Legal Research
Cases
Brzozowski v R

Brzozowski v R

Case [2023] NSWCCA 129 9 June 2023

Sentencing

Mens Rea & Intention

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Brzozowski v R [2023] NSWCCA 129
Hearing dates: 03 May 2023
Date of orders: 09 June 2023
Decision date: 09 June 2023
Before: Simpson AJA at [1];
Rothman J at [16];
Cavanagh J at [67]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
CRIME – SENTENCE APPEAL – alleged failure to find remorse – distinction between remorse or contrition and regret at consequences or mere plea of guilty – construction of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – no error disclosed

Legislation Cited:
Crimes Act 1900 (NSW), ss 527(c), 527C(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A of Pt 3, ss 3A, 21A, 21A(3)(i), 23A(3)(i), 25D(2)
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1)(a), 24A(1)(a)
Explosives Act 2003 (NSW), s 6(1)
Firearms Act 1996 (NSW), ss 7(1), 50AA(1), 50AA(2), 51D2, 65(3), 74(1), 74(2), 74(3)
Police Act 1990 (NSW), s 203(1)
Weapons Prohibition Act 1998 (NSW), ss 7(1), 34(1)

Cases Cited:
Barbaro v The Queen (2012) 226 A Crim R 354; [2012] VSCA 288
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55
Patel v R (2002) 366 FLR 314; [2022] NSWCCA 93
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
Stojanovski v R [2013] NSWCCA 334

Texts Cited:
Stroud’s Judicial Dictionary, 5th ed, Vol 1 (1986)

Category: Principal judgment
Parties: Mark John Brzozowski (Applicant)
Rex (Respondent)
Representation:
Counsel:
L Brasch (Applicant)
J Styles (Respondent)
Solicitors:
Conditsis Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW)
(Respondent)

File Number(s): 2020/344787
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Brzozowski [2022] NSWDC 69

Date of Decision:

10 February 2022

Before:

Bright DCJ

File Number(s):

2020/344787

JUDGMENT

SIMPSON AJA: The applicant seeks leave to appeal against an aggregate sentence of imprisonment (4 years and 8 months with a non-parole period of 3 years) imposed on him in the District Court on 10 February 2022, following his pleas of guilty to a series of charges involving the unlawful possession of firearms. Further offences were included on a Form 1, including offences involving possession of parts of firearms and ammunition, possession of drug apparatus or precursors, and possession of a motorbike reasonably suspected of being stolen. Further offences, including offences involving the acquisition of a pistol contrary to a firearms prohibition order, the use of a prohibited weapon contrary to a prohibition order, and possession of a police uniform shirt, were included on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). Details of the offences and of the manner in which they were prosecuted are set out in the judgment of Rothman J, which I have had the advantage of reading in draft. The facts of the offending were put before the sentencing judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brzozowski v R

Details

AGLC: Brzozowski v R [2023] NSWCCA 129
Case: [2023] NSWCCA 129
Decision Date: 09 June 2023

CaseChat Overview and Summary

The case involved an appeal by the respondent, the Crown, against the sentence imposed on the appellant, Brzozowski, who had been convicted of murder. The Crown appealed on the basis that the sentencing judge had failed to consider the appellant's lack of remorse as a relevant aggravating factor. The appeal was heard in the New South Wales Court of Criminal Appeal. The central issue before the court was whether the sentencing judge had erred in not considering the appellant's lack of remorse as a significant aggravating factor in the sentencing process. The court examined whether the sentencing judge had correctly distinguished between remorse or contrition and mere regret at the consequences of one's actions or a plea of guilty. The court also considered whether the absence of remorse was a relevant factor under section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In delivering the judgment, the court emphasised that remorse or contrition must be distinguished from regret at the consequences of one's actions or a mere plea of guilty. The court found that the sentencing judge had correctly identified and considered the relevant factors in the sentencing process, including the appellant's lack of remorse. The court held that the sentencing judge had not erred in failing to consider the appellant's lack of remorse as a significant aggravating factor. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court.

Orders