AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 22 January 2021

R v Lizano

[2021] NSWDC 54

Firearms & weaponsDomestic & family violence

Citation: R v Lizano [2021] NSWDC 54
Court: NSW District Court
Date: 22 January 2021
Judge: Buscombe DCJ

Background

The offender, a 40-year-old man with a significant criminal history, pleaded guilty to three offences arising from events on 30 October 2019 at a residential property in The Ponds, Sydney. Two of the offences involved possessing shortened firearms without authorisation: a shortened double-barrel shotgun and a shortened .22 calibre bolt-action rifle. The third offence was intimidating his intimate partner in a domestic violence context.

Police located the firearms after the victim called triple-0 during an argument with the offender and told police he had firearms at the property. Officers searched the garage and found both imitation and real firearms concealed in bags. The offender's solicitor also confirmed the existence of at least two firearms on the top shelf of the garage.

The offender was on parole at the time of all three offences, having been released from custody in June 2019 following a sentence for escape from lawful custody and related matters. Two additional offences of possessing imitation pistols without authorisation were placed on a Form 1 (taken into account when sentencing on the shotgun possession charge, but not dealt with as separate charges).

  • What was the appropriate sentence for two counts of possessing shortened firearms contrary to the Firearms Act 1996 (NSW), including the weight to be given to the Form 1 offences?
  • What was the appropriate sentence for one count of stalking or intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW)?
  • How should the offender's subjective circumstances, criminal history, and commission of the offences while on parole bear on the overall aggregate sentence?

Decision

Buscombe DCJ assessed the objective seriousness of the two firearms offences as falling below the notional mid-range, but not at the bottom of the range. The court noted there is no legitimate purpose for possessing a shortened firearm, which can be easily concealed and used in serious criminal activity. The court was satisfied beyond reasonable doubt that the offender was storing the firearms for someone who intended to use them for an illegal purpose, and that the offender was aware of that intention. He had been paid in illicit drugs for storing the weapons. The absence of ammunition and the fact the firearms were unloaded were noted but did not significantly reduce the seriousness of the conduct.

The intimidation offence was assessed as falling towards the bottom of the range of objective seriousness. The offender had acted aggressively towards his partner within her home, but the threats were characterised as limited in scope.

Several aggravating factors bore on the sentence. The offender's commission of all three offences while on parole was an explicit statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW). His criminal history included prior convictions for aggravated break and enter, possession of an unregistered firearm, robbery, and escape from lawful custody. The court also considered the offender's subjective circumstances, including a sentencing assessment report and psychological material, though the portions of the judgment addressing those matters were not fully reproduced in the available text.

The court imposed indicative sentences of five years for the shotgun possession (reflecting the Form 1 offences), four years for the rifle possession, and six months for the domestic violence intimidation. These were then combined into an aggregate sentence, which the court noted is not calculated by simply adding the indicative sentences together.

Orders Made

  • The offender was convicted of all three offences to which he pleaded guilty.
  • An aggregate sentence of six years' imprisonment was imposed, with a non-parole period of four years.
  • The sentence commences on 14 February 2020 and expires on 13 February 2026.
  • The non-parole period expires on 13 February 2024, making that the earliest date of eligibility for parole (subject to the State Parole Authority's determination).
  • Pursuant to s 18B of the Drug Court Act 1998 (NSW), the offender was referred to the Drug Court to determine whether a compulsory drug treatment order should be made.

Key Takeaways

  • Possession of shortened firearms carries a maximum of 14 years' imprisonment under the Firearms Act 1996 (NSW), and the District Court confirmed there is no legitimate purpose for such possession, given the ease with which shortened firearms can be concealed and used in criminal activity.
  • Where an offender stores firearms in exchange for illicit drugs and is aware the owner intends to use them unlawfully, the court may find objective seriousness elevated even without proof of a specific criminal plan, based on the nature of the arrangement.
  • Committing offences while on parole is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) and weighed against the offender in calibrating the overall sentence.
  • Form 1 offences, although not separately prosecuted, must have "some impact" on the sentence imposed for the related substantive charge, particularly where those Form 1 offences would otherwise carry a standard non-parole period.
  • An aggregate sentence is not the arithmetic sum of individual indicative sentences; the court constructs it as an overall measure of the total criminality involved.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), s 61(2B) (cited in metadata; the judgment text refers to s 62(1B) for the possession offences)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A and s 21A
- Drug Court Act 1998 (NSW), s 18B

Cases cited: No cases were cited in the judgment.