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.
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.
The scope of the offending in each case is different, as will become apparent shortly when I recount the facts.
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.
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.
Separate, though similar, statements of facts were tendered with the Crown materials in the case of each offender.
Those statements reveal the following matters.
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.
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.
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.
On 10 March 2016 a listening device was installed into the X-Trail.
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.
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.
On 26 March 2016 at 5.59pm Robin Na supplied an unidentified female with one gram of cocaine for $300 in the X-Trail.
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.
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.
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.
On 9 April 2016 at 4.35pm, Robin Na supplied an unknown male with 4 grams of cocaine for $1200.
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.
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.
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.
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"
Robin Na was arrested and taken to Ryde Police Station where he participated in an electronically recorded interview.
Kevin Na was also arrested and interviewed.
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.
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.
The co-accused Fotofili has been committed for trial in this Court and his matter listed for trial commencing on 9 April 2018.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The expression "trafficking in a substantial degree" is unhelpfully devoid of meaningful content. So too is the requirement for "exceptional circumstances".
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].
Statements to that effect barely advance the position.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The amounts involved in each transaction are small and involved sales at street level to end users of the drugs.
The number of transactions is also small.
The period of time over which the offending occurred was reasonably short.
The financial reward from the enterprise appears to have been limited, and consistent with small transactions of small quantities.
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.
There does not appear to have been any stockpile of drugs readily available, other than through contact with Fotifili.
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.
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.
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.
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.
Neither offender gave evidence on sentence but various materials were tendered in each case exposing material relevant to their backgrounds and their present situation.
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.
[2]
Kevin Na
Mr Kevin Na is now 25 years old. The deprivations of his early life that I have outlined were exacerbated by educational difficulties. Despite being born in Australia he spent his first two years of schooling in English as a second language classes due to lack of proficiency in English, on account of Korean being the primary language at home.
In high school he was poorly adjusted, associating with negative peers, experiencing bullying and engaging in increasing truancy and drug use. He came into contact with antisocial influences in his early teens, gravitating towards peers who had similar behavioural or familial conflict issues as himself. He relied on his associates for support and they negatively influenced his behaviour and encouraged substance use. He adopted some of the pro-criminal sentiments of his peers such as permissive beliefs about supplying illicit drugs.
He began smoking cannabis from the age of 13 years and at the age of 14 started combining MDMA, alcohol and cannabis in large quantities. His substance use was motivated by a desire to escape reality and avoid problems. At the age of 18 he tried methyl amphetamine. On his first use of the drug he experienced terrifying psychotic symptoms such as severe paranoia and the experience was so frightening he immediately ceased all substance use. He was able to desist from all substance use for an extended period coinciding with him moving to Perth for a period of a year. On his return to Sydney at the age of 20 he fell back into the company of substance using peers and again began using alcohol and cocaine to the point where his frequency of use escalated dramatically in the six months prior to his arrest for the present matters. He was using almost daily at home by himself. He was spending all his money on the drug and he was preoccupied with thoughts about it. The present offending would appear to have been committed in the context of cocaine dependence and negative associations.
Mr Na was educated to year 10 equivalent level, his progress being interrupted by substance use and an unstable lifestyle. He has held a number of jobs over the years mostly in sales. His longest period of unbroken full-time employment was 13 months. He has been employed for about half of the time since leaving school. He felt he has been unable to sustain extended employment due to a combination of his substance use and an entrenched habit of moving on to avoid facing problems in his life.
He has suffered some type of mood disturbance since childhood, with feelings of anger, alienation, low self-esteem, hopelessness and suicidal ideation. His early childhood experiences appear to have given rise to a habit of using avoidant strategies such as disengagement, rejection and substance use to manage negative affect and this continued throughout his adolescence and predisposed him to associating with nonconformists and other people with problematic substance use. The psychologist who gave evidence on the offender's behalf on sentence opined that it appears that there has been some form of early trauma, adjustment disorder or mood disorder, that has been exacerbated by substance use but which has attenuated over the past year with a combination of maturation and psychotherapy.
The offender is now in a stable relationship which commenced 11 months ago. His partner is a non-drug user and has exerted a positive influence on his life encouraging him to see a psychologist and providing a home environment where open communication is encouraged. Off the back of that positive development Mr Na completed the Salvation Army Positive Lifestyles program between October 2016 and March 2017 and a treatment completion letter reflects positively on his participation. He has also engaged with a psychologist and his treatment is ongoing. That treatment is focused on alcohol and drug issues and more recently on other aspects of psychological functioning. He no longer entertains negative beliefs and finds that by communicating openly with his partner he is thinking more clearly and more positively.
In a variety of contexts reflected in the evidence the offender has expressed his remorse for his offending and I accept that remorse is genuine. He has also developed and expressed insight into the negative consequences both societally and individually of drug use and drug dealing. Both of these developments deserve favourable account in the present exercise.
Kevin Na has only one prior conviction as an adult, for affray when he was aged 18. He received a suspended sentence of 9 months imprisonment.
[3]
Robin Na
Born on 23 March 1994, Robin Na turned 22 during the period of the offending and is now aged 23. He has no prior criminal history and should be extended leniency on that account. He also had the disadvantaged upbringing I have already outlined. The enduring consequences of that background operate to a limited extent to diminish his moral culpability in my assessment.
After leaving school the offender found work in the service industry but the long hours were apparently not matched by what he regarded as reasonable wages. He found himself using drugs and quickly appears to have become a regular user, then a dealer in drugs to other users. Although the offending was motivated by the hope of financial gain, in addition to his own situation the offender was endeavouring to provide financially for his mother in circumstances where her earning capacity had declined with age.
In a letter to the court the offender states that since being released to bail he has found work and that he values that work and wishes to develop further in it. A reference from his employer indicates that the offender is a valued and hard-working employee with a bright future. In the 12 months that he has been working for that employer the offender has been promoted to a site supervisor position and even with knowledge of the offences the employer is willing to retain the offender's services.
That employer also indicates that the offender has expressed to him his regret for his offending. The offender's regret and remorse is also reflected in letters to the Court from the offender's mother and from the offender.
I accept the submission made on behalf of the offender that this offending represented an aberration in an otherwise worthy, lawful and hard-working past. Despite sharing the same background, this offender appears to have avoided the more significant behavioural and psychological issues that beset his brother's adolescence and young adulthood. I am reasonably confident that the likelihood of him reoffending is not great. He seems to be strongly and genuinely motivated by a desire to support his mother. His experience of custody, though relatively brief, was a salutary one, as one might hope. The offender appears to be genuinely effected by the impact his offending has had on his mother and I believe he is moved to ensure she is not again exposed to the hurt and the suffering it has caused her. He enjoys his mother's continued support and that connection is a strong foundation to his positive future prospects in my assessment.
There are a number of additional matters that provide a substantial foundation to a positive conclusion as to his future prospects. At the time of the offending he was still a young man who, following a difficult and somewhat deprived upbringing, felt hopeless and bleak about the future. The offending appears to have been motivated by a desire to obtain funds to improve not just his own but also his mother's situation. Since being released from custody and finding his present employment his outlook and attitudes towards the future and his situation appear to have changed. He has gained insight into the inappropriateness of the decisions that led to his offending conduct and well appreciates the negative impact for the community as well is his family from his offending.
I'm satisfied that the offender's expressed remorse is genuine and he should receive favourable account for it. I am also satisfied that adequately supervised and supported he is well-placed to make a positive contribution to the community and to his family in the future. He clearly has the support not just of his mother but also his employer in that regard.
[4]
Conclusion
In both cases, as I indicated at the outset, I will take into account in imposing sentence the time already served. To the extent that a period of full-time custody is otherwise indicated in either case, I am satisfied that the time already served, though short, adequately meets that requirement in all the circumstances.
Adopting, and adapting to some degree, the observations of Howie J in R v Moon ((2000) 117 A Crim R 497 at [81]), I am satisfied that where actual rehabilitation has been demonstrated, as I am satisfied it has been by both these offenders, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce the conduct. Ultimately the best interests of the community are served by doing whatever reasonably can be achieved to facilitate a law-abiding future for these men. At the present time, that will be best achieved by not disturbing the progress each of them has demonstrated to date, but structuring sentences which contain sanctions that will serve to further encourage maintenance of that progress going forward.
Citing the Full Court in Yardley v Betts ((1979) 22 SASR 108) Wood CJ at CL in R v Blackman ([2001] NSWCCA 121 at [44]), noted that:
"The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits."
The same learned judge suggested in R v Tran ([1999] NSWCCA 109 at [9]) that dominance of rehabilitation over deterrence in sentencing young offenders is particularly important when the court considers the offender is at (or, I interpolate, safely beyond) a crossroads between a life of criminality and a law abiding existence. I consider both these offenders fall into that category.
Given that it likely has even greater application in the circumstances of a young offender who has demonstrated actual rehabilitation, the comments of King CJ in R v Osenkowski ((1982) 5 A Crim R 394) are noteworthy in the circumstances of the present case. His Honour there said that there is a place for the exercise of mercy and leniency, even for offenders with bad records, when leniency at that stage of the offender's life might lead to reform. One might add to those remarks the words: "or might lead to the maintenance of demonstrated reform or ensure no more potential disturbance than is otherwise warranted to its progress".
In my view, sentences of full-time custody would serve to nullify the rehabilitation that both offenders have achieved to date. There is a clear public interest in not interfering in a process of demonstrated rehabilitation. That public interest, against the background of each offender's individual circumstances, justifies a finding of exceptional circumstances, which I make against the prospect that I am wrong in my conclusion in either case that the gravity of the offending does not warrant the characterisation "trafficking in a substantial degree". I think that finding is further fortified in circumstances where the enduring developmental disadvantages experienced by these offenders operates to diminish their moral culpability, at least to a limited extent, and where there is a strong foundation for a favourable conclusion as to both offenders' future prospects.
In the case of both offenders, but Robin Na in particular, where the conclusions I have reached may be more controversial, I should indicate that in the circumstances of a young offender, in particular a first time offender, who has had the salutary experience of a short time in full-time custody prior to being released to bail, who has complied with the conditions of bail for over 12 months, who has demonstrated insight and remorse into the offending behaviour and its societal and personal harms, who has strong support in the community, has good prospects of never re-offending and who has already made concrete rehabilitative steps that would likely be disturbed, contrary to the public interest, if he were returned to full-time custody, then the most appropriate custodial penalty is an alternative to full-time custody if he is otherwise assessed as suitable for that mode of imprisonment. That combination of circumstances is sufficiently outside the general run of cases in my view to warrant the conclusion that they are exceptional.
[5]
Orders
For the foregoing reasons I make the following orders:
Kevin Na
For both offences the offender is convicted.
I impose in respect of each offence a term of imprisonment of 12 months. I order that execution of those sentences be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. I direct that the offender be released from custody on condition that he enters into a good behaviour bond for a term of 12 months from today.
Terms of the bond are:
Good behaviour
Appear before court if called upon to do so at any time during the term of the bond.
Accept the supervision and obey all reasonable directions of the community correction service for so long during the term of the bond as that service deems necessary.
Robin Na
For both offences the offender is convicted.
I am satisfied that the aggregate length of the sentence to be imposed for these offences, taking into account the plea, the time already spent in custody and the matter on the Form 1, will likely be 2 years or less and I propose to refer the offender for assessment as to his suitability to serve that sentence by means of an intensive corrections order.
Matter referred to Commissioner for Corrective Services to assess the offender's suitability for an intensive corrections order.
Matter listed for hearing and final determination before me on Friday 29 September 2017 at District Court Sydney at 10.00am.
Bail continued.
Confiscation Orders.
Make orders in accordance with the Short Minutes of Order dated 31 July 2017 and signed today that the sum of $6850 be forfeited to the State.
[6]
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Decision last updated: 07 September 2017