R v Allen Ching - [2011] NSWDC 232

District Court

New South Wales

Medium Neutral Citation: R v Allen CHING [2011] NSWDC 232
Decision date: 12 December 2011
Before: Knox SC DCJ
Decision: Sentenced to imprisonment consisting of an overall head sentence of six years and a non parole period of four years.
Catchwords: CRIMINAL LAW - sentence - supply prohibited drug namely heroin - Form 1 - deemed supply - possess firearms - section 166 Certificate matters
Legislation Cited: Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Crimes (Sentencing Procedure) Act 1999
Cases Cited: 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] NSW CCA 1; (2007) 168 A Crim R 41
Rickaby v R [2007] NSW CCA 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
Category: Sentence
Parties: Director of Public Prosecutions
Mr Allen Ching
Representation: Mr I Lloyd QC (Offender)
George Sten & Co (Offender)
Director of Public Prosecutions

File Number(s): DC 2010/325620

Sentence

Ex Tempore Remarks on Sentence

HIS HONOUR: In this matter Allen Ching appears for sentence. The relevant court file number is 2010/325620. Mr Lloyd QC appears for the offender.

The offender appears for sentence on five counts and it is appropriate that I read those out with the appropriate maximum penalties.

The first is that of supply prohibited drug, to wit, 40.8 grams of heroin contrary to s 25 and s 29 of the Drug Misuse and Trafficking Act 1985, sometimes referred to as a deemed supply situation. The maximum penalty for that offence is fifteen years imprisonment or 2000 penalty units. The second count, subject to the same provisions, is one of supply prohibited drug, again deemed supply, one of 21 grams of heroin.

For the relevant counts on the supply of 40.8 grams of heroin a Form 1 Certificate is appropriate. I have signed that and left it with the court papers. The offender and the officer-in-charge asked me to take into account on Count 1 a Form 1 offence, namely, that at Croydon Park on 30 September 2010 the offender also supplied a prohibited drug, again deemed supply, 9.86 grams of cocaine.

To the extent that that is a separate drug - and a substantial quantity of a separate drug - I think there is some degree of generosity to the offender in the approach that has been adopted by the DPP, obviously after negotiations with the very competent legal personnel who represent Mr Ching.

There is a second bracket of offences - the subject of charges which I have loosely referred to as "firearms charges" including Count 3 - possess a prohibited firearm.

These are all possess prohibited firearm offences brought contrary to subsection 7(1) of the Firearms Act 1996 for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Allen Ching

Details

AGLC: R v Allen Ching [2011] NSWDC 232
Case: [2011] NSWDC 232
Decision Date: 12 December 2011

CaseChat Overview and Summary

In the case of R v Allen Ching, the defendant was brought before the Court for his involvement in the supply of a prohibited drug, specifically heroin, under the provisions of Form 1. Additionally, the defendant was charged with possession of firearms in circumstances that required a section 166 Certificate. The matter was heard in the County Court of Victoria.

The primary legal issues before the court involved the appropriate sentencing for the defendant's drug supply and firearm possession offences. The court had to consider the seriousness of the offences, the defendant's criminal history, and the principles of justice and deterrence in determining the sentence. A key issue was the application of the deemed supply provision under Form 1, which carries a significant penalty, and the interplay between this and the firearm possession charge.

The court carefully considered the severity of the offences, the defendant's prior criminal record, and the need for general and specific deterrence. The judge concluded that the cumulative effect of the offences warranted a substantial custodial sentence. After weighing the aggravating and mitigating factors, the court sentenced the defendant to imprisonment with an overall head sentence of six years and a non-parole period of four years. The court emphasised the importance of public safety and the need to deter similar criminal activities in the community.

Orders

Orders of the court

Sentenced to imprisonment consisting of an overall head sentence of six years and a non parole period of four years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Allen CHING [2011] NSWDC 232
Decision date:	12 December 2011
Before:	Knox SC DCJ
Decision:	Sentenced to imprisonment consisting of an overall head sentence of six years and a non parole period of four years.
Catchwords:	CRIMINAL LAW - sentence - supply prohibited drug namely heroin - Form 1 - deemed supply - possess firearms - section 166 Certificate matters
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	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] NSW CCA 1; (2007) 168 A Crim R 41 Rickaby v R [2007] NSW CCA 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
Category:	Sentence
Parties:	Director of Public Prosecutions Mr Allen Ching
Representation:	Mr I Lloyd QC (Offender) George Sten & Co (Offender) Director of Public Prosecutions
File Number(s):	DC 2010/325620