DPP v Nurzynski

EX TEMPORE REASONS (REVISED)

1. Mariusz Nurzynski, a participant on a drug and alcohol treatment order (treatment order), comes before the Court for the purposes of a review of the order in circumstances of his experiencing ongoing physical health challenges.

2. The treatment order was imposed on 5 June 2024 for firearm related offences committed in August 2023: DPP v Nurzynski [2024] ACTSC 176 (DPP v Nurzynski). Mr Nurzynski was sentenced to a total term of 25 months and 14 days imprisonment. Mr Nurzynski had served a period of some nine months in presentence custody. At the time of his release on 5 June 2024 he was to serve the remainder of the sentence by way of a treatment order for a period of 18 months. The treatment and supervision component was to be for a period of one year and five months, from 5 June 2024 to 4 November 2025. Thereafter, for the remainder of the sentence, being a period of one month, Mr Nurzynski was to be subject to a good behaviour order.

3. It follows that Mr Nurzynski has now completed just over one year of the treatment and supervision part of the order. He has demonstrated commitment to rehabilitation throughout that time. While he has experienced a non-linear journey from substance dependency, he has completed a rehabilitation program, has remained engaged with the treatment team, has been honest and accountable when he has lapsed, and he has sought to engage in all urinalysis testing requested of him. He has not further offended. He remains committed to abstinence and to continuing a crime free life trajectory.

4. However, he has throughout the order experienced increasing challenges with his physical health. It is now apparent that these are chronic health conditions, and they are interfering with Mr Nurzynski’s ability to comply with the order, particularly with respect to urinalysis testing. That is, the participant’s physical health conditions are interfering with his ability to comply with the treatment and supervision part of the order.

5. On behalf of the participant, review of the order is sought, and that the Court amend the order such that the treatment and supervision part be concluded and that Mr Nurzynski complete the custodial part with a longer good behaviour order period. It is sought that this occur pursuant to s 80ZH of the Crimes (Sentencing) Act 2005 (ACT), which provides: 80ZH Drug and alcohol treatment orders—review (1) The court may review a treatment order for an offender at any time and for any reason if it is satisfied the review is in the interests of justice. Note The court may also review the offender’s bail at any time, see the Bail Act 1992, s 41A. (2) The court may review a treatment order— (a) on its own initiative; or (b) on application by— (i) the defence; or (ii) any other member of the treatment order team. (3) The court may carry out a review under this division in any way it considers appropriate. (4) However, the court must conduct a hearing for a review in which the court is considering making an order under— (a) section 80ZB (1) (e) provisionally cancelling the suspension of a sentence under a treatment order; or (b) section 80ZB (1) (f), section 80ZD (4) (a) or section 80ZE (2) (a) cancelling the treatment order; or (c) section 80ZB (1) (g), section 80ZD (4) (b) or section 80ZE (2) (b) cancelling the treatment order and resentencing the offender. (5) An entity mentioned in subsection (2) (b) may appear at a hearing of the review. (6) The court may, on the review, confirm or amend the order as the court considers appropriate. (7) If the court amends the order, the court must, as soon as practicable, ensure that written notice of the review decision, together with a copy of the amended treatment order is given to— (a) the offender; and (b) any other person who the court considers should receive the notice. (8) Failure to comply with subsection (7) does not invalidate the order as amended. (9) In this section: defence means— (a) any lawyer representing an offender; or (b) if the offender is not legally represented—the offender.

6. I am satisfied that in the circumstances of the participant’s ill health, it is in the interests of justice to review the order. The prosecution does not oppose the amendment that is sought, acknowledging the physical health conditions of the participant. The prosecution also acknowledges the period of time that has been spent subject to treatment and supervision and the commitment to rehabilitation that the participant has demonstrated throughout.

7. In all of the circumstances, I am satisfied that it is appropriate to grant the amendment sought. The participant is to conclude the treatment and supervision component, and to continue under supervision by way of a good behaviour order until completion of the custodial part of the order.

8. It warrants observing that the Court’s consideration in the original sentencing decision that “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” (DPP v Nurzynski at [62]) has been realised. The outcome for this participant is to be regarded as a non-graduate completion of the treatment order, but it is nonetheless a positive reflection of what can be achieved when intensive rehabilitation supports are provided in the community for offenders.

Orders

9. Accordingly, the following orders will be made: (1) A review of the treatment order is conducted pursuant to s 80ZH of the Crimes (Sentencing) Act 2005 (ACT). (2) I amend condition 10 of the treatment order dated 5 June 2024 as follows: (a) 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 18 June 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.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen. Associate: Date: 3 July 2025