Isbitzki v R [2019] NSWCCA 247

Isbitzki v R [2019] NSWCCA 247

The appeal was upheld because the sentencing judge failed to deal in a principled way with the causal significance of the applicant's traumatic brain injury for his moral culpability and the objective seriousness of the offence, and erred in refusing to find special circumstances where the evidence of significant rehabilitative needs requiring community-based specialist support was overwhelming. The aggravating factors based on the victims being in the immediate vicinity and the offence being committed at the victims' home were available on the facts. On resentence, the applicant's moral culpability and objective seriousness were significantly reduced by the traumatic brain injury, and...

Jurisdiction
Australia
Judgment Date
18 October 2019
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal upheld; District Court sentence quashed; applicant resentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 3 months.
Legal Topics
['aggravated Break and Enter With Intent to Commit a Serious Indictable Offence' 'intimidation Taken Into Account on a Form 1' 'traumatic Brain Injury and Moral Culpability' 'special Circumstances' 'non Parole Period' 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Appeals'] ['aggravated Break and Enter With Intent to Commit a Serious Indictable Offence' 'intimidation Taken Into Account on a Form 1' 'traumatic Brain Injury and Moral Culpability' 'special Circumstances' 'non Parole Period' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in finding that the offence was aggravated because the applicant knew that the victims were in the immediate vicinity of the premises and because the offence was committed at the victims' home." "Whether the sentencing judge failed to have proper regard to the applicant's traumatic brain injury when assessing moral culpability, objective seriousness and deterrence." "Whether the sentencing judge erred in failing to find special circumstances based on the applicant's rehabilitative needs." 'Whether the sentencing judge erred by wholly accumulating the sentence on earlier sentences or failing to account for pre-sentence custody.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The appeal was upheld because the sentencing judge failed to deal in a principled way with the causal significance of the applicant's traumatic brain injury for his moral culpability and the objective seriousness of the offence, and erred in refusing to find special circumstances where the evidence of significant rehabilitative needs requiring community-based specialist support was overwhelming. The aggravating factors based on the victims being in the immediate vicinity and the offence being committed at the victims' home were available on the facts. On resentence, the applicant's moral culpability and objective seriousness were significantly reduced by the traumatic brain injury, and...

Court Disposition

Leave to appeal granted; appeal upheld; District Court sentence quashed; applicant resentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 3 months.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld.' 'The sentence imposed in the District Court on 10 March 2017 is quashed.' '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...