Isbitzki v R [2019] NSWCCA 247

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Isbitzki v R [2019] NSWCCA 247 Hearing dates: 27 September 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Before: Payne JA at [1] Fullerton J at [2] Adamson J at [80] Decision: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The sentence imposed in the District Court on 10 March 2017 is quashed. 4. 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 expiring on 8 August 2018. Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to one count of aggravated break and enter with intent to commit a serious indictable offence – further offence of intimidation taken into account on sentence – head sentence of 6 years' imprisonment – whether the sentencing judge erred in their treatment of the offending as aggravated – sufficient basis to make out aggravation – whether the sentencing judge failed to give proper regard to the applicant's traumatic brain injury – where the applicant had previously sustained a diffuse axonal injury – whether the sentencing judge should have found special circumstances – where the applicant has significant rehabilitative needs in light of his brain injury – Court obliged to resentence – applicant resentenced to head sentence of 3 years and 9 months' imprisonment Legislation Cited: Crimes Act 1900 (NSW) Crimes (Forensic Procedures) Act 2000 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Aslan v R [2014] NSWCCA 114 Hejazi v R [2009] NSWCCA 282 Kaderavek v R [2018] NSWCCA 92 Markarian v the Queen (2005) 228 CLR 357; [2005] HCA 25 Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 R v Hughes [2018] NSWCCA 2 R v Johnson [2004] NSWCCA 76 R v Newman; R v Simpson [2004] NSWCCA 102 Tepania v R [2018] NSWCCA 247 Yun v R [2017] NSWCCA 317 Category: Principal judgment Parties: Jason Mark Isbitzki (Applicant) The Crown (Respondent) Representation: Counsel: I McLachlan (Applicant) D Patch (Crown)