R v Gyorffy

[2019] NSWDC 142

District Court

New South Wales

Medium Neutral Citation:	R v Gyorffy [2019] NSWDC 142
Hearing dates:	31 January 2019
Date of orders:	31 January 2019
Decision date:	31 January 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Community Correction Order for a period of 2 years: at [9].
Catchwords:	SENTENCING – supply prohibited drug – single offence – conduit or courier – no material benefit – prior good character
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Parente v R [2017] NSWCCA 284
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Akos Gyorffy (Offender)
Representation:	Mr M Reville (Crown)   Mr M Mantaj (Offender)
File Number(s):	2017/386986
Publication restriction:	Nil

Judgment

1. This is an unusual case of drug supply because the offender says that he agreed to a request from his business partner made in an overseas telephone call to collect some cocaine from his partner’s premises and deliver them to a customer at a shopping centre in Sydney in return for $3,600. He says he did that, took the $3,600 from a customer who turned out to be an undercover police officer and deposited the money back at his partner’s apartment. He says that he received no benefit at all for this. There is no evidence to the contrary and neither could I reject his evidence that he did not receive a benefit.

2. In short, that is the background which led to the offender, who was born in October 1971, pleading guilty to one count of supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment with no standard non-parole period. That penalty is a yardstick used in the sentencing process which must be carried out in accordance with the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure)Act 1999. I must also bear in mind that a term of imprisonment cannot be imposed unless there is no alternative under s 5.

3. The agreed facts incorporate allegations concerning a co-offender Mr Kegye who was to be sentenced today, but is to be dealt with at a later stage. A Police Strike Force had been investigating the supply of prohibited drugs. The background to the offending contains a significant amount of detail in relation to the co-offender. This offender’s involvement commences on 22 November when he received a call from the UCO in which they made arrangements to meet at the Eastgardens Shopping Centre on the following day. There was discussion about a number of 3.2s, presumably being bags containing 3.2 grams of cocaine.

4. The agreed facts show that at about 5.30pm on 23 November the UCO called the offender who said “Yeah I’m with Robert, he knows where it is.” He described Robert as someone who helps Gary. Beyond that any further material on that issue is within what the Crown accurately describes as neutral territory, namely that I could not find anything beyond a reasonable doubt against the offender, or in his favour on the balance of probabilities in relation to the involvement of a man named Robert. The agreed facts continue to show that the offender met the undercover officer at about 6pm at Eastgardens as planned on 23 November and he handed over to the officer three bags containing 9.56 grams of cocaine in return for $3,600. The offender then called the UCO about 20 minutes later and there was some discussion about meeting up on the day but that went no further.

5. The offender gave detailed evidence as to his involvement and was cross-examined extensively and properly by the Crown.

6. His background is that he is from Hungary. He has two children from a previous relationship and he is devoted to those children. He was, at the time of the offending, in dispute with the mother of the children over property and access issues. Although he is a Hungarian citizen, he came to Australia in 2007 and holds a s 457 visa. He is self-employed in the construction industry. He has a background in Hungary of performance at a high level in open water and distance swimming, and at one stage was in a team which held the world record for a particular swimming event. He worked as a coach and lifeguard and came in contact with Australian swimmers which led to him coming to Australia. He first met the co‑offender about seven or eight years ago and they were, up until this offending, in a business partnership in the flooring field. His evidence, which I accept, was slightly vague on some aspects but I accept that he was doing his best to tell the truth in the witness box and any vagueness or potential inconsistency was perhaps explained by him being in an unusual and stressful situation and having to acknowledge his wrongdoing. I do not accept the Crown’s submission that I should reject his evidence as to significant matters as being deliberate lies. It is an unusual scenario but his evidence establishes that he received a phone call from his partner who was overseas, who asked him to meet a man and to collect from his home in the eastern suburbs of Sydney a package which he knew to contain cocaine and to return the proceeds of $3,600 to his partner’s home. He did that knowing that the drugs were illegal and knowing of the dangers that they caused to the community. He initially said that he had never used drugs but on being pressed he did acknowledge that on his 40th birthday some years ago he had tried cocaine once and I accept that apart from that he is a person of good character and has no criminal convictions. He acknowledged that it was an extraordinary thing to get involved in and said it was something that he regrets and expressed his remorse for doing so.

7. The history that he gave in evidence is consistent with that given to the author of a Sentencing Assessment Report and I accept that there was no financial gain for this offender. I accept the testimonials contained in two reports from referees and I accept his explanation that he did not tell Karen Gelatley that he had been involved in drug taking, rather that he had been involved in this case of drug supply. I accept his evidence that he is, particularly by virtue of his background as a keen athlete, someone who avoids alcohol and drugs and pursues pro social and healthy lifestyle. The evidence establishes that he has a small window of time each week to maintain contact with his two sons and he makes it a priority to spend time with them and that he is committed to creating the best home environment that he can for his sons. He has expressed remorse not only to the Court but to the authors of the references and he explained to them how he had told his son about the dangers of illicit drug taking at music festivals which reinforces his awareness of the danger of taking drugs. I accept that he takes full responsibility for his actions, that he knows that it was the wrong thing to do, and that he is committed to keeping his sons and his family and friends safe through educating himself and them on the dangers and consequences of using drugs.

8. It is clear that the objective seriousness of the offending is at the lower end of the scale, bearing in mind the quantity, which can be up to 250 grams for this offence. He was accurately described as a courier or a conduit who received no material benefit and was involved by virtue of misplaced loyalty to his business partner. It was not impulsive offending as there was a degree of planning by him in the circumstances to which I have referred. Although it is not an explanation I have borne in mind the evidence of the difficult time that he was having with his family dispute at the time of the offending. A number of mitigating factors are apparent and not contested by the Crown, namely his plea of guilty, his good record, his expressions of remorse, and his prospects of reoffending are extremely low. It is unnecessary to consider questions of rehabilitation because there is no evidence of him having any condition from which he needs to be rehabilitated.

9. I bear in mind the principles in relation to sentencing for drug supply offences as recently affirmed by the Court in Parente v R [2017] NSWCCA 284 and in this case I propose to take the most unusual course urged by Mr Mantaj for the offender, given the unusual subjective and objective circumstances of the case. The orders I will make are as follows.

1. The offender is convicted of the offence.

2. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a community correction order for a period of 2 years commencing today.

3. The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

1. You must not commit any offence.

2. Appear before court if called upon to do so at any time.

ADDITIONAL CONDITIONS

3. Undertake 200 hours of community service work.

4. Failure to comply with the conditions of the order may result in further action being taken against you. This may require you to return to court to be re-sentenced.

5. The offender is to report to the OIC at the Gosford office of CCS by 5pm Friday 1 February 2019.

6. The offender is to attend the Registry for finalisation of the community corrections order.

Note – These ex-tempore remarks were revised without access to the court file

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Decision last updated: 29 April 2019