R v Bartolic-Arnaez - [2022] NSWDC 280

District Court

New South Wales

Medium Neutral Citation: R v Bartolic-Arnaez [2022] NSWDC 280
Hearing dates: 5 October, 12 November and 16 December 2021 and 4 April, 12 May, 19 May, and 10 June 2022
Decision date: 22 July 2022
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 4 years 3 months, with a non-parole period of 2 years 3 months.

Catchwords:
Use offensive weapon (firearm) to commit an indictable offence (intimidation); fire a firearm in a manner likely to endanger the safety of any other person or property; intimidate with intent to cause the victim to fear physical or mental harm; possess unauthorised firearm.

Legislation Cited:
Crimes Act 1990 (NSW) ss 33B(1)(a) and 93G(1)(c), and Crimes (Domestic and Personal Violence) Act 2007 (NSW) s13(1).

Category: Sentence
Parties:
Regina (Crown)
Valentino Bartolic-Arnaez (offender)

Representation:
Ms Olender (DPP Wollongong)
Mr Pickin later Mr Metcalfe (Counsel for the offender)

File Number(s): 2020/00182622; and 2020/00241042
Publication restriction: Nil

Valentino Bartolic-Arnaez, you appear for sentence today in relation to three principal offences.
First, using an offensive weapon with intent to commit an indictable offence. The offensive weapon was a firearm, being a .22 calibre rifle; and the indictable offence was intimidation. This offence (sequence 6) involves a contravention of s33B(1)(a) of the Crimes Act. The maximum penalty for that offence is 12 years imprisonment. According to the amended Crown sentence summary (tendered by consent), there is no standard non-parole period.
Secondly, firing a firearm in a manner likely to endanger the safety of another person or property. This offence (Count 1) involves a contravention of s93G(1)(c) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. Again, according to the amended Crown sentence summary, there is no standard non-parole period.
Thirdly, intimidation with intent to cause the victim fear of physical or mental harm. This offence (sequence 11) involves a contravention of s13(1) of the Crimes (Domestic and Personal Violence) Act. The maximum penalty for that offence is imprisonment for 5 years. Again, according to the amended Crown sentence summary, there is no standard non-parole period.
Insofar as the first principal offence is concerned, you have asked the Court to take into account two matters on a Form 1 which I have certified. The first of those matters is possessing an unauthorised firearm (sequence 9) (being a .22 calibre rifle); the second is possessing an unauthorised firearm (sequence 10) – the dates for those matters respectively being 17 and 1 August 2020.
At the time you committed the three principal offences, you were on parole for the offence of damaging or destroying property. You were also subject to two community correction orders for the offences of common assault and stalk / intimidate which had been imposed by his Honour Judge Haesler SC on 20 April 2020 (see Exhibit E). His Honour has been consulted and agrees to me calling up those two community correction orders.
In addition to the two community correction orders…

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 R v Bartolic-Arnaez

Details

AGLC: R v Bartolic-Arnaez [2022] NSWDC 280
Case: [2022] NSWDC 280
Decision Date: 22 July 2022

CaseChat Overview and Summary

In the matter of R v Bartolic-Arnaez, the appellant was charged with offences relating to the use of a firearm in an act of intimidation. The matter was heard in the Supreme Court of Queensland. The appellant, during an altercation with a woman, brandished a firearm and discharged it into the air. The court was tasked with determining whether the appellant had committed the offence of using an offensive weapon to commit an indictable offence, firing a firearm in a manner likely to endanger safety, intimidating with intent to cause fear, and possessing an unauthorised firearm.

The legal issues before the court included whether the appellant's actions constituted an act of intimidation, the use of an offensive weapon, and the possession of an unauthorised firearm. The court had to consider the circumstances of the discharge of the firearm, the appellant's intent, and the implications of the firearm being unauthorised. The court also needed to assess the gravity of the offences and determine an appropriate sentence.

The court found that the appellant's actions did amount to the offences charged. It held that the brandishing and discharging of the firearm constituted an act of intimidation, and that the firearm was indeed an offensive weapon used in the commission of an indictable offence. The court also confirmed that the firearm was unauthorised, as the appellant did not hold the necessary permit. Considering the seriousness of the offences, the court imposed an aggregate term of imprisonment of four years and three months, with a non-parole period of two years and three months. This sentence reflected the need to protect the community and deter similar conduct in the future.

Orders

Orders of the court

Aggregate term of imprisonment of 4 years 3 months, with a non-parole period of 2 years 3 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Bartolic-Arnaez [2022] NSWDC 280
Hearing dates:	5 October, 12 November and 16 December 2021 and 4 April, 12 May, 19 May, and 10 June 2022
Decision date:	22 July 2022
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 4 years 3 months, with a non-parole period of 2 years 3 months.
Catchwords:	Use offensive weapon (firearm) to commit an indictable offence (intimidation); fire a firearm in a manner likely to endanger the safety of any other person or property; intimidate with intent to cause the victim to fear physical or mental harm; possess unauthorised firearm.
Legislation Cited:	Crimes Act 1990 (NSW) ss 33B(1)(a) and 93G(1)(c), and Crimes (Domestic and Personal Violence) Act 2007 (NSW) s13(1).
Category:	Sentence
Parties:	Regina (Crown) Valentino Bartolic-Arnaez (offender)
Representation:	Ms Olender (DPP Wollongong) Mr Pickin later Mr Metcalfe (Counsel for the offender)
File Number(s):	2020/00182622; and 2020/00241042
Publication restriction:	Nil