AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 22 July 2022

R v Bartolic-Arnaez

[2022] NSWDC 280

Assault & violenceFirearms & weaponsDomestic & family violence
POSSESS UNAUTHORISED FIREARM.

Citation: R v Bartolic-Arnaez [2022] NSWDC 280
Court: District Court of NSW
Date: 22 July 2022
Judge: Colefax SC DCJ

Background

The offender was a 22-year-old man with prior convictions who had previously lived at the Gateway Caravan Park in Nowra. Although no longer a resident, he continued to visit friends at the park, including a man named Williams.

Following a dispute between Williams and another resident, France, the offender attended France's caravan at 3:30am on 17 August 2020. He brought a loaded, unauthorised .22 calibre rifle. After a brief verbal exchange, the offender raised the rifle, pointed it at France's forehead, and pressed it against his skin. When France moved his head, the offender deliberately discharged the firearm into the wall of the caravan, intending to scare and intimidate France.

The offender was arrested the following day. Police also found a photograph on his phone, taken earlier on 1 August 2020, showing him holding a firearm at a time when he was also not authorised to possess one.

  • The appropriate sentence for using an offensive weapon (a firearm) with intent to commit an indictable offence (intimidation), contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW)
  • The appropriate sentence for firing a firearm in a manner likely to endanger the safety of another person or property, contrary to s 93G(1)(c) of the Crimes Act 1900 (NSW)
  • The appropriate sentence for intimidation with intent to cause the victim to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
  • Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period
  • The treatment of two sets of community correction orders, called up in connection with the sentencing proceedings

Decision

Colefax SC DCJ assessed each of the three principal offences as approaching the mid-range of objective seriousness for their respective categories. The offending was further aggravated by two factors treated as separate from objective seriousness: the offences were committed within the victim's home, and the offender was on parole and subject to four community correction orders at the time.

A 25 per cent discount on each indicative sentence was applied, reflecting the utilitarian value of the guilty pleas and genuine remorse. The indicative sentences before discount were 4 years 6 months (sequence 6), 4 years (Count 1), and 2 years 6 months (sequence 11). After discount, these reduced to 3 years 4 months, 3 years, and 1 year 10 months respectively.

The court imposed an aggregate sentence of 4 years 3 months imprisonment, backdated to the date of arrest on 18 August 2020. A finding of special circumstances was made, justified by the offender's youth and the need to enhance rehabilitation prospects through a longer parole period. This extended the balance of sentence beyond the standard one-third ratio. Both general and specific deterrence were identified as fully engaged, alongside rehabilitation as a sentencing objective.

In respect of the four community correction orders that had been called up, the court directed that no further action be taken on any of them, having regard to the nature of those matters and the principal sentence imposed.

Orders Made

  • Aggregate term of imprisonment of 4 years 3 months
  • Non-parole period of 2 years 3 months, commencing 18 August 2020 and expiring 17 November 2022
  • Balance of parole of 2 years, commencing 18 November 2022 and expiring 17 November 2024
  • No further action to be taken on the four community correction orders called up in the proceedings
  • Two Form 1 matters (possessing an unauthorised firearm on 1 August and 17 August 2020) taken into account in relation to sequence 6

Key Takeaways

  • Committing firearms offences within a victim's home, and while on parole and subject to multiple community correction orders, constitutes aggravation treated separately from the objective seriousness of the underlying offences.
  • A finding of special circumstances can be grounded in the combination of the offender's youth and the need to maximise rehabilitation through an extended parole period, even where the offending is serious.
  • Under the aggregate sentencing approach applied here, the 25 per cent guilty plea discount was applied to each indicative sentence underpinning the aggregate, rather than to a single global figure.
  • Where multiple community correction orders are called up at sentencing and the principal sentence is substantial, the District Court may direct that no further action be taken on those orders rather than imposing additional penalties.
  • The absence of a victim impact statement meant the court declined to speculate adversely about potential hearing damage to the victim, illustrating the principle that facts adverse to an offender must be established rather than assumed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B(1)(a) (using an offensive weapon to commit an indictable offence)
- Crimes Act 1900 (NSW), s 93G(1)(c) (firing a firearm in a manner likely to endanger safety)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation with intent to cause fear)

Cases: No cases were cited in the judgment.