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District Court 4 April 2025

R v COLLINS

[2025] NSWDC 107

Theft & propertyFirearms & weapons
SENTENCE STEAL FIREARMS ISSUE OF SERIOUSNESS OF S 33B CHARGE WHETHER “BUGMY” ENLIVENED TOTALITY COMMENCEMENT DATE OF SENTENCE

Citation: R v Collins [2025] NSWDC 107
Court: District Court of New South Wales
Date: 4 April 2025
Judge: Lerve DCJ

Background

The offender pleaded guilty to four charges arising from two episodes of offending in October 2022 near Wagga Wagga. The first episode involved an aggravated break and enter at a remote farm property occupied by an elderly couple and their daughter, during which the offender and a co-offender stole valuable jewellery and three licensed firearms from a gun safe. The offender had previously worked on the property and was known to the victims.

The second episode occurred three to four days later. The offender was found in possession of a shortened (unlicensed) firearm and used it to avoid lawful apprehension by police, resulting in a siege that lasted several hours. The shortened firearm was the same weapon that formed the basis of the offensive weapon charge.

The offender had been in continuous custody since arrest on 7 October 2022. A Form 1 document (carrying an additional offence of being carried in a conveyance without the owner's consent) and two s 166 certificate matters (not keeping a firearm safely and possessing ammunition without a licence) were also before the court.

  • Whether the offence of using an offensive weapon to avoid apprehension under s 33B of the Crimes Act 1900 was a serious example of that offence
  • Whether the Bugmy principles (relating to the relevance of profound childhood deprivation to moral culpability) were enlivened on the facts
  • How the totality principle applied across the multiple offences and the interaction with sentences already imposed in the Local Court
  • The appropriate commencement date for the District Court sentence, given time already spent in custody

Decision

Lerve DCJ characterised the s 33B offence as a very serious example of its kind, noting that it involved a multi-hour police siege involving a shortened firearm. The court examined the maximum penalty of 12 years imprisonment and considered comparable authorities to calibrate the appropriate sentence for that charge.

On the Bugmy question, the court considered whether the offender's background of deprivation reduced his moral culpability for the offending. The judgment records that this issue was examined but, on the facts as found, the application of the Bugmy principles was assessed in the context of the full sentencing exercise.

The court applied the totality principle in structuring the aggregate sentence. The court ordered that the sentences for the s 33B charge and the shortened firearm possession charge run wholly concurrently with each other, because the shortened firearm was the very weapon used to commit the s 33B offence. Some degree of accumulation was applied between the two separate episodes of offending, reflecting that they were distinct criminal acts, though partial concurrency with the Local Court sentences was factored in.

Special circumstances were found, resulting in a non-parole period of approximately 63 per cent of the total sentence rather than the standard 75 per cent. The court noted that the ratio was slightly lower than might otherwise apply because of the partial accumulation on Local Court sentences. The court recommended supervised parole with conditions addressing mental health and substance abuse treatment.

Orders Made

  • The offender was convicted on all charges to which he pleaded guilty.
  • For the charges of not keeping a firearm safely and possessing ammunition without a permit, convictions were recorded and no further penalty was imposed (pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999).
  • An aggregate sentence of 4 years 6 months was imposed, with a non-parole period of 2 years 10 months.
  • The non-parole period commences 7 April 2023 and expires 6 February 2026.
  • The balance of term (1 year 8 months) runs from 7 February 2026 to 6 October 2027.
  • The court recommended release to parole at the expiration of the non-parole period, subject to supervision by the Department of Community Corrections and compliance with directions relating to mental health and substance abuse treatment.
  • A copy of Dr Ellis's report was directed to be forwarded to the Department of Corrective Services with the relevant warrant.
  • Special circumstances were found; the non-parole period represents approximately 63 per cent of the total sentence.
  • The total effective sentence, accounting for time already in custody since 7 October 2022, expires on 6 October 2027, a period of exactly 5 years.

Key Takeaways

  • The District Court treated the use of a shortened firearm during a prolonged police siege as a very serious example of the offence of using an offensive weapon to avoid apprehension under s 33B of the Crimes Act 1900.
  • Where a shortened firearm is both the subject of a possession charge and the instrument of a related offensive weapon charge, full concurrency between those two sentences may be appropriate, reflecting the factual overlap between the offences.
  • Under the totality principle, partial accumulation remains appropriate where two episodes of offending are factually and temporally distinct, even where some overlap exists with sentences already imposed in a lower court.
  • A finding of special circumstances can reduce the ratio of the non-parole period below the standard 75 per cent, particularly where partial accumulation on sentences from another court affects the structure of the overall sentence.
  • The Bugmy principles concerning the relevance of background deprivation to moral culpability were engaged as a discrete sentencing consideration, consistent with the High Court's treatment of that issue in Bugmy v The Queen [2023] HCA 37.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 112(2), 154D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 37
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 39(1)(a), 62(1)(b), 65(3)

Cases
- Bugmy v The Queen [2023] HCA 37
- Cotter v R [2020] NSWCCA 299
- Courtney v R [2022] NSWCCA 223
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Dungay v R [2020] NSWCCA 209
- Elahmad v R [2024] NSWCCA 250
- Hunter v R [2011] NSWCCA 141
- Nasrallah v R [2021] NSWCCA 207
- R v Knight [2023] NSWSC 321
- R v Tuala [2015] NSWCCA 8
- Tepania v R [2018] NSWCCA 247
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- The Queen v Di Simoni (1981) 147 CLR 383