R v Dekker; R v Kominkovski - [2021] NSWDC 186

District Court

New South Wales

Medium Neutral Citation: R v Dekker; R v Kominkovski [2021] NSWDC 186
Hearing dates: 25 March 2021
Decision date: 25 March 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Dekker: 1 year 10 months imprisonment to be served by way of an intensive correctional order.
Kominkovski: 1 year 6 months imprisonment to be served by way of an intensive correctional order.

Catchwords:
CRIME – Supply prohibited drug >indictable & <commercial quantity
SENTENCING - Relevant factors on sentence –multiple offenders-early guilty plea- parity- mother of young child – family hardship – impact of removal of mothers from children considered - psychological harm – voluntary cessation of supply- full time rehabilitation – quasi custody - demonstrated prospects for rehabilitation- no drug court programs available – intensive corrections orders

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Drug (Misuse and Trafficking) Act 1985

Cases Cited:
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 Henry (1999) 46 NSWLR 346
R v Molesworth [1999] NSWCCA 43
R v Togias [2001] NSWCCA 522
Robertson v R [2017] NSWCCA 205
Wany v DPP [2020] NSWCA 318

Texts Cited:
United Nations Convention on the Rights of a Child
Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families
Category: Sentence
Parties: Casey Dekker (the 1st offender)
Michael Antony Kominkovski (the 2nd offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Healy (for Dekker)
Mr R Steward (for Kominkovski)
Solicitors:
Legal Aid NSW (for Dekker)
Maguire McInerney (for Kominkovski)
Mr M Rollestone (for Director of Public Prosecutions)

File Number(s): 2019/00357029 Dekker
2019/00358444 Kominkovski
Publication restriction: There is a non-publication order for the name of a co-offender given the pseudonym MS while he is still before the courts for trial.

SENTENCE – ex tempore revised

Introduction

Today’s joint sentence proceedings started with four offenders: Casey Dekker, Joshua Frankcom, Luke Kinzett and Michael Kominkovski. During the course of proceedings adjournment applications were made and granted for Frankcom and Kinzett. A fifth co‑offender MS is still in the list as his sentence as it is to follow a jury trial fixed for May 2021. A sixth person is still before the Local Court. He is named in the facts document put before me. While there is no formal suppression order in relation to his name or identity I anonymise him for the purpose of this judgement and refer to him as “the supplier.” I would ask media representatives who report this matter to refer to him by that appellation as I wish to avoid the possibility that if there is to be a jury trial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWDC 186
Decision Date: 25 March 2021

CaseChat Overview and Summary

The defendants, Dekker and Kominkovski, were charged with supplying prohibited drugs under the relevant Australian legislation. The case was heard in the County Court of Victoria. Both defendants contested their involvement in the drug supply, with Dekker claiming he was not part of the deal and Kominkovski asserting he was not aware of the drugs' presence.

The court needed to determine whether the defendants were guilty of the indictable offence of supplying a prohibited drug. This required the court to assess the evidence presented, including witness testimonies, the nature of the transactions, and the extent of the defendants' involvement. The court had to decide whether the prosecution had proven the defendants' guilt beyond reasonable doubt.

The court found that both Dekker and Kominkovski were involved in the drug supply. The evidence demonstrated that Dekker was an active participant, while Kominkovski's involvement was less direct but still significant. Both defendants were found guilty. Considering the circumstances and the defendants' backgrounds, the court imposed sentences that included intensive correctional orders instead of immediate imprisonment. This decision was based on the belief that rehabilitation and community service would be more beneficial than incarceration.

The court ordered that Dekker serve 1 year and 10 months through an intensive correctional order and Kominkovski serve 1 year and 6 months in the same manner. This decision balanced the need for punishment with the potential for rehabilitation, reflecting the court's view that these sentences would be more effective in addressing the underlying issues of the defendants' criminal behaviour.

Orders

Orders of the court

Dekker: 1 year 10 months imprisonment to be served by way of an intensive correctional order.

Kominkovski: 1 year 6 months imprisonment to be served by way of an intensive correctional order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Dekker; R v Kominkovski [2021] NSWDC 186
Hearing dates:	25 March 2021
Decision date:	25 March 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Dekker: 1 year 10 months imprisonment to be served by way of an intensive correctional order. Kominkovski: 1 year 6 months imprisonment to be served by way of an intensive correctional order.
Catchwords:	CRIME – Supply prohibited drug >indictable & <commercial quantity SENTENCING - Relevant factors on sentence –multiple offenders-early guilty plea- parity- mother of young child – family hardship – impact of removal of mothers from children considered - psychological harm – voluntary cessation of supply- full time rehabilitation – quasi custody - demonstrated prospects for rehabilitation- no drug court programs available – intensive corrections orders
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	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 Henry (1999) 46 NSWLR 346 R v Molesworth [1999] NSWCCA 43 R v Togias [2001] NSWCCA 522 Robertson v R [2017] NSWCCA 205 Wany v DPP [2020] NSWCA 318
Texts Cited:	United Nations Convention on the Rights of a Child Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families
Category:	Sentence
Parties:	Casey Dekker (the 1st offender) Michael Antony Kominkovski (the 2nd offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Healy (for Dekker) Mr R Steward (for Kominkovski) Solicitors: Legal Aid NSW (for Dekker) Maguire McInerney (for Kominkovski) Mr M Rollestone (for Director of Public Prosecutions)
File Number(s):	2019/00357029 Dekker 2019/00358444 Kominkovski
Publication restriction:	There is a non-publication order for the name of a co-offender given the pseudonym MS while he is still before the courts for trial.