Brzozowski v R

1. [1]

   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 in an agreed statement. For the following reasons I agree with the orders proposed by Rothman J.

2. [2]

   The applicant relies on a single ground of appeal, that the sentencing judge erred in finding that there was no evidence of remorse. The sentencing judge expressly declined to take remorse into account. While she accepted that the applicant accepted responsibility for his offending, she expressed serious doubt that even at sentencing he truly understood the serious criminality associated with the possession of the number of firearms that he had and the manner in which he had them.

3. [3]

   It is well established that remorse is available to be taken into account as a mitigating circumstance in sentencing. That has long been the case, and, although it is not always so expressed, the rationale must be that remorse (genuine remorse) is indicative of rehabilitation and the unlikelihood of further offending: Stojanovski v R [2013] NSWCCA 334 at [41] (Simpson J, Hoeben CJ at CL and Johnson J agreeing). If that is not so, it is difficult to see what relevance remorse has in the sentencing process.

4. [4]

   In the determination of the appropriate sentence for an offence, the court is required to take into account such aggravating and mitigating sentencing factors as are relevant and known to the court: s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”). These factors are expressly (but not exhaustively) set out in, respectively, subss (2) and (3) of s 21A. Section 21A(3)(i) identifies as one mitigating factor:

5. [5]

   In the circumstances of this case, it could hardly be said that any loss or damage had been caused by the applicant’s offending. It is true that that the possession of unlawful firearms, and the possession of unlawful drug manufacturing materials, causes injury to the community by the risk created that the firearms could be used for criminal purposes, and that drugs could be manufactured and passed on to end users. But that is not what par (ii) of s 21A(3)(i) is directed to. The apprehension of the applicant and the confiscation of the firearms and the drug materials effectively prevented any actual injury, loss or damage. This is not a case in which the applicant could do more than acknowledge, as he did, the potential danger to the community caused by the presence of the firearms and the drug material. Paragraph (ii) of s 21A(3) has little, if any, application.

6. [6]

   Paragraph (i) is, however, applicable and relevant. Remorse is not established unless there is evidence that the offender accepts responsibility for his or her criminal conduct. Acceptance of responsibility must entail something more than a plea of guilty: Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 at [34]-[35] (Maxwell P, Harper JA and T Forrest AJA). If that were not so, every offender who pleads guilty would be entitled, not only to the reduction in sentence provided by Pt 3, Div 1A of the Sentencing Procedure Act, but also to extra consideration under s 21A(3)(i). As Brereton JA observed in Patel v R [2022] NSWCCA 93 at [41]; 366 FLR 314 (N Adams and Lonergan JJ agreeing):

7. [7]

   The sentencing judge had available to her a report of a Clinical Nurse Consultant (Forensic Mental Health), Lee Knight. Because the applicant had not, at the time of the consultation with Mr Knight, determined his pleas to the charges, the offences were not discussed in any detail. There is therefore no indication in the report of any remorse or acceptance of responsibility.

8. [8]

   Also before the sentencing judge was a Sentencing Assessment Report by a Community Corrections Officer, Ms Natasha Kelley. Ms Kelley recorded that, at the time of her interview with the applicant, he agreed with the facts as stated in the agreed statement but minimised his responsibility both in relation to his possession of a stolen motorbike, and in relation to his involvement in the possession of other items (that is, firearms and firearms parts). Ms Kelley recorded:

9. [9]

   The applicant gave evidence in the sentencing proceedings. He said that “the firearms” (bearing in mind that there were numerous firearms or parts of firearms) had been brought to his house by a friend (who had since died in a motor vehicle accident) with a request that he (the applicant) mind them. He said that he (“stupidly”) agreed, thinking that it would be for a short time, and that, on examination, only one was a “proper firearm”; the remainder were “toys or replicas” and not dangerous. He kept the “proper firearm” in his bedroom (between the mattress and the ensemble, without informing his wife). When asked what he now said about his decision the applicant said:

10. [10]

    The sentencing judge was fully conscious of the issue of remorse. During the course of final submissions she raised the question with the applicant’s counsel, saying that she had not seen any evidence on oath about remorse. She noted that there was nothing in the report of Mr Knight that indicated remorse. On that basis she declined to take remorse into account.

11. [11]

    In this Court it was submitted on behalf of the applicant that it was not open to her Honour to find that there was no evidence of remorse. Reference was made to the applicant’s oral evidence and to the Sentencing Assessment Report.

12. [12]

    It is not clear to me what her Honour had in mind when she said that the applicant had accepted responsibility for his conduct, but that was a different issue from remorse. Apart from the pleas of guilty, there is little to indicate that the applicant, in a genuine sense, accepted responsibility for his conduct. As I have said above, evidence that an offender has accepted responsibility for his or her criminal conduct requires more than a plea of guilty. The applicant’s statement of regret in his evidence does not convey a genuine acceptance of responsibility. The applicant continued to maintain that he had possession of the firearms and firearm parts out of a misguided act of kindness to a now-deceased friend. The sentencing judge made no finding as to the creditworthiness of that evidence.

13. [13]

    In the light of the evidence referred to above, the criticism was made that the sentencing judge was wrong to find that there was no evidence of remorse. I do not accept that criticism. To the extent that the applicant said anything about his involvement, it was to distance himself from ownership of the firearms. He said nothing about the drug offences. The nearest he came to expressing any remorse was to say, in evidence, that he regretted “taking onboard” the firearms.

14. [14]

    I see no error in the approach taken by the sentencing judge.

15. [15]

    As indicated above I agree with the orders proposed by Rothman J.

16. [16]

    ROTHMAN J: The applicant, John Brzozowski, seeks leave to appeal the sentence imposed upon him by Bright DCJ. On 10 February 2022 Bright DCJ sentenced the applicant to an aggregate sentence of 4 years and 8 months with a non-parole period of 3 years, commencing 4 December 2020. The applicant will first be eligible for parole on 3 December 2023 and the total sentence expires on 3 August 2025.

17. [17]

    As earlier stated, the District Court sentenced the applicant to an aggregate sentence and, in so doing, set out a number of indicative sentences, which can be best represented in the following table. The table [1] sets out the sequence number, the offence, the maximum penalty and standard non-parole period set by the legislature and the indicative sentence recorded by the learned sentencing judge.

18. [18]

    The applicant pleaded guilty to each of the charges and was sentenced for all of the above offences (except those on the Form 1 which were taken into account in the sentencing for the offence indicated in the foregoing table). As a consequence of the plea of guilty, there were agreed facts which can be very briefly summarised.

19. [19]

    On 20 November 2020, Police attention was drawn to a number of suspicious items situated at the applicant’s home, including a motorbike and other vehicles. Police lawfully conducted a search that day and located the items which are the subject of the above particularised charges. In short, the items comprised two potentially stolen motorbikes and a trailer, six firearms, ammunition and firearm parts, a PVC cannon, and a police uniform shirt. The applicant pleaded guilty in the Local Court and is therefore treated as having pleaded guilty at the earliest opportunity.

20. [20]

    The learned sentencing judge determined that there were special circumstances and fixed a non-parole period that was approximately 64% of the total term imposed. The learned sentencing judge also applied a 25% discount for the plea of guilty to each of the charges. In so doing, her Honour complied with the provisions of Div 1A of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (hereinafter, “the Act”) and, in particular, s 25D(2).

21. [21]

    Only one ground of appeal is raised, it being:

22. [22]

    The learned sentencing judge remarked [2] that there was “no evidence on oath of the offender’s remorse.”

23. [23]

    During the course of the hearing there was an exchange between the learned sentencing judge and the applicant’s lawyer in the following terms:

24. [24]

    The proceedings were heard on two days. The evidence was adduced on 4 February 2022 and there was a further exchange between her Honour and the parties on 10 February 2022, after which, on that date, her Honour delivered judgment. Neither her Honour nor the parties had available to them, on 10 February 2022, the transcript of 4 February 2022. The Court has that benefit. The highest that the evidence of the applicant goes as to what is said to be remorse is in the following two passages:

25. [25]

    The foregoing questions and answers were in examination-in-chief. It is necessary to explain, in order to understand the foregoing passages, that the applicant maintained that the firearms were given to him to hold, and the bailor of the firearms passed away while the applicant had possession of them, purportedly as bailee.

26. [26]

    The learned sentencing judge concluded that the offender accepted responsibility for his offending but doubted that “even today he truly understands the serious criminality associated with the possession of the number of firearms that he had and the manner in which he had them. Having regard to the absence of evidence in relation to remorse, I have not taken remorse into account.”

27. [27]

    The foregoing comment of her Honour was after her Honour had referred and extracted parts of the Sentencing Assessment Report. It is unnecessary to reiterate all the parts extracted by her Honour.

28. [28]

    The Sentencing Assessment Report of 10 November 2021, under the heading “Responsivity”, “Insight into impact of offending” recorded the following:

29. [29]

    The first paragraph of the foregoing extract was recited by her Honour in the course of her sentencing remarks.

30. [30]

    As to the issue of responsibility, as distinct from remorse, there was a further exchange [7] in which her Honour put to the applicant’s representative before her that her Honour couldn’t see any evidence on oath about remorse, referring to a submission made in written submissions to her Honour on sentencing and asking what the submission was based upon “given that there was no evidence of it from my memory when [the applicant] actually gave evidence in court.” The response was that the applicant had adopted what he had told the Community Corrections Officer as true and did so on oath to which her Honour replied that the applicant “didn’t express remorse to the Community Corrections Officer, and I’ll just try and find it.”

31. [31]

    After an exchange in which the applicant’s representative sought to look for the statement made to the Community Corrections Officer, a comment is made that there cannot be found anything specific in the report. There is then a reference to cross-examination of the applicant, and evidence being given by the applicant “in no way … does he accept that that was the right thing to do now” and that he expressed that “what he did was wrong” upon which the applicant relied in relation to his remorse. Thereafter, the exchange earlier extracted in these reasons occurred. [8]

Applicant’s Submissions

1. [32]

   The applicant relies on the Affidavit of his wife Michelle Brzozowski of 27 April 2023, to which reference will be made if the Court moves to resentence. In submissions, the applicant complains that the sentencing judge failed to take into account his remorse for the offending.

2. [33]

   There was, as can be seen from the foregoing extracts, an exchange between the judge and the applicant’s lawyer at the sentencing hearing where the enquiry was made relating to actual evidence of remorse and the applicant’s lawyer accepted the proposition that there was not any. The sentencing judge accepted that the applicant took responsibility for the offending.

3. [34]

   While the judge accepted that the applicant regretted his actions and understood the dangers of firearms, there was no evidence on oath of his remorse. The applicant’s submissions refer to the sentencing judge being satisfied that he took responsibility but seriously doubting “whether he truly understood the serious criminality of the offending”. As such, the applicant submitted that her Honour’s rejection of his remorse was predicated on her view that there was no evidence of it, and that accepting responsibility was a separate issue to remorse.

4. [35]

   The applicant submits that the foregoing was an error. In the applicant’s evidence, the applicant maintained that he regretted taking on board the firearms and that he should have taken more appropriate action in disposing of them. Further, the Sentence Assessment Report, on the submission of the applicant, stated that the applicant expressed regret for not seeking an appropriate manner in which he could legally dispose of the items.

5. [36]

   The applicant submits that while the sentencing judge could have considered this and rejected it, she did not consider it. The applicant maintains that this was an error, and it was also an error for her Honour to conclude that there was no evidence of remorse when there was evidence of regret and the acceptance of responsibility.

6. [37]

   The applicant relies upon the provisions of s 21A(3)(i) of the Act, which is in the following terms:

7. [38]

   The applicant submits that the second limb of s 21A(3)(i) is irrelevant to any circumstance associated with the current offending, as there were no victims or damages occasioned, but that the first limb was satisfied and was expressly so determined by her Honour in the remarks.

8. [39]

   On the issue of resentencing, the applicant relies on her Honour’s findings of subjective circumstances, namely that there were good prospects of rehabilitation, the applicant’s good insight into his mental health, the onerous nature of custody given the applicant’s mental health and COVID, and the lack of any likelihood of reoffending if the applicant obtained mental health treatment. He also relies on the Affidavit of his wife to which reference has already been made, amongst other things, to show particular hardship.

9. [40]

   The applicant also submits that the Court could conclude that the objective seriousness of the offending falls below the mid-range given that only four firearms were involved.

Respondent’s Submissions

1. [41]

   The Crown submits that the ground of appeal is not available on the remarks of the learned sentencing judge. The Crown submits that the sentencing judge weighed up the evidence on remorse and was satisfied that the applicant was not remorseful.

2. [42]

   Furthermore, the sentencing judge invited the applicant’s lawyer at the time to address the evidence of remorse. Her Honour indicated that she did not consider that remorse was made out and the legal representative of the applicant conceded the point.

3. [43]

   Further, the legal representative made no application to reopen the proceedings. I should comment that it would have been difficult to make such an application, given that the question was asked almost immediately before her Honour delivered ex tempore reasons. In any event, the Crown submits that no error is made out and the applicant should be constrained from rearguing the issue.

4. [44]

   The Crown further submits that there is no inconsistency in the sentencing judge finding that the applicant regretted and comprehended the gravity of the offending, but finding that the applicant was not remorseful. The evidence, on the submission of the Crown, relating to regret and remorse, if it gets that far, was conditional and limited and the judge’s finding was open to her. The applicant only said that he regretted receiving the firearms and, according to the Crown’s submission, he did not regret possessing and holding them, which were also criminal acts.

5. [45]

   The Crown submits that the provisions in s 23A(3)(i) of the Act, while relevant, must be read in the context of the whole Act, having regard to its purpose. The Crown submits that remorse requires both an acceptance of responsibility and an acknowledgment of the injury, loss or damage as required by the terms of the section. The Crown also submitted that there is a difference between the ordinary and natural meanings of “remorse” and “responsibility”.

6. [46]

   The Crown relies on the authorities on the question of remorse which state that it involves genuine regret, and that the applicant bears the onus of proof of that issue on the balance of probabilities. A mere record of an expression of remorse is not, on the Crown’s submission, sufficient alone.

7. [47]

   On the question of resentencing, even if error were established, the Crown submits that no lesser sentence is warranted in law, given that the offences were serious and warranted both specific and general deterrence. Further, the applicant has shown limited remorse, if any. Further again, the Crown submits that the applicant’s subjective case was appropriately taken into account at the first instance.

Consideration

1. [48]

   The essential difference between the parties, and also the fundamental issue with which the Court is required to deal, relates to whether her Honour failed to take into account remorse in circumstances where there was evidence of remorse, of which her Honour was unaware. While the ground of appeal may require leave as a consequence of the concession by the legal representative of the applicant at first instance, given the circumstances and the unavailability of transcript at the time, if leave were necessary leave should be granted.

2. [49]

   Underpinning the fundamental issue between the parties is the proper construction of s 21A(3)(i) of the Act. The Crown submission that the foregoing provision is required to be read in the context of the statute as a whole is, without intending criticism, trite.

3. [50]

   All statutes must be read in the context of the statute as a whole in a manner which gives effect to the purpose of the legislature as inferred from the words of the statute and to achieve harmonious goals. [9] The purposes of s 21A of the Act fit within the general purposes of the statute which are to establish the purposes of sentencing and the process by which those purposes will, according to the legislature, be achieved. By the provisions of s 21A of the Act, the legislature is ensuring that aggravating and mitigating factors in fixing a sentence are considered by any judicial officer who is given the task of imposing a sentence.

4. [51]

   The specific terms of s 21A(3)(i) of the Act have been the subject of some comment. While the Court has commented that it is open to a judicial officer to decline to find remorse in circumstances where the evidence of the remorse has not been the subject of evidence by the offender, such an exercise is part of the determination by the judicial officer as to whether there is genuine remorse.

5. [52]

   The subparagraphs of s 21A(3)(i) do not define remorse. Satisfaction of those factors, where relevant, is a condition precedent to the use of remorse as a mitigating factor under the section. Those conditions precedent may be satisfied without the judicial officer necessarily finding that remorse has been shown by the offender for the offence.

6. [53]

   In this case, as an aspect of the fact-finding task imposed on the sentencing judge, the learned sentencing judge found that the offender had accepted responsibility for his actions. I accept, for present purposes, the submission of the applicant that no injury, loss or damage was caused by the offences in question and therefore it was unnecessary for the applicant to acknowledge such injury, loss or damage or to make reparation for it.

7. [54]

   It would seem that the term “injury, loss or damage” cannot extend to a potential risk associated with the use of a weapon which was in the possession of the applicant, but not being used in a criminal activity or any other activity. In other words, the risk of injury, loss or damage was not present until such time as the applicant took the firearms out of the house or, because they were kept unsafely, they were removed by someone else. The mere possession of the firearms did not, itself, cause injury, loss or damage as that term is used in the provision.

8. [55]

   Notwithstanding the foregoing, acceptance of responsibility is a significantly different concept to remorse. An offender may, for example, have committed an offence, and acknowledge responsibility for it, but take the view that the offender would, if faced with the same circumstances, commit the same offence again and be wholly lacking in contrition for the offence that was committed.

9. [56]

   Moreover, there is a significant difference in principle between regret for the consequences of conduct and contrition for the conduct. Such a difference has a long history and derived, initially, from ecclesiastical law. Remorse is contrition or shame at the commission of the offence, not its consequences.

10. [57]

    It is contrition or remorse for having committed an offence that is to be taken into account by a court in mitigating a sentence. [10] Remorse may be evidenced by the plea of guilty or cooperation with Police or a number of other factors, but such matters do not necessarily lead to a finding that remorse exists.

11. [58]

    Regret, which was expressed by the applicant, may be regret at the commission of the offence or regret as to the consequences of the offence. The kind of regret that is equivalent to remorse is a deep regret at the commission of the offence; not a regret as to its consequences.

12. [59]

    Thus, in these proceedings, the applicant expressed regret at taking on board the firearms in the first place, but, that regret was in the context that the applicant “should have … taken more appropriate action [in] … disposing of them”. Indeed, the applicant clarified that he grew up around firearms and they were to be used as “tools”. The overall impression of the evidence of the applicant was that his regret was directed at the consequences of the possession of the firearms; not the possession of them.

13. [60]

    The historical development of the concept of remorse informs an understanding of its content. In ecclesiastical law, the law differentiated the sorrow for the consequences of sin and sorrow for the sin itself, and the most oft-cited passage is:

14. [61]

    Contrition or remorse requires deep regret and shame at the commission of the offence itself, and not merely regret that something was not done that would have avoided prosecution.

15. [62]

    Moreover, even on the lower standard of balance of probabilities, I do not accept the veracity of the comment that the applicant was unaware of any criminal use or association with the firearms. The firearms that the applicant had in his possession included a sawn-off rifle and replica pistols.

16. [63]

    When asked by the Court as to the purpose, other than criminal activity, for such items, the best that could be put on behalf of the applicant was that they may be the subject of collection by a collector. I do not accept that a person would be collecting a sawn-off rifle or replica pistols.

17. [64]

    I can accept that it would not be unusual for a person to seek to collect firearms, for example, antique firearms or, in countries where such was permitted, current firearms, but the “collectability” of a sawn-off rifle or replica pistols other than for the commission of a criminal offence is not immediately apparent.

18. [65]

    Ultimately, the use to which the weapons would be put, in the absence of proof that they were intended for a criminal activity, which would need to be proved beyond reasonable doubt, cannot be utilised in determining an appropriate sentence. Nevertheless, the difficult task before the sentencing judge was to determine a sentence that paid regard to the number of firearms possessed by the applicant in achieving the purposes of sentencing established by s 3A of the Act. It was open to the learned sentencing judge not to find remorse and the learned sentencing judge properly distinguished between regret, on the one hand, and remorse or contrition, on the other.

19. [66]

    I do not consider that the learned sentencing judge was in error and I do not consider that the only ground of appeal raised has been established. In those circumstances I would propose that the Court make the following orders:

    1. (1)

       Leave to appeal be granted;

    2. (2)

       Appeal be dismissed.

20. [67]

    CAVANAGH J: I agree with Rothman J. I also agree with the additional reasons provided by Simpson AJA.