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District Court 31 July 2017

R v Kevin Na; R v Robin Na

[2017] NSWDC 244

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY TRAFFICKING IN A SUBSTANTIAL DEGREE EXCEPTIONAL CIRCUMSTANCES FETTER ON DISCRETION.

Citation: R v Kevin Na; R v Robin Na [2017] NSWDC 244
Court: District Court of New South Wales
Date: 31 July 2017
Judge: Whitford SC DCJ

Background

Two brothers pleaded guilty in the Local Court to one count each of supplying a prohibited drug on an ongoing basis and one count each of knowingly dealing with the proceeds of crime. Both offences carry maximum penalties of 20 years and 15 years imprisonment respectively, reflecting their seriousness in the eyes of Parliament.

The offending arose from a police investigation into a drug trafficking syndicate operating in Sydney during early 2016. A listening device installed in a vehicle captured both brothers conducting multiple transactions involving cocaine and MDMA, picking up customers across various Sydney suburbs, discussing prices, and supplying drugs. The elder brother's charged involvement was confined to a single night in March 2016, while the younger brother's offending extended across several weeks and multiple separate occasions into April 2016.

On execution of a search warrant at their Epping residence, police found 11 mobile phones, $6,850 in cash, and a bag labelled "Weekend" containing drug-related notes. Both were arrested and interviewed. A co-accused, who was the apparent organiser of the syndicate, was committed for separate trial.

  • Whether the offending of each brother was properly characterised as involvement in drug trafficking to a substantial degree
  • Whether either offender was a suitable candidate for an alternative to full-time custody, namely a suspended sentence or an Intensive Corrections Order (ICO)
  • Whether the combined subjective circumstances of either offender constituted exceptional circumstances sufficient to justify a non-custodial mode of serving the sentence
  • The appropriate discount for guilty pleas and the structuring of concurrent sentences for the supply and money laundering offences

Decision

The court found that the offending of both brothers fell relatively low on the spectrum of conduct captured by the relevant offences. The elder brother's involvement was the less serious of the two: it covered only the one night of transactions and did not disclose ongoing organised activity. The younger brother's conduct was more serious, extending across four additional days of transactions and demonstrating a continued connection to the syndicate's organiser.

Both brothers received a 25% discount on their sentences for the utilitarian value of their guilty pleas. The court ordered that the sentences for the supply and money laundering counts run substantially concurrently, given that the cash seized was directly connected to the supply offending. Time already spent in pre-sentence custody was also factored into each sentence.

On the question of exceptional circumstances, the court was satisfied that the elder brother's combination of subjective factors, including a short period of pre-sentence custody, over twelve months of compliance with strict bail conditions, demonstrated remorse and insight, strong community support, good prospects of rehabilitation, and concrete rehabilitative steps already underway, placed his case sufficiently outside the general run of cases. The court suspended the execution of his 12-month sentence and placed him on a 12-month good behaviour bond.

For the younger brother, the court indicated that the aggregate sentence would likely be two years or less, taking into account the plea, pre-sentence custody, and a minor Form 1 offence (failure to disclose the identity of a driver or passenger). Rather than imposing a suspended sentence, the court referred him for assessment as to his suitability for an Intensive Corrections Order, with the matter adjourned for final determination.

Orders Made

Kevin Na (both offences):
- Convicted of both offences
- 12 months imprisonment imposed for each offence
- Execution of sentences suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999
- Released on a 12-month good behaviour bond, with conditions requiring good behaviour, appearance before the court if called upon, and compliance with the community correction service

Robin Na (both offences):
- Convicted of both offences
- Referred to the Commissioner for Corrective Services for assessment of suitability for an Intensive Corrections Order
- Matter listed for hearing and final determination on 29 September 2017
- Bail continued

Confiscation:
- $6,850 cash forfeited to the State by orders made in accordance with Short Minutes of Order dated 31 July 2017

Key Takeaways

  • A sentencing court may suspend a sentence for serious drug supply offences where the offender's combination of subjective circumstances, taken together, is sufficiently outside the general run of cases to constitute "exceptional circumstances," even where the offending is objectively serious.

  • The District Court treated pre-sentence custody, extended compliance with strict bail conditions, genuine remorse, strong community ties, and concrete rehabilitative steps as capable of constituting exceptional circumstances when viewed collectively, rather than as individually decisive factors.

  • Where a supply offence and a money laundering offence arise from the same criminal activity, concurrent sentences are the appropriate structure, the money being "part and parcel" of the supply.

  • Disparity in the scope and duration of co-offenders' involvement can justify meaningfully different sentencing outcomes, even where they face identical charges; the elder brother's involvement on a single night was treated as materially less serious than the younger brother's ongoing participation.

  • Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court retains discretion to suspend a custodial sentence; where the statutory preconditions are met and exceptional circumstances are established, that discretion is not automatically foreclosed by the gravity of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)

Cases:
- R v Blackman [2001] NSWCCA 121
- R v Clarke (NSWCCA, 15 March 1990, unreported)
- R v Ejefekaire [2016] NSWCCA 308
- R v Moon (2000) 117 A Crim R 497
- R v Osenkowski (1982) 5 A Crim R 394
- R v Tran [1999] NSWCCA 109
- EF v R [2015] NSWCCA 36
- Forti v R [2016] NSWCCA 127
- Smaragdis v R [2010] NSWCCA 276
- Yardley v Betts (1979) 22 SASR 108
- Youssef v R [2014] NSWCCA 285