Citation: R v Naaman; R v Rustom; R v Gure; R v Sfeir [2017] NSWDC 393
Court: District Court of New South Wales
Date: 27 October 2017
Judge(s): Neilson DCJ
Background
Four offenders came before the District Court for sentencing after each pleaded guilty to one count of knowingly taking part in the supply of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is 15 years imprisonment and/or a fine of 2,000 penalty units.
The four offenders, referred to here by their roles, were lower-level participants in an organised cocaine syndicate operating across metropolitan Sydney. The syndicate's principal and its manager had already been sentenced separately: the principal received five years and three months imprisonment with a non-parole period of three years, and the manager received three years and nine months with a non-parole period of two years.
The four present offenders acted primarily as couriers and drivers, moving cocaine between the principal and the manager who handled street-level sales. On some occasions individual offenders stepped into a more active coordinating role, directing other participants and negotiating supplies when the manager was absent or overwhelmed with orders. Their involvement ran from approximately July to September 2015.
Legal Issues
- What was the appropriate sentence for each offender, given their subordinate but varying roles within the syndicate?
- How should the court weigh each offender's limited and irregular participation against the seriousness of organised drug supply?
- Were the offenders' personal circumstances sufficient to justify a non-custodial or community-based sentence, despite the gravity of the offending?
Decision
The court assessed each offender's role individually. Three of the four (the first courier, the second courier, and the taxi driver used for transport) received identical sentences of one year and ten months imprisonment, while the fourth received one year and six months. All four sentences were ordered to be served by way of Intensive Correction in the Community (an ICC order), rather than full-time custody.
Neilson DCJ emphasised that, while the offending was serious and occurred within an organised syndicate context, each of the four men occupied a significantly lesser role than either the principal or the manager. Their assistance was irregular, called upon on busy nights or when the manager took time off. That said, some of the four went beyond simple driving on particular occasions: one coordinated cocaine deliveries by directing the taxi driver over the phone and negotiated deals with customers; another acted as a go-between ferrying cocaine from the principal to the manager and even supplied a customer directly when the manager was ill.
The quantities involved for each offender were modest relative to the broader syndicate operation. The first offender took part in the supply of 21 grams (just over four times the indictable quantity of 5 grams); the second in the supply of 33 grams; the third in the supply of 17 grams; and the fourth in a lesser amount. The court's reasons for sentence addressed each offender's personal circumstances, including matters relevant to rehabilitation prospects and background, which informed the decision to impose ICC orders rather than full-time imprisonment.
The court warned all four offenders that non-compliance with the conditions of their ICC orders would expose them to serving the remainder of their sentences in full-time custody.
Orders Made
- First offender convicted and sentenced to imprisonment for one year and ten months, commencing 27 October 2017, to be served by way of Intensive Correction in the Community; directed to report to Bankstown Community Corrections within two business days.
- Second offender convicted and sentenced to imprisonment for one year and ten months, commencing 27 October 2017, to be served by way of Intensive Correction in the Community; directed to report to Liverpool Community Corrections within seven days.
- Third offender (taxi driver) convicted and sentenced to imprisonment for one year and ten months, commencing 27 October 2017, to be served by way of Intensive Correction in the Community; directed to report to Leichhardt Community Corrections within two business days.
- Fourth offender convicted and sentenced to imprisonment for one year and six months, commencing 27 October 2017, to be served by way of Intensive Correction in the Community; directed to report to Bankstown Community Corrections within two business days.
Key Takeaways
- Within a drug supply syndicate, a courier or driver's culpability is assessed individually: the District Court distinguished the four lower-level participants from the principal and manager, resulting in markedly shorter sentences without full-time custody.
- Irregular or part-time involvement in a drug syndicate does not preclude criminal liability, but it is a relevant mitigating factor when the court calibrates the appropriate sentence.
- Where an offender's role temporarily expanded beyond driving or delivering into coordinating or managing supply, that elevated participation was treated as an aggravating feature of their individual offending.
- Intensive Correction Orders remain available for offences of this kind where personal circumstances and the degree of participation justify a community-based sentence, even when the offending occurs in an organised criminal context.
- Each offender's sentence was assessed against the sentences already imposed on the syndicate's principal and manager, with proportionality between the roles forming part of the sentencing reasoning.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Waeil Rustom; R v Robert Vernon [2017] NSWDC 245 (sentences of the syndicate's principal and manager, referred to in the judgment)