Regina v Angelo Zepidis

[2020] NSWDC 105

District Court

New South Wales

Medium Neutral Citation:	REGINA v ANGELO ZEPIDIS [2020] NSWDC 105
Hearing dates:	6 April 2020, 14 April 2020
Date of orders:	14 April 2020
Decision date:	14 April 2020
Jurisdiction:	Criminal
Before:	Noman SC DCJ
Decision:	1.   The offender is convicted of the four offences. 2.   An aggregate sentence is imposed. The following indicative sentences of imprisonment are nominated:    Sequence 13 - 12-gauge ATA ARMS Model double barrel shotgun: 15 months Sequence 14 - 12-gauge BOITO Model A-680 double barrel shotgun (side by side):15 months Sequence 8 - Shortened 12-gauge Remington model 870 Wingmaster pump-action repeating shot gun :3 years Sequence 7 - 12-gauge SKB ARMS Model XL 900 self- loading shotgun, taking into account the further 5 items listed on the form 1 (009, 010, 011, 015, 017): 4 years with a non-parole period of 2 years 3.   The sentence imposed is 4 ½ years imprisonment with a non-parole period of 2 ½ years imprisonment to date from 9.11.2019. The non-parole period expires on 8.5.2022 and the term expires on 8.5.2024. This is a ratio of 55% 4.   I have taken into account the overall sentence incorporating that imposed for the breach of the ICO. The overall sentence is 5 years 2 months with an overall non-parole period of 3 years 2 months which provides a ratio of 61%.
Catchwords:	Possess unauthorised firearm - Possess shortened firearm - Firearms Prohibition Order - Weapons Prohibition Order - Duress
Legislation Cited:	Crimes (Sentencing Procedure) Act 2002, ss 3A, 5 Firearms Act 1996, ss 7(1), 7A(1), 62(1)(b) Weapons Prohibition Act 1998
Category:	Sentence
Parties:	Director of Public Prosecutions Angelo Zepidis
Representation:	Counsel: Mr M. Breeze   Solicitors: Mr S. Amvrazis, Director of Public Prosecutions Ms A. Chauvet, Legal Aid NSW
File Number(s):	2019/00076543
Publication restriction:	Nil

Judgment

1. The offender, Angelo Zepidis, appears for sentence arising out of his conduct on 4 September 2018. That conduct is set out in the statement of agreed facts. I have read that document and recite it in summary.

2. The offender was served by police with a Firearms Prohibition Order and a Weapons Prohibition Order at Hurstville. At this time the offender was the only person staying at his mother’s home at Ramsgate. Police attended the home with the intention to search his premises. The offender chose to leave. A submission was advanced on behalf of the offender that providing access to the property assisted the administration of justice and that this should operate in his favour. I do not accept this submission. The offender was advised that there was to be a search and his assistance was, in reality, no more than an acceptance of the inevitable.

3. Police searched an upstairs bedroom and on the floor located shotgun cartridges, other firearm ammunition, and a black coloured firearm storage bag containing a scope. There were six firearms laid out neatly on top of the bed. At the head of the bed was a crossbow with five bolts.

4. The firearms seized included:

5. Sequence 7: 12-gauge SKB ARMS Model XL 900 self- loading shotgun. This is a Prohibited Firearm. There was no record of this firearm being registered at the time it was located. This is an offence of possess unauthorised firearm contrary to s 7(1) of the Firearms Act. This offence has a maximum penalty of 14 years with a standard non-parole period of 4 years.

6. Sequence 8: Shortened 12-gauge Remington model 870 Wingmaster pump-action repeating shot gun. This is a Shortened Firearm and also a Prohibited Firearm. There was also no record of this firearm being registered at the time it was located. This is an offence of possess shortened firearm not being a pistol without authority contrary to s 62(1)(b) of the Firearms Act. This offence has a maximum penalty of 14 years.

7. Sequence 13: 12-gauge ATA ARMS Model double barrel shotgun. This is a firearm. This is an offence of possess unauthorised firearm contrary to s 7A(1) of the Firearms Act. This offence has a maximum penalty of 5 years.

8. Sequence 14: 12-gauge BOITO Model A-680 double barrel shotgun (side by side). This is a firearm. This is an offence of possess unauthorised firearm contrary to s 7A(1) of the Firearms Act. This offence has a maximum penalty of 5 years.

9. The offender was not the holder of a licence or permit which authorised possession of a prohibited firearm or firearm under the Firearms Act 1996. Nor was he the holder of a permit and he was not authorised to have in his possession a prohibited weapon under the Weapons Prohibition Act 1998.

10. Both the maximum penalty and, where applicable, the standard non-parole period operate as legislative guideposts and represent the Legislature’s assessment of the seriousness of the offence.

11. There are 5 further offences listed on the form 1 that attaches to sequence 7. These offences are:

12. Item 1: Possess ammunition without being authorised by license or permit. Ammunition located during the search of the villa included quantities of .243 Winchester calibre cartridges; .22 Long Rifle calibre cartridges; 12-gauge shotgun cartridges; .30 calibre cartridges; .357 Magnum calibre cartridges; and .303 British calibre cartridges. The maximum penalty is 50 penalty units.

13. Item 2: Not keep firearms safely. The maximum penalty is 12 months imprisonment.

14. Item 3: Possess a firearm without being authorised by license or permit. .303/25 Calibre Lithgow Model S.M.L.EIII bolt-action repeating rifle with a scope and empty magazine. There was no record of this firearm being registered at the time it was located. The maximum penalty is 5 years imprisonment.

15. Item 4: Possess a prohibited weapon, namely, a crossbow in contravention of a weapons prohibition order. The maximum penalty is 14 years imprisonment and there is a standard non-parole period of 5 years.

16. Item 5: Possess a firearm without being authorised by license or permit. Lever action rifle cowboy Limited Marlen Firearms Co. North Haven 1894. The maximum penalty is 5 years imprisonment.

17. The offender asks that I take into account these matters on the form 1 when I sentence on sequence 7. I consider it appropriate that I take these further matters into account. I specifically acknowledge that one item carries the same maximum penalty, but a higher standard non-parole period, than the offence for sentence. I consider it appropriate however being mindful of the nature of the firearm for sentence and the prohibited weapon on the form 1. I take these five further offences into account in accordance with the principles set out in the guideline judgment. The impact of these further offences will result in the imposition of a longer sentence than would have been imposed if the primary sentence had stood alone.

18. The offender entered pleas of guilty to the offences for sentence in the Local Court. These are early pleas. I intend to apply a reduction of 25% to each indicative sentence, after the otherwise appropriate sentence has been determined.

19. All that is disclosed in the facts is that on a particular day the offender was in possession of items. They were located in his home. None of the items was secured.

20. The facts did not refer to whether the guns were in working order. An additional agreed fact was conveyed by email. Therein, it was stated “[a]ll firearms were tested and in working order. The crossbow was not tested but visually examined by the Police ballistician to be in working order”.

21. Ammunition located was compatible with the guns located.

22. There is no evidence that any were used or were to be used. The offender gave evidence that he was in possession acting under duress. He had an affiliation with an Outlaw Motorcycle Gang. The offender gave sworn evidence of the circumstances of his possession. He indicated in January 2018 he met up with members of an Outlaw Motorcycle Gang with whom he was friendly. They drank alcohol and used cocaine together. He was sanctioned for apparently pretending to use cocaine. He was then further sanctioned when he denied this allegation. He understood that his behaviour was considered disrespectful. Sanctioning was in the form of being assaulted. He was assaulted and lost consciousness. He woke up tied to a chair. He had boiling water poured on him. He received facial injuries. Although he nominated the particular Outlaw Motorcycle Gang he declined to name the individuals responsible.

23. There is evidence provided supporting the purported kidnapping. Both the offender’s mother and wife support that an incident as described was reported to them days later and that each had seen him come home injured. I accept that they place the occasion at a different time- his wife on 15 January 2017 and his mother in 2017. I accept on balance that this incident occurred.

24. The offender gave evidence which is supported by family that thereafter there were threats that necessitated he move home. He moved to a neighbouring suburb before moving to Muswellbrook. He relocated with his immediate family.

25. Members of the Outlaw Motorcycle Gang located him sometime around March 2018 and at some time left a stolen car containing the subject items. He was told to mind the items. He moved some of the items from the car for safekeeping. At no stage were the firearms stored safely. Police found the car and other firearms. There are separate charges over those firearms before the Local Court for sentence on 20 April 2020.

26. The offender moved back to his mother’s home in late August 2018. The offender gave evidence that in fact he transported the firearms from Muswellbrook to his mother’s home on 13 July 2018. He indicated they were left unsupervised for that 5 to 6 week period. He gave evidence he wanted to hand them in as part of the firearm amnesty. There is support from witnesses that he spoke of the amnesty or asked about getting a lift to the police station to surrender them. This version seems remarkable in that he claimed to have possessed the items out of fear yet was prepared to not return the items but to deprive the Outlaw Motorcycle Gang of their property by surrendering them. However, he indicated he expected to receive a custodial sentence for other offences at this time and saw it as an opportunity to cease connections and change his conduct. The offender also said he was scared for himself and his family and building up the courage to surrender the items. I accept this account on balance. He therefore kept the items for about 6 months by performing the role of storing them. He was reporting daily to the police during part of the period of his possession. It was accepted on behalf of the offender that he could at any time have surrendered the firearms to the police. He could easily have surrendered the items. However, I accept this required fortitude he did not have.

27. This account provides an explanation which serves to lessen the seriousness and moral culpability.

28. It is not advanced that those who purportedly owned the guns did so for any legitimate purpose. If they did, there would have been no necessity to overbear the offender to store the weapons in his own home. The offender was prepared to store and then to return the items knowingly to persons he believed had no good reason to possess them.

29. The offender submits each offence would be assessed as falling below the mid-range of seriousness. The Crown submits each falls above the mid-range.

30. I note that in assessing the seriousness, I take into account the nature of the item; the purpose and circumstances of the possession; whether it was stored safely; whether it was in working order; and whether the gun was loaded or kept near compatible ammunition. I also take into account that each item was not kept in isolation but that the offender possessed a number of separate guns. This last feature in the circumstances of the case is of limited relevance.

31. There is no basis to differ in assessing the seriousness of each offence noting the different offence provisions. I determine each falls below mid-level of seriousness for the specific offence.

32. There is reliance on a report of Dr Chew, Psychiatrist. Therein, the offender stated he was involved with the possession of the items as he was asked by ‘friends’. He said these friends had previously kidnapped him and he was fearful of them. He said he had returned to drug use in January 2018. He said the kidnapping occurred in this time period and that he was bashed and tortured. He did not specify when he received the weapons and other items. He said he had wanted to surrender them as part of the gun amnesty. In the psychiatric report it is opined that there was a likely nexus between the offender’s conditions of his drug use and PTSD, and the offending. Dr Chew stated these ‘conditions’ may have contributed to him holding the firearms, and acting out of fear of the persons who gave them to him. He said the PTSD exacerbated this. All of the report is based on self-reporting and without testing. Dr Chew stated in evidence that it was not usual for psychiatrists to administer psychometric testing. He said he relied upon information conveyed by the offender and his own assessment.

33. I accept Dr Chew’s account of the likely causal connection. This ameliorates sentence. I am mindful in considering the extent of any mitigation that I have already taken the explanation for the conduct into account in determining the objective seriousness.

34. I do not regard the offender’s mental health issues as lessening the role of general deterrence. The offender has been in custody for a year. There is no evidence it exacerbates his conditions in custody. He is paranoid about sharing a cell because of fear of being assaulted. This concern is accommodated.

35. The offender is now aged 31.

36. At the time of offending the offender was subject to conditional liberty. He entered bail on 3 May 2018 for offences of possessing drugs, possessing weapons and driving offences. A breach of conditional liberty is a matter of aggravation as it reflects an abuse of the freedom granted by taking the opportunity to further offend.

37. The offender has a number of entries on his criminal history commencing in 2008 as a 20 year old. He has received various sentencing outcomes of fines, s.12 bonds, periodic detention, an ICO and full time imprisonment. There are a myriad of offences including assaults and domestic violence related offending, drugs, weapon possession and driving offences. Although there are knife possession charges, this is his first firearm offending.

38. The offender’s antecedents operate to disentitle him to leniency.

39. I accept that the offender has expressed genuine remorse.

40. The offender, his mother, his wife, a friend and Dr Chew gave evidence on sentence.

41. The offender told Dr Chew he moved to Greece with his family as a young child and returned after 5 years. He said he was abused at school because of his background. His mother separated from his father and she entered into relationships fraught with domestic violence. When he was 12 his mother married a strict religious man and he then was exposed to a disciplined lifestyle. He ran away from home at 16. He worked and formed a relationship resulting in 2 children. After this relationship ended he re-partnered and fathered four further children. His youngest four are aged under 6.

42. The offender gave evidence on sentence of not getting on with his step-father. His mother did not support this version. He described not having access to his two older children for about 6 years prior to 2018. His mother described the offender adversely changing after a trip to Greece where he was rejected by his biological father. He left school at 16, formed a toxic relationship with the mother of his two eldest children and was responsible for domestic violence. He was able to sustain employment. Initially he was employed in the family cleaning business full time as an employee and the then transferred to operating as a contractor. This stopped when he moved to Muswellbrook but he is able to return to it upon release.

43. The offender told Dr Chew he used poly substances from the age of 21; that he ceased in 2013; and relapsed in 2018. This does not accord with his criminal history that indicates drug use in 2014 and 2017. I determine that he was a long term user of drugs who intermittently abstained. He is not using drugs whilst in custody.

44. Dr Chew stated that the offender described flashbacks, nightmares and ongoing anxiety. The offender gave evidence that he remained paranoid and scared because of the kidnapping. He said he could not share a cell in custody. He was on protection and non-association with members of the particular Outlaw Motorcycle Gang. However the classification was changed to general population at the offender’s request. There is no indication that for the period on protection that the conditions were any more onerous. I do not determine that his classification renders his custody any more onerous.

45. I accept that life if more difficult for his wife caring for their children whilst the offender is in custody. This is not exceptional and nor is it uncommon.

46. I have had regard to the purposes of sentencing identified in s 3A of the Crimes (Sentencing Procedure) Act 2002.

47. The offender’s prospects of rehabilitation and of not reoffending are difficult to gauge. The offender has committed institutional offences concerning prohibited items and fighting whilst on remand. He committed these offences whilst on bail. He failed to comply with the conditions of an ICO. Dr Chew stated that the offender demonstrated good insight into his ‘illness’, drug use and the need for treatment. The illness referred to is PTSD that Dr Chew opines is a consequence of the kidnapping. He also referred to the substance abuse disorder that was said to be in remission whilst in custody. I note the offender’s unsatisfactory performance of the conditions attached to his 2018 imposed ICO. That performance resulted in the recommendation that the order be revoked.

48. The offender indicated this was a watershed experience. He had reflected on his past and was ashamed and embarrassed. He said he would not engage in similar conduct again.

49. I determine that his prospects of rehabilitation and not reoffending are reasonable.

50. The offender submitted that because there was an absence of a history of weapon possession there was a reduced requirement for personal deterrence. I accept that given the circumstances of this offending he is unlikely to commit a similar type of offence but that does not equate with the likelihood of other offending. I do determine that personal deterrence has a role to play.

51. General deterrence and denunciation are of significance in this type of offending. There is a community safety issue in firearms being accessible in the community and accessible to those with no legitimate use of them. In fact, given the possession by the Outlaw Motorcycle Gang the risk is extreme.

52. The s 5 threshold is passed. The only appropriate sentence is one of full time imprisonment.

53. I accept and will take into account that there was a period of uncertainty given the delay between the search and charging. The offender has been in custody since his arrest on these offences on 9 March 2019. However, a 20 month ICO entered on 9 November 2018 was revoked by the Parole Authority. On 26 March 2019 he was sentenced to 16 months to commence on 9 March 2019, the day he was arrested on the offences for sentence. This sentence is still current. The expiry date is 8 July 2020.

54. These offences were not in breach of the ICO as each occurred prior to entering of the ICO.

55. I am required to determine a commencement date for this sentence to take into account the overall sentence period. I propose to commence sentence on 9 November 2019.

56. Each of these offences was committed at the same time. However, there are different weapons. Although the features call for considerable concurrency I consider that the sentence for an offence does not encapsulate the criminality of the other offences. Some accumulation must be applied.

1. Special circumstances are advanced by the offender. This includes the need for rehabilitation, referencing mental health, PTSD, and drug use. I am mindful of the impact of accumulation on the overall sentence. I will adjust the ratio to take these factors into account.

2. The offender is convicted of the four offences.

3. I propose to impose an aggregate sentence. I nominate the following indicative sentences of imprisonment:   

Sequence 13: 12-gauge ATA ARMS Model double barrel shotgun	15 months
Sequence 14: 12-gauge BOITO Model A-680 double barrel shotgun (side by side)	15 months
Sequence 8: Shortened 12-gauge Remington model 870 Wingmaster pump-action repeating shot gun	3 years
Sequence 7: 12-gauge SKB ARMS Model XL 900 self- loading shotgun, taking into account the further 5 items listed on the form 1 (009, 010, 011, 015, 017)	4 years with a non-parole period of 2 years

60. The sentence imposed is 4 ½ years imprisonment with a non-parole period of 2 ½ years imprisonment to date from 9 November 2019. The non-parole period expires on 8 May 2022 and the term expires on 8 May 2024. This is a ratio of 55%.

61. I have taken into account the overall sentence incorporating that imposed for the breach of the ICO. The overall sentence is 5 years 2 months with an overall non-parole period of 3 years 2 months which provides a ratio of 61%.

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Decision last updated: 14 April 2020