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District Court 23 October 2021

R v Su

[2021] NSWDC 788

Assault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences
CRIM E SENTENCE INTIMIDATION ASSAULT OCCASIONING ACTUAL BODILY HARM FIREARM OFFENCES

Citation: R v Su [2021] NSWDC 788
Court: District Court of New South Wales
Date: 23 October 2021
Judge(s): Neilson DCJ

Background

The offender, a man in his thirties, had previously shared a unit in Mascot with his former partner following a relationship that ended in early 2020. After their separation, the offender moved to a different unit in the same apartment block, while his former partner remained at the original address with a new boyfriend.

In the early hours of 23 October 2020, intoxicated and accompanied by two friends, the offender entered his former partner's unit without permission. He confronted her new boyfriend, attempted to strike him, bit his fingers during a struggle, and slapped his former partner across the face while she attempted to separate them. He also made a threat to kill the boyfriend. The entire incident lasted approximately 15 minutes and was captured on CCTV.

When police arrested the offender later that day, he disclosed that he kept two registered nine-millimetre pistols at his Mascot unit. Officers found the firearms loaded, with rounds in the chamber, stored in a safe that was not anchored to any surface and was not at the address to which the firearms were registered. These storage failures gave rise to separate charges under the Firearms Act 1996.

  • Whether the principal offences (aggravated break and enter, intimidation, and two counts of common assault) crossed the threshold for full-time imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999
  • How to assess the objective seriousness of the principal offences
  • Whether an Intensive Correction Order (ICO) was an appropriate sentencing disposition given the offender's personal circumstances and prospects for rehabilitation
  • What penalties were appropriate for the two firearms storage offences under the Firearms Act 1996

Decision

Both the Crown and the defence submitted that all three principal offences fell below the mid-range of objective seriousness. Neilson DCJ accepted this characterisation without hesitation. The assaults were brief, neither victim suffered ongoing effects, and the breaking was described as purely technical, as the door was simply unlocked. The judge found that the offending was substantially driven by the offender's consumption of alcohol and arose from an impulsive confrontation, partly triggered by concern for his former partner's welfare and his unawareness that her new boyfriend was present.

The judge considered the offender's personal background, which included a stable upbringing, no prior criminal history of note, a history of business activity, and a psychological report from Dr Natalia Yee. The offender's former partner provided a letter to the court expressing genuine forgiveness and support for him, which the judge described as unusual for a victim in such circumstances. These factors, combined with the recommendation for structured treatment, supported a finding that the offender had good prospects of rehabilitation.

Taking all factors into account, including the principle of totality and the overlap between the three primary offences, Neilson DCJ determined that imprisonment by way of an Intensive Correction Order was the appropriate disposition. An ICO allows a sentence of imprisonment to be served in the community under strict supervision and conditions, rather than in full-time custody.

On the firearms offences, the judge acknowledged that safe storage obligations exist to protect the community by preventing unauthorised access to weapons and ammunition. While the judge accepted that anchoring a safe was difficult in a rental property, the loaded firearms remained a serious concern. Fines were imposed for each firearms offence rather than a custodial term.

Orders Made

  • Aggregate sentence of two years imprisonment for the offence under s 112(2) of the Crimes Act 1900 and both assault offences, to be served by way of Intensive Correction Order, commencing 13 October 2021, with the following conditions:
  • No commission of any offence
  • Submission to supervision by a Community Corrections Officer
  • Participation in a rehabilitation and treatment program as directed by Community Corrections, and compliance with the treatment plan proposed by Dr Natalia Yee
  • Abstention from alcohol
  • Reporting to a Community Corrections Officer at Penrith by telephone within seven days
  • Indicative sentences within the aggregate: two years and three months (head sentence) with a non-parole period of 18 months for the s 112(2) offence; four and a half months each for the two assault offences
  • Fine of $1,000 for the offence under s 39(1)(a) of the Firearms Act 1996 (failure to safely keep a firearm)
  • Fine of $1,000 for the offence under s 41(1) of the Firearms Act 1996 (non-compliant firearm storage)

Key Takeaways

  • The District Court confirmed that opening an unlocked door by turning a handle constitutes a "breaking" in law, satisfying that element of the break and enter charge under s 112(2) of the Crimes Act 1900.
  • Where actual bodily harm results from a common assault charge, the sentencing court cannot treat the harm as an aggravating feature if the offender was not charged with the more serious offence of assault occasioning actual bodily harm; to do so would be to sentence for an offence not on the charge sheet.
  • An ICO remained available as a sentencing option where the primary offences fell below the mid-range of objective seriousness and the offender demonstrated good rehabilitation prospects, supported by expert psychological evidence and a structured treatment plan.
  • Firearms storage offences under the Firearms Act 1996 were treated as matters warranting distinct penalty, given their community protection purpose, even where no violence was directly connected to the firearms on the occasion of the offending.
  • Practical constraints such as a rental tenancy agreement, which may prevent physically anchoring a gun safe, do not excuse non-compliance with the storage requirements of the Firearms Act 1996.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2) (aggravated break, enter and commit serious indictable offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for full-time imprisonment)
- Firearms Act 1996 (NSW), ss 39(1)(a) and 41(1) (safe storage obligations)

Cases:
- Casella v R [2019] NSWCCA 201
- Mandranis v R [2021] NSWCCA 97
- R v JCA [2000] NSWCCA 498
- R v Zamagias [2002] NSWCCA 17