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District Court 24 February 2023

R v Yalim

[2023] NSWDC 111

DrugsFirearms & weapons

Citation: R v Yalim [2023] NSWDC 111
Court: District Court of New South Wales
Date: 24 February 2023
Judge: Bennett SC DCJ

Background

The offender pleaded guilty in the Local Court to three offences arising from a police search of his Penshurst residence on 27 January 2022. Police had been conducting surveillance targeting organised crime in the central metropolitan region when they observed a visitor leave the premises and subsequently intercepted that person in possession of approximately one gram of methylamphetamine, which he confirmed was purchased from the offender for $50.

Police then executed a search warrant at the residence. They found 3.25 grams of methylamphetamine on the coffee table, five unregistered gel blaster firearms (one a prohibited replica pistol), a crossbow with a laser pointer and metal bolts, three slingshots, a dart projector, and approximately $25,000 in cash alongside a large quantity of unused resealable bags matching those used in the earlier drug supply.

The offender was already subject to strict bail conditions, including a curfew, at the time of this offending. Those conditions arose from a prior matter for which he later received a sentence of two years and six months for being an accessory after the fact to causing grievous bodily harm with intent. He had also breached his curfew on the evening of the search.

  • What sentences were appropriate for each of the three principal offences: possessing five unregistered firearms (including a prohibited pistol), possessing a prohibited weapon (crossbow), and supplying a prohibited drug (3.25 grams of methylamphetamine)?
  • How should the several Form 1 offences (additional weapons possession and drug supply matters) be factored into the principal sentences?
  • What discount applied for early guilty pleas entered in the Local Court?
  • Whether special circumstances existed to justify a non-parole period less than the statutory ratio (i.e., less than three-quarters of the head sentence)?
  • When should the aggregate sentence commence, given the offender was already serving an earlier custodial sentence?

Decision

The Court convicted the offender on all three principal offences and accepted Form 1 documents for related weapons and drug supply matters, as well as a proceeds of crime charge. Bennett SC DCJ applied a 25% discount to each individual sentence, reflecting pleas entered early in the Local Court proceedings under s 25(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The Form 1 offences increased the sentences that would otherwise have been imposed for the principal offences, consistent with the guideline judgment in the Attorney-General's application [2002] NSWCCA 518. The Court noted that taking the Form 1 course demonstrated a measure of contrition and facilitated the efficient resolution of all related matters, supporting the offender's rehabilitation prospects.

An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999. The Court found special circumstances, accepting the offender's contrition, genuine rehabilitation prospects, employment prospects upon release, and plans to reside near family. This justified a longer parole period than the statutory default.

To reflect the totality of all offending across both court proceedings, the aggregate sentence was backdated to commence on 10 January 2023, following the approach discussed in Callaghan v The Queen [2006] NSWCCA 58. This start date was chosen to ensure the total time in custody across both matters was proportionate to the overall criminality involved.

Orders Made

  • The offender was convicted of possessing five unregistered firearms including a prohibited pistol (s 51D(2) Firearms Act 1996), possessing a prohibited weapon (crossbow) (s 7(1) Weapons Prohibition Act 1998), and supplying a prohibited drug, 3.25 grams of methylamphetamine (s 25(1) Drug Misuse and Trafficking Act 1985).
  • An aggregate sentence was imposed with a non-parole period of 2 years commencing 10 January 2023, and a head sentence of 4 years.
  • The offender becomes eligible for release to parole on 9 January 2025.
  • Individual notional sentences (before aggregation) were recorded as:
  • Firearms offence: 18 months non-parole / 3 years head sentence (after 25% discount)
  • Prohibited weapon (crossbow): 14 months non-parole / 2 years 3 months head sentence (after 25% discount)
  • Drug supply: 18 months head sentence (after 25% discount; no standard non-parole period applicable)
  • Form 1 documents certified as taken into account.

Key Takeaways

  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 may span offences under different statutory regimes (firearms, weapons, and drug supply), provided the Court records notional individual sentences for each principal offence.
  • Taking additional offences into account on a Form 1 requires an uplift to the sentence for the principal offence, to reflect personal deterrence, the extent of the misconduct, and the community's entitlement to retribution, consistent with the Attorney-General's application guideline judgment.
  • Where an offender is already serving a sentence for unrelated matters, the District Court retains a discretion over the commencement date of a new aggregate sentence, guided by the principle of totality, to ensure the combined custodial period is proportionate to the overall offending.
  • A 25% guilty plea discount applied where pleas were entered early in the Local Court before committal for sentence in the District Court.
  • Special circumstances were established on the basis of contrition, rehabilitation prospects, employment opportunities, and family support, justifying a non-parole period that represented a smaller proportion of the head sentence than the statutory default.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25, 53A, Part 4 Div 1A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 51D(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Attorney-General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Callaghan v The Queen [2006] NSWCCA 58
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Bavadra (2000) 115 A Crim R 152
- R v Brown [2006] NSWCCA 249
- R v Williams [2005] NSWCCA 355
- Tepania v R [2018] NSWCCA 247