AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 12 December 2011

R v Allen CHING

[2011] NSWDC 232

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUG NAMELY HEROIN FORM 1 DEEMED SUPPLY POSSESS FIREARMS

Citation: R v Allen CHING [2011] NSWDC 232
Court: District Court of New South Wales
Date: 12 December 2011
Judge: Knox SC DCJ

Background

The offender, a 25-year-old man, was found in possession of significant quantities of heroin and cocaine at his Croydon Park premises following the execution of a search warrant on 29 September 2010. Police also discovered three prohibited firearms, including a Phoenix Arms self-loading pistol, a Franchi pump-action shotgun, and a shortened Bentley pump-action shotgun (the last of which was not in working order). Various other drugs, including methylamphetamine, cannabis, and steroids, were found in small quantities.

The offender faced five counts carrying substantial maximum penalties, together with a Form 1 matter (a further deemed supply of cocaine taken into account at sentence) and a section 166 Certificate covering ten additional matters relating to drug possession, firearm-related offences, and possession of goods in personal custody.

A central factual issue at sentence was whether the scales found on the premises indicated broader involvement in drug dealing. The offender had prior convictions, including a supply of cannabis and possession of a prohibited weapon (a taser), for which he had been dealt with relatively leniently.

  • Whether the scales and other items found on the premises were evidence of broader drug supply activity, or consistent with personal use and storage on behalf of another
  • The appropriate weight to give to hearsay and exculpatory material from the offender where he was not called to give evidence (the Qutami principle)
  • How to structure an aggregate sentence across multiple drug and firearms counts, including the application of the standard non-parole period for possession of prohibited firearms
  • Whether special circumstances existed justifying a variation of the statutory two-thirds ratio between non-parole period and head sentence
  • The relevance of the prior conviction for taser possession to questions of rehabilitation and character

Decision

Knox SC DCJ accepted, on the balance of probabilities, that the scales were not indicative of extensive drug supply activity. The court noted the absence of other typical indicia of dealing: no large sums of cash, no multiple mobile phones, and no resealable bags. The agreed facts supported a picture of a person storing firearms on behalf of another and possessing drugs largely for personal use, consistent with the psychological report prepared by Duffy Robilliard.

On the Qutami question, the court acknowledged the need for caution when relying on hearsay and self-serving material from an offender who did not give evidence. However, given the Crown's approach and the absence of contradictory evidence, the court accepted the defence submissions on the factual matrix.

The prior taser conviction was not treated as a minor matter. Knox SC DCJ noted, citing Ayshow v R [2011] NSWCCA 240, that possession of a taser-like device is not a minor offence. The prior sentence for that matter was characterised as lenient, and the court found the offender did not appear to have learned from that leniency, a consideration bearing on rehabilitation.

Special circumstances were found to exist across the overall sentence, warranting a variation of the statutory non-parole period ratio to two-thirds of the head sentence. Individual counts carried non-parole periods significantly lower than two-thirds to achieve the correct aggregate ratio across what was a complex, multi-count sentence.

Orders Made

  • Count 1 (supply heroin, 40.8 g, deemed supply): non-parole period of 2 years 6 months from 30 September 2010; head sentence of 5 years from 30 September 2010
  • Count 2 (supply heroin, 21 g, deemed supply): fixed term of 1 year 6 months from 30 September 2010, wholly concurrent with Count 1
  • Count 3 (cocaine deemed supply, Form 1 matter): taken into account on Count 1
  • Count 4 (possess prohibited firearm): non-parole period of 2 years from 30 March 2011; head sentence of 4 years 10 months from 30 March 2011
  • Count 5 (possess prohibited firearm): non-parole period of 2 years from 30 July 2011; head sentence of 4 years 10 months from 30 July 2011
  • Count 6 (possess prohibited firearm): non-parole period of 2 years from 30 November 2011; head sentence of 4 years 10 months from 30 November 2011
  • Counts 7 to 16 (section 166 Certificate matters): fixed terms of 1 month each, with dates as per the schedule
  • Two back-up charges (possess prohibited drug, heroin and cocaine) dismissed on Crown application

Key Takeaways

  • The District Court applied the principle from R v Qutami that sentencing judges must approach hearsay and exculpatory material from an unsworn offender with caution, even where the prosecution does not formally contest that material.
  • Absence of the typical indicia of drug supply (cash, multiple phones, resealable bags) was treated as a material consideration in assessing the nature and extent of the offender's involvement.
  • Under Ayshow v R [2011] NSWCCA 240, possession of a taser-like device is not a minor offence, and a lenient prior sentence for such conduct remained relevant to the court's assessment of rehabilitation prospects.
  • A finding of special circumstances permitted the non-parole period across the aggregate sentence to be set at two-thirds of the total head sentence, with individual counts carrying proportionally lower non-parole fractions to achieve the correct overall ratio.
  • The shortened pump-action shotgun attracted specific comment as a particularly reprehensible weapon due to its concealability, though the fact it was non-operational was treated as a mitigating feature for that specific count.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 166

Cases:
- Ayshow v R [2011] NSWCCA 240
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Rickaby v R [2007] NSWCCA 288
- R v Hammoud [2000] NSWCCA 540; (2000) 180 A Crim R 66
- R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299