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District Court 25 March 2021

R v Dekker; R v Kominkovski

[2021] NSWDC 186

Drugs
CRIME RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENDERS EARLY GUILTY PLEA PARITY MOTHER OF YOUNG CHILD

Citation: R v Dekker; R v Kominkovski [2021] NSWDC 186
Court: District Court of New South Wales
Date: 25 March 2021
Judge(s): Haesler SC DCJ

Background

Police Strike Force investigations between April 2018 and February 2019 uncovered a methylamphetamine distribution network operating in the Lake Illawarra area. A central supplier obtained bulk quantities of the drug on credit and distributed it through a loose criminal group. Two of those distributors, a woman (Dekker) and a man (Kominkovski), each pleaded guilty to supply of a prohibited drug in a quantity above the indictable but below the commercial threshold, under s 25(1) of the Drug (Misuse and Trafficking) Act 1985.

Dekker supplied a total of 180 grams of methylamphetamine across multiple transactions. She had been recruited into the network by a co-offender and was supplied on a credit arrangement by the central figure. Kominkovski supplied 98 grams over a similar period and was also recruited through the network. Both had Form 1 matters (participating in a criminal group under s 93T of the Crimes Act 1900) taken into account at sentence.

The proceedings were heard jointly with two other co-offenders, Frankcom and Kinzett, though adjournments were granted for both of them on the day. A fifth co-offender awaited jury trial and a sixth remained before the Local Court. The joint hearing was designed to ensure parity and proportionality principles applied consistently across the group.

  • What sentences were appropriate for two mid-level participants in a methylamphetamine supply network, having regard to the quantities involved, their respective roles, and their personal circumstances?
  • How should the parity principle apply where co-offenders have different personal histories, criminal histories, and degrees of culpability?
  • What weight should be given to early guilty pleas, time already served in custody, and periods of "quasi custody" (such as full-time residential rehabilitation)?
  • Whether the personal circumstances of the offenders, including Dekker's status as a mother of a young child, her psychological history, gambling issues, and demonstrated rehabilitation, warranted a departure from full-time custody.
  • Whether Intensive Correction Orders (ICOs) were appropriate, given no Drug Court programs were available to either offender.

Decision

His Honour noted that the parity principle requires that, as far as possible, like cases be treated alike. However, different personal histories, criminal histories, and roles within a criminal enterprise can justify real differences in sentence. Each offender's sentence had to be assessed individually against the circumstances of the co-offenders and their respective culpability.

For both Dekker and Kominkovski, the court identified the rolled-up nature of the charges, acknowledging that accumulating multiple supplies into a single count was appropriate but required care to avoid double-counting the aggravating feature of multiple occasions under s 21A(m) of the Crimes (Sentencing Procedure) Act 1999. The number of separate supply occasions nonetheless remained a relevant consideration in assessing the overall criminality.

The court gave significant weight to the early guilty pleas entered by both offenders, as well as to the time each had spent in custody and time spent in intensive rehabilitation programs, which the court treated as "quasi custody." Both offenders had voluntarily ceased supply, demonstrated genuine prospects for rehabilitation, and had engaged in treatment programs. The court noted that no Drug Court programs were available for either offender.

Taking all factors into account, including time served and quasi custody, the court determined that sentences of less than two years were appropriate for both offenders and that each sentence should be served in the community by way of an Intensive Correction Order rather than full-time imprisonment.

Orders Made

Kominkovski:
- Sentence of 1 year and 6 months, to be served by Intensive Correction Order in the community (the pre-plea starting point being 3 years imprisonment, reduced for guilty plea, 4 months in custody, and 5 months quasi custody).
- 50 hours of community service.
- Report to Community Corrections within 7 days.
- Conditions: engage in psychological treatment as recommended by Community Corrections; continue with the IDAS Program or any other recommended drug program; undertake urine or other analysis as required.

Dekker:
- Sentence of 1 year and 10 months, to be served by Intensive Correction Order in the community (the pre-plea starting point being 3 years imprisonment, reduced for guilty plea and 5 months served).
- 150 hours of community service.
- Conditions: engage in psychological or mental health treatment as recommended; engage in drug and alcohol treatment as recommended; engage in anti-gambling programs as recommended; continue to engage with services providing domestic assistance as a mother.

Both offenders were required to enter their bonds in the Court office before leaving.

Key Takeaways

  • The District Court confirmed that the parity principle applies not only to the quantum of sentence but also to its structure and manner of service, while recognising that differences in culpability, personal history, and criminal history can justify genuinely different outcomes across co-offenders.
  • Where multiple supplies are accumulated into a single rolled-up count, sentencing courts must avoid double-counting the statutory aggravating factor of multiple occasions under s 21A(m) of the Crimes (Sentencing Procedure) Act 1999, even though the number of occasions remains relevant to the overall assessment.
  • Time spent in full-time residential rehabilitation can be treated as "quasi custody" and taken into account in reducing the sentence actually imposed, alongside formal pre-sentence custody.
  • The family hardship arising from removing a mother from a young child, combined with demonstrated rehabilitation, psychological harm, voluntary cessation of offending, and the absence of available Drug Court programs, were among the factors that supported an Intensive Correction Order rather than full-time imprisonment.
  • Early guilty pleas, genuine prospects of rehabilitation, and engagement with treatment programs each carried significant mitigating weight, even for participants in an organised drug supply network operating above the indictable quantity threshold.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(m)
- Crimes Act 1900 (NSW), s 93T
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1)

Cases:
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Blackman and Walters v R [2001] NSWCCA 121
- Hamzy v R (1994) 74 A Crim R 341
- Henry v R (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
- Jadron v R [2015] NSWCCA 217
- Lau v R [2010] NSWCCA 43
- R v Burns [2007] NSWCCA 228
- R v Fangaloka [2019] NSWCCA 173
- R v Molesworth [1999] NSWCCA 43
- R v Togias [2001] NSWCCA 522
- Robertson v R [2017] NSWCCA 205
- Wany v DPP [2020] NSWCA 318