R v Kevin Na; R v Robin Na [2017] NSWDC 244

District Court New South Wales

Medium Neutral Citation: R v Kevin Na; R v Robin Na [2017] NSWDC 244 Hearing dates: 22 June 2017 Date of orders: 31 July 2017 Decision date: 31 July 2017 Jurisdiction: Criminal Before: Whitford SC DCJ Decision: Kevin Na – s12 for 12 months. Robin Na – ICO Assessment Catchwords: CRIMINAL LAW – sentence – drug supply – trafficking in a substantial degree – exceptional circumstances – fetter on discretion. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: 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 Category: Sentence Parties: Regina – Crown Kevin Na – Offender Robin Na – Offender Representation: Crown – Director of Public Prosecutions Kevin Na – Legal Aid Commission of NSW Robin Na – Zahr Partners File Number(s): Kevin Na – 16/123575, Robin Na – 16/123571

REMARKS ON SENTENCE 1. Kevin Na and his younger brother Robin Na both 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. Kevin Na was committed for sentence in this court on 17 January this year and Robin Na on 21 February. Both men have maintained their pleas in this court. 2. Both offences are serious, as indicated by the maximum penalty prescribed for them by Parliament of 20 years for the supply offence and 15 years for the money laundering offence. 3. The scope of the offending in each case is different, as will become apparent shortly when I recount the facts. 4. I do not understand that there is any issue concerning the appropriate discount for the utilitarian value of the pleas of guilty. Both men shall have a discount of 25% on the sentence for each offence. Further, I understand there is no contest but that the sentences for the supply and money laundering offences should be substantially, if not entirely, concurrent, the money in each case being part and parcel of the supply offence. Both men spent some time in custody, which will be taken into account in each case on sentence. Kevin Na spent 1 month and 10 days in custody and Robin Na just short of 2 months. 5. Robin Na asks that when I sentence him in relation to the supply offence that I also take into account an offence of failing to disclose the identity of a driver or passenger which he has admitted and which has been placed on a Form 1. By contrast to the principal offence, that is a relatively minor offence which carries a maximum penalty of 12 months imprisonment. 6. Separate, though similar, statements of facts were tendered with the Crown materials in the case of each offender. 7. Those statements reveal the following matters. 8. In early 2016, authorities began an investigation into the drug trafficking activities of what was described as a "criminal syndicate" which includes Sieoli Pangia Junior Fotofili, Kevin Na and Robin Na. 9. Investigators identified a silver coloured 2006 Nissan X-trail as being used in connection with the drug selling activities of those individuals. This vehicle was purchased by Fotofili on 8 January 2016 and sold and transferred to Robin Na on 18 February 2016. 10. During February 2016 Fotofili was seen leaving his unit at Zetland, and driving around to meet customers at various Sydney suburbs. The interactions usually involved transactions at the window of the X-Trail or customers entering the vehicle and being dropped off a short distance away down the road. On more than one occasion in February, Fotofili was joined by Robin Na. 11. On 10 March 2016 a listening device was installed into the X-Trail. 12. Between 8.55pm on 11 March 2016 and 1.06am on 12 March 2016, Robin Na and Kevin Na drove around in the X-Trail to various parts of Sydney and conducted ten transactions which involved the sale of prohibited drugs. These interactions generally involved picking up customers, discussing prices and supplying them with either cocaine or MDMA. 13. Around 1.30am Kevin and Robin did a stocktake of the drugs they had sold and the cash they had collected. They then drove to Zetland and met with Fotofili at his apartment. They left the X-Trail with Fotofili and returned to their home. 14. On 26 March 2016 at 5.59pm Robin Na supplied an unidentified female with one gram of cocaine for $300 in the X-Trail. 15. Between 7.01pm and 8.26pm on 1 April 2016, Robin Na drove around in the X-Trail to various parts of Sydney and conducted five transactions which involved the sale of prohibited drugs. These interactions generally involved picking up customers, discussing prices and supplying them with prohibited drugs. 16. Between 4.29pm and 7.10pm on 2 April 2016, Robin Na drove around in the X-Trail to various parts of Sydney and conducted another five transactions of the same type, which involved the sale of prohibited drugs. 17. At 7.53pm on the same day, Robin Na picked up Fotofili from his apartment in Zetland. The X-Trail was stopped by Police on Pyrmont Street Sydney around 8.57pm. Just prior to Police pulling over the vehicle, Fotofili told Robin Na to close the compartment so as to avoid Police detection. 18. On 9 April 2016 at 4.35pm, Robin Na supplied an unknown male with 4 grams of cocaine for $1200. 19. On 11 April 2016 at 2.47pm, Fotofili and Robin Na conducted a stock take of the contents of the drugs in the vehicle. During the conversation they refer to "week sock[s]" and "weekend" bags. Towards the end of the conversation Fotofili confirmed that Robin has his "week's worth" and weekend bag so he wouldn't need to come back until Friday. 20. Between 17 March and 21 April 2016 Fotofili was seen to have driven the X-Trail along with Robin Na on a number of occasions. Kevin Na was not seen in the X-Trail after 12 March 2016. 21. On 21 April 2016 Fotofili was arrested by police after the X-Trail he was driving was stopped and searched. Police later seized the X-Trail for examination. 22. About 9.56pm on 21 April 2016 police executed a search warrant at Kevin and Robin Na's residence at Epping. At the time of the search both were present in the premises. During the search, Police located the following items: A total of 11 mobile phones – 7 Blackberrys, 1 LG, 1 Samsung, 2 Nokias A total of $6850 in cash. A multiplex bag with the word "Weekend" written on it along with a list: "75 whites, 8 packs, 2 balls" 1. Robin Na was arrested and taken to Ryde Police Station where he participated in an electronically recorded interview. 2. Kevin Na was also arrested and interviewed. 3. On 29 April 2016 police examined the X-Trail that was being driven by Fotofili on 21 April 2016 and discovered two hidden storage compartments in the vehicle. The first was a drawer located behind the centre console, which could be operated manually by sliding on two metal rods. The second was a larger hidden compartment beneath the passenger airbag dash cover, which had a locking mechanism which appeared to be released electronically. 4. It is agreed between the parties that a $300 deal of cocaine would usually result in the purchaser receiving about 1 gram of that drug. $600 equates to the purchaser receiving 2 grams of cocaine. It is also agreed between the parties that $300 of pills would usually result in the purchaser receiving about 10 pills containing 3,4-methylenedioxy-methylamphetamine. 5. The co-accused Fotofili has been committed for trial in this Court and his matter listed for trial commencing on 9 April 2018. 6. There was a contest in the case of both offenders as to whether their involvement in the transactions the subject of the charges is properly characterised as involvement in trafficking to a substantial degree. 7. In each case it was also submitted that the Court would consider alternatives to a full-time custodial sentence, whether or not the offending was characterised as involvement in trafficking to a substantial degree. 8. In the case of Robin Na it was submitted the Court might consider suspending the execution of a sentence under s 12 of the Crimes (Sentencing Procedure) Act,1999 or the imposition of an Intensive Corrections Order. 9. In Kevin Na's case it was submitted that taking into account the pre-sentence custody, the lengthy time on strict bail conditions, the limited role of the offender and a compelling subjective case (including positive steps toward rehabilitation) a head sentence of 2 years or less was appropriate and that its execution should be suspended. 10. The nature of the supply offending was broadly similar in the case of both offenders, although in the case of Kevin Na the charged offending covers only the period of the night of 11 and 12 March 2016 and the evidence does not extend to permitting any conclusion as to him being part of an ongoing organised group. His brother's offending is more serious, given that it extends through a number of additional discrete transactions on four separate days in the ensuing month and also demonstrates an ongoing connection to Fotofili. In respect of the money laundering counts both offenders have accepted joint responsibility for the total sum seized and there is no sensible basis for distinguishing between them in respect of that count, other than by reference to their disparate involvement in the supply activity giving rise to that money. 11. It seems to me that on any reasonable assessment of the facts, the present offending falls relatively low on the spectrum of conduct that might be caught by the relevant offences, more so, obviously, in the case of Kevin Na. Both offences, but the supply offence in particular, cover a wide range of conduct so far as criminal culpability is concerned. 12. Between the evening of 11 March and the early hours of 12 March 2016, Robin Na and his brother conducted 10 transactions. In the period 26 March 2016 to 9 April 2016, on four separate days in that period, Robin Na conducted a further 22 transactions mainly of cocaine and some ecstasy pills. It seems to be common ground that the total weight of the cocaine supplied across all transactions is in the vicinity of 23 g of that drug in total and some undefined number of MDMA pills. 13. It also seems to be accepted that the value of the drugs sold is somewhere in the vicinity of $7000. The proceeds of crime amount of $6850 corresponds closely with that amount and is reflective of smaller scale supply similar to the weights just outlined. 14. The facts admit of a conclusion that the offender Robin Na was part of an organised group involved in drug supply, a group comprised, so far as the evidence discloses, by himself and the co-offender Fotofili. That group appears to have had an established clientele, or at the least some means of prospective customers contacting them to arrange the transactions. It seems that Fotofili and Robin Na both participated in transactions using the vehicle jointly, and at times separately. 15. The facts in Kevin Na's matter do not permit any conclusion concerning his involvement as part of that group beyond the isolated participation in the transactions with his brother on the single night of his offending. 16. It also appears that as between the offender Robin Na and Fotofili, there was a hierarchy in which the offender was subservient to Fotofili. The offender's role might reasonably be characterised as one of a street level dealer supplying as an agent for Fotofili small quantities to other drug users for their personal use. All the evidence points to Fotofili being the source of the drugs the subject of the transactions and the person to whom account had to be made for product sold and money received. 17. Though there was plainly some planning associated with the activities of that group the evidence doesn't permit a conclusion other than that it was reasonably limited and the activities of the group relatively unsophisticated. 18. Robin Na's role appears to be confined to making occasional sales of small quantities of drugs to individual users and providing his name for the registration of a vehicle that otherwise appears to have been kept in the possession of Fotofili and also used by him to the same end. 19. A "principle" emerged in or shortly before the early 1990's to the effect that when sentencing offenders involved in trafficking in a substantial degree, a full-time custodial sentence will, or should, or must, be imposed unless exceptional circumstances are demonstrated. It seems to have first emerged at some earlier point, but R v Clarke (NSWCCA, 15 March 1990, unreported) is the recognised seminal authority, and it has been given persistent authoritative support for most of the time since then: see e.g. Smaragdis v R [2010] NSWCCA 276; R v Ejefekaire [2016] NSWCCA 308. 20. The expression "trafficking in a substantial degree" is unhelpfully devoid of meaningful content. So too is the requirement for "exceptional circumstances". 21. The authorities indicate that what constitutes "substantial" involvement in the supply of drugs and whether such activities may be described as "trafficking" are matters for evaluation in the individual case: Forti v R [2016] NSWCCA 127 at [20]. 22. Statements to that effect barely advance the position. 23. If the expression of the so-called rule or principle, when originally conceived in Clarke, or prior, was directed primarily to activities more serious in their nature, scope and scale than what is revealed in the facts of the present offending, and it was intended to convey nothing more than that objectively grave offending will generally warrant a full-time custodial sentence, there would be little exceptional about it. However, the imposition of the requirement for a full-time custodial sentence, in the absence of exceptional circumstances, creates a substantial fetter on the sentencing discretion. 24. This consequence of the rule has been persistently recognised, particularly by judges of this Court who encounter its application on a routine basis. The fetter has significant adverse practical consequences when a sentencing judge is dealing with offending like the present, which is relatively confined in its scope and scale, and its objective gravity, conventionally assessed, relatively low on the spectrum of conduct caught by the particular offence. The expression trafficking in a substantial degree is a characterisation more readily met where the objective gravity of offending is significant and the relevant enterprise reveals extensive, organised, exploitative activity conducted on a commercial basis; likely involving large quantities or involving steps in a supply chain much higher than street-level dealing. 25. Given the degree to which the rule fetters an important discretion, which exists to do individualised justice against the backdrop of all the circumstances of a particular case, it is surprising that the utility and indeed the jurisprudential integrity and provenance of the "rule" have not been the subject of greater scrutiny. 26. The rule is in large measure at odds with, or at least substantially undermines, both the instinctive synthetic approach endorsed in various articulations of the High Court concerning the individualised nature of the exercise of the sentencing discretion and the policy and language of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). There does not appear to me to be any warrant for the rule in the language or policy of the Act nor the statute relevantly creating the offence, nor in the articulations of principle by the High Court. 27. I respectfully adopt the comments of McCallum J in Youssef v R [2014] NSWCCA 285 at [32], to the effect that the constraint on the discretion of sentencing judges imposed by the "rule" may warrant its reconsideration. 28. The so called rule seems to me to be an unjustified and, as a matter of principle, unjustifiable, engrafting onto the sentencing discretion of a policy informed by a particular view as to offending of this type relative to all other classes of offences. 29. As an expression of judicial policy, it is difficult to understand how it can legitimately claim any priority over the prescriptions of the relevant sentencing statute in this State, operating alongside the articulations of principle by the High Court. 30. Sentencing, as expressed by the Act, involves the imposition of a penalty for an offence. Various purposes for which a penalty may be imposed are articulated, without any priority among them, in s 3A of the relevant Act. Punishment is but one of the prescribed objects of sentencing. Section 5 of the Act contains a prescription against imprisonment absent satisfaction that no other penalty is appropriate. Matters in mitigation or aggravation that must be taken into account in determining the appropriate penalty are outlined in s 21A in a non-exhaustive fashion. There is nothing in that scheme that warrants any particular qualification upon, or departure from, the statements of sentencing principle that have emanated from the High Court from time to time. 31. The development of alternatives to full time custody in the period since the adoption of the rule give additional impetus to the need for authoritative attention to be given to the rule and its scope and operation generally, if it is to survive at all as a sentencing principle or rule: see e.g. EF v R [2015] NSWCCA 36. 32. I am satisfied that the facts concerning the involvement of Kevin Na do not sensibly admit of a conclusion that he was involved in trafficking in a substantial degree. He was involved with his brother for a single night in a limited number of small transactions. He was motivated by a desire to obtain some money to support his own extensive drug consumption. It was an incident of isolated offending. 33. Robin Na's offending was more extensive. There were additional transactions and a demonstrated connection over the relevant period with the man Fotofili who, on the material before me, appears to have been his principal. 34. The present offending is obviously serious conduct, and it should be met with a response appropriately robust to reflect its objective gravity. The assessment of its gravity requires advertence to a number of matters. 35. The amounts involved in each transaction are small and involved sales at street level to end users of the drugs. 36. The number of transactions is also small. 37. The period of time over which the offending occurred was reasonably short. 38. The financial reward from the enterprise appears to have been limited, and consistent with small transactions of small quantities. 39. Save for the money the subject of the money laundering offence, and multiple mobile phones, there were here few indicia pointing to sophisticated commercial involvement in drug dealing by this offender, nor significant reward having been garnered thereby. 40. There does not appear to have been any stockpile of drugs readily available, other than through contact with Fotifili. 41. The evidence points to the transactions likely having been undertaken largely as an agent for or on behalf of Fotofili, rather than on the offender's own account. 42. On balance I think the offending is properly characterised as opportunistic street level dealing of a small quantity of drugs in a limited number of separate transactions over a handful of days during a relatively short period of time. 43. Examination of earlier decisions suggests that a conclusion that this offending amounts to trafficking in a substantial degree would not be regarded as erroneous. For my part, rightly or wrongly, I am not satisfied that the objective gravity of the offending, though serious, should without more properly be characterised as trafficking in a substantial degree. 44. Notwithstanding that conclusion, I do think that for Robin Na's offending no penalty other than imprisonment is appropriate. I did not understand there to be any contest concerning a conclusion that the s 5 threshold had been crossed. The issue concerned how that imprisonment might be served. 45. Neither offender gave evidence on sentence but various materials were tendered in each case exposing material relevant to their backgrounds and their present situation. 46. Both offenders experienced developmental dislocation and disadvantage during their early childhood which has had significant enduring consequences for both of them into their young adulthood. The offender's parents are of South Korean descent. They separated when the offenders were still in early to mid primary school. The language spoken in the home was primarily Korean. The offenders' early memories are traumatic, having witnessed domestic violence committed against their mother by their father. The father was a heavy drinker and was abusive and angry. The mother ultimately sought a restraining order and escaped with the children to live in a refuge. Thereafter she raised the children as a single mother and the sole breadwinner for the family. She worked as a cleaner. Working long hours kept her away from the home for extended periods. That work did not pay well and the family moved around frequently between houses in the Campsie and Lakemba area on account of the mother's difficulties paying rent. The long hours worked by the mother had the result that the children were frequently left to their own devices with little family interaction and little or no adult supervision. The consequences of this developmental background seem to have differed to some degree between the two brothers though in both cases gave rise to a variety of behavioural, mood and adjustment issues and antisocial attitudes that have culminated in the present offending. I will consider each of their situations in turn.