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District Court 26 November 2020

R v Kaplantzi

[2020] NSWDC 889

Assault & violenceFirearms & weaponsDomestic & family violence
CRIMES FIRE FIREARM AT DWELLING HOUSE WITH DISREGARD FOR SAFETY IMMEDIATE ADMISSIONS NATURE OF PISTOL “BB GUN” MINOR INJURIES CAUSED

Citation: R v Kaplantzi [2020] NSWDC 889
Court: District Court of New South Wales
Date: 26 November 2020
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to firing a BB gun (ball bearing gun) at a dwelling house with reckless disregard for the safety of persons, and to using an unauthorised pistol. The incident occurred on 15 November 2019 in Windang, southern Wollongong, when the offender drove slowly past a residential address and fired more than ten shots through the open window of his car. Two men were struck and sustained minor injuries; the rear window of a parked vehicle was shattered and the house was damaged.

The offender's stated motivation was retribution. He claimed he had delivered drugs to the premises as a favour to a friend, and that the recipient had taken the package by force at gunpoint without paying. He returned home, retrieved the BB gun he used recreationally for target shooting, and drove back to the address. The court accepted that, while he did not intend to injure anyone, his conduct involved a degree of premeditation and constituted reckless use of a firearm.

At the time of the offending, the offender was subject to Community Correction Orders (CCOs) imposed in February 2019 for domestic and personal violence offences. After completing supervised periods of those orders, he had returned to the Wollongong area, resumed association with drug-using peers, and was not working. The CCO breaches were also before the court for determination.

  • What was the appropriate sentence for firing a firearm at a dwelling house with reckless disregard for safety, contrary to s 93G(a)(i) of the Crimes Act 1900?
  • What was the appropriate sentence for use of an unauthorised pistol, contrary to s 71 of the Firearms Act 1996?
  • How should the Form 1 matters (including possession of an unregistered firearm) affect the overall sentence?
  • How should the proved breaches of the Community Correction Orders be dealt with?
  • Did special circumstances exist warranting a departure from the standard ratio between the non-parole period and the total sentence?
  • How should the totality principle and the Pearce principle (against double-punishing for overlapping elements) govern the structure of concurrent and consecutive sentences?

Decision

Haesler SC DCJ assessed the objective seriousness of the principal offence as significant, noting that it took place on a public street, involved indiscriminate firing, and caused both personal injury and property damage. The court emphasised that it would not have been apparent to those targeted that the weapon was a BB gun, and that drug use in combination with any firearm materially elevates the potential for serious harm. The fact that the victims did not cooperate with police did not mitigate the offending, consistent with s 30E of the Crimes (Sentencing Procedure) Act 1999.

The court was firm on the legal status of BB guns, gel blasters, and similar devices. Under NSW law, such items are classified as firearms regardless of how their owners perceive them, and their possession without a licence is unlawful. The court noted it had been necessary to state this principle repeatedly in recent years.

On structure, the court applied the totality principle from Mill v The Queen and the Pearce principle, reducing the sentence for the Firearms Act offence to avoid double-punishing conduct elements shared with the principal charge. The Form 1 matters were assessed as not, of themselves, requiring custodial terms (with the possible exception of possessing an unregistered firearm), and their effect on the overall sentence was limited.

A significant finding of special circumstances was made, substantially extending the non-parole period's proportion of the total sentence beyond the statutory norm. The court pointed to the offender's youth, immaturity, history of drug use, and the need for an extended period of supervised parole to reduce the risks associated with associations formed during custody. A 25 per cent reduction for the early guilty plea was also applied. The court characterised the resulting sentence as lenient relative to the maximum penalty and standard non-parole periods, attributing that leniency to the offender's youth and the nature of the weapon used rather than the potential for harm.

Orders Made

  • CCO breaches: Proved in relation to each matter; two months imprisonment, served concurrently, from 15 November 2019 to 14 January 2020.
  • Principal offence (fire firearm at dwelling with disregard for safety, s 93G(a)(i)): Three years and four months imprisonment; standard non-parole period one year and nine months. (Commencing 15 January 2020; Form 1 matter taken into account.)
  • Second offence (use unauthorised pistol, s 71 Firearms Act): One year and six months imprisonment; non-parole period nine months. (Reduced in accordance with Pearce; Form 1 matter taken into account.)
  • Aggregate sentence: Three years and four months from 15 January 2020, with a non-parole period of one year and eight months; earliest release date 14 September 2021.
  • Total effect (inclusive of CCO breach): Three years and six months; non-parole period one year and ten months; release date 14 September 2021.
  • Sentences reflect a 25% reduction for guilty plea (s 25D Crimes (Sentencing Procedure) Act 1999) and a significant finding of special circumstances.

Key Takeaways

  • BB guns, gel blasters, and similar recreational devices are classified as firearms under NSW law. Possession without a licence is a criminal offence, not a trivial matter, and courts will treat their use in connection with other criminal conduct as seriously aggravating.

  • The District Court confirmed that a victim's failure to cooperate with police does not mitigate the seriousness of an offence, applying s 30E of the Crimes (Sentencing Procedure) Act 1999.

  • Taking the law into one's own hands by arming oneself and returning to a scene of a perceived grievance is treated as conduct that fundamentally undermines community safety, particularly where drugs and firearms intersect. The court observed that one purpose of criminal law is to discourage victims and others from resorting to self-help.

  • A significant finding of special circumstances can substantially alter the balance between the non-parole period and head sentence where an offender's youth, immaturity, and risk of negative custodial associations point to a greater need for supervised reintegration.

  • Where two charges share common elements, the Pearce principle requires that the sentence for the lesser offence be reduced to avoid punishing the offender twice for the same conduct. The court applied this by reducing the Firearms Act sentence to reflect its overlap with the principal charge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G(a)(i)
- Firearms Act 1996 (NSW), s 71
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 30E
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Attorney General's Application No. 1 (2002) 56 NSWLR 146 (guideline judgment on Form 1 matters)
- Mill v The Queen (1988) 166 CLR 59 (totality principle)
- Pearce v The Queen (1998) 194 CLR 610 (double-counting overlapping offence elements)
- Clarke-Jeffries v R [2019] NSWCCA 56
- DPP v De Le Rosa [2010] NSWCCA 194
- R v Loveridge [2014] NSWCCA 120