R v Lizano

District Court of NSW|2020-12-14

Introduction

The offender stands to be sentenced, having pleaded guilty to the following three offences. That on 30 October 2019 at The Ponds, he possessed a shortened firearm that was not a pistol, namely a shortened double barrel shotgun, without being authorised to do so by a permit. The second offence is that on the same date and place, he possessed a shortened firearm, namely a shortened .22 long rifle calibre Anschutz single shot bolt action rifle that was not a pistol, without being authorised to do so by a permit or licence. Both of those offences are offences under s 62(1B) of the Firearms Act and they have a maximum penalty of 14 years' imprisonment. The third offence is an offence that on the same date and at the same place, he intimidated Sarah Peebles with the intention of causing her to fear physical or mental harm. That is an offence under s 13 of the Crimes (Domestic and Personal Violence) Act and has a maximum penalty of five years' imprisonment and/or a fine equivalent to 50 penalty units. None of the offences have an applicable standard non-parole period.

Form 1 offences

When sentencing the offender in relation to the possession offence which relates to the shortened double barrel shotgun, he acknowledges his guilt in relation to the following two offences on a form 1, and asks that I take those two offences into account when I sentence him on that offence. They are two offences of possession of a pistol, not being authorised to do so. If those offences were dealt with as substantive offences, they carry a maximum penalty of 14 years' imprisonment and there would be an applicable standard non-parole period. The offences on the form 1 are clearly serious offences and must have some impact on the sentence I will impose on the possess shortened shotgun offence.

The Facts

The facts are agreed and the following is taken from them. The victim of the domestic violence offence is Sarah Peebles. She and the offender resided at 100 The Ponds Boulevard with the offender's sister and her partner, Tane Keel, and their three children from July 2019 to 30 October 2019. They had been in an intimate relationship for four months and they do not have any children together.
The offender's sister heard the victim and the offender arguing on several occasions at the premises. She intervened a number of times to stop the pair fighting in front of the children. On 29 October 2019, the offender sent the victim a message, stating he was not happy and he was upset and angry. At about 6am on 30 October 2019, the victim returned home and called the offender. He asked her to get out of his car up the road and she did so. He locked the doors and was yelling and screaming, questioning her about who she was out with. He went inside the house and told her to get inside. She entered the house and continued to argue with the offender in the bedroom. The offender left and she stayed at home. The victim was scared. He returned about midday. They had another fight at midday. The offender left and returned with a friend at around 4pm.
The offender asked the victim if she wanted to come with him to take his friend to Blacktown. She asked him to wait for her and he said, "No, not fucking waiting." She ran to the car and got in the back seat. She was "mouthing off to him" and he said, "Get the fuck out or I'll drag you out." She opened the door and she went inside the house and hid in the bathroom. The offender at some point entered the doorway and said he was just getting his money. The victim and the offender started arguing and he said, "Shut the fuck up. Shut up. Shut up. My family don't need to hear this." The offender packed a little bag and walked off out the front, going to the shops. She asked him for her phone and he said, "It's inside." She returned to the house and called triple-0 using his phone. The victim had consumed drugs on the date of the offence, the night before and the following morning. She said she was scared throughout the time he was yelling at her.
At 4pm on 30 October 2019, Tane Keel was in his bedroom and he heard the offender and the victim arguing and yelling at each other. At one point, the victim was yelling to the offender and said, "That's it. This time he's going to gaol." At about 4.43pm on 30 October 2019, an Alyssa Collop was at The Ponds shopping centre across the road from the premises and saw the victim and heard her screaming towards the offender, "Give me my phone back, you fucking dog." The argument continued. At about 4.46pm on 30 October 2019, the victim contacted triple-0 and stated she was living at the offender's sister house, that they argued and he was yelling at her and was scared. She told the police that the offender had firearms. Police obtained consent from the offender's sister to search the premises.
They attended at about 5.25pm and after speaking to the victim, a search of the premises commenced. At about 5.15 pm, a constable located a black Nike bag within a large tub underneath shelving in the garage, which contained a black beanie containing a Denix six-chamber imitation revolver and a white beanie containing a Walter P 99 soft loading imitation pistol.
Those are the two matters on the form 1. A short time later, the offender's sister approached the constable in the garage and said, "There's two long ones on the top shelf." One of the other officers was provided with a mobile phone from the offender's sister and spoke to the offender's solicitor and was told that there were at least two firearms in the garage of the residence hidden on the top shelf.
One of the officers searched through the top shelf and saw a navy blue bag containing a grey blanket. Inside the bag, there was located a yellow cloth within a rolled towel containing a shortened 12 gauge Hollis and Sons side by side double barrel shotgun. That is the firearm that relates to the first offence. There was a blue cloth containing the handle and trigger assembly for the double barrel shotgun. There was also a shortened .22 long rifle calibre Anschutz single shot bolt action rifle with an empty chamber. That is the second substantive offence. The facts set out the forensic evidence in relation to the firearms. I do not propose to read them onto the record. It does not seem to take the matter any further. They are the essential agreed facts.

Objective seriousness

Turning then to my assessment of the objective seriousness of the offences, both of the firearms the subject of the substantive counts were shortened. There is no legitimate purpose for possession of a shortened firearm. Such firearms can be easily concealed and used in the commission of serious criminal offences. According to what the offender told the author of the sentencing assessment report, he was receiving, in effect, payment in illicit drugs for storing the firearms.
I am satisfied beyond reasonable doubt, given the nature of the firearms and the fact he was to be paid for doing so with illegal drugs, the offender was storing them for someone who intended to use the firearms for an illegal purpose and he was aware that that was their intention. The firearms were stored in a bag in suburban premises. There had been no attempt to properly secure them. I note no ammunition was found with the firearms and they were not loaded. I consider that the objective seriousness of the two possess shortened firearms offences fall below a notional mid-range of objective seriousness, but not at the bottom of the range.
The intimidation offence involved the offender acting aggressively towards his partner, but the threats to her were limited. The offence did occur within her home. I assess the objective seriousness of that offence as being towards the bottom of the range.

The Offender's subjective case

Turning, then, to the offender's subjective case. His date of birth is 31 March 1980, so he is 40 years of age. Not a particularly young or old offender. He has a significant criminal history and has served a number of sentences involving full time custody in the past, including for aggravated break and enter, possession of an unregistered firearm, robbery, and being an inmate and escaping lawful custody. The offences I am to sentence him for occurred on 30 October 2019. On 2 February 2019, after an appeal to this Court sitting at Parramatta, he was sentenced for offences of inmate escape lawful custody, stealing a car, and larceny. He received an aggregate sentence of 20 months' imprisonment with a non-parole period of 11 months from 9 July 2018. He was released on parole on 8 June 2019. The offences that I am to sentence him for were committed while on parole for those offences and that is an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.

Family background

There is before me a Sentencing Assessment Report dated 30 October 2020, a psychological report dated 1 November 2020 by Thea Gumbert, psychologist, a letter of apology to the Court from the offender, certain documents from the Department of Community and Justice, and a testimonial. The Sentencing Assessment Report records that the offender, prior to being incarcerated, resided with his sister and brother-in-law, both of whom appear to be pro-social influences. The Sentencing Assessment Report also records that the offender's former partner and their four children remain in contact with him, that they maintain a positive relationship, and his former partner also appears to be a pro-social influence.
The offender's family background is more fully described in the psychological report. He told the psychologist that he was born in Nicaragua and is the eldest of his mother's nine children. He reported to the psychologist a highly unstable and disadvantaged upbringing. He did not know his biological father as a child. They had only met a few times, he having been told that his father was, in fact, his uncle. The offender described having four stepfathers and his second was said to be an alcoholic and physically abusive to his mother, his siblings, and himself. He reported that when he was eight years of age, his mother moved him and the other children to Costa Rica to escape civil conflict in Nicaragua.
The family arrived in Australia as refugees when the offender was aged ten and they settled in Western Sydney. His mother re-partnered with another man, who the offender described as his real father. The offender told the psychologist that in his early teens, he began spending time with a group of older peers who were involved in crime and that he began stealing to meet his needs, truanting, and using illicit drugs. At 17 years of age, the offender told the psychologist, he returned to Nicaragua and spent some months living with his biological father. He then returned to Australia. However, his mother had returned to Nicaragua, but ultimately in 2010, she too returned to Australia. The offender told the psychologist that he and his former partner have four sons between the ages of four and 20 and that his former partner continues to support him while in custody.

Education and employment history

In terms of his education and employment history, the offender told the psychologist that in his late teens, he maintained employment as a cleaner, and then as a warehouse hand and forklift driver. He reported that he also involved himself in crime and entered custody when 18. The offender told the author of the Sentencing Assessment Report that as at the time of the offence, he was not in employment but in the past he has worked for his brother-in-law. While in custody, he has completed a certificate in outdoor power equipment. Mr Alfonso Perez indicates in his testimonial that the offender would have part time employment available to him upon his eventual release from custody.

Substance use

In terms of his use of illicit substances, the offender told the author of the sentencing assessment report that he had used illicit drugs since his early teens. He said at the time of the offences, he was combining the drug colloquially known as ice with heroin and using the mixture intravenously. Justice Health confirmed that he is a compliant participant in the suboxone program. The offender told the author of the Sentencing Assessment Report that he has abstained from illegal drugs while in custody, although apparently no urine tests as at the date of that report had been administered.
The offender also detailed his extensive involvement with illicit drugs to the psychologist. He described using illicit drugs from the age of 12. He told the psychologist that until his early 20s, he was using amphetamines and cannabis regularly and occasionally smoked heroin. He also became addicted to methyl amphetamine in the form of ice in his 20s. He described committing criminal offences in order to support his drug addiction, which led to his regular incarceration.
The offender told the psychologist that between 2006 and 2008 while completing the compulsory drug treatment program at Parklea gaol, he also continued to use buprenorphine. He detailed having spent some time at the drug rehabilitation facility known as The Glen in 2013. It appears from his criminal record and other material that is before me that the offender has had some exposure to the Drug Court. The offender during the course of the sentence proceedings was again referred to the Drug Court but was not accepted into the program. The offender told the psychologist that he did now understand that he would need to engage in intensive alcohol and drug counselling and treatment if he was to be abstinent from illicit drugs. He also identified that becoming institutionalised in the gaol system was concerning him.
In his letter to the Court, he also expressed similar sentiments, saying, "Gaol has become some form of normality in my life and at this stage, I want to break free of this cycle." The offender had unsuccessfully sought bail in the past during the proceedings to take up a position in a drug rehabilitation facility prior to sentence. The offender in his letter to the Court did acknowledge his extensive criminal history and his history of illicit drug use. He also acknowledged the need he has for assistance with his drug problem if he is ever to lead a law abiding life. He stated that since being in custody, he has not used illicit drugs and has engaged in opioid substitution programs and has been administered buprenorphine. His custody record does record that since being returned to custody, he has not incurred any discipline infringement related to illicit drugs. I accept that at the moment, the offender appears to acknowledge the need for assistance with his longstanding problem with illicit substances. But the fact remains he is now 40 years of age and has had many chances in the past to appropriately address his drug problem and has failed to do so.

Psychological/psychiatric history

The offender told the psychologist that he had not previously been diagnosed with a mental health condition or engaged in any mental health programs apart from drug rehabilitation programs. He did refer to having experienced a problem with gambling. He described to the psychologist his current mood as being stable and that he now felt he was ready to engage in appropriate treatment for his drug addiction. Psychometric testing revealed that the offender scored within the normal range for depression, anxiety, and stress. His scores, unsurprisingly, also were consistent with the offender having problematic drug use and dependence.
Again, given all the material before me, unsurprisingly, the psychologist identified the offender as being diagnosed with substance use disorders. Based on the offender's self-report, the psychologist considered that the offender was in early remission in a controlled environment. The psychologist also considered that the offender presented with deficits in impulse control, anger management, and general emotional regulation. The psychologist considered the offender showed insight into his difficulties with illicit drugs and identified the need to make changes in his life. The psychologist also noted the offender would require intensive treatment and ongoing support to maintain abstinence from prohibited drugs.

Response to supervision

The Sentencing Assessment Report records that his previous contact with Community Corrections has been unsatisfactory. I noted earlier these offences were committed within a relatively short period of having been released to parole. A breach of parole that is before me and dated 10 October 2019 did note that up until that time, his compliance with parole supervision had been satisfactory. The Sentencing Assessment Report states that the offender minimised the offence concerning his partner, claiming she instigated the arguments to deliberately trigger him, and that he appeared to show no empathy towards his partner. In relation to the firearm offences, the Sentencing Assessment Report records that the offender has no regard for the law and said he held the firearms because he was receiving illicit substances in recompense for holding them.

Attitude to the offence

In his letter to the Court, he did apologise to the Court, the community, and his family for his offending. He attempted to explain away the comment recorded in the Sentencing Assessment report which I have referred to and that his comment to the author of that report was "unclear." It is difficult to assess how genuine the offender's letter is, given the offender did not give evidence. The sentencing assessment report does record that he understood that he was wrong to have kept the firearms. The offender told the psychologist that he accepted the police facts that he had been using ice as well as heroin as at the time of the offences. He also described to the psychologist holding the firearms for an associate and that he would be provided with illegal drugs for doing so.

The future and risk of re-offending

The Sentencing Assessment Report records that the offender has a medium to high risk of reoffending.

Imposition of sentence

The offender entered his pleas of guilty in the Local Court. I will allow him a discount of 25% for the utilitarian value of his plea.
I think there is some evidence of remorse here. There is the plea of guilty and the content of his letter and the statements to the psychologist. Those statements remain untested and must be weighed against what is recorded in the sentencing assessment report. Overall, I consider there is some evidence of remorse here with some reservations about how genuine it is.
His record and the fact that the offences were committed on parole together with the assessment of his risk of reoffending leads to a conclusion that his prospects for rehabilitation are guarded, bordering on poor.
I have had some regard to the principles concerning the relevance of social disadvantage to sentencing, given his early difficult life.

Special circumstances

The whole of the evidence establishes that the offender, due to his extensive history of being held in custody, is on the verge of becoming institutionalised to the custodial environment. He will also need extensive and intensive supervision in the community if he is to remain abstinent of illicit drug use and offence free.
For those reasons, I propose to make a finding of special circumstances in fixing the non-parole period and allow a longer period on parole. I am satisfied on the evidence as I say the offender has prospects of rehabilitation and has commenced his rehabilitation although it is not yet complete. His prospects of rehabilitation will be assisted if he has a longer period on parole. The offender has been in custody since 3 November 2019.

Commencement Date

During the period 3 November 2019 to 10 March 2020, he served the balance of parole. During the period 30 January 2020 to 29 April 2020, he served a sentence for possession of prohibited drugs and goods in custody. Having regard to the principles of totality, I propose to commence the sentence I impose from 14 February 2020.

Accumulation and concurrency

I will utilise the aggregate sentencing provisions when imposing sentence. If I had not done so, my approach to accumulation and concurrency would have been as follows. Given the different nature of the domestic violence offence and the possess firearms offences, I consider that there should be a reasonable degree of accumulation to reflect the different type of criminality involved. Given two firearms were involved and each separately charged but the circumstances of the possession were the same, I propose limited accumulation of those sentences.
I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. General deterrence must always feature when sentencing for possession of shortened firearms. Such items are inherently dangerous to the community and frequently fall into the hands of the criminal element and are used in serious criminal activity. Similarly, offences of domestic violence must be punished in a way which denounces the offender's conduct and acts as a deterrent to the offender and others who might be tempted to engage in such a way. The maximum penalties have been taken into account as legislative guideposts.

The sentence

The offender is convicted of the offences to which he has pleaded guilty. I will firstly record the indicative sentences. In determining the indicative sentences, I have had regard to all of the objective and subjective factors I referred to earlier.
The sentences Mr Lizano will hear me first announce are what are called indicative sentences. He will then hear me announce an aggregate sentence, which is the sentence and the non-parole period that he will serve. It is not arrived at by simply adding up all of the indicative sentences. In announcing the aggregate sentence, I will tell you the date it starts from, the date it ends, and the date when you are first eligible for parole.
On the possess shortened firearm offence, being a shortened double barrel shotgun referred to in charge 19, and having regard to the offences on the form 1, there is an indicative sentence of five years' imprisonment. On the possess shortened firearm offence, being a shortened .22 long rifle calibre Anschutz single shot rifle referred to in charge 20, there is an indicative sentence of four years' imprisonment. On the offence under the Crimes (Domestic and Personal Violence) Act, charge 23, there is an indicative sentence of six months' imprisonment. I impose an aggregate sentence of six years' imprisonment with a non-parole period of four years.
The sentence commences on 14 February 2020 and expires on 13 February 2026. The non-parole period expires on 13 February 2024. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period, which is 13 February 2024. Whether you are, in fact, released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date. Pursuant to s 18B of the Drug Court Act, I refer the offender to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.
It is an aggregate sentence of six years with a non-parole period of four years. Commences on 14 February 2020. Expires 13 February 2026. He is eligible for parole on 13 February 2024. There was nothing on a 166 certificate that needed to be dealt with from what I could see.

Orders 1. The offender is convicted of the offences to which he pleaded guilty. 2. Impose an aggregate sentence of six years imprisonment with a non-parole period of four years. The sentence commences on 14 February 2020 and expires on 13 February 2026. The non-parole period expires on 13 February 2024 3. Pursuant to s 18B of the Drug Court Act the offender is referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2021

Firearms Act 1996(NSW)s 61(2B)

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