R v Punyer

[2024] NSWDC 236

District Court

New South Wales

Medium Neutral Citation:

R v Punyer [2024] NSWDC 236

Hearing dates:

21 June 2024

Date of orders:

21 June 2024

Decision date:

21 June 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Owen Punyer is convicted and the appropriate discount is 25%.

2   I impose a term of imprisonment of 2 years and 6 months with a non-parole period of 15 months to date from 24 June 2023. The non-parole period will expire on 23 September 2024 and the head sentence will expire on 23 December 2025.

3   The offender is to be released on parole on 23 September 2024.

4   I would recommend in the strongest, possible terms and support any application by the offender, to serve the balance of his imprisonment and parole period in Western Australia where he has the support of family.

Catchwords:

CRIME — Drug offences — Supply prohibited drug

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse & Trafficking Act 1985

Cases Cited:

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Owen Punyer (Offender)

Representation:

Counsel:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid, NSW (Offender)

File Number(s):

2023/462497

JUDGMENT

1. Owen Punyer (the offender) appears for sentence after pleading guilty in the Local Court to an offence of supply prohibited drug not less than the commercial quantity contrary to s 25(2) Drug Misuse & Trafficking Act 1985.

2. The maximum penalty for this offence is 20 years imprisonment. Parliament has also prescribed a standard non-parole period of 10 years.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

6. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

7. At approximately 1:55pm on 23 June 2023 the offender departed Perth on a Virgin Australia flight and arrived in Sydney at approximately 6:15am on 24 June 2023.

8. At approximately 2:00pm on 24 June 2023 the offender checked himself into a Qantas Flight that was scheduled to leave Sydney for Perth at 6:20pm. He also checked in a small, light green, hard sided suitcase (the suitcase).

9. The offender was refused uplift onto the Qantas flight because he did not have the personal identification required to board and was advised to collect his luggage in the arrivals area.

10. At approximately 6:30pm, the suitcase was selected for examination and x-rayed by Australian Border Force (ABF) Officers. The ABF Officers initially determined the possible presence of biosecurity risk material inside the suitcase and conducted a second x-ray that identified an anomaly.

11. ABF Officers identified a container of protein powder in the suitcase. The container was emptied and the ABF Officers located a small white plastic wrapped package. A presumptive test indicated that the package contained methamphetamine.

12. At approximately 7:30pm Australian Federal Police Officers arrested the offender. He was escorted to the AFP Station at Sydney International airport.

13. The offender participated in a recorded interview. He told the Police that he had come to Sydney to look at a boat, lost his phone and wallet in a taxi and decided to return to Perth. He acknowledged being a user of methylamphetamine but denied knowledge of the drugs located in his suitcase.

14. The package was later tested and found to have contained 497.3g of methylamphetamine with a purity of 80.3%.

Sentencing Assessment Report

15. The Court received a Sentencing Assessment Report, limited to the specific purpose of determining his eligibility to participate in the Balund-a Program, a residential rehabilitation facility in Northern New South Wales dated 26 April 2024. He was assessed as ineligible for the Balund-a Program due to his low-medium risk rating.

The Offender’s Case on Sentence

16. The offender relies on the following materials:

1. signed character reference of John Punyer, dated 8 May 2024; and

2. signed character reference of Vicki Badger, dated 2 June 2024.

17. The offender was also called to give evidence and cross-examined.

18. The following is a precis of the evidence relied upon by the offender.

19. The offender is presently 44 years of age.

20. The offender left school in Year 11 and became an apprentice in his father’s cabinet and furniture making business, completing his trade. His father stated that the offender was always reliable and efficient in completing his work.

21. After his father sold the business, the offender worked as a fly-in, fly-out worker at a number of mines in Western Australia.

22. He was married for five years before the relationship broke down in 2011. He has a son from the marriage who is presently 16 years of age. As a result of his drug use, he did not see his son from the age of three onwards. He began to use drugs and his life has spiralled downwards since then. He needed a break from FIFO work and could not return to it. He became homeless and estranged from his family because he was ashamed of his drug use. He became involved with the wrong people and ended up with a drug debt that he had no means to pay. He needed to pay the debt to regain possession of his boat.

23. The offender’s mother died on 24 December 2023, whilst he was in custody. This has had a profound impact on him. He has rekindled his relationship with his father and his father will support him with stable housing and care when he is released from custody. He is keen, with that support, to pursue drug rehabilitation treatment. He has the offer of full-time work in an earthmoving business when he returns to Western Australia.

24. Vicki Badger in her character reference states that the offender was not coping with life following his marriage breakdown and he became heavily involved in drugs. She observed the offender to be struggling in his daily life at the relevant time.

Consideration

Objective seriousness

25. The amount of the drug at 497.3g was almost twice the commercial quantity for the drug and just under the large commercial quantity. The purity of the drug was relatively high.

26. By his plea, the offender accepts that he possessed the drug with the intent to supply. The offender’s evidence was that he participated in the offence in exchange for the forgiveness of a drug debt.

27. It is clear from the offender’s record that he is a long time user of methylamphetamine.

28. I am satisfied that the offender travelled to Sydney to be supplied the drug and that he intended to take it back to Perth with him.

29. I have taken into account the maximum penalty for the offence.

Deterrence

30. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such a severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial and other rewards will be neutralised by the risk of severe punishment.

31. There is also a need for specific deterrence. The offender has a significant criminal history in Western Australia indicative of his drug use from about 2011 onwards, including a previous supply offence for which he was sentenced to a term of imprisonment. The penalty must bring home to the offender that if he continues to commit further offences that he will be met with condign punishment. On the other hand it is encouraging that the offender has been trying to be admitted to residential rehabilitation.

Aggravating Factors

32. There are no relevant aggravating factors.

Mitigating Factors

33. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has reached a point where he is willing to accept intervention, including through residential rehabilitation. He has reconnected with his father and has an offer of stable accommodation and work. The death of his mother has had a salutary impact on him and I am satisfied that he has reached a cross roads where some leniency is warranted to assist him to achieve rehabilitation from drug use.

34. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse to his referrees and to the Court. He has accepted responsibility for his actions and I am satisfied that he is genuinely contrite.

35. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic, which I accept may continue to be imposed for some time into the future. I am satisfied that the offender’s time in custody has been made more onerous by the restrictions imposed to deal with the COVID-19 pandemic

36. I will backdate the sentence imposed to 24 June 2023 to take into account the offender’s pre-sentence custody.

Penalty

37. Owen Punyer is convicted.

38. I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

39. I make a finding of special circumstances. The offender has a drug addiction for which he needs treatment and support and that justifies a longer period on parole.

40. I impose a term of imprisonment of 2 years and 6 months with a non-parole period of 15 months to date from 24 June 2023. The non-parole period will expire on 23 September 2024 and the head sentence will expire on 23 December 2025.

41. The offender is to be released on parole on 23 September 2024.

42. All of the offender’s supports are in Western Australia and in my view his prospects of rehabilitation are inextricably linked to him being allowed to return home. I would recommend in the strong possible terms and support any application by the offender, to serve the balance of his time in custody and his parole period in Western Australia.

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Decision last updated: 24 June 2024