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Court of Criminal Appeal 9 June 2023

Brzozowski v R

[2023] NSWCCA 129

Firearms & weapons
CRIME SENTENCE APPEAL ALLEGED FAILURE TO FIND REMORSE NO ERROR DISCLOSED

Citation: Brzozowski v R [2023] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 09 June 2023
Judges: Simpson AJA at [1]; Rothman J at [16]; Cavanagh J at [67]

Background

The appellant pleaded guilty in the District Court to a series of charges involving the unlawful possession of firearms, with further offences relating to firearms parts, ammunition, drug apparatus, possession of a stolen motorbike, and possession of a police uniform shirt dealt with on a Form 1 and under a certificate. He received an aggregate sentence of four years and eight months, with a non-parole period of three years.

At sentencing, the judge declined to treat remorse as a mitigating factor. While she accepted that the appellant had acknowledged responsibility for his conduct, she expressed serious doubt that he genuinely understood the criminality of possessing the number of firearms he had, and in the manner he had them. The appellant challenged that finding on appeal.

The sole ground of appeal was that the sentencing judge erred by finding there was no evidence of remorse.

  • Whether the sentencing judge erred in declining to treat remorse as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • What distinguishes genuine remorse or contrition from mere regret at consequences or the fact of a guilty plea
  • Whether the statutory requirements in s 21A(3)(i) were satisfied on the evidence before the sentencing judge

Decision

The Court of Criminal Appeal dismissed the appeal, finding no error in the sentencing judge's approach. Remorse, properly understood, requires genuine penitence and contrition, not merely regret at being caught or at the consequences of one's conduct. The court confirmed that a guilty plea alone cannot establish remorse; if it could, every plea of guilty would automatically attract a double benefit, both the reduction in sentence under Part 3, Division 1A of the Act and an additional mitigating factor under s 21A(3)(i).

The evidence before the sentencing judge did not support a finding of genuine remorse. The report of the Clinical Nurse Consultant contained nothing about remorse or acceptance of responsibility, as the offences had not been discussed in detail during that consultation. The Sentencing Assessment Report from the Community Corrections Officer recorded that the appellant had minimised his responsibility, describing himself as merely "looking after" the items and "accruing" things over the years he should not have had, and expressing regret only at failing to find a lawful way to dispose of them rather than accepting responsibility for possessing them.

The appellant's own evidence at the sentencing hearing, in which he said he "really regret[ted] taking onboard them firearms," was characterised by the sentencing judge as regret rather than remorse or contrition. The Court of Criminal Appeal found the sentencing judge was entitled to draw that distinction. As to s 21A(3)(i)(ii), which requires acknowledgement of injury, loss or damage caused, the court noted that the apprehension of the appellant and confiscation of the items had prevented any actual injury, and that paragraph had little if any application on the facts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), remorse is available as a mitigating factor only where the offender provides evidence of genuine acceptance of responsibility and acknowledges any injury, loss or damage caused. A guilty plea alone does not establish remorse.
  • The Court of Criminal Appeal confirmed the distinction, drawn from Barbaro v The Queen [2012] VSCA 288, between the anguish of being caught and punished on the one hand, and genuine penitence, contrition, and a desire to atone on the other. Only the latter qualifies as remorse for sentencing purposes.
  • Minimising one's role in offending, or expressing regret at failing to take a lawful course of action rather than at the conduct itself, is insufficient to establish remorse as a mitigating circumstance.
  • No error was established in the sentencing judge's reasoning, and the Court of Criminal Appeal confirmed that it is open to a sentencing judge to reject a claim of remorse where the evidence does not rise above regret at consequences.
  • Where possession offences are involved and the items are confiscated before any actual harm occurs, the requirement in s 21A(3)(i)(ii) to acknowledge injury, loss or damage may have little or no practical application.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21A(3)(i), Part 3 Division 1A
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7(1), 50AA(1), 50AA(2), 51D2, 65(3), 74(1), 74(2), 74(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1)(a), 24A(1)(a)
- Weapons Prohibition Act 1998 (NSW), ss 7(1), 34(1)
- Explosives Act 2003 (NSW), s 6(1)
- Crimes Act 1900 (NSW), ss 527(c), 527C(1)(a)
- Police Act 1990 (NSW), s 203(1)

Cases
- Barbaro v The Queen (2012) 226 A Crim R 354; [2012] VSCA 288
- Patel v R (2022) 366 FLR 314; [2022] NSWCCA 93
- Stojanovski v R [2013] NSWCCA 334
- Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362