R v Poungpech

[2019] NSWDC 160

District Court

New South Wales

Medium Neutral Citation:	R v Poungpech [2019] NSWDC 160
Hearing dates:	22 March 2019
Date of orders:	22 March 2019
Decision date:	22 March 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Imprisonment for a period of five years with a non-parole period of three years.
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply SENTENCING — Penalties — Imprisonment
Category:	Sentence
Parties:	Regina (Crown) Kitiya Poungpech (Offender)
Representation:	Solicitors: Mr Triscari (Solicitor Advocate, Crown) Ms Hunter (Offender)
File Number(s):	2017/00222992

Judgment

HIS HONOUR:

1. Kitiya Poungpech appears before me for sentence having pleaded guilty to one count knowingly take part in the supply of methylamphetamine in the amount of 734.8 grams which is not less than a large commercial quantity applicable to that drug. A large commercial quantity threshold is crossed once one has in possession 500 grams or more of the drug. The statutory maximum penalty is life imprisonment with a standard non parole period of 15 years. The statutory maximum is a yardstick for a sentencing judge, it is but one of a number of relevant factors to be taken into account in the instinctive synthesis of sentencing as is also the standard non period which is a yardstick as well. In relation to the maximum penalty a judge should steer by the maximum penalty but not aim for the maximum penalty.

2. There is an agreed set of facts which appears in exhibit 1 of the Crown Sentence Summary. I intend to set out briefly some of the facts in this case:

3. Ting Gao was identified as a target of a police strike force. The offender was involved in an intimate relationship with him and she leased a room at an address in Miowera Road Chester Hill. On 28 June 2017 police executed a search warrant at the address. A search of the offender’s bedroom located several boxes and bags stored in a cupboard. Police located various items of equipment to manufacture prohibited drugs in the boxes and bags including glassware, heating and drying devices. Police also searched a brown box which was located adjacent to the other boxes and bags on the top shelf of the cupboard. The box contained a large resealable plastic bag which contained 734.8 grams of the prohibited drug methylamphetamine.

4. The offender was arrested at the scene, she denied knowledge of the contents of the various boxes and bags. On 8 July 2017 police attended the Villawood Detention Centre. The offender nominated a female called “Candy” as the person who placed the items in her room and owned the commodities. Police received confirmation of forensic results from examinations conducted on the drug manufacture equipment and the fingerprints of the offender’s boyfriend were located on glassware. On 21 July 2017 police attended the Villawood Detention Centre and placed the offender under arrest. The offender agreed to participate in an electronically recorded interview. She made a number of admissions during the course of the interview. She admitted that she lied to police on 18 July 2017 and the person she knows as Candy had no involvement in the storage and ownership of the prohibited drugs and bags/boxes containing drug manufacture equipment located in her bedroom. She said she lied to protect Gao.

5. The offender stated she was fully aware of the presence of the brown box containing the prohibited drugs. She said Gao had brought the drugs to the offender’s bedroom approximately one month earlier. She stated Gao had removed the drugs which were in paper wrapping and placed them in the brown box. She stated she did not question Gao in relation to the storage of drugs at her residence. She stated she was aware the crystalline substance was the prohibited drug methylamphetamine. She herself was using methylamphetamine three to four times a week which she administered via a glass pipe. She said she had used the drug for two years since arriving in Australia. She stated she did not sell or supply any drugs including the ice stored in the bedroom.

6. Four fingerprints of Gao were located on plastic packaging used to contain the prohibited drugs. One fingerprint of the offender was located on plastic packaging used to contain the prohibited drugs. The substances seized by the police from an assortment of plastic bags in the brown box were found to contain methylamphetamine, there were 734.8 grams of the drug and it was 78% pure.

7. The offender agrees that she knowingly took part in the supply of methylamphetamine because she provided her room, tolerated and permitted her boyfriend Gao to possess and store the drug in her room knowing that it would ultimately be supplied by him.

OBJECTIVE SERIOUSNESS

Role played

8. The role played by the offender was one of providing a storage facility for Gao. She was aware that Gao was trafficking in the drug. The provision of a safe storage room of course enabled Mr Gao to go about his trafficking. She assisted him to that extent but she was not involved in his criminal enterprise of trafficking the drug and there needs to be a distinction drawn between her and the conduct of Mr Gao.

Motivation

9. It appears to me that there are a number of reasons for the offender being involved in providing storage to Mr Gao. Firstly, she had a misguided loyalty to him because they had been in an intimate relationship and he had been providing the payment of the rent on her room. Also, she had been a long-term drug user since her arrival in this country and told police that in fact she used to steal some of the drugs of Mr Gao from the secret storage spot. Also, she had a number of addictions, apart from drugs she had addiction to alcohol and on-line gambling. However, she acted as a store person with full appreciation that the drugs would be trafficked amongst the community.

Weight/purity

10. The methylamphetamine was weighed at 734.8 grams. A large commercial quantity starts at 500 grams, there is 234.8 grams in excess of that large commercial quantity. In evidence she said that she had never weighed the drug but when asked about an estimate in regard to the weight she did say that she thought it was quite a lot although she had never measured it. She was asked about market prices of drugs because she knew about the cost of methylamphetamine in buying one gram or 1.5 grams. She believed that the drugs were worth thousands of dollars. The purity level is a fairly high level in 78% purity.

11. Objectively the offence is a serious one but in my view it is well below the mid-range and is at the lower end of the range. There is no allegation that the offender was part of the drug supply operation or derived any financial reward from those operations, the offender came to the notice of the investigators as a consequence of her being in an intimate relationship with Gao and she had been in that relationship for approximately one year.

SUBJECTIVE CIRCUMSTANCES

12. The offender is 30 years of age, she is currently housed at the Merriwa Correctional Facility where she engages in work where she packs earphones which are then used by an airline company. She originally came to this country on a student visa which then expired and became involved in the sex industry and it was in that role that she met Mr Gao because he was one of her customers. She had an addiction to methamphetamine, alcohol and gambling. A number of authorities talk about the fact that that is a matter of choice and may not lessen the moral culpability of an offender.

13. Whilst she has been in custody she has attempted to undertake drug and alcohol courses but because of her lack of English she has been unable to complete those programs and has informed me that there is nobody in her correctional facility that speaks the Thai language. She has a son in Thailand who is 16 years of age and she had that son when she was 14 years of age. She left school at 13 and has had little education. It is her intention that when she is returned to Thailand that she and her sister-in-law will reopen a food store that existed in her village and that she will reside with her parents.

14. In the sentence assessment report she indicated that she had, prior to entering custody, been working illegally within the sex industry due to her immigration status and she reported the use of ice for four years and excess use of alcohol within the last seven months prior to entering custody. She stated that she would steal her partners drugs that he stored at her home. Ms Poungpech advised that her drug use is unresolved, given she thinks about reverting to illicit substances used to self-medicate her feelings of loneliness. She claimed that she had an addiction to online gambling and that she would spend approximately $200 to $300 per day. She up until today had been a person of good character and I have taken that into account and extended to her a degree of leniency.

PROSPECTS OF REHABILITATION

15. Because she has been a person of good character and at 30 years of age has not been involved in crime I take the view that she has good prospects of rehabilitation.

HARDSHIP IN CUSTODY

16. Serving a sentence in a foreign country where the culture and language is different is a mitigating factor. I have evidence that the offender has been unable to complete valuable programs to assist in her self-rehabilitation because of her language difficulties. It must also be acknowledged that because she is a Thai national and clearly from a poor area from Thailand it is unlikely that she will ever receive a visit from family or friends and her time in custody is more onerous as a result of that and I accept that that is a mitigating factor.

PLEA OF GUILTY

17. She entered a plea of guilty at the first instance and is entitled to a discount of 25% and I have discounted the sentence I intend to impose by that amount.

SPECIAL CIRCUMSTANCES

18. I find that there are special circumstances as a result of her age, language difficulties, her first time in custody and her need for rehabilitation in regard to drug and alcohol abuse.

SENTENCE

19. General deterrence, specific deterrence and denunciation are important sentencing considerations in relation to somebody who takes part knowingly in the supply of methyl amphetamine. There is no dispute amongst the parties that the s 5 threshold has been crossed.

20. Taking all relevant matters into account I sentence the offender to a non parole period of three years, commencing on 28 June 2017 and expiring on 27 June 2020. I impose an additional term of two years making a total effective sentence of five years, expiring on 27 June 2022, with a non parole period of three years. The offender will be eligible for release to parole on 27 June 2020.

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Decision last updated: 09 July 2019