Director of Public Prosecutions v Nurzynski
[2024] ACTSC 176
•5 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Nurzynski |
Citation: | [2024] ACTSC 176 |
Hearing Dates: | 14 March 2024, 5 June 2024 |
Decision Date: | 5 June 2024 |
Before: | McWilliam J |
Decision: | See [72]-[73]: Terms of imprisonment of 13 months and 18 months imposed, suspended sentence of 2 months imposed, drug and alcohol treatment order made. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manufacture and discharge firearm offences – breach of good behaviour order – early guilty plea and assistance given to police – where long standing drug and alcohol problem – where suitable for drug and alcohol treatment order – term of imprisonment ordered, suspended upon treatment order being made |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 Crimes Act 1900 (ACT) ss 27(3) Firearms Act 1996 (ACT) ss 5(1), 228(1) |
Cases Cited: | Bukulaptji v R (2009) 24 NTLR 210 Cranfield v The Queen [2018] ACTCA 3 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 DPP v JJ (No 2) [2024] ACTSC 74 DPP v Williams [2022] ACTSC 301 Guy v Anderson [2013] ACTSC 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Markarian v R [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Monfries v R [2014] ACTCA MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O’Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Antoniak [2021] ACTSC 228 R v Antoniak [2021] ACTSC 228 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 R v Buckman (1987) 47 SASR 303 R v Curtis (No 2) [2016] ACTSC 34 R v JF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 December 2013) R v Kilic [2016] HCA 48; 259 CLR 256 R v Lindsay [2020] ACTCA 25 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Peter [2019] ACTSC 22 R v PM (No 2) [2015] ACTSC 358 R v Sharp [2019] ACTSC 175 R v Shearer [2020] ACTSC 100 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Saga v Reid [2010] ACTSC 59 Taylor v Bowden [2009] ACTSC 13 Thorn v Laidlaw [2005] ACTCA 49 Truong v The Queen [2013] NSWCCA 36 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | Director of Public Prosecutions Mariusz Ergland Nurzynski (Offender) |
Representation: | Counsel E Bayliss ( DPP) N Deakes ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 278 of 2023 |
McWILLIAM J:
1․Mr Mariusz Nurzynski is a 60-year-old man of Polish descent, who is before the Court for sentence, having pleaded guilty to the following offences:
1.CAN 8518/2023: Unauthorised manufacture of a prohibited firearm between 8 and 22 August 2023, contrary to s 228(1) of the Firearms Act 1996 (ACT) (Firearms Act) (manufacture firearm offence), the maximum penalty for which is 1,500 penalty units, a term of imprisonment for 20 years, or both; and
2.CAN 8297/2023: Discharging a loaded firearm so as to cause another person reasonable apprehension for their safety on 22 August 2023, contrary to s 27(3)(d) of the Crimes Act 1900 (ACT) (Crimes Act) (discharge firearm offence), the maximum penalty for which is a term of imprisonment for 10 years.
Breach of Good behaviour order
2․The offender had previously been sentenced in the Magistrates Court on 12 October 2022 for the offence of contravening a personal protection order made in favour of a neighbour in Garran (CC2022/153). According to the three statements of agreed facts before the Court relating to that rolled-up charge, there were three breaches of the protection order, over a period from December 2021 to April 2022.
3․The offender was convicted and sentenced to a total term of 2 months’ imprisonment, to commence on 12 October 2022 and conclude on 11 December 2022. However, that sentence was suspended immediately upon the offender entering into a good behaviour order for 10 months (the GBO). The GBO would have concluded on 11 August 2023. Due to the timing (by a matter of days) in respect of the manufacture firearm offence, upon conviction, the offender will be in breach of a good behaviour order, imposed as part of a suspended sentence. There was no issue here that a conviction will result from the present offences having been committed.
Facts of the present offending
4․The facts of the offending are largely taken from the agreed statement of facts that was before the Court. Context for the offences was recorded in the statement of agreed facts and confirmed during evidence given by the offender during the sentencing hearing. In summary, the offender had recently had an expensive e-bike stolen. He believed that the victim was the person who had stolen his bicycle.
5․At about 6:13am on 22 August 2023, the offender approached the victim as he was entering his vehicle, which was parked outside the victim’s residence in Phillip.
6․He was seeking to retrieve his bicycle which he believed was in the victim’s possession. The victim opened the driver’s side door. He noticed the offender, dressed in a white jumper and a black face covering. He asked the offender who he was and what he wanted, and then chased the offender up an adjacent alleyway.
7․The offender turned to face the victim. The offender had a black bag tucked under his arm and the barrel of a homemade firearm was protruding from the bag, pointing at the victim. The victim ran back towards his vehicle, entered it and initially drove away. Shortly thereafter, the victim made a u-turn with his vehicle and drove towards the offender, who then discharged the firearm at the vehicle.
8․The victim then drove to a petrol station to get petrol on his way to work, where he saw the offender again. He took a video of the offender on his phone and told him that he was going to call the police. The victim then drove back home and told his girlfriend to leave their residence as he was concerned for her safety.
9․The offender admitted to police that he had manufactured the firearm at his residence and had fired the firearm when confronted by the victim driving his vehicle. The offender also made admissions to being in possession of various ammunition.
The Court’s sentencing task
10․The Court’s sentencing task and the applicable authorities have been explained repeatedly. However, I will briefly set out the sentencing objectives and considerations because they remain an important part of delivering reasons on sentence, as much as for the benefit of explaining them to the particular offender and to those who may be reading a sentencing judgment for the first time, as for demonstrating that each of the sentencing objectives has been given due consideration.
11․Regard must be had to the relevant sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which are as follows:
7 Purposes of sentencing
(1)A court may impose a sentence on an offender for 1 or more of the following purposes:
(a)to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
(b)to prevent crime by deterring the offender and other people from committing the same or similar offences;
(c)to protect the community from the offender;
(d)to promote the rehabilitation of the offender;
(e)to make the offender accountable for his or her actions;
(f)to denounce the conduct of the offender;
(g)o recognise the harm done to the victim of the crime and the community.
(2)To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.
12․A central part of the Court’s task is working out what constitutes “justice” for the particular individual before the Court. In MT v The Queen [2021] ACTCA 26; 17 ACTLR 22, the Court of Appeal stated at [56]:
The principle of individualised justice is central to all sentencing exercises; any sentencing court is required to impose a sentence that is just and appropriate in all the circumstances, including the circumstances personal to the offender.
13․The application of that principle means that in imposing a sentence which balances the need for denunciation, punishment, and general and specific deterrence against the need to support and promote an offender’s rehabilitation, the sentence that is just and appropriate is uniquely crafted for that individual offender.
14․In considering what is necessary to protect the community, general deterrence has a role to play, as does the period of imprisonment to some extent, but sometimes what is necessary to protect the community will be to craft a sentence that promotes the rehabilitation of the particular offender, to address underlying causes or criminogenic risk factors. A period of supervision through corrective services may be appropriate to ensure that an offender has a degree of support and structure while remaining in the community. Relevant to the present case, addressing a long standing drug and alcohol problem may be a key risk factor which if addressed, may greatly assist in managing other criminogenic risk factors (such as mental health issues). As these matters may not be best achieved by a lengthy term of imprisonment, it is not always in the community’s protective interest to ‘lock someone up’. I will return to that matter at the end of these reasons.
15․It is also important to keep in mind what was said in Thorn v Laidlaw [2005] ACTCA 49 at [30], in that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives.
16․In implementing these objectives, the Court must also have regard to the various considerations set out in s 33 of the Sentencing Act. The nature and circumstances of the offence (s 33(1)(a)) have already been set out above. To the extent that other considerations listed in s 33 are relevant, they have been included in the discussion that follows.
Nature and circumstances of the offences (s 33(1)(a) of the Sentencing Act)
17․Part of the Court’s assessment is to consider where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious, taking into account the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I have recently discussed that assessment in DPP v JJ (No 2) [2024] ACTSC 74 (JJ) at [51]-[57], including the discussion in the authorities as to the use of short-hand labels used to assess the gravity of conduct. It is unnecessary to repeat the discussion here.
18․The evaluation of the nature and circumstances of the offence is “objective” in the sense that the Court does not consider matters personal to the offender and determines the seriousness “wholly by reference to the nature of the offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. Subjective considerations, or matters personal to the offender, are separate considerations which the Court considers pursuant to other provisions in s 33 of the Sentencing Act: McLeod v The Queen [2018] ACTCA 59 at [12].
19․The sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].
20․The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v R [2005] HCA 25; 228 CLR 357 at [31]. The relevant penalties for the two offences have been set out above.
Manufacture firearm offence
21․Counsel for the offender helpfully reminded the Court of the circumstances in which the Firearms Act was implemented, being part of a national response to firearm control following the events of Port Arthur in April 1996. Section 5(1)(a) of the Firearms Act provides that the underlying principles of that statute are “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.”
22․In DPP v Williams [2022] ACTSC 301 (Williams), Elkaim J commented on the seriousness of offences under s 228(1) of the Firearms Act, stating at [21]:
…The offences are serious. Guns hurt and kill people. Manufacturing them is attendant with risks both to the manufacturer and to the public.
23․As indicated by the 20-year imprisonment maximum penalty, this offence encompasses criminality ranging from relatively minor adjustments to a pre-existing firearm to very sophisticated operations: Truong v The Queen [2013] NSWCCA 36 (Truong) at [111]. In considering the criminality, the Court in Truong examined the objective features of the firearm such as the nature of the firearm including its functionality and sophistication, whether it was in working order, whether it was sold or distributed, and its purpose.
24․With regard to the present conduct, the following features have significance:
1.The conduct relates to a single firearm.
2.That firearm was functioning and in working order.
3.The firearm was of a rudimentary nature made from parts collected over time (as opposed to a sophisticated operation).
4.The firearm was not distributed to other persons in the community.
5.The purpose of the manufacture carried with it a degree of pre-meditation and planning, albeit again, not sophisticated.
25․The offence itself is one that is plainly very serious. However, this instance of the offence is low in terms of objective seriousness.
Discharge firearm offence
26․Again, this is a serious offence. As stated in R v Shearer [2020] ACTSC 100 at [69]:
The offence under s 27(3)(d) of the Crimes Act occurs where a person “intentionally and unlawfully ... discharges any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety”. Section 27(3) also covers a diverse range of other circumstances involving choking, drugs, offensive weapons, explosives, traps, conveyances and road traffic devices. While a number of the other provisions refer to “circumstances likely to endanger human life or cause a person grievous bodily harm”, paragraph (d) extends to the creation of a reasonable apprehension for the victim’s safety. In that sense it might be considered to be a lesser example of the variety of matters covered by the section. Yet the threshold for the operation of the paragraph is that there are “loaded arms” being discharged and hence it is dealing with a circumstance which is necessarily inherently likely to endanger human life or cause a person grievous bodily harm. It is, however, clear that it is the reasonableness of the apprehension for safety that is required to be proved, rather than the likely endangerment of life or causing of grievous bodily harm, and hence it does involve a lower threshold. This must be taken into account when assessing the objective seriousness of the offending conduct in the context of the offence provision as a whole.
27․Here, there is an overlap with the planning and meditation of the offence referred to above. The area in which the weapon was discharged (as to which see R v Antoniak [2021] ACTSC 228 at [35]) combined with the time of day meant that the location was not one where a high number of people were present. Nevertheless, it was in a residential area and it was conceded the offence was committed without regard for public safety. A single shot was fired. The projectile impacted the front passenger’s side door, with the victim sitting in the driver’s seat of the vehicle.
28․Again, while the conduct itself is serious, this instance falls at the lower end of conduct falling within the offence.
Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)
29․An intensive corrections order assessment report dated 6 March 2024 (ICOAR) was in evidence before the Court. I have taken into account the family background , including that following the divorce of his parents when the offender was aged 15, he left school at age 16 and “hit the streets”, which saw the offender introduced to cannabis and alcohol. He experienced a slow decline from that point. The offender has three sons and grandchildren, along with support from his ex-partner. He reported a desire to be a good influence in the lives of his grandchildren.
30․At 60 years old, the offender’s employment prospects have not weighed heavily in assessing what is the appropriate sentence to impose. The only employment he is reported to have engaged in is working alongside his mother (who has now passed away) for 20 years until 2017 in the soup kitchen she ran in Canberra. From January 2024, he has been employed as a sweeper while in custody and this is a positive step.
31․The offender has stable housing and relies on the Disability Support Pension received from Centrelink, which he has received since he was released from custody at an earlier stage in 1994.
Alcohol and/or drug use
32․I will detail the alcohol and drug use for the benefit of those who will be implementing and overseeing the ultimate sentence to be imposed. The offender has consumed various narcotic substances since a very early age, having been introduced to cannabis around 14 years of age by his older brother. He consumed cannabis most days, primarily as a sleep aid, until he was arrested for the present offending.
33․He commenced occasional use of heroin in around 1981 to 1982, which then became a regular habit, subject to occasional periods of non-consumption. He commenced a methadone treatment in around 1994 to 1995 to address his heroin dependency but found that it was more addictive than heroin.
34․The offender has a history of alcohol reliance, particularly when he was unable to access methadone. He has also reported going through periods of problematic alcohol use, the most recent being two or three years ago where he ceased his methadone and suboxone treatment and consumed alcohol daily for over eight months.
35․The offender has been formally diagnosed with opioid abuse with opioid induced disorder and alcohol use disorder. The offender engaged with the Alcohol and Drug Service on the opioid maintenance treatment program (program), including in September 2020 and January 2021 for medically supervised alcohol withdrawal, and has continued to engage with the service. A recent urinalysis test on 2 March 2024 has returned a negative result for all tested substances.
Medical, emotional and mental health
36․Similarly, it is important to have some appreciation of the other issues that are overlaying the offender’s drug and alcohol problems. The offender has presented to the ACT Primary Health Network for routine medical attention for several concerns, including a broken leg in custody, and scarring on his liver.
37․Whilst he has not received a formal diagnosis in relation to his mental health, there are instances where the healthcare system has intervened. In or around October 2023, he was identified as a prisoner at risk for distress management. In September 2022, he presented to the emergency department with acute suicidal thoughts on a background of alcohol abuse. He has also been assessed by the Home Assessment and Acute Response Team in March 2021 and 2022 and identified as presenting with chronic drug and alcohol problems with significant social isolation and poor social support, but declined assistance in this regard.
38․The offender reported that his alcohol and illicit substance use was previously a means of self-medication for his mental health issues. He is not currently receiving any medication for his mental health and is not interested in commencing any. He currently receives melatonin in custody as a sleep aid.
The offender’s custodial status
39․The offender has served 288 days or 9 months and 14 days in custody solely referable to the offending.
Victim impact statement (ss 33(1)(f) of the Sentencing Act)
40․No victim impact statement has been provided in this matter. However, the victim’s concern for his safety and that of his girlfriend is evident from what was recorded in the statement of agreed facts.
Plea of guilty (s 33(1)(j) of the Sentencing Act)
41․The offender pleaded guilty on 30 October 2023 to both offences, which was at the earliest opportunity. The Court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offence: s 35(3) of the Sentencing Act. If it does so, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act.
42․The applicable discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]. It is necessary to consider the particular circumstances in which the plea was entered, including the statutory matters set out in s 35(2) of the Sentencing Act. Some of those matters are addressed separately earlier in these reasons, such as the seriousness of the offence and the effect of the offence on the victim.
43․As discussed in cases such as Monfries v R [2014] ACTCA 46 at [47] and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49], utilitarian value is a primary consideration, as seen through:
(a)section 35(2)(b) of the Sentencing Act, which requires the Court to take into account when the offender pleaded guilty, or indicated an intention to plead guilty; and
(b)section 35(5) of the Sentencing Act, which provides that the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.
44․In this case, the timing of each plea means that the offender is entitled to the full benefit of the pleas of guilty, with a discretionary discount applied of 25%.
45․In respect of the manufacture firearm offence, as the Prosecution accepted, the offender is also entitled to a significant further discount for identifying that offence to police. Without the admissions freely made by the offender, this offence may not have been detected. Pursuant to s 35A of the Sentencing Act (or s 36(2) of the Sentencing Act) I will award a further discount in respect of that offence of 10%.
Remorse (s 33(1)(w) of the Sentencing Act)
46․The offender acknowledged that his actions in attempting to carry out justice himself, instead of seeking police assistance, were wrong. He has also expressed regret and shame for his actions, including for being a “burden on the system” and for hurting a member of the community. The offender still has a way to go in terms of insight, given that he has maintained he was justified in discharging the firearm on grounds that the victim was attempting to run him over as he walked away from the situation. However, the offender has expressed (both on oath and in writing) unconditional remorse and regret for his actions, including the desire, at the age of 60, to leave his past life of drugs and crime behind and start anew as a contributing member of the community.
Criminal history (s 33(1)(m) of the Sentencing Act)
47․The offender has an extensive criminal history commencing in 1982. He has been convicted of 20 traffic-related offences in both the ACT and NSW, including operating unregistered vehicles to driving while intoxicated.
48․Throughout the 1980s and 1990s there are convictions for dishonesty offences, assault and offences that involve robbery, stealing or burglary. Added to these are various interpersonal disputes, vandalism, destruction of property and possession or use of a prohibited weapon offences. The offender has 12 convictions relating to drug possession and use.
49․The offender’s prior criminal history does not mean that a longer sentence is to be imposed: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8, but it speaks against leniency when compared with someone who comes to be sentenced as a person of prior good character.
50․It also speaks of a man whose life has been a cycle of crime and without some serious intervention, history may well repeat itself.
Current sentencing practice (s 33(1)(za) of the Sentencing Act)
51․I have taken into account a number of cases by way of comparison to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].
Unauthorised manufacture of a prohibited firearm
52․The parties drew to the Court’s attention to R v Peter [2019] ACTSC 22, which involved the manufacture of an improvised shot gun and improvised air gun, neither of which were prohibited and there was no evidence they were used. The offender had positive rehabilitation prospects and prior good character. Following a 15% discount for a plea of guilty and 10% discount for assistance to authorities, the offender was sentenced to a good behaviour order of 2 years.
53․In Williams, the offender manufactured a dismantled shot gun, found by police in the footwell of a vehicle which the offender was not driving or responsible for. There was no evidence it was operational or used in any criminal activity. The offender also pleaded guilty, had a young child, familial support and full-time employment. For the manufacture charge, he was sentenced to an intensive corrections order for a period of 18 months following a 25% discount for the guilty plea.
54․It was accepted that the present offending is more serious than that in Williams, given that the firearm the subject of the present offence was actually functional and discharged. However, the additional discount for assistance also features in the present offence. A further consideration is that in Williams, the sentence was to be served by way of an intensive corrections order, whereas here, the offender has already served a period of time in custody referable to the offending.
Discharging a firearm causing reasonable apprehension for safety
55․In relation to this offence, the parties referred the Court to three cases. The first was R v Antoniak [2021] ACTSC 228, where the offender and an associate drew a sawn-off rifle from a vehicle and pointed it towards the victim and his partner. As they ran into their house, the offender discharged the rifle, hitting the front doorway, and fired at the front of the residence several more times. As the offender drove off in his vehicle, he fired two more shots at the house. Following a discount of 15% for a guilty plea, the offender was sentenced to 20 months’ imprisonment.
56․In R v Sharp [2019] ACTSC 175, the offender shot twice and damaged the front door of a home belonging to a member of a rival motorcycle group and set two of the victim’s cars on fire. The Court found there was a high degree of objective seriousness, having been “inspired by the motives that guided the arson offence” and involved considerable planning, and following pleas of guilty, for which discounts of at least 15% were given, the offender was sentenced to 3 years and 3 months’ imprisonment for the offence of discharging a firearm.
57․In R v JF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 December 2013)), the offender fired a shotgun into the victim’s home, hitting the wall behind where she was asleep. The offender was on parole at the time and had a lengthy criminal history. The Court imposed a sentence of imprisonment of 21 months, following a discount for a guilty plea of approximately 10%.
Disposition
58․I agree with the parties’ assessment that this is a case where no sentence other than a term of imprisonment is appropriate to give effect to general and specific deterrence considerations, as well as punishment and denunciation. The length of the term of imprisonment for each offence is shaped by the authorities referred to above.
59․Initially, counsel for the offender submitted that an intensive corrections order was an appropriate means by which the offender may serve his sentence and he was assessed as suitable. However, having regard to the relationship between the offender’s drugs and alcohol use and history of offending, I adjourned the matter to enable the offender to undergo suitability assessment for a drug and alcohol treatment order. The offender’s position has changed as a result of the information that has since been obtained.
60․The offender has been found eligible for a drug and alcohol treatment order pursuant to s 12A of the Sentencing Act. By report dated 30 May 2024 and letter from Alcohol and Drug Services dated 31 May 2024, the offender was deemed suitable subject to approval of safe and stable accommodation provided by ACT Housing. He would undergo treatment through the Canberra Recovery Services day program if such an order was made.
61․I am satisfied on the basis of the reports that were tendered before the Court (which I have read but the contents of which are not set out in full here) that his offending is in part a result of a dependency on drugs and alcohol and that this has substantially contributed not only to the commission of the offence but to the history of offending, in terms of poor decision-making and an inability to regulate his conduct.
62․Given the offender’s current attitude and willingness to finally kick what has been a life-long illness and struggle, notwithstanding the Prosecution’s reservations, I am firmly of the view that a targeted intervention program which includes wrap-around support services to deal with other issues that the offender may be facing, is the best protection that may be given to the community in respect of this particular offender. It is important that society never gives up on any person who is seeking to improve their lot in life, and this is a man for whom sending him back to prison will achieve nothing. Given the time he has already served, a more interventionist approach is now appropriate going forward, with long term rehabilitation being the goal.
Breach of Good Behaviour Order – should the Court impose the suspended sentence or resentence?
63․As stated above, upon conviction for the present offences, the good behaviour order must be cancelled: s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act).
64․The relevant parts of the provision are set out as follows:
110 Cancellation of good behaviour order with suspended sentence order
(1)This section applies if—
(a)an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender’s conviction for an offence; and
(b)a court is satisfied the offender has breached any of the offender’s good behaviour obligations.
(2)The court must cancel the good behaviour order and either—
(a)impose the suspended sentence imposed for the offence; or
(b)re-sentence the offender for the offence.
...
The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.
65․The task for the Court is thus that set out in s 110(2) of the CSA Act above, namely to decide whether to impose the suspended sentence imposed for the offence, or re-sentence the offender for the offence.
Applicable principles
66․The applicable principles are uncontroversial but are repeated generally here for convenience. In determining the appropriate response to the breach of a GBO in any given case, various factors may arise for consideration. Non-exhaustively, they include the following:
1.The proportion of the term of the good behaviour orderthat had been served without breach: R v Curtis (No 2) [2016] ACTSC 34 (Curtis) at [18];
2.Any rehabilitation attained by the offender prior to the breach: Curtis at [18];
3.The nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed: Curtis at [18];
4.The relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending Curtis at [18];
5.The prospects of the offender's rehabilitation: Curtis at [18];
6.The actual facts of the matter for which the offender was first sentenced: R v Beniamini (No 2) [2017] ACTSC 32 at [53];
7.Whether the breach indicates an intention to disregard the obligation to be of good behaviour: Bukulaptji v R (2009) 24 NTLR 210 (Bukulaptji) at [35], cited in R v PM (No 2) [2015] ACTSC 358 (PM) at [22];
8.Whether the offender has received any warnings with respect to breaches: PM at [22];
9.The level of understanding of the offender of her obligations under the terms of the order and the consequences of the breach: see PM at [22]; and
10.The nature of judicial and community resources previously devoted to the offender: see R v Bennett [2017] ACTSC 104 at [11].
67․There is no presumption in favour of imposing the original sentence that had been suspended: Guy v Anderson [2013] ACTSC 5 (Anderson) at [83]. However, there are many statements by courts across multiple jurisdictions of the principle that generally a breach of the conditions of a good behaviour orderor the like following the suspension of a sentence will result in the offender serving the sentence that was suspended: see, for example, R v Buckman (1987) 47 SASR 303 at 304; Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at 386; Taylor v Bowden [2009] ACTSC 13 at [36]; Saga v Reid [2010] ACTSC 59 at [99]–[101], all of which were cited by Refshauge J in Anderson at [87].
68․In the present case, the vast majority of the good behaviour order had been completed without incident, with only four days left of the suspended sentence to serve. To impose the entirety of the two-month term of imprisonment which had been suspended, even in circumstances where the offence that was committed was serious, may have been disproportionate were it not for the fact that the offender has, as a consequence of his actions, spent such a significant period of time in custody, which it is appropriate to take into account as part of this sentencing process even though that period was not referable to the breach. Pursuant to s 110(2)(a) of the CSA Act, I will impose the remainder of the sentence, which in this case is the entirety of the sentence previously imposed in the Magistrates Court. The structure of the sentence will take into account that two-month period.
Totality considerations
69․The principles to be applied when sentencing an offender for multiple offences are summarised in O’Brien v The Queen [2015] ACTCA 47 at [26] as follows:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623–624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
70․As the suspended sentence was entirely separate to the current offending, it should be served almost entirely consecutively. However, as between the manufacture firearm and the discharge firearm offences, a measure of concurrency is appropriate to avoid double punishment for the commission of offences with common elements: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40]. Here, the Prosecution accepted that to some extent, the offending was an ongoing course of conduct which ought properly to be reflected in the overall sentence.
71․Otherwise, the sentence to be imposed is structured in an order that reflects the chronology of the conduct and to achieve a full recognition of the 288 days already served, albeit because of the sentence to be imposed in respect of the existing suspended sentence, only part of that time will be directly referable to the present offences pursuant to s 63(3) of the Sentencing Act.
Orders
72․The Court imposes the following sentence:
(1)For the offence of unauthorised manufacture of a prohibited firearm, contrary to s 228(1) of the Firearms Act 1996 (ACT) (CAN 8518/2023), the offender is convicted and sentenced to a term of imprisonment for 13 months, reduced from 20 months on account of the guilty plea and his assistance to authorities, to commence on 21 October 2023 and conclude on 20 November 2024.
(2)For the offence of discharging a loaded firearm so as to cause another person reasonable apprehension for their safety, contrary to s 27(3)(d) of the Crimes Act 1900 (ACT) (CAN 8297/2023) the offender is convicted and sentenced to a term of imprisonment for 18 months, reduced from 24 months on account of the guilty plea, to commence on 5 June 2024 and conclude on 4 December 2025.
(3)Pursuant to s 110(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) the good behaviour order in respect of Mariusz Ergland Nurzynski is cancelled and the sentence of 2 months’ imprisonment is imposed in respect of the contravention of protection order (CC2022/153), to commence on 23 August 2023 and conclude on 22 October 2023.
Drug and Alcohol Treatment Order
73․Having regard to requirements of s 12A(2) of the Crimes (Sentencing) Act 2005 (ACT), which are satisfied, I impose the following sentence:
(4)A Drug and Alcohol Treatment Order (Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) is made for Mariusz Ergland Nurzynski in respect of the eligible offence of discharging a loaded firearm so as to cause another person reasonable apprehension for their safety, contrary to s 27(3)(d) of the Crimes Act 1900 (ACT) (CAN 8297/2023), of which he has been convicted and for which he has been sentenced to 18 months’ imprisonment.
(5)That Order is extended to the eligible offence of unauthorised manufacture of a prohibited firearm, contrary to s 228(1) of the Firearms Act 1996 (ACT) for which Mr Nurzynski has been convicted and for which he has been sentenced, being a term of imprisonment of 13 months.
(6)The convictions and sentences imposed for the said eligible offences are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
(7)The Drug and Alcohol Treatment Order is for 1 year and 6 months, to commence on 5 June 2024 and conclude on 4 December 2025.
(8)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order is for 1 year and 5 months, to commence on 5 June 2024 and conclude on 4 November 2025.
(9)The Custodial Part of the Order for the primary and associated offences is hereby fully suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from 5 June 2024 until 4 December 2025.
(10)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT) Mariusz Ergland Nurzynski is required to sign an undertaking to comply with the Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, being 5 November 2025, until the end of the total sentence, being 4 December 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment.
(11)For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Order set out in s 80Y and s 80Z(2)(f)-(g) of the Crimes (Sentencing) Act 2005 (ACT) are imposed;
(b)Mr Nurzynski is to travel to Canberra Recovery Services on 11 June 2024 and admit himself to the drug rehabilitation (day) program at that facility on that day;
(c)Mr Nurzynski is directed to complete the drug rehabilitation (day) program at Canberra Recovery Services, and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
(d)Should Mr Nurzynski leave or be discharged from the program before completing it, he is to report to ACT Corrective Services by 4pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed;
(e)Mr Nurzynski is to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;
(f)Mr Nurzynski is not to return a positive test sample under alcohol and drug testing; and
(g)Mr Nurzynski is to comply with any directions of the Court from time to time about attendance at Court either in person or by electronic means.
(12)Mr Nurzynski is directed to appear in Court on Friday 7 June 2024 at 11:30am in person or by electronic means as appropriate.
(13)I direct that written notice of the order, together with a copy of the order, is to be given to the offender.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam Associate: Date: |
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Amendments
| 12 June 2024 | Delete “‘, CC2022/1371, CC2022/3939” | Paragraph [2] |
| Insert the words “relating to that rolled-up charge” after “the Court” | Paragraph [2] | |
| Delete “, CC2022/1371, CC2022/3939” | Paragraph [72], Order 3 |
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