R v Brzozowski

The Agreed Facts

1. At the time of the offending the offender was subject to a firearms prohibition order under s 73(1), Firearms Act and a weapons prohibition order under s 33(1), Weapons Prohibition Act. These orders were personally served on the offender on 5 June 2020, that is, approximately five and half months before the offending. The offender lived in Woy Woy.

Form 1 sequence 9, goods in custody suspected of being stolen.

1. About 10.15am on Friday, 20 November 2020, police were near the offender's address when they saw a trail bike partially behind a wheelie bin in the front yard. Police enquiries revealed that that bike had a fake number plate on it. A short time later police saw the offender walk to the edge of the front yard of the premises. At the time he was holding a motor cycle helmet. The offender looked at the police vehicle before walking back into the yard and out of sight. Fearing he was going to ride off on the trail bike police drove to the front yard of the premises where the offender was seen to throw the helmet in an open window at the front of the house.
2. Police approached the offender and introduced themselves. He was cautioned and questioned in relation to the trail bike. He said that he had retrieved the trail bike, now identified as a red and white Husqvarna trail bike, from the nature strip in front of his premises approximately one week before 20 November 2020. He said he had checked the registration plate to ensure it matched the bike. At no stage did he attempt to locate the owner or hand the bike to police. Further enquiries were conducted by police on the motor bike. Enquiries reveal that it was stolen from an address at Haberfield in December 2019.

Form 1 sequence 30, goods in custody suspected of being stolen.

1. A number of other vehicles and parts were seen in the front yard of the premises. One of these items was a silver box trailer. The box trailer was displaying a number plate that related to a boat trailer not belonging to the offender. There was no identification plate or other markings on the trailer.

Search warrant

1. At 10.45am, the offender's address in Woy Woy, was declared a crime scene and the occupants asked to leave to mitigate the risk of evidence being destroyed. At 12.30pm, police executed a search warrant. At the time of the execution of the warrant no occupants were present.
2. The offender is currently not licenced to possess firearms and he is prohibited from doing so by the enforceable firearms prohibition order and weapons prohibition order.

Firearms located during the search warrant

1. A tool box was located that when opened contained a number of homemade .22 calibre pistols in varying states of completeness. In addition, detailed instructions on the manufacture of firearms were located as well as varying rounds of rifle and shotgun ammunition, a dismantled .22 calibre revolver and numerous other firearm parts for both pistols and revolvers. The offender's fingerprints were found on the firearms and on the manufacture instructions. Police also located two replica pistols as well as two additional one .177 calibre pistols.
2. Searching recommenced in the main residential part of the premises where in the main bedroom, which is known to be the offender's room, police found a Baikal .410 calibre single barrel shotgun concealed in between the mattress and the ensemble. The relevant charges for each of the firearms are detailed further in the Agreed Facts. The Crown tendered during the sentence proceedings photographs of each of the firearms in Exhibit D.

Form 1 sequence 7 goods suspected of being stolen on premises.

1. During the search warrant another motorbike, a Yamaha WR450F, was located at the front of the premises. This motorbike had been stolen between 7 and 8 November from an address in Lakelands.

Sequence 4, possess more than three unregistered firearms, one being a prohibited firearm or pistol and four offences on the s 166 certificate of acquire firearm subject to a firearms prohibition order.

1. During the search warrant the police located the following firearms in the offender's premises: A shortened .410 Baikal model single barrel shotgun, a 6mm blank calibre Perfector model S repeating blank fire pistol, a .177 air rifle calibre daisy powerline model 45, CO2 self-loading air pistol, a homemade revolver and one homemade revolver cylinder. The offender was not licenced to possess any of these firearms and had possession of them in contravention of the enforceable firearms prohibition order.

Sequence 15, possess unauthorised pistol. S 166 certificate, sequence 16 acquired pistol subject to firearms prohibition order.

1. During the search warrant police located a homemade imitation self-loading pistol. The offender was not licenced to possess this firearm and had possession of it again, in contravention of enforceable firearms prohibition order.

Sequence 17, possess unauthorised pistol. S 166 certificate, sequence 18 acquire pistol subject to firearms prohibition order.

1. During the search warrant police located a LG Schrodel imitation self-loading pistol. Again, the offender was not licenced to possess this firearm and had possession of it in contravention of the enforceable firearms prohibition order.

Form 1, sequence 5, possess ammunition without holding a licence permit or authority and Form 1, sequence 28, acquire ammunition subject to a firearms prohibition order.

1. During the course of the search warrant, police located in the rear shed of the property various ammunition. The detail of that ammunition is set out in the Agreed Facts at [38]. The offender was in possession of the ammunition without licence, permit or authority and also while subject to the enforceable firearms prohibition order.

Form 1, sequence 11, acquire pistol part without authority to do so. Form 1, sequence 10, acquire pistol part subject to a firearms prohibition order.

1. During the search warrant, police located a homemade barrel. Again, the offender was not licenced to possess this firearm part and had possession of it in contravention of an enforceable firearms prohibition order.

Form 1, sequence 35, acquire firearm part subject to prohibition order. Form 1, sequence 36, acquire firearm part without authority to do so.

1. During the search warrant, police located an unknown manufacturer rifle bolt. Again, the offender was not licenced to possess this firearm part and had possession of it in contravention of the firearms prohibition order.

Sequence 31, possess or use prohibited weapon without permit. S 166 certificate sequence 32, use prohibited weapon contrary to a prohibition order.

1. A PBC cannon was also located on the property along with a video of the offender using the PBC cannon on which the Crown relies on sentence. I note that video was not tendered as part of the sentence proceedings. Ballistic analysis was performed on the PBC cannon and confirm the item is a prohibited weapon pursuant to the Weapons Prohibition Act.

Form 1, sequence 37, possess drug manufacture apparatus for making prohibited drug. Form 1, sequence 38, possess precursor intending to use it to manufacture prohibited drug.

1. Further searching of a rear shed located a large amount of glassware consistent with items used in the manufacture of prohibited drugs. About 7.30pm Chemical Operations and Hazmat attended the location. Police applied for and were granted a crime scheme warrant. Chemical Operation officers examined and analysed chemicals and glassware located at the premises. Amongst the items located was a glass tube containing a clear colourless liquid. It was examined and found to contain hypophosphorous acid being a precursor used in manufacture and production of methylamphetamine. Police also located round bottom reaction flutes also being apparatus used to make prohibited drugs.

S 166 certificate, sequence 33, not police officer possess police uniform.

1. During the course of the search warrant, police located a NSW police shirt amongst the firearms at the property.

Form 1, sequence 32, handle explosives without authorising licence.

1. During the course of the search warrant, police located in the rear shed of the property one bag and one box of fireworks.

Arrest

1. On 4 December 2020, police attended the offender's address in Woy Woy. Police gained entry to the premises and located the offender inside his daughter's bedroom. He was placed under arrest and cautioned. He was then taken to Gosford Police Station.
2. Those Agreed Facts clearly disclose very serious objective criminality having regard to the amount of firearms that were located at the offender's premises. Most particularly, those firearms were located at a time when the offender was subject to both a firearms prohibition order and also a weapons prohibition order.
3. In sentencing for firearm offences, general deterrence has an important role to play. Members of the community must well understand that the Courts will impose very significant punishment upon individuals who illegally possess firearms. The courts are concerned to ensure that the penalties imposed deter members of the community from the illegal possession of such firearms. This promotes the protection and safety of the community. Clearly unregistered firearms in the community create a very significant risk, particularly in relation to the potential use in further criminal offending.
4. In relation to shortened firearms, they have no legitimate purpose and are particularly dangerous because of their capacity for concealment making them particularly suited for further criminal activity.

Assessment of the objective seriousness of each offence

1. In assessing the objective seriousness of sequence 4, possess greater than three unregistered firearms, including a pistol or prohibited weapon, I have taken into account the following factors: 1. The number of firearms located. Here there were four firearms located recognising that the threshold number of firearms required for this offence is three. In such circumstances the number of firearms possessed was at the very lowest end. 2. The firearms found were as follows: 1. A single barrel shotgun 2. A blank fire pistol 3. A homemade revolver pistol 4. A self-loading air pistol. 1. Three of the firearms were pistols and the shortened shotgun was a prohibited weapon. 2. There is no evidence before the Court in relation to whether any of the firearms were functional. 3. The shotgun was being stored under a mattress with ammunition also located in other areas of the property. The remaining firearms were located in a toolbox. None of the weapons were secured. 4. I accept that there is no evidence that the offender intended to use the firearms for further criminal activity. Notwithstanding the absence of such an intention, the criminality remains significant, given the risk that such firearms create for the safety of the community should the firearms fall into the wrong hands. These firearms were being kept in a residential area. 5. The offender well understood his obligations with respect to firearms having previously held a firearms licence. He was well aware of the illegality of his behaviour in having possession of the firearms. 6. The offender had been in possession of the firearms for approximately 12 months.
2. In assessing the objective seriousness of this offence, I have not taken into account the possession of the firearms was contrary to the firearms prohibition order, in circumstances where there are separate charges in respect of each firearm on the s 166 certificate.
3. Having regard to those factors, I assess the objective seriousness as being in the middle of the range.
4. Sequence 15 and 17, possess unauthorised pistol. In assessing the objective seriousness of each offence of possess unauthorised pistol, I have taken into account the following factors: 1. Each pistol located was an imitation so was not capable of causing significant harm. 2. Notwithstanding the inability to cause harm, each firearm had the capacity to be used in association with criminal activity should it fall into the wrong hands. I am satisfied that each firearm would have appeared as an actual firearm. 3. There is no evidence that this offender intended to use the firearms for criminal activity.
5. Having regard to those factors, I assess that the objective seriousness of each of these offences as below the middle of the range.
6. Sequence 4, possess or use prohibited weapon. In assessing the objective seriousness of this offence, I have taken into account the following factors: 1. The prohibited weapon was a PBC cannon that was capable of being fired and had been fired by the offender. 2. Given it was functional, it was capable of causing physical harm or damage.
7. Having regard to those factors, I assess the objective seriousness of this offence as being in the middle of the range.

Subjective circumstances

1. The offender is now 47 years of age.
2. He has a criminal history commencing in 2017 when he was dealt with for offences of drive while disqualified and not stop. He received s 9 bonds. For an offence of drive under the influence of drugs, he was fined.
3. In 2018 he was dealt with for a further offence of drive while disqualified. He was called up in respect of that matter and ultimately received a three month intensive correction order. He was also dealt with for two offences of goods in custody. He originally received a community correction order. He was called up and again received a three month intensive correction order.
4. In 2018 he was dealt with for an offence of possess prohibited weapon and fined. In that same year he was dealt for drive while disqualified and received a 12 month intensive correction order.
5. In 2019 he was dealt with for drive whilst disqualified and received an eight month intensive correction order. He was also dealt with for possession of ammunition. He was fined. There was a further offence of drive while disqualified in that same year and he received the same sentence of an eight month intensive correction order.
6. Having regard to the offender's criminal history, I am satisfied it disentitles him to any leniency on sentence that would otherwise be available to a person of prior good character.
7. The offender and his wife, Michelle Brzozowski, gave evidence during the sentence proceedings. The following material was tendered on the offender's behalf: Exhibit 1, a report of Lee Knight, 2 February 2022. Exhibit 2, a list of dates that the offender has spent in isolation totalling 86 days. Exhibit 3, 20 photographs of the premises at 22 Everglades Crescent, Woy Woy. Exhibit 4, Medicare extracts of consultations between 16 June 2020 and 16 November 2020. Exhibit 5, Justice Health records. Exhibit 6, Corrective Services documents. Exhibit 7, further Corrective Services documents. Exhibit 8, defence written submissions.
8. The offender's background is outlined in the report of Lee Knight, the offender's evidence and the Sentencing Assessment Report (Exhibit A). Mr Knight is a clinical nurse consultant, forensic mental health. He conducted a psychiatric assessment of the offender over three sessions via audio visual link whilst the offender was an inmate at Bathurst Correctional Centre. The initial assessment was conducted on 20 May 2021.
9. The offender provided the following background information. He is eldest of two siblings. His parents separated when he was 12 years of age. His mother died in her fifties of cancer. His father is 72 and a retired train driver. He reported he does not "really" have a relationship with his father. He has a good relationship with his brother although they have little contact.
10. Whilst he described he had a happy childhood, he had witnessed his mother being violent towards his father. He said he was hit by his mother as a form of discipline. He described himself as a difficult child to manage secondary to his ADHD symptoms. He reported being disruptive in his early school years but became more settled in his middle years of high school. He said he grew up in Chester Hill until his parents separated. He then lived with his mother and brother at his grandmother's house in South Strathfield.
11. At aged 16 he commenced an auto-electrical apprenticeship and completed three out of four years. He reported he struggled to find employment in the industry due to a recession. At 25 years of age he commenced employment on the railways as a station assistant. He remained in employment with the railways until being involved in a motor bike accident in 2014 when he was 41 years old. He took 12 months off work because of the injuries he had sustained in the accident. His return to work plan was unsuccessful.
12. At 43 years of age he commenced employment as an excavator and heavy machine operator which he did for approximately two years. He also worked as a handyman for a renovation company for approximately 18 months.
13. He is currently married to Michelle Brzozowski. They commenced a relationship when the offender was 22 years old. They have two children aged 19 and 15 years. They separated for approximately three years when the offender was 40 years old. The offender has two further children from a previous relationship.

Medical history

1. The offender reported that he suffered two heart attacks in 2018. He required a stent. There are no ongoing issues and he described himself as generally healthy. He reported serious injuries from his motor bike accident in 2014 and also reported having multiple head injuries with a loss of consciousness. He did not report any ongoing symptoms from these injuries.

Drug and alcohol history

1. The offender reported a history of periods of heavy alcohol use. However, he ceased drinking at 43 years of age and has been abstinent since. He also reported previous use of cannabis ceasing when he was 42 years of age with the exception of occasional social use. He reported using ice once per fortnight up until the time of his incarceration. He also reported abusing prescription painkillers between 30 and 35 years of age. He said he has tried buprenorphine twice whilst he has been in custody. He has never attended any drug and alcohol rehabilitation.

Psychiatrist history

1. The offender reported that he has never been admitted to a psychiatric hospital or been treated in the community for mental health issues. He said he was diagnosed with ADHD at five years of age and managed by a special diet. At 40 years of age he was diagnosed as suffering from bipolar affective disorder by a psychologist. He was referred to a psychiatrist by his employer. He was prescribed medication but decided not to take it after "researching".
2. Whilst in custody he has been prescribed a variety of oral antipsychotic medication. The medication he is currently taking has been beneficial. He reported experiencing elevated and depressed moods throughout his life.

Mental health assessment

1. Mr Knight was of the opinion that there was no evidence of any formal thought disorder. The offender denied symptoms of anxiety although reported his concentration was chronically impaired. In the opinion of Mr Knight the offender appeared to have insight into his mental health condition and was willing to take antipsychotic medication despite any side effects. Mr Knight noted that his judgment appeared somewhat impaired "in the context of impulsivity at the time of the assessment".

The opinion of Mr Knight

1. Mr Knight stated as follows: "Mr Brzozowski presented as a 49 year old man with a history of rapid cycling moods and a documented history of bipolar effective disorder. He is responding well to prescribed to antipsychotic medication which he reports has stabilised his mood. He has a history of impulsivity particularly with respect to sexual relationships. I concur with the diagnosis by JH & FMNHN of bipolar effective disorder. He likely also suffers from some personality vulnerabilities. A symptom of bipolar effective disorder is excessive involvement in activities that have a high potential for painful consequences which may go some way to explaining his behaviour at the time of the offending. However, as I was unable to assess Mr Brzozowski immediately after the offences, it is difficult to describe to what extent this symptom was present."

Treatment

1. Mr Knight provided treatment to the offender on two occasions after the initial assessment, that is, on 19 July and 2 August 2021 via audio visual link whilst the offender was in custody. Due to the difficulties with delivery of treatment in custody, Mr Knight has agreed to resume treatment with offender upon his release.

Other material tendered on behalf of the offender

1. Exhibit 5 is Justice Health records which confirm the quarantine periods that the offender was required to undertake after admission to custody. It also records each occasion when he had been treated by a visiting medical officer. The last entry on Exhibit 5 is 9 April 2021 when it is noted that the offender's mental state is stable.
2. Exhibit 6 is Corrective Services documents. The documents commence in March 2019 when the offender was subject to an intensive correction order. The records indicate that the offender attended the EQUIPS foundation program at Gosford between 14 January and 25 March 2019. On 17 December 2019 it is noted that the offender reported having cycles of mood being "bipolar cycles". It is indicated that he intended to continue to explore treatment with his GP. Supervision was suspended under the ICO on 2 January 2020, that is, about 10 months before the commission of these offences.
3. Exhibit 6 also contains documents from Bathurst Correctional Centre where the offender is currently housed. The documents indicate that the offender has completed a number of courses whilst in custody including a chemical handling certificate, cleanings operation, a small business course being a Certificate II and Certificate IV.
4. The records indicate that whilst in custody he has been working on ground maintenance and also the hygiene COVID cleaning team. He has been doing that for over nine months. That work is seven days a week. He is described as having a good work ethic and demonstrating initiative and self-motivation. He is also described as being respectful. I note that he has been a team leader of the hygiene COVID cleaning team.

Submissions on behalf of the parties

1. The Crown relied upon comprehensive written submissions supplemented by further oral submissions. Ms Konic on behalf of the offender also relied on comprehensive written submissions supplemented by further oral submissions.
2. Ms Konic on behalf of the offender submitted that the Court should take into account the following matters, that the offender has no significant criminal history, his offending commenced in 2017 when he was 44 years old after the deterioration of his mental health as a consequence of his motor bike accident, that COVID-19 has had an impact making his custody more onerous, that the offender is unlikely to reoffend, that he has good prospects of rehabilitation and has shown remorse and that the offender's mental health is relevant to his moral culpability in circumstances where his life was described as being in disarray. It was submitted that he should not be a vehicle for general deterrence.
3. It was further submitted that the Court should make a finding of special circumstances in circumstances where it is the offender's first time in custody, also because of the COVID conditions in custody, his need for treatment for his mental health and the potential of the accumulation of sentences.
4. The Crown submitted that given the objective seriousness of the offences and the need for general and specific deterrence that no sentence other than full time imprisonment was appropriate. The Crown reminded the Court of the general sentencing principles in relation to firearm offences. The Crown conceded during oral submissions that the offender has mental health issues and, whilst he has obstacles to overcome, there are positive signs from his medication whilst in custody. It was submitted the support of his family is also a protective factor. Nonetheless it was submitted that the Court would be guarded with respect to his prospects of rehabilitation because of previous lapses in maintaining a medication regime.
5. The Crown submitted that in relation to any causal connection between the offender's mental health and the offending that there was insufficient evidence to make such a finding. The Crown submitted that in relation to the offender's explanation in evidence for keeping the firearms, the Court would not accept that explanation given the offender was subject to a firearm prohibition order and weapons prohibition order and had significant knowledge regarding the safe keeping of firearms at the time of the commission of the offence.

The offender's evidence

1. The offender told the Court that he has spent 86 days in isolation whilst in custody, that is almost three months. He last saw his wife in person on 16 December 2020. That is over a year ago. Whilst in custody he confirmed that he was working as part of the hygiene team and that he also recently completed a small business course for his future. He told the Court he intends to purchase earthmoving equipment to do jobs and he has money left over from the sale of his house to use as equity.
2. He also confirmed his employment history, that is, that he worked for RailCorp as a train controller and at the Rail Management Centre at Central. He was responsible for the rail movements of trains between Berowra and Newcastle. He gave evidence that it was a consequence of his serious accident in 2014 that ended his career in the railways.
3. In relation to his mental health he said he had been diagnosed with bipolar disorder approximately 12 months before his accident. His mental health was exacerbated after his accident and he described himself as being manic and hyperactive then followed by a crashing low.
4. He confirmed that his criminal history commenced in 2017 when he was 42 years of age. He described his time in custody as being a "big wakeup call". He said it has given him the opportunity to seek treatment from Mr Lee Knight. He has now been prescribed medication which he described as working. He gave evidence that it is the first time in his life that medication has assisted him. He confirmed that he had previously held a firearms licence between the ages of 32 and 40 years. It had expired after his accident. He said he surrendered the three registered firearms that he had at the time to a firearms dealer.
5. In relation to his circumstances at the time of the offending, he gave evidence that he had come into possession of the firearms after an associate "brought them round" and asked him to mind them. That person was Ashley Holloway who passed away in 2019.
6. He described one of the firearms as a "proper firearm" and the others as replicas. He placed the "proper firearm" under his mattress and the others in the shed. He now regrets taking the firearms and understands he should not have agreed to look after them. He now sees the danger of firearms, even the replicas if they get into the wrong hands.
7. In relation to his future plans he said upon release from custody he intends to resume treatment with Mr Knight for his mental health. He is going to live with his wife and his children. He has four grandchildren, one born whilst he was in custody.
8. In cross-examination he agreed he had previously held a firearm licence so he was well aware of the requirements with respect to such items. He knew it was not acceptable to have the firearms in a box in a garage. He acknowledged that there was ammunition capable of being used in one of the firearms in the shed. He accepted that storing one of the firearms under his mattress was not safe storage. He gave evidence he was not aware of the weapons prohibition order or the firearms prohibition order but accepts that each was served upon him. He gave evidence he had possession of the firearms for approximately 12 months.
9. In relation to the police shirt that was found with the firearms, he gave evidence that the police shirt was in the box with the firearms that were given to him.
10. He accepted that the possession of the firearms presented an extreme risk to the community. He accepted that he had fired the PBC cannon and that it was recorded on video.
11. In relation to his period of isolation as a consequence of the COVID-19 pandemic, he gave evidence that with the exception of the first 19 days he did not have access to a shower during his periods of isolation.

The evidence of Michelle Brzozowski

1. Mrs Brzozowski gave evidence that she had been in the relationship with the offender for 26 years. The house they were living in at the time of the offender's arrest had been sold. That had been their family home for 20 years. She described the offender as a stable family man before his motor bike accident in 2014.
2. In relation to his mental health before 2014 she said there were some signs of mental health issues in the way he would behave.
3. She gave evidence that they had been separated for a period. During that period of separation she still supported the offender. She told the Court she is proud of the offender now taking control of his mental health and she will continue to help him with his mental health upon his release. In cross-examination she said his mental health spiralled after his mother passed away in 2016.
4. In relation the offender's hoarding behaviour, she said that had increased around 2017 and 2018. In relation to his mental health she said she has seen the positive effects of his medication since he has been in custody. She described it as "like talking to a new person".

Remorse

1. There is no evidence on oath of the offender's remorse. The Sentencing Assessment Report outlined the offender's attitude to the offending as follows: "Mr Brzozowski agreed with the police facts however minimised his responsibility for the stolen motor bike stating that it was left in front of the house and he assumed that it was left for repairs. He claimed he did not know it was stolen. He readily acknowledged that he was aware of the seriousness of having unauthorised items in his possession such as firearms and police uniform. He expressed his regret from not seeking an appropriate manner in which he could legally dispose of the items and claimed that he was waiting for an amnesty to allow him to hand in the items without any significant legal ramifications as he was fearful of being arrested."
2. In relation to the offender's insight into the impact of the offending, the Sentencing Assessment Report states as follows: "Whilst Mr Brzozowski acknowledges the seriousness of the offending behaviour and displayed insight into the adverse consequences of his offending could have caused he minimised his involvement indicating he was 'just looking after' the items and later indicated he had 'accrued' a lot of 'stuff' over the years that he shouldn't have had. Mr Brzozowski acknowledged that he understood the seriousness of having firearms in his possession and the possible consequences should they fall into the wrong hands. Mr Brzozowski claimed he previously had his firearm licence and thought he was better placed to care for the items until such time as he could hand them into authorities".
3. Whilst I am satisfied that the offender accepts responsibility for his offending, I seriously doubt 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.

Prospects of rehabilitation

1. I am cautiously optimistic that the offender has good prospects of rehabilitation. He now has good insight into his mental health. He is currently stable on medication. He has a family who is supportive of him. He has plans to establish a business upon release from custody. He has had lengthy employment in the past and is well regarded by those with whom he currently works in custody.
2. I am hopeful that upon his release he maintains he current commitment to looking after his mental health. If he stays on medication and re-engages with a psychologist I will expect he will enjoy much more stability in his life going forward. Should he maintain a mental health treatment regime, I am satisfied he is unlikely to re-offend.

Totality

1. In circumstances where I am dealing with the offender for 12 substantive offences, I am required to consider the principle of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be served concurrently but if not there should be some accumulation between the sentences (see Cahyadi v R [2007] NSWCCA 1).
2. Having regard to the criminality, I am satisfied that some partial accumulation is warranted but also there will be a large degree of concurrency given it reflects one episode of offending.

The relevance of the offender's mental health

1. I am satisfied that the offender was suffering from mental health issues at the time of the offending. The relevance of an offender's mental health on sentence is well established and the general principles are set out in DPP (Cth) v De La Rosa [2010] NSWCCA 194 where McClellan CJ summarised the position as follows at where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability maybe reduced. Consequently, the need to denounce the crime maybe reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in sentence which would otherwise have been imposed. It may mean that a custodial sentence may way more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served maybe reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, it maybe that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
2. Whilst I accept that the offender was suffering from mental health issues at the time which was impacting on his life (specifically, he was experiencing high and low moods), I am not satisfied his mental health is closely connected to the offending. It is clear to me that despite his mental health issues at the time he well understood what he was doing was wrong given his previous experience with firearms. I do however consider that his mental health issues will make custody more onerous for him and I propose to moderate the otherwise appropriate sentences.

COVID-19

1. I accept that the current circumstances surrounding the COVID-19 pandemic are causing significant additional stress for offender's in custody. I accept that custodial conditions are now more onerous in circumstances where the conditions under which offenders will serve their sentences has changed. Firstly, there are currently no personal visits to correctional facilities in New South Wales. Secondly, there will obviously be a concern amongst inmates in relation to the COVID-19 virus spreading within correctional facilities. There are already reported cases of COVID-19 within correctional facilities. Thirdly, correctional facilities in New South Wales are regularly subject to lockdown procedures to try and minimise the risk of COVID-19 spreading throughout the correctional facilities. This offender has indicated that he spent 86 days in isolation or lockdown as a consequence of the pandemic. I accept that it will be particularly difficult for this offender because of his underlying mental health issues. In those circumstances, I do propose to moderate the otherwise appropriate sentence.

Special circumstances

1. I am satisfied that special circumstances are established warranting a variation in the ratio between the non-parole period and the parole period in circumstances where it is the offender's first time in custody and I am also satisfied he will be assisted by a longer period of parole for treatment with his mental health issues.

The Form 1 offences

1. In sentencing the offender, I have taken into account the Form 1 matters in accordance with the principles enunciated in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.
2. In relation to the six Form 1 offences attaching to sequence 4, in circumstances where sequence 5, possess ammunition without holding a licence only attracts a fine, there will be no increment to the otherwise appropriate sentence with respect to that matter.
3. In relation to the five other matters attaching to sequence 4, I am satisfied they warrant some increment to the otherwise appropriate sentence.
4. In relation to the three Form 1 offences of goods in custody attaching to sequence 15, I am satisfied each of those offences warrant some increment in the otherwise appropriate sentence.
5. In relation to the three offences on the Form 1 attaching to sequence 31, with respect to sequence 34, the offence of handle explosive without authorising licence, I would not have imposed a custodial sentence with respect to that matter so there will be no increment to the otherwise appropriate sentence. Similarly, in relation to the offence of possess drug manufacture apparatus there will be no increment to the otherwise appropriate sentence because that sequence 37 would not have attracted a custodial sentence. There will be some minimal increment in relation to sequence 38, the offence of possess a hypophosphorous acid.

Determination

1. In determining the appropriate sentences I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act.
2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate with respect to each offence pursuant to s 5(1), Crimes (Sentencing Procedure) Act with the exception of sequence 33, the offence of possessing the police shirt. That matter will be dealt with by way of a non-custodial sentence.
3. I have had regard to the objective gravity of each offence and the relevant prescribed maximum penalties. I have taken into account the prescribed standard non-parole periods in accordance with s 54B(2), Crimes (Sentencing Procedure) Act. I have also taken into account the offender's subjective circumstances.
4. I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act.
5. Pursuant to s 53A(2)(b) the indicative sentences, that is the sentences that would have been imposed had I imposed individual sentences are as follows:
6. Sequence 4, possess more than three unregistered firearms. The starting term is four years discounted by 25% for the plea of guilty leaving a total term of three years with a non-parole period of two years.
7. Sequence 15 and 17, being offences of possess unauthorised pistol. The starting term is two years discounted by 25% for the plea of guilty leaving a total term of 18 months with a non-parole period of twelve months.
8. Sequence 31, possess or use prohibited weapon without permit, a starting term of 16 months discounted by 25% for the plea of guilty leaving a total term of 12 months with a non-parole period of eight months.
9. In relation to the s 166 offences, in relation to sequences 13, 20, 23 and 26 being offences of acquire pistol subject to a firearms prohibition order, in respect of each offence a starting term of 16 months discounted by 25% for the plea of guilty leaving a total term of 12 months.
10. In relation to the 166 offences, sequence 16 and 18 being offences of acquire a pistol subject to firearms prohibition order a starting term of 12 months less 25% for the plea of guilty leaving a total term of nine months in respect of each offence.
11. In relation to the s 166 matter, sequence 32, use a prohibited weapon contrary to a prohibition order, a fixed term of six months, the starting term for that sentence was eight months.
12. Mr Brzozowski, in relation to each offence you are convicted.
13. I sentence you to a total aggregate sentence of four years and eight months imprisonment to date from 4 December 2020 and expire on 3 August 2025.
14. I fix a non-parole period of three years to date from 4 December 2020 and expire on 3 December 2023. You will first become eligible for parole on 3 December 2023.
15. I have found special circumstances and I have reduced your non-parole period and increased your period on parole because I am satisfied you will be assisted by greater supervision once you are released.
16. In relation to sequence 33, the offence of possession of the police shirt, you are convicted. I sentence you to a community correction order for two years from today 10 February 2022, expiring on 9 February 2024. The conditions of the community correction order are: 1. That you be of good behaviour. 2. That you appear before the Court if called upon to do so.

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