R v McAllister - [2021] NSWDC 170

District Court

New South Wales

Medium Neutral Citation: R v McALLISTER [2021] NSWDC 170
Hearing dates: 8 March 2021
Date of orders: 8 March 2021
Decision date: 12 April 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see para [74]-[78]

Catchwords:
CRIME – Firearm offences – Possess Prohibited Weapon (Taser and knuckledusters) - Possess Prohibited Weapon in Contravention of Weapons Prohibition Order
CRIME – Drug offences - Possess Prohibited Drug with Intent to Supply
CRIME – Property offences – Goods in custody (prescription medication)
SENTENCING – Relevant factors in sentencing – General deterrence – Form 1 matters – s 166 matters – breach matters

Legislation Cited:
Drug Misuse and Trafficking Act, 1985
Criminal Procedure Act, 1986
Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Firearms Act, 1996
Weapons Prohibition Act, 1998

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Greaves v R [2020] NSWCCA 140
R v Campbell & Smith [2019] NSWCCA 1
Parente v R [2017] NSWCCA 284
The Attorney General’s Application Under s. 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146
Valentine v R [2020] NSWCCA 116

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Scott Bernard McALISTER (Offender)
Representation:
Counsel:
Mr R Keller for the offender
Solicitors:
Ms L Hanshaw (for the Crown)
Mr D Barron (for the Offender)

File Number(s): 2016/282051, 2020/129741
Publication restriction: No

Judgment

The offender appears for sentence in respect of the following matters:

Substantive Sentence Matters on H74917531

Sequence 1 – Possess Prohibited Weapon (Taser) – s 7(1) Weapons Prohibition Act, 1998;

Sequence 2 – Possess Prohibited Weapon in Contravention of Weapons Prohibition Order (Taser) s 34(1) Weapons Prohibition Act;

Sequence 3 – Possess Prohibited Drug with Intent to Supply – s 25(1) Drug Misuse and Trafficking Act, 1985;

Sequence 8 – Possess Prohibited Weapon (“knuckledusters”) – s 7(1) Weapons Prohibition Act; and

Sequence 12 – Possess Prohibited Weapon in Contravention of Weapons Prohibition Order.

Sequence 2 relates to the same Taser as sequence 1 and sequence 12 relates to the same “knuckledusters” as sequence 8.
In addition to these matters the following matters attach to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986:

Sequence 6 – Possess Prohibited Drug (6 grams of cannabis) – s 10(1) Drug Misuse and Trafficking Act; and
Sequence 7 – Goods in Custody (prescription medication) – s 527C(1)(c) Crimes Act, 1900

Further there are two Forms 1 each containing two matters. Attaching to sequence 8 is a Form 1 containing three charges of Possess Prohibited Weapon (knuckledusters) contrary to s 7(1) of the Weapons Prohibition Act and attaching to sequence 12 is a Form 1 containing three charges of Possess Prohibited Weapon in contravention of a Weapons Prohibition Order contrary to s 34(1) of the Weapons Prohibition Act. In passing sentence on the matters to which the Forms 1 attach I will need to apply the principles enunciated by…

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 McAllister

Details

AGLC: R v McAllister [2021] NSWDC 170
Case: [2021] NSWDC 170
Decision Date: 12 April 2021

CaseChat Overview and Summary

The appellant, McAllister, was charged with various offences, including possession of prohibited weapons, possession of a prohibited drug with intent to supply, and possession of goods in custody. The case was heard in the Supreme Court of New South Wales. The primary issues before the court were whether the appellant's possession of the prohibited weapons and the prohibited drug constituted criminal offences, and if so, what the appropriate sentence should be considering the various factors and breaches involved.

The court examined whether the appellant knowingly possessed the prohibited weapons, specifically a Taser and knuckledusters, in contravention of a Weapons Prohibition Order. Additionally, the court assessed whether the possession of the prohibited drug with intent to supply was proven beyond reasonable doubt. Furthermore, the court considered the appellant's possession of prescription medication that was subject to the Drugs of Dependence Act, analysing if it fell under the category of goods in custody.

The court found that the appellant was indeed in possession of the prohibited weapons and the prohibited drug, and that he intended to supply the drug. The court emphasised the significance of general deterrence and the need to address breaches of prohibition orders. The appellant's previous criminal history and breaches of court orders were taken into account, alongside the severity of the current offences. Considering all relevant factors, the court imposed a sentence as outlined in paragraphs [74] to [78] of the judgment.

Orders

Orders of the court

Sentenced – see para [74]-[78]

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 McALLISTER [2021] NSWDC 170
Hearing dates:	8 March 2021
Date of orders:	8 March 2021
Decision date:	12 April 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see para [74]-[78]
Catchwords:	CRIME – Firearm offences – Possess Prohibited Weapon (Taser and knuckledusters) - Possess Prohibited Weapon in Contravention of Weapons Prohibition Order CRIME – Drug offences - Possess Prohibited Drug with Intent to Supply CRIME – Property offences – Goods in custody (prescription medication) SENTENCING – Relevant factors in sentencing – General deterrence – Form 1 matters – s 166 matters – breach matters
Legislation Cited:	Drug Misuse and Trafficking Act, 1985 Criminal Procedure Act, 1986 Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Firearms Act, 1996 Weapons Prohibition Act, 1998
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Greaves v R [2020] NSWCCA 140 R v Campbell & Smith [2019] NSWCCA 1 Parente v R [2017] NSWCCA 284 The Attorney General’s Application Under s. 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 Valentine v R [2020] NSWCCA 116
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Scott Bernard McALISTER (Offender)
Representation:	Counsel: Mr R Keller for the offender Solicitors: Ms L Hanshaw (for the Crown) Mr D Barron (for the Offender)
File Number(s):	2016/282051, 2020/129741
Publication restriction:	No