Imbornone v R [2017] NSWCCA 144

Imbornone v R [2017] NSWCCA 144

The sentencing judge did not err in declining to find remorse because the only evidence was the applicant's untested, self-serving statements to a psychiatrist and it was open to give that evidence insufficient weight. There was no evidence that the applicant's PTSD, personality disorder or substance dependence materially contributed to the offences so as to reduce moral culpability or lessen deterrence, though the judge properly accepted that PTSD would make custody harder. The aggregate sentence was within the proper exercise of the sentencing discretion and was not manifestly excessive.

Jurisdiction
Australia
Judgment Date
05 July 2017
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Decision on Application for Leave to Appeal Against Sentence From Newcastle District Court
Outcome
Leave to advance ground 1 refused; otherwise leave to appeal granted but the appeal dismissed.
Legal Topics
['aggravated Break, Enter and Commit Serious Indictable Offence' 'reckless Wounding in Company' 'assault Occasioning Actual Bodily Harm' 'steal From Person' 'breach of Bond' 'guilty Pleas' 'remorse' 'untested Hearsay Statements' 'mental Illness in Sentencing' 'manifest Excess']
['criminal Law' 'sentencing'] ['aggravated Break, Enter and Commit Serious Indictable Offence' 'reckless Wounding in Company' 'assault Occasioning Actual Bodily Harm' 'steal From Person' 'breach of Bond' 'guilty Pleas' 'remorse' 'untested Hearsay Statements' 'mental Illness in Sentencing' 'manifest Excess']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Decision on Application for Leave to Appeal Against Sentence From Newcastle District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred in not accepting remorse as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW).' "Whether the sentencing judge erred in considering the applicant's mental illness and its relevance to specific deterrence and general deterrence." 'Whether the sentencing judge erred in considering the harshness of imprisonment for the applicant because of his mental illness and its impact on rehabilitation.' 'Whether the aggregate sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in declining to find remorse because the only evidence was the applicant's untested, self-serving statements to a psychiatrist and it was open to give that evidence insufficient weight. There was no evidence that the applicant's PTSD, personality disorder or substance dependence materially contributed to the offences so as to reduce moral culpability or lessen deterrence, though the judge properly accepted that PTSD would make custody harder. The aggregate sentence was within the proper exercise of the sentencing discretion and was not manifestly excessive.

Court Disposition

Leave to advance ground 1 refused; otherwise leave to appeal granted but the appeal dismissed.

Orders

  • ['Refuse leave to advance ground 1.' 'Otherwise grant leave to appeal but dismiss the appeal.']