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District Court 8 April 2020

R v Janezic; R v Presbury

[2020] NSWDC 177

DrugsFraud & dishonestyFirearms & weapons

Citation: R v Janezic; R v Presbury [2020] NSWDC 177
Court: District Court of New South Wales
Date: 8 April 2020 (Addendum 27 April 2020)
Judge(s): Bennett SC DCJ

Background

Two young men, referred to here as Janezic and Presbury, were stopped by police in a vehicle approximately ten kilometres south of Narrabri on 27 April 2019. Police, acting on prior intelligence and using a drug detection dog, found four unregistered and unlicensed firearms wrapped in a blanket in the rear of the vehicle, along with cannabis, substantial quantities of ammunition, a butterfly flick knife, and over $4,600 in cash.

Janezic faced a single charge: possessing more than three unregistered firearms without a licence or permit, contrary to section 51B(1) of the Firearms Act 1996. Presbury faced multiple charges, including possessing the same four unregistered firearms, possessing a prohibited drug (cannabis), and knowingly dealing with money reasonably suspected of being proceeds of crime (the $4,630 seized). He also faced additional Form 1 offences (offences taken into account at sentencing without conviction) and breaches of existing conditional liberty orders.

Both offenders pleaded guilty and had been in custody since the date of arrest. Sentencing proceeded on agreed facts common to both men, with the court then considering each offender's subjective circumstances separately.

  • The appropriate sentences for Janezic on one count of possessing more than three unregistered firearms, taking into account his plea, criminal history, and subjective circumstances
  • The appropriate sentences for Presbury on charges of possessing unregistered firearms, possessing a prohibited drug, and dealing with suspected proceeds of crime, together with Form 1 matters
  • The weight to be given to early guilty pleas (and the applicable 25% discount) for each offender
  • How to structure aggregate sentences to reflect the totality principle while accounting for the different roles and criminality of two co-offenders
  • Whether breaches of Presbury's existing community corrections order and conditional release order should be dealt with under section 10A of the Crimes (Sentencing Procedure) Act 1999 (that is, by recording a conviction but imposing no additional penalty)

Decision

Bennett SC DCJ dealt with each offender separately, though on the same factual foundation. Both men denied knowledge of the firearms when first questioned but later pleaded guilty, with each receiving a 25% discount on sentence. Their pleas were also treated as evidence of contrition and remorse relevant to subjective factors.

For Janezic, the court identified an indicative sentence that took into account his criminal history, which included prior terms of imprisonment and offences involving violence and dishonesty, as well as his relatively young age and personal circumstances. The court imposed an aggregate sentence with a non-parole period, commencing from the date of arrest.

For Presbury, the court assessed the more serious and varied criminality, including the drug possession, the proceeds of crime offence, and the Form 1 matters. The indicative sentences for each head charge were synthesised into an aggregate term, with the overall sentence structured to reflect totality. His non-parole period and head sentence were set to run from 27 April 2019.

On the question of Presbury's breaches of conditional liberty, the court subsequently revoked both the community corrections order and conditional release order. Relying on section 10A of the Crimes (Sentencing Procedure) Act 1999, the court recorded convictions for those matters but imposed no further penalty, treating the aggregate sentence already imposed as sufficient.

Orders Made

Janezic:
- Convicted of possessing more than three unregistered firearms without a licence (s 51B(1) Firearms Act 1996)
- Aggregate sentence of imprisonment with a non-parole period commencing 27 April 2019 (specific term reflected in Presbury orders below as the judgment's tail is more explicit for Presbury)

Presbury:
- Convicted of knowingly dealing with proceeds of crime and possessing more than three unregistered firearms without a licence
- Indicative sentence for proceeds of crime offence: 1 year, 8 months and 7 days
- Indicative sentence for possessing unregistered firearms (including Form 1 matters): 2 years and 3 months
- Aggregate sentence: non-parole period of 1 year and 8 months commencing 27 April 2019, expiring 26 December 2020; head sentence of 3 years and 3 months expiring 26 July 2022
- Community corrections order and conditional release order revoked
- Convictions confirmed for breach matters; no additional penalty imposed pursuant to s 10A Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • A 25% sentencing discount for an early guilty plea entered in the Local Court applied to both offenders, and the court also treated each plea as independently relevant to contrition and remorse in the subjective assessment.
  • Where co-offenders face materially different charges arising from the same set of facts, the sentencing court assesses each offender's criminality separately, even though the underlying facts are shared.
  • Under section 51B(1) of the Firearms Act 1996, possessing more than three unregistered firearms without a licence carries a maximum of ten years' imprisonment, with no standard non-parole period applying.
  • Form 1 offences (additional charges formally taken into account without separate conviction) were used to increase the sentence on the principal firearms charge for Presbury, reflecting the broader criminality involved in the same episode.
  • Applying section 10A of the Crimes (Sentencing Procedure) Act 1999, the District Court recorded convictions for Presbury's breaches of conditional liberty but imposed no further penalty, on the basis that the aggregate sentence already imposed was adequate punishment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 12; Part 4 Div 1A
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW), s 51B(1)

Cases:
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Bugmy v R [2013] HCA 37
- Qutami [2001] NSWCCA 353
- R v Henry (1999) 46 NSWLR 346
- R v Millwood [2012] NSWCCA 2