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District Court 5 November 2019

R v Rudyk (aka Rudick)

[2019] NSWDC 692

Firearms & weapons
PAROLE PERIOD — RATIO OF THE NON PAROLE PERIOD — STANDARD NON PAROLE PERIOD SENTENCING — NON PAROLE PERIOD — STANDARD NON

Citation: R v Rudyk (aka Rudick) [2019] NSWDC 692
Court: District Court of New South Wales
Date: 5 November 2019
Judge: Bennett SC DCJ

Background

The offender, a 45-year-old man, was committed to the District Court for sentence after pleading guilty to four principal firearms and prohibited weapons offences. The charges arose from a single occasion on 27 March 2018 at Tregear, where police found him in possession of two shortened shotguns, a 0.22 calibre self-loading pistol fitted with a silencer, and a Taser (described as a handheld anti-personnel device). Each offence carried a maximum penalty of 14 years imprisonment, and two of the four attracted standard non-parole periods.

The offender had been a member of an outlaw motorcycle club, having been a full member for approximately two years and an aspirant for a period before that. By the time of sentencing, he had returned his club colours and disassociated himself from the organisation. The court noted this disengagement carried its own personal risks given the nature of such groups.

The court also dealt with breaches of section 9 bonds under the Crimes (Sentencing Procedure) Act 1999, to which the offender consented. A number of additional offences were placed on a Form 1 to be taken into account in sentencing on the principal charges.

  • How to apply the standard non-parole period framework (as clarified by the High Court in Muldrock v R) to firearms offences of varying objective seriousness
  • How to structure an aggregate sentence across four principal offences with Form 1 matters
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory ratio contemplated by section 44 of the Crimes (Sentencing Procedure) Act 1999
  • What weight to give unsworn subjective material tendered on behalf of an offender who did not give evidence, consistent with Qutami
  • How to deal with bond breaches and associated minor offences alongside the principal sentencing exercise

Decision

Bennett SC DCJ found that a period of imprisonment was necessary, notwithstanding the offender's subjective circumstances and apparent rehabilitation. The court accepted the representations made on the offender's behalf, noting consistency across the documents tendered including medical and psychological material, but emphasised that this did not excuse the misconduct.

On the standard non-parole period question, the court applied the post-Muldrock framework, treating the standard non-parole periods as a legislative guidepost to be considered alongside all objective and subjective factors. The court determined that the offences, while serious, did not warrant sentences at the upper end of the range, and set indicative individual terms accordingly: three years for each of the two shortened shotgun offences, three years (with an 18-month non-parole period) for the silenced pistol, and 18 months (with a nine-month non-parole period) for the Taser.

The court found special circumstances justifying a non-parole period shorter than the standard one-third balance, given the offender's need for an extended period of supervision on parole following release. The offender's age, his departure from the motorcycle club, his personal history, and the rehabilitative considerations all informed this finding.

On the bond breaches, the court imposed an indicative sentence of one month's imprisonment for the property damage offence, and no penalty (pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999) for the remaining matters, with convictions recorded.

Orders Made

  • The offender was convicted of all four principal firearms and prohibited weapons offences (sequences 3, 10, 14, and 15)
  • Indicative sentences imposed: three years imprisonment for each of sequences 14 and 15; three years with a non-parole period of 18 months for sequence 3; 18 months with a non-parole period of nine months for sequence 10
  • An aggregate sentence of four years imprisonment was imposed, commencing 19 April 2018, with a non-parole period of two years expiring 18 April 2020, and the balance of term expiring 18 April 2022
  • For bond breach offences: one month imprisonment (indicative) for the property damage matter; section 10A no-penalty orders (with convictions recorded) for the remaining breach matters
  • Form 1 offences certified in each relevant case
  • Exhibits to remain on file for 28 days or such longer period as the parties require

Key Takeaways

  • The District Court applied the post-Muldrock standard non-parole period framework as a guidepost rather than a mandatory benchmark, weighing objective seriousness against a range of subjective factors before setting indicative and aggregate terms.
  • Where an offender does not give evidence, courts must approach subjective material tendered on their behalf with circumspection consistent with Qutami, though consistent and corroborated representations across multiple documents may still be accepted.
  • Special circumstances can justify structuring an aggregate sentence so that the non-parole period falls below the statutory ratio in section 44 of the Crimes (Sentencing Procedure) Act 1999, particularly where extended post-release supervision is considered necessary for rehabilitation.
  • Voluntary disengagement from an outlaw motorcycle club, combined with evidence of personal development and medical or psychological history, may constitute relevant subjective mitigation, though it does not displace the need for a custodial sentence for serious firearms offences.
  • Under section 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for a minor offence while imposing no additional penalty, a course the District Court took here in respect of most of the bond breach matters.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 7(1), 62(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 44, Part 4 Division 1A
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Muldrock v R [2011] HCA 39
- Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247
- Markarian v R [2005] HCA 25
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Callaghan v R [2006] NSWCCA 58
- Osenkowski (1982) 5 A Crim R 394