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District Court 30 April 2025

R v Kishinscand

[2025] NSWDC 167

DrugsFirearms & weaponsPublic order & justice offences

Citation: R v Kishinscand [2025] NSWDC 167
Court: District Court of New South Wales
Date: 30 April 2025
Judge: Fitzsimmons SC DCJ

Background

The offender faced sentencing on multiple charges arising from two separate sets of events in early 2023 and September 2023. The first set arose from drug supply activity between 8 and 23 January 2023, culminating in a street incident in Glebe where police observed the offender fighting, pursued him, and found significant quantities of cash and drugs on his person. A subsequent search of his vehicle uncovered a knife, and a storage shed search revealed further contraband.

The second set of charges arose from the execution of a search warrant at the offender's Balmain residence on 6 September 2023, where he was sentenced jointly with a co-offender. Those charges included possession of a prohibited weapon and two further counts of drug supply.

The offender pleaded guilty to all charges and asked the court to take several additional offences into account on a Form 1 basis (a procedural mechanism allowing ancillary offences to be considered when passing sentence on a principal charge, without recording separate convictions for them).

  • What aggregate sentence was appropriate across multiple drug supply, weapons, resist arrest, and proceeds of crime offences?
  • What weight should be given to subjective factors, including drug addiction, completion of rehabilitation programs, and positive custodial conduct?
  • How should the non-parole period be structured, given complex pre-sentence custody periods and the offender's existing sentences?
  • What commencement date should apply to the new sentence, having regard to the principles of totality and accumulation?
  • Whether special circumstances existed to justify a non-parole period shorter than the standard two-thirds of the head sentence?

Decision

The court imposed an aggregate sentence of three years' imprisonment, commencing 1 December 2023, with a non-parole period of one year and eleven months. The non-parole period therefore expires on 31 October 2025, representing a ratio of approximately 65% of the total sentence. The court found special circumstances justified a reduced non-parole period.

Three of the lesser charges (resist arrest, one count of supply, and possess knife) attracted convictions under section 10A of the Crimes (Sentencing Procedure) Act 1999, meaning the offender was convicted without any additional penalty being imposed for those matters. The remaining charges attracted indicative sentences that were subsumed into the aggregate term.

The commencement date of 1 December 2023 reflected the court's consideration of totality, the offender's continuous custody since 7 September 2023, and the need to avoid excessive concurrency with unrelated sentences while also giving appropriate credit for pre-sentence custody referable to the index offending. The Crown had submitted that a commencement date of 27 January 2024 would be appropriate, but the court adopted an earlier date in favour of the offender.

The forfeiture of approximately $9,935 in cash found at Glebe was also ordered by consent under the Confiscation of Proceeds of Crime Act 1989.

Orders Made

  • The offender was convicted of all offences.
  • An aggregate sentence of three years' imprisonment was imposed, commencing 1 December 2023 and expiring 30 November 2026.
  • A non-parole period of one year and eleven months was set, expiring 31 October 2025, being the earliest possible release date.
  • In relation to three charges (resist arrest, one supply count, and possess knife in public place), the offender was convicted under section 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed.
  • Cash of approximately $9,935 found at Glebe was forfeited to the State under section 18(1) of the Confiscation of Proceeds of Crime Act 1989.
  • Leave was granted for the forfeited property to be disposed of forthwith under section 19(3)(a) of that Act.

Key Takeaways

  • The District Court applied the principle of totality to structure the commencement date of the aggregate sentence, selecting a date that avoided excessive concurrency with unrelated sentences while giving proper credit for pre-sentence custody referable to the index charges.
  • A finding of special circumstances permitted a non-parole period of approximately 65% of the head sentence, below the statutory default of two-thirds, to allow for a longer period of supervised parole given the offender's circumstances.
  • Under section 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for a less serious offence without imposing any additional penalty, a mechanism used here for three charges to reflect their relative weight within the overall sentencing exercise.
  • Form 1 offences (ancillary matters taken into account without separate conviction) remain a recognised tool for capturing the full picture of an offender's conduct without multiplying formal penalties.
  • Where accumulated sentences produce a ratio of non-parole period to total sentence exceeding 75%, the sentencing court must expressly acknowledge and address that outcome, consistent with the principle in GP v Regina [2017] NSWCCA 200.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Summary Offences Act 1988 (NSW)
- Weapons Prohibition Act 1998 (NSW)
- Firearms Act 1996 (NSW)
- Poisons and Therapeutic Goods Act 1966 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW)

Cases
- Muldrock v R (2011) 244 CLR 120
- Postiglione v The Queen (1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- Bugmy v The Queen (2013) 302 ALR 192
- Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1
- R v Henry [1999] NSWCCA 111
- Giles-Adam v R; Preca v R [2023] NSWCCA 122
- RA v R [2024] NSWCCA 149
- Hall v R [2021] NSWCCA 220
- Hoskins v R [2021] NSWCCA 169
- GP v Regina [2017] NSWCCA 200 (cited in Crown submissions)
- Harris v R [2023] NSWCCA 44 (cited in Crown submissions)
- Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372 (cited in Crown submissions)
- Pearce v The Queen (1998) 194 CLR 61 (cited in Crown submissions)