District Court New South Wales Medium Neutral Citation: R v Imbornone [2016] NSWDC 305 Hearing dates: 6 May 2016 Date of orders: 06 May 2016 Decision date: 06 May 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to an aggregate sentence of imprisonment consisting of a non-parole period of 5½ years and a head sentence of 9 years. The offender is to make payment by way of compensation to the NRMA in the amount of $4034.18 Catchwords: CRIMINAL LAW – Sentence - Drive while disqualified - Aggravated break enter and commit serious indictable offence - Detain for advantage - In company - Assault occasioning actual bodily harm - Steal from person - Home invasion - Reckless wounding Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Peter Imbornone Representation: Counsel: Ms R Court - Offender Solicitors: Director of Public Prosecutions O'Brien Winter Partners - Offender File Number(s): 2015/124882 SeNTENCE 1. HIS HONOUR: The aggregate sentence I am about to impose on Peter Imbornone is a long one. That is due to the seriousness of the offences he has committed, one offence in particular. 2. There are, in fact, three sets of offences for which I must sentence Mr Imbornone. One is an offence of driving whilst disqualified. That comes before me because he breached a bond a magistrate put him on. He consents to me dealing with that matter. 3. The second set of offences concerns offences committed on 29 September 2014. One was an offence of aggravated break enter and commit a serious indictable offence. The serious indictable offence is detaining for advantage and the aggravating circumstance is that Mr Imbornone was in company. That carries a maximum penalty of 20 years imprisonment with a standard non-parole period of five years. About the same time he committed another offence on a separate victim. This was an offence of reckless wounding in company. It has a maximum penalty of 10 years with a standard non-parole period of four years. 4. The third set of offences concern the same victim, a Todd Wrench. The offender pleaded guilty to assault occasioning actual bodily harm and stealing from the person. The first of those carries a maximum penalty of five years imprisonment and the second 14 years imprisonment. 5. I take into account the maximum penalties and, where appropriate, the standard non-parole periods in determining the appropriate sentences to impose upon the offender. My reasons for not imposing the standard non-parole period in either case appear in these remarks on sentence. 6. Before detailing what Mr Imbornone did I should note that to the offences carrying standard non-parole periods the offender pleaded guilty at an early opportunity and so the sentence I will announce for those matters is 25 per cent less than they would otherwise have been. To the offences involving Mr Wrench, the offender's plea of guilty came later. The Crown suggests that the discount should be 10 per cent and Ms Court, who appears for the offender, did not challenge that. Accordingly, the sentences for those matters will be 10 per cent less than they would otherwise have been. 7. What I am about to describe are offences of significant seriousness. I am referring here to the offences with standard non-parole periods. 8. On 29 September 2014 a Ms Sarah Lewis was living with her partner, David Forbes, in a unit in Mayfield. At about 4 o'clock on that day Ms Lewis was leaving the unit. She closed the front door and was in the process of closing and locking the screen door when she was approached by two men. One of them was this offender, the other has not been identified. 9. Ms Lewis did not recognise either of them but they knew her name. One said, "Sarah, we need to have a chat to you and Dave." She was told, "We need you inside. We need to talk to you both about what is going on." Ms Lewis was obviously concerned by this approach, she did not want to go inside with the men. She said, "Can we wait here or in the park?" She was told, "No, we need to do this inside." Ms Lewis refused the men entry several more times. 10. It was then that this offender pulled a metal pole from a canvas bag he was carrying and showed it to Ms Lewis. The co-offender pulled a knife from his pocket. The co-offender, the man with the knife, then said, "Let us in, open the door, Sarah." Not surprisingly, Ms Lewis was very scared and started crying. She said, "Please don't make me let you in. This is not my place. Please wait for David. Please don't rape me." There is no suggestion that the offenders wanted to rape Ms Lewis but her expressions of fear as to that being a possibility are, of course, genuine. 11. As a result of the threats, Ms Lewis did open the door and let the men inside. She was scared to the point where she was shaking and asked repeatedly, "Are you going to hurt me?" By stage Mr Imbornone, this offender, was armed with a knife. It may have been the knife that was previously carried by his co-offender or it may have been another one. It does not really matter. The offender said, "We are not going to hurt you. We need to have a chat with you. We will wait for Dave." 12. It would not be surprising if Ms Lewis was not comforted by the words "We are not going to hurt you". She had been threatened with weapons, she had been forced to take the men inside. The offender said, "You owe us some money, a thousand dollars." Ms Lewis knew nothing about what the men were speaking about and said that she did not owe anyone any money. 13. Ms Lewis wanted to ring her partner. She asked if she could use one of the offender's mobile phones. The offender Mr Imbornone said that his phone was flat. Ms Lewis offered to charge his mobile phone using a charger that was in the unit. That was done and the offender dialled the number for Mr Forbes. This later provided a bit of evidence which inculpated the offender. 14. Ms Lewis managed to speak with Mr Forbes over the telephone, asking him to come home immediately. After a short conversation the co-offender put a knife up to her throat and said, "Hang the phone up now." The blade was actually touching the left side of her neck. She was told to sit back on the lounge. She wanted to escape, not surprisingly, and asked if she could get a drink or go to the toilet. She was told "No", she could not. 15. A short time later Mr Forbes returned home. He saw Ms Lewis crying hysterically. He saw the two offenders. The co-offender was holding a metal pole and Mr Imbornone was holding onto a knife. Mr Forbes said, "What are you guys, what is going on?" He was told, "We need to have a chat about some money that your girlfriend owes." Mr Forbes said, "She doesn't owe you anything. She's been here for weeks. Who do you think you are being in my house? Get the fuck out." 16. He then picked up a baseball bat. He told the offender and his co-offender to get out. The co-offender swung the metal pole at Mr Forbes and lunged towards him. Mr Forbes was trying to avoid being hit and the offender came at Mr Forbes with a knife, thrusting the knife out towards him. During this commotion Ms Lewis was able to run to a neighbour's unit and call for help. 17. One of the important matters in assessing the objective gravity of the home invasion offence concerns the length of time that Ms Lewis was detained. It must have been significant. She must have been in terror for a significant period of time. 18. After Ms Lewis ran away Mr Forbes also managed to get outside. He pushed the screen door closed, trying to keep the two offenders inside. But he soon let go because he realised he could be stabbed through the screen door. He then ran away with the two offenders chasing him. Mr Forbes managed to connect the baseball bat with one of them but the baseball bat broke. He was then unarmed and not really capable of defending himself. He was struck on the back of the head with the metal pole that was being wielded by the co-offender. He ran to the carport area of the unit block. He tried to take refuge in his boat. He grabbed hold of a ladder and tried to use it as a shield. The co-offender threw the metal pole at Mr Forbes, fortunately it did not hit him. 19. At this stage the offender and co-offender ran off down the driveway, got into a car being driven by a female and the car sped off. It was only at that stage that Mr Forbes realised he was bleeding. He had been stabbed by this offender in the stomach. 20. He was taken to John Hunter Hospital. Laparoscopic surgery was performed to ensure that serious injuries had not been caused to him. Fortunately, the injuries were, as they were described, rather minor. 21. By doing what he did, the offender displayed a high degree of recklessness towards the risk that Mr Forbes would be stabbed by the knife the offender was using. 22. Plenty of evidence was left behind by the offenders. DNA was recovered and, as I foreshadowed earlier, call charge records showed that Mr Forbes had received a telephone call from a mobile number registered to the offender. Accordingly, he was arrested, taken to Newcastle Police Station and interviewed. He denied any involvement in or knowledge of those offences. 23. Let me move now to the final offences for which the offender must be sentenced. On 5 March 2015 Todd Wrench rode his motorcycle to a friend's house at Bellbird. They were in the backyard of the house, smoking cigarettes. Later that evening when Mr Wrench heard the offender yelling, "I'm going to smash you." He recognised the offender because they had gone to high school together. The offender punched Mr Wrench to his head a number of times. He suffered minor bruising to his right cheek and it had almost gone by the next day. The offender started accusing Mr Wrench of selling drugs to his niece, saying, "What were you thinking selling drugs to my niece?" 24. 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 the offender's niece. 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. 25. After the assault was completed, as something of an after-thought, the offender told Mr Wrench that he was taking his bike with him when he left. Mr Imbornone had the presence of mind to pull out a piece of paper and write out a receipt, stating that the victim had sold his motorcycle to the offender. He took the key to the motorbike and rode it away. 26. Later an acquaintance of Mr Wrench recognised the motorcycle at a different location. He told Mr Wrench where the motorcycle was. Police were notified. It was noted that the motorcycle was damaged when it was recovered. It was, in fact, written off and the insurance company paid Mr Wrench more than $4,000. 27. Quite why these 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. 28. The offender claims that he had little, if any, memory of the home invasion and reckless wounding offences. 29. It is to be noted that Dr Bench described the offender reporting symptoms consistent with post-traumatic stress disorder, relating to sexual abuse that Mr Imbornone said he was subject to as a child. There is, and this is easy to accept, a significant correlation between post-traumatic stress disorder and drug use. But that does not mean that there is necessarily a link between the offender's PTSD and the commission of these offences. 30. As Dr Bench said, "Drawing any direct correlation between the mental health conditions and the offending behaviours is impossible. Nevertheless, there may be a link between an indirect link but it is likely that the offending that I have described resulted perhaps in part from the offender's drug use." 1. The offender was born in Singleton. His parents separated when he was eight. His mother is on a Disability Support Pension for severe emphysema. There was no domestic violence in the parental relationship. He was brought up by his mother in Murwillumbah and Cessnock, with no significant step-father figure in his life. 2. His drug use began at a relatively early age. He started drinking alcohol at 12 and using cannabis at the age of nine. His drug use progressed to regular amphetamine use at the age of 13. He suggested that his ability to remember too much about the home invasion and reckless wounding offences were due to his drug use. Quite clearly, his prospects of rehabilitation are closely linked to the prospect that he will be able to give up illegal drug use. For that reason, I make a finding of special circumstances in his favour. 3. He will need assistance in dealing with his desire to use and addiction to drugs. If he can be encouraged to give up drugs, he is much more likely to avoid committing further offences in the future. 4. The offender has a criminal history and has regularly been in custody. Notably, on his criminal history there are assault and intimidation offences, but the sentence I am about to impose upon him is by far the longest period of imprisonment he will have ever served. That is because the offences I have described, particularly those involving Ms Lewis and Mr Forbes, are much more serious offences than anything the offender has committed in the past. 5. 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. 6. 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. 7. As I began these remarks on sentence, what is required in this case is a lengthy term of imprisonment. It is a fundamental rule in sentencing that the sentence imposed reflects the objective gravity of an offender's conduct. The two offences involving Ms Lewis and Mr Forbes were objectively very serious indeed. I have already mentioned that Ms Lewis was detained for a significant period of time. She was highly frightened. The offender was armed. And the indictable offence he committed was one of much greater seriousness than simply something like stealing. 8. The reckless wounding involved an injury to Mr Forbes which was caused by a knife, wielded in a highly reckless manner by the offender. It came about after Mr Forbes returned home because the offenders were committing an offence involving Ms Lewis. He was entitled to defend himself, as he did. Instead of the offenders running immediately away, they chased him and in the course of either Mr Forbes defending himself or being chased he was wounded. 9. I will impose an aggregate sentence of imprisonment. Were it not for the imposition of an aggregate sentence, I would have imposed the following sentences: 10. For the drive whilst disqualified matter, three months imprisonment. For aggravated break enter and commit serious indictable offence, I would have imposed a sentence of imprisonment of six years with a non-parole period of three and a half years. For the reckless wounding offence, a sentence of five years with a non-parole period of three years. For the assault occasioning actual bodily harm offence and the steal from person offence, I would have imposed in each case two years imprisonment. 11. Instead, I will impose an aggregate sentence consisting of a non-parole period of five and a half years with a head sentence of nine years. That is to date from 30 April 2015. Thus, the non-parole period will expire on 29 October 2020, on which day the offender is eligible to be released to parole. 12. I make an order that the offender is to pay to NRMA by way of compensation the sum of $4,034.18. ********** Amendments 15 November 2016 - No amendments made 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: 15 November 2016