R v Allen CHING

Ex Tempore Remarks on Sentence 1HIS HONOUR: In this matter Allen Ching appears for sentence. The relevant court file number is 2010/325620. Mr Lloyd QC appears for the offender. 2The offender appears for sentence on five counts and it is appropriate that I read those out with the appropriate maximum penalties. 3The 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. 4For 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. 5To 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. 6There 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. 7These are all possess prohibited firearm offences brought contrary to subsection 7(1) of the Firearms Act 1996 for which a fourteen year maximum term of imprisonment is established. Also, significantly, a standard non-parole period has been established by the New South Wales Parliament of three years imprisonment. 8The particulars of the first count involve a Phoenix Arms self-loading pistol, a Franchi pump action shotgun and a Bentley shortened pump action shotgun. Shortened shotguns are a matter where the courts have made comments in other environments, about the reprehensible nature of those guns, in particular the fact that they can be concealed. Balanced against that, in relation to this matter, is that this particular Bentley shortened pump action shotgun was not in working order. 9What has complicated the sentencing exercise somewhat is that there is also a s 166 Certificate which sets out some ten matters, which I have loosely grouped in accordance with the classifications of drug matters, namely, possess methylamphetamine, possess heroin, possess cocaine, possess cannabis and possess testosterone enanthate, sometimes referred to as steroids. 10In relation to the second bracket of offences, there are a further five matters to be the subject of a sentence under s 166, namely, possess ammunition without holding a licence and three counts of not keeping a firearm safely, then goods in personal custody, which is a different kind of matter. 11The factual matters on which the Crown relies are set out in the memorandum of agreed facts which became exhibit S4. Those provide that the offender and his premises were the subject of a search warrant at Croydon Park on 29 September 2010. Obviously the police had received some material. What is significant and has been relied on by Mr Lloyd QC, was the fact that during the execution of the warrant, the offender not only answered the door and facilitated the police entry but, following a caution, he referred the police to a small amount of cannabis in the garage area where there were found to be a number of illegal drugs in a safe. 12The cocaine was found there along with the methylamphetamine. There were relatively small amounts - or certainly the methylamphetamine was. There was a foil package with Ice and cocaine in another plastic bag. There was white powder in another box or on a poker table in the garage, the sequence numbers of all the charges and in relation to both the counts and the s 166 Certificates are fully set out in the Statement of Facts. 13I simply indicate these matters for the benefit of those present and also to show some background to this sentence. 14The vegetable matter also found in the garage on an ashtray was again a very minor nature: 1.5 grams of cannabis leaf and eight phials of the steroids in a fridge in a separate area. 15There was one minor factual issue arising out of the facts which concerns the scales. There were scales found both in the garage and in a bedside set of drawers on the right hand side of the bed where there was also a storage area. Put on behalf of the Crown was that was indicia of a course of conduct. There is no evidence to that effect. It would be a matter of inference as put to the contrary by Mr Lloyd QC that there was nothing else found in the premises consistent with drug dealing and extensive drug involvement. In particular, there was no money. There were no numbers of mobile phones. There were no plastic bags. There were no resealable bags. There was not the same kind of material that one has become depressingly familiar with over the last ten years, being the indicia of detailed involvement in drug supply. 16Against that factual background Mr Lloyd QC submits that I should infer in favour of the accused on the balance of probabilities that the scales were there for him to check his own supplies or supplies that had been made to him. As I say there is no evidence to the contrary. 17In terms of other factual material before me on these proceedings, the offender has also had tendered on his behalf a very detailed report from Duffy Robilliard, psychologists. It needs to be seen against the history set out in his prior convictions. The concern that I have in that regard is that in 2008 he was dealt with for goods suspected of being stolen, the proceeds of crime. There were cumulative sentences of community service imposed on that. 18There was a supply of cannabis charge for which he received a seven months suspended sentence, that was for a greater than indictable less than commercial quantity, and a possess prohibited weapon charge, for which he received a fine of seven hundred dollars. I am informed without opposition that that case involved a taser. That needs to be born in mind with reference to some of the other matters which are before me on the s 166 Certificate and the guns themselves. I note that the Court of Criminal Appeal in Ayshow v R [2011] NSWCCA 240 has said, for example, that possession of a taser-like stun device is not a minor example of an offence. This time there is no taser. 19On that view, that offence, at that time in conjunction with the other matters indicates that the offender in my view was dealt with leniently and does not seem to have learnt any lessons as a result of that approach. 20Mr Lloyd QC submits that the sentence itself shows that there was a factual matrix of a minor nature. I do not regard the possession of a taser in any circumstances as a minor matter and, indeed, that is what the Court of Criminal Appeal says. The fact remains that he has a prior conviction for possession of an item of this nature. That only becomes relevant in this situation because of the question of rehabilitation, which has been a strong point of the submissions made by Mr Lloyd QC. 21The offender was not called. I am informed without opposition that no Qutami point was taken - see R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 where the Court of Criminal Appeal said that, even where there is no such point taken, the sentencing judge need still be careful in accepting the hearsay material and particularly exculpatory material advanced by the offender himself without cross-examination. 22I think Mr Lloyd QC, is correct in the circumstances, particularly given the Crown's approach, that there is simply no other evidence before me at the moment. Mr Lloyd QC, relies on that to point to the fact that the material from Duffy Robilliard is consistent with someone who is an addict or someone who is not involved in supply on any wider level. He submits that the offender is someone who is not involved in the criminal milieu other than his involvement with the person who asked him to store the particular weapons and that he did store on his premises. 23The pre-sentence report makes clear the offender's family situation, both in New Zealand and in Australia, which does give me some concern. 24The offender is a man of some twenty-five years of age who had a hard working family, who worked in a seven day a week service store in New Zealand. There is some suggestion that the family was involved to an extent in gambling and that they moved to Australia to rid themselves of that association. Be it a matter of reality or not, that was the offender's perception. He was also in a situation in his schooling environment in Christchurch where he mixed, on his own comments, "with the wrong kind of people". Unfortunately, when he came to Australia he seemed to again mix with the same, wrong kind of people - although presumably not of the same identity - and he has got himself into this situation. 25The difficulty is in looking to anything in the offender's past which could give me some foundation for confidence in his rehabilitation. What he does have, however, is a set of references from people who are in the back of the Court, including his current partner or fiancée, who is a medical practitioner. She has stood by him throughout this as has her family and associated people within that family structure and environment. They have a religious persuasion which he has adopted - indeed, he has been baptised into the church. One of the members of the extended family is a deacon in the particular church and he has provided a reference. 26All the character references refer to the offender's behaviour and change, not only at or about the same time of his apprehension but also while he has been incarcerated. As I say I would normally have considerable scepticism about that, even with the benefit of the Chaplin's report from the prison. As Mr Lloyd QC has pointed out - that is all there is. 27Also included in the pre-sentence report are remarks about the offender's behaviour and various aspects of his drug usage. Again those are matters of unsworn evidence but I will take those into account. 28What is important as well to note is that there is a psychologist's diagnosis of Post Traumatic Stress Disorder. That is a diagnosis which is consistent with the Diagnostic Statistical Manual of the American Psychiatrists' Association, which is currently available to indicate trauma based on traumatic events, leading to long term problems. It is not for me to again say any kind of diagnosis by a psychologist in that respect because that is what is before me. Nevertheless, I would need from a legal point of view to be satisfied about the psychologist's qualifications to make such a diagnosis. What I have been referred to are two incidents in the past, namely, the situation where the offender was shot and then subsequently was involved not as a participant but apparently as an observer in a robbery. Both those events have had some impact on him as well it might be considered that they might. 29Mr Lloyd QC has relied on the totality of that evidence to submit that the offender here is a person for whom the principles of specific deterrence should not be the subject of the same kind of application as with other offenders. I may not be doing justice to the submissions of Mr Lloyd QC in their entirety in that aspect but I think that is the effect of them. 30The Crown by contrast has submitted that I would take into account principles of general deterrence as being specifically mandated as an obligation on a sentencing judge in the circumstances of offences of the nature of firearms. I have some particular concerns about that. 31This issue is not without difficulty in terms of some of the sentencing principles because, firstly, it is agreed that the offender had pleaded at the earliest possible opportunity. In those circumstances he should receive the full discount as a combined assessment of his preparedness to facilitate the course of justice. Secondly as a recognition, to some extent, of his remorse, which is consistent with what is contained in the pre-sentence report. Thirdly, is an indication of his intention to put these matters well and truly behind him. 32I have during the course of submissions indicated that it is clear that the offender has not provided any assistance to any of the authorities. That is confirmed by Mr Lloyd QC. The offender cannot be the subject of any additional penalty for that failure to provide assistance under the law as it currently stands. Its only relevance is as to his preparedness to abandon people who have led him to this situation. Often the best way of showing that that association has been severed once and for all is by assistance. Nevertheless, that has not happened. But I cannot take that into account against him. 33The pre-sentence report makes it clear that he, Mr Ching, was "careful not to implicate others". That is not necessarily to his credit given the value of the drugs involved and the kinds of weapons involved. I think on the factual basis that there is before me all I can do is to say that it is consistent with, on the balance of probabilities, the offender's case that none of these drugs were actively used by him for any actual supply as opposed to deem supply. 34There is no evidence that the weapons were used by him by virtue of any involvement in any kind of criminal milieu. That of itself makes the case very different from some of the factual material before me and some of the other comparable sentencing authorities. As I say I have some particular concerns about that but on the legal tests which I am required to apply and given the position of the Crown in that regard, I think that that finding is the only one I can make. 35It does seem to me appropriate that there be a finding of special circumstances based on the fact that this offender is aged twenty-five. He is still a relatively young man. He does have some prospects of rehabilitation based on the fact that the extended family, members of which are present here today in court, and his own family have provided a structure. 36His own family have been the family in which he was raised. The current family, of which his partner and fiancee is a member, were part of his life at the time of these offences and his involvement in these criminal activities. He said, and I have reviewed the pre-sentence report on that, that he was desperate to keep his drug usage and associated behaviour from his fiancee, as well he might have. Nevertheless to the extent that he has made a clean breast of it - if he has - then there are some prospects of rehabilitation. I have read the associated reference which has been provided from the real estate company offering him employment on his release from prison. That will be some years off. 37Also relevant to a finding of special circumstances is that this is his first time in custody. He has been there for fifteen months and I think it is relevant as put by his counsel that there has been absolutely no breach of any kind of the Correctional Services disciplinary regime. I previously indicated my awareness that, having visited all the gaols to which he has been sent and been involved in, it is very much to his credit that he has not been involved in any kind of criminal activity nor behavioural problems. 38It does seem appropriate to me that he would benefit from some longer period of time on probation, in particular, to comply with drug testing throughout that period of time. I am sure that if his fiancee - with her own exposure to the medical world - remains with him, she will help to ensure that simply does not happen, otherwise he will be straight back inside. 39My reservations on that subject of rehabilitation are that I see nothing in the offender's past which would give me confidence that he might avoid situations of temptation in the future. 40When I come to make the assessment of the criminality involved, I think Mr Lloyd QC is correct in saying that the firearms offences are the more serious of the two classifications of offences. 41These items were in a storage compartment. They were hidden. There is no evidence that he was going to use them nor indeed that they were there for other than the storage purposes he has submitted as part of his evidence. 42Nevertheless, the three items the subject of the s 7(1) matters on the indictment involve separate weapons in separate circumstances. It is proper and, as I understand it, consistent with the authorities, that those separate weapons be the subject of a separate degree of partial accumulation in relation to the sentence. 43The two supply charges or deem supply charges relate to the same commodity, one of 40.8 grams of heroin and the other one of 21 grams of heroin. Put on the offender's behalf is that they were of a purity level which was quite small, being 12% in relation to the 40 grams and 18% in relation to the 21 grams. Nevertheless, that represents a sizeable amount of pure drug which would be capable of being cut and placed on the streets with considerable profit value. 44There is some generosity to the offender in the fact that the matter on the Form 1 was placed as it was but I take that into account in the sentence to be imposed on the matter the subject of count 1. The cocaine, which is the subject of the Form 1 count, was also found in the same area. 45I think Mr Lloyd QC is correct when he said that the placement of the other items and the amounts involved which are the subject of the s 166 charge are consistent with his explanation. Indeed, I would imagine that is the case because that is precisely why the Crown or whoever it was has placed those matters on a s 166 Certificate. They are certainly consistent with his own use. It must be said however that methylamphetamine is a particularly pernicious drug. It needs to be reinforced to the offender by the imposition of a greater sentence in relation to it, compared to the other relatively small amounts. 46I also take the same view about the testosterone being the subject of a separate and additional penalty, albeit of a minor nature. That is a separate kind of drug and is normally used by people in a different kind of milieu from that in which the offender has operated. 47In terms of my assessment of criminality there is nothing to establish that he had used those large amounts or intended to use them. They are separate amounts and in my view the appropriate finding of criminality, bearing in mind the Form 1 matter, is that it is above low range but not just below mid range as the Crown has submitted. In my view it is right in the middle between low range and mid range. I say that by reference to the amounts involved, the purity involved in terms of the drugs, the kinds of weapons involved and their placement in terms of the firearms offences. 48As I understand it I am required to make that finding in these circumstances notwithstanding the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. Sentencing judges at my level of the judiciary are required to take into account, as I do, the standard non parole period as being a full guidepost of the legislature's attitude to the seriousness of these particular matters. That, in addition to the maximum penalty, is one other factor which I need to take into account as I do in this particular instance. For that purpose I take into account those matters and relevant decisions in Markarian v R (2005) 228 CLR 357; [2005] HCA 25 and Muldrock v R. 49I then come to this issue of the degree of accumulation and concurrence which is necessary. The relevant principles in that regard were stated by Justice Howie in the decision of Cahyadi v R [2007] NSW CCA 1; (2007) 168 A Crim R 41 as follows: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."