AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 6 April 2023

R v Gagnuss

[2023] NSWDC 265

Firearms & weaponsDomestic & family violence
CRIME D OMESTIC VIOLENCE OFFENCES POSSESS UNLAWFUL PISTOL (REPLICA) (NSW) RELEVANT FACTORS ON SENTENCE PATTERN OF DOMESTIC VIOLENCE OFFENDING ASSESSMENT OF OBJECTIVE SERIOUSNESS

Citation: R v Gagnuss [2023] NSWDC 265
Court: District Court of New South Wales
Date: 6 April 2023
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to three offences arising from incidents on 1 and 2 March 2022, immediately after his then-partner of four months ended their relationship. He had a prior record of domestic violence offending against a former long-term partner, and was serving an Intensive Correction Order (ICO) at the time these offences were committed.

On the night of 1 March, the offender attended the complainant's home in Southern Wollongong, broke in through a bedroom window, and spoke to her three children (aged 8, 10, and 12). He also made abusive and threatening remarks directed at the complainant. He then sent 195 messages across various platforms, including a photograph of what appeared to be a Glock pistol alongside the words "I'm a good shot," and a message threatening to kill her.

When police searched the offender's home, they located a battery-operated air pistol styled to resemble a Glock firearm. The item bore a label identifying it as a toy, but had no visible distinguishing features such as orange markings to set it apart from a real weapon. It constituted a pistol under the Firearms Act 1996 (NSW), and the offender held no licence for it.

  • What was the appropriate objective seriousness of each offence, particularly the aggravated break, enter and intimidation charge?
  • How should a gel blaster or replica air pistol be treated under the Firearms Act for sentencing purposes?
  • Whether the offender's engagement in ongoing psychological and psychiatric treatment, and the risk of disruption to that treatment if imprisoned, supported an ICO rather than full-time custody.
  • Whether community safety was adequately served by an ICO, given the offender's history of domestic violence and prior conditional liberty.

Decision

Objective seriousness. Haesler SC DCJ accepted that the break and enter offence was serious, committed in a domestic context, and involved the intimidation of a woman in her own home in the presence of young children. However, his Honour declined to place the offending in the middle of the range, noting that indictable offences charged under s 112(2) of the Crimes Act 1900 (NSW) often involve more serious conduct than was present here. The standard non-parole period was treated as a guidepost rather than a starting point.

Replica and air pistols. The court reaffirmed, citing R v Crawley [2021] NSWCCA 354, that gel blasters and air pistols are not toys in the eyes of the law. There is no legal distinction between a replica and a real firearm under the Firearms Act. The court emphasised that the ability of such items to be mistaken for real weapons is precisely what makes them dangerous, and that sending a photograph of what appeared to be a Glock alongside a threat was calculated to cause serious fear.

The Form 1 matter and prior ICO. His Honour found that a Form 1 matter was so intertwined with the intimidation and break and enter conduct that adding to the sentence on that basis would amount to double-counting. The offender's breach of an existing ICO, his prior lenient dispositions, and his mid-life onset of offending were all noted as relevant background.

ICO or full-time custody. The court considered detailed reports from a forensic psychologist, a treating psychologist, and a treating psychiatrist. His Honour accepted that community safety, not retribution alone, is the primary consideration in determining whether to impose an ICO. Although a custodial sentence was warranted for retributive purposes, the court concluded that community safety would be better served by a lengthy ICO, which would preserve ongoing therapeutic treatment and allow for close supervision, rather than interrupt that treatment through imprisonment.

Orders Made

  • Commonwealth carriage service offence (s 474.17 Criminal Code Act 1995 (Cth)): Convicted. Sentence of 9 months' imprisonment, deferred upon entering a recognisance in the sum of $400 to be of good behaviour for 2 years. Condition: no interstate or overseas travel without permission of the State Parole Authority.
  • Aggravated break, enter and commit serious indictable offence (intimidation): Sentence of 2 years and 3 months; non-parole period of 1 year and 2 months.
  • Possess prohibited firearm: Sentence of 1 year and 1 month; non-parole period of 6 months.
  • Aggregate sentence: 2 years and 7 months' imprisonment, commencing on the date of sentencing, subject to an Intensive Correction Order (ICO).
  • ICO conditions include: good behaviour; obey all directions of Probation and Parole Service; report to Community Corrections within 7 days; engage with psychological and psychiatric services as directed; engage in domestic violence intervention programs as directed; accept referral to drug and alcohol services; submit to drug and alcohol testing; abstain from drugs and alcohol; provide authorities to Community Corrections to monitor progress with father and treatment providers; complete 120 hours of community service work.

Key Takeaways

  • Gel blasters and battery-operated air pistols that resemble real firearms are not toys under NSW law. The District Court confirmed that there is no legal distinction between a replica pistol and a real one under the Firearms Act 1996 (NSW), following the Court of Criminal Appeal's reasoning in R v Crawley.

  • A standard non-parole period functions as a legislative guide to sentencing, not a mechanical starting point from which proportional deductions are made. Haesler SC DCJ declined to treat the five-year standard non-parole period for s 112(2) as a baseline figure.

  • Where a Form 1 matter is so factually intertwined with the principal offences that treating it as an aggravating factor would duplicate elements already reflected in the objective seriousness assessment, no additional weight should be given to it in sentencing.

  • Community safety is ordinarily the decisive consideration when a court weighs whether to impose an ICO rather than full-time custody. Under the approach confirmed in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, that consideration will usually be determinative unless the evidence on the question is inconclusive.

  • An offender's engagement in, and ongoing need for, psychological and psychiatric treatment can be a relevant factor in concluding that an ICO better serves community safety than imprisonment, even where the offending is serious and a retributive custodial sentence would otherwise be warranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Firearms Act 1996 (NSW), ss 4(1), 7(1)
- Criminal Code Act 1995 (Cth), s 474.17
- Crimes Act 1914 (Cth), s 21(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 42A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases
- R v Crawley [2021] NSWCCA 354
- Ponfield & Ors v R [1999] NSWCCA 435; (1999) 48 NSWLR 327
- Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1