Hall J agreeing)
27. Hayek v R [2016] NSWCCA 126 at [81] - [83] (Wilson J with Bathurst CJ and Schmidt J agreeing)
28. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53]
29. (1995) 84 A Crim R 67
30. R v Engert (1995) 84 A Crim R 67, 71 (Gleeson CJ with Allen and Sully JJ agreeing)
31. (1997) 93 A Crim R 48
32. R v Wright (1997) 93 A Crim R 48, 50 - 51 (Hunt CJ at CL with Gleeson CJ and Hidden J agreeing)
33. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 4 at [7]
34. Exhibit 1, Statement of Mrs Magda Isbitzki dated 23 January 2017
35. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at pp 4 - 5 at [8]
36. ss 21A(3)(g) and 21A(3)(h) of the 1999 Act
37. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 11 at [23]
38. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at pp 6 - 7 at [13]
39. [2016] NSWCCA 287
40. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at pp 10 - 11 at [23]
41. Exhibit 2, Report of Dr Peter Ashkar dated 20 February 2017 at p 11 at [24]
42. (2002) 56 NSWLR 146 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: 10 March 2017