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District Court 10 February 2022

R v Brzozowski

[2022] NSWDC 69

Firearms & weapons
CRIME FIREARM OFFENCES POSSESS PROHIBITED WEAPON

Citation: R v Brzozowski [2022] NSWDC 69
Court: District Court of NSW
Date: 10 February 2022
Judge(s): Bright DCJ

Background

A 47-year-old man appeared for sentencing at Gosford District Court after pleading guilty to multiple firearms and weapons offences. The offending came to light when police executed a search warrant at his Woy Woy home on 20 November 2020, discovering a substantial cache of firearms, ammunition, firearm parts, and related items.

At the time of the offending, the offender was subject to both a firearms prohibition order and a weapons prohibition order, each personally served on him roughly five and a half months before the search. Among the items discovered were homemade pistols in various stages of completion, detailed firearm manufacture instructions bearing the offender's fingerprints, a shotgun concealed under a mattress, a PBC cannon confirmed as a prohibited weapon, a police shirt, drug manufacture apparatus, and chemicals used in methamphetamine production.

The offender pleaded guilty on 15 October 2021 at Gosford Local Court and had been in continuous custody since his arrest on 4 December 2020. The court was required to sentence him across four substantive indictable charges, plus eight offences dealt with on a section 166 certificate.

Legal Issues

  • What weight should be given to general and specific deterrence in sentencing for serious firearms offences committed while subject to prohibition orders?
  • Whether the offender's mental health reduced his moral culpability and whether it was causally connected to the offending?
  • What discount applied to the guilty plea and what aggregate sentence was appropriate across multiple related offences?
  • Whether special circumstances warranted a variation to the standard ratio between the non-parole period and the parole period?
  • How the totality principle applied across 12 substantive offences arising from a single episode of offending?
  • What moderation, if any, was warranted by the additional burden of custody during the COVID-19 pandemic?

Decision

Objective seriousness and general deterrence: The court assessed possession of more than three unregistered firearms (sequence 4) and possession or use of a prohibited weapon (sequence 31) as falling in the middle of the range for objective seriousness, while possession of unauthorised pistols (sequences 15 and 17) was assessed as below the middle of the range (at [33], [35], [37]). Bright DCJ emphasised that general deterrence has an important role to play in sentencing for firearm offences, given the risk that unregistered firearms pose to community safety (at [29]). The court noted that shortened firearms serve no legitimate purpose and are particularly dangerous due to their concealability (at [30]).

Mental health and moral culpability: The court accepted that the offender was suffering from mental health issues at the time of the offending, but was not satisfied that his mental health was closely connected to the offending itself (at [89]-[90]). The court applied the principles from DPP (Cth) v De La Rosa [2010] NSWCCA 194, which recognise that mental illness can reduce moral culpability and make custody more onerous. Because the court was satisfied his mental health made custody more burdensome rather than that it drove the offending, the sentence was moderated on that basis rather than on reduced culpability grounds (at [90]).

Remorse and the offender's explanation: The court found the offender's explanation for holding the firearms (that a deceased associate had asked him to mind them) should not be accepted, given his prior firearms licence, his knowledge of safe storage requirements, and the existence of the prohibition orders (at [66]). Bright DCJ was not satisfied the offender truly understood the seriousness of the criminality involved, and in the absence of evidence of genuine remorse, did not take remorse into account in mitigation (at [84]).

Plea discount, COVID-19, and special circumstances: A 25% discount was applied for the guilty plea, having regard to its timing (at [6]). The court accepted that COVID-19 conditions materially increased the burden of custody, noting 86 days in isolation, absence of personal visits, and lockdown periods, and moderated the sentence accordingly (at [91]). Special circumstances were found, warranting an extended parole period relative to the non-parole period, because it was the offender's first time in full-time custody and a longer period of supervised release would support his ongoing mental health treatment (at [92]).

Totality: Applying the principle from Cahyadi v R [2007] NSWCCA 1, the court found that, because the offending arose from a single episode, a large degree of concurrency was appropriate, but some partial accumulation was warranted to reflect the overall criminality (at [87]-[88]).

Orders Made

  • Aggregate sentence of four years and eight months imprisonment, backdated to 4 December 2020 and expiring 3 August 2025.
  • Non-parole period of three years, expiring 3 December 2023 (first eligibility for parole on 3 December 2023).
  • Special circumstances found; non-parole period reduced and parole period extended accordingly.
  • Sequence 33 (possession of a police shirt): convicted and sentenced to a two-year community correction order from 10 February 2022, expiring 9 February 2024, with conditions of good behaviour and appearance before the court if called upon.

Key Takeaways

  • Sentencing for serious firearms offences committed in breach of prohibition orders will attract significant weight on general deterrence, with courts emphasising the community safety risk posed by unregistered firearms in circulation (at [29]).
  • Where a mental health condition makes custody more onerous but is not closely causally connected to the offending, the sentencing court may moderate the sentence on hardship grounds without reducing the offender's moral culpability for the offending itself (at [89]-[90]).
  • A 25% guilty plea discount was applied where the plea was entered at Gosford Local Court on 15 October 2021; timing of the plea remained a central factor in quantifying the discount (at [6]).
  • Special circumstances can be established where an offender is serving their first custodial sentence and has identified mental health treatment needs that a longer parole period would support, resulting in a variation to the standard non-parole to parole ratio (at [92]).
  • Under the totality principle, where multiple firearms and weapons charges arise from a single episode, the District Court applied substantial concurrency while accumulating sentences to the extent necessary to reflect the full criminality across 12 offences (at [87]-[88]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act
- Drug Misuse and Trafficking Act 1985 (NSW)
- Explosives Act 2003 (NSW)
- Firearms Act 1996 (NSW)
- Police Act 1990 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Cahyadi v R [2007] NSWCCA 1
- DPP (Cth) v De La Rosa [2010] NSWCCA 194