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

1. 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 that that trial not be subject to a change of venue or stay application.

2. While heard together the evidence led in relation to each of the offenders is separate and distinct. The proceedings are heard together for convenience and to ensure parity and proportionality principles apply to each.

3. Parity is a classic example of the need, so far as is possible, to ensure equal justice. In like cases that principle can also encompass the structure of a sentence, its non‑parole period or how it is to be served: Lau v R [2010] NSWCCA 43. Like should be compared with like however, different personal histories, different criminal histories, different roles in a criminal enterprise can justify a real difference in the sentence to be imposed and the nature of that sentence. That said, each sentence must be determined having regard to the circumstances of the co‑offenders and their respective degrees of culpability.

4. Dekker pleaded guilty in the Local Court. She adhered to her plea today. She is to be sentenced for supplying 180 grams of the prohibited drug methylamphetamine: s25(1) Drug (Misuse and Trafficking) Act 1985. That offence carries a maximum penalty of 15 years imprisonment. She also asks that when I sentence her for that offence I take into account on a Form 1 an offence of participating in a criminal group: s 93T Crimes Act 1900. I do not sentence for that matter but it is appropriate that I take it into account.

5. Kominkovski entered a plea of guilty to the same charge - supplying the prohibited drug methylamphetamine. He adhered to that plea today. The quantity of drug he supplied was 98 grams. He also has a Form 1 matter which I will take into account.

6. Frankcom and Kinzett face similar charges although Kinzett does not have any Form 1 matters.

Agreed Facts

7. There are agreed facts before the Court; it is a 17 page document. It sets out a number of conversations and texts that were lawfully intercepted by police. It gives the details of the criminal enterprises in which each offender for sentence today participated. I will attempt in this summary to give some flavour to the specific allegations against Dekker and Kominkovski, who will be sentenced today.

8. From April 2018 to February 2019, a police strike force investigated the supply of methylamphetamine in the Lake Illawarra area. “The supplier” had access to or purchased bulk amounts of methylamphetamine, which he then arranged for distribution by or on sold to Dekker and Kominkovski. He gave them credit. They were both part of a loose criminal group in which Frankcom and MS were also involved.

9. The agreed facts set out the details of each transaction relied on. The quantities of these individual supplies were rolled up into one count. This accumulation was accepted by the defence. It was entirely appropriate: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217. It is axiomatic that rolled up quantities involve a series of criminal acts. Accordingly, care needs to be taken not to double count the aggravating feature in s 21A(m) of the Crimes (Sentencing Procedure) Act 1999. The number of occasions on which the supplies occurred remains a relevant consideration.

10. The facts detail a number of supplies between other co‑offenders. On 14 April 2018 the supplier and MS discussed the recruitment of Kominkovski and Frankcom. MS was also indebted to the supplier. The supplier and MS agreed to “start on 23” and increase the amounts if they were successful. In May 2018 the supplier asked of Frankcom, “Are you and old mate going to need drugs?” – “old mate” is a slang term for Kominkovski. The supplier told Frankcom to call Kominkovski and tell him he would come and see him. Frankcom and the supplier then discussed the supply of methylamphetamine. The subsequent calls indicate how the supplier operated. He extended credit to those in his web and then called them regularly seeking to recover their debts.

11. On 28 May 2018, MS made a phone call to Kominkovski and told him that he needed to obtain a ‘round one’ to give to ‘old mate.’ Kominkovski agreed. MS said ‘It’s cash and that. It’s a sale…’

12. In May 2018 Frankcom recruited Dekker, saying in a text to the supplier that “she is keen.” He said, “…I told her I would grab one [ounce] cause… an she goes good bro benefit you in the long run bro.’.” It would appear from all the material before me that prior to this Frankcom had been supplying to Dekker.

13. In May and early June 2018 the supplier wanted payment of Kominkovski’s debt, which on 2 June indicating it was $2,800.

14. On 5 June the supplier gave Dekker 0.5 of an ounce (14.1 grams) of methylamphetamine. I note that even though we abandoned imperial measures sometime last century, drug suppliers still use them.

15. That day he also wanted repayment of debts from both Dekker and MS. He was regularly checking on the debts of Dekker and Kominkovski. On 10 June in texts to Frankcom he said ‘Bra, send me what you gave me today”. Frankcom replied that “Case [Dekker] 3950, I have 3600, komo [Kominkovski] 1900”.

16. Many of the texts relate to the supplier chasing debts from various people including Dekker. On 16 June the supplier made a phone call to Dekker and asked how much money she had given him. Dekker told the supplier she owed $4,200 but had given him $5,000. The supplier used Frankcom to check on Kominkovski. There were a number of complaints that the drugs, or certain batches of them tasted “bad.” It also appears that MS was being used to collect the drugs.

17. On 23 June 28.3 grams were supplied to Kominkovski. Kominkovski was told that he owed $1,000. Kominkovski asked if the supplier could leave an ounce at his house. Kominkovski said he’d arrange for the payment of $2,000 from Dekker and then he would meet up with him.

18. On 24 June a phone call indicates there was an agreement between the supplier to supply Kominkovski with 3.5 grams of methylamphetamine. It appears that part of that arrangement was to reward others who were dealing with the supplier in relation to a stolen motor cycle or motor cycles.

19. The text messages or calls in June indicate further requests for payment by the supplier from Kominkovski. The supplies continued for a period.

20. Although MS had by now been arrested the syndicate continued supplying drugs in the local area. An ounce of methylamphetamine was supplied to Kominkovski on 14 June 2018. The supplier told Kominkovski he would give him “one;” that is, an ounce of methylamphetamine, “on the sly.” The pair met and completed the supply.

21. On 18 June, Frankcom on behalf of the supplier, gave Dekker an ounce of methylamphetamine.

22. At that stage Dekker told the supplier she owed him $6,000. The supplier told Dekker he would fix Frankcom up with another ounce in lieu thereof.

23. On 21 July Frankcom supplied Dekker with 1.5 ounces that is 42.4 grams. There was a further supply by Frankcom to Dekker, 0.5 of an ounce (14.1 grams) on 21 July. At that stage, mid-July, the debt appears to be $3,800. On 29 July there is a phone call from the supplier to Dekker. It was confirmed that she took 2 ounces and that she still owes $5,350.

24. At the end of July there were further discussions about money owed. On 29 July the supplier made a phone call to Frankcom and he said that he had received $8,300 from Frankcom who still owed $10,500. He noted that Dekker still owed him $4,350.

25. Kominkovski received another ounce on 31 July 2018. The supplier told him he still owed him $700 and that he would like more cash. Kominkovski replied that he had “only a ball and a half;” that is, 5.25 grams of methylamphetamine. There were further calls. The supplier said that he was holding an ounce of methylamphetamine for Kominkovski. That supply was then completed.

26. Calls on 1 August 2018 indicate Frankcom continued to collect debts from Dekker for the supplier. On 10 August orders were taken by the supplier. Frankcom stated he was going to visit Dekker and see what she needed.

27. Dekker repaid further money to the supplier on 21 August. She told him she still had about a ball left, that is, 3.5 grams of methylamphetamine. Further payments were made on 28 August. But by 29 August the supplier was claiming Dekker still owed him $6,600.

28. On 7 September Dekker informed the supplier she would no longer supply on his behalf.

29. Kominkovski continued to supply and there is mention on 11 September 2018 of two balls; that is, 7 grams of methylamphetamine.

30. In October 2018 the supplier was still seeking repayment debts from Kominkovski.

31. In late October 2018 Dekker returned to the syndicate. She sought out the supplier offering to supply on his behalf. On 21 October she received an ounce of methylamphetamine. Dekker called and told him that she would grab that ounce and that she had cash for him. She said later that day that she had $5,200 to give him. The supplier said that Kominkovski would be coming down in five or ten minutes.

32. On 20 November 2018, 3.5 grams was supplied to Dekker. The supplier requested $550.

33. Kominkovski paid a debt on 21 December 2018. He was told that he owed $2,000.

34. On 7 February 2019 Kominkovski called the supplier and told him that he had gone back to work. He then stopped his involvement in the supply of drugs on behalf of the supplier. He told the supplier re would repay his debts.

35. On 17 February Dekker was supplied of an ounce of methylamphetamine. There is reference to Dekker saying she had given the supplier $3,400 or she had $3,400 to give him.

36. On 20 February 2016 there is a further supply to Dekker of 7 grams. The supplier offered to give her “two round ones;”- 7 grams of methylamphetamine if that would help her for a few hours. Dekker agreed and she said that she would see him shortly.

37. On 20 February there was a supply of 0.5 of an ounce (14.1 grams) of methylamphetamine from the supplier to Dekker. On that day she informed him she still did not have the money to pay for the half ounce and she still had two balls on her; that is, 7 grams of methylamphetamine. He said he would deliver the half ounce anyway as he would be busy the following day.

38. Dekker was arrested on 13 February 2019. Kominkovski was arrested on 14 November 2019.

39. Mr Rollestone who appears for the Director of Public Prosecutions has summarised the supplies in his written submissions.

40. For Kominkovski six occasions between 24 April 2018 and 11 October 2018 are relied:

• 25 May 2018 - 3.5 grams.

• 23 June 2018 - 28.3 grams,

• 24 June 2018 - 3.5 grams.

• 14 July 2018 - 28.3 grams.

• 31 July 2018 - 28.3 grams and

• 11 September 2018 - 7 grams.

41. For Ms Dekker nine occasions of supply between 5 June 2018 and February 2019 are relied on.

• 5 June 2018 - 14.1 grams.

• 18 July 2018 - 28.3 grams.

• 21 July 2018 - 42.4 grams.

• 21 July 2018 - 14.1 grams.

• 21 October 2018 - 28.3 grams.

• 20 November 2018 - 3.5 grams.

• 17 February 2019 - 28.3 grams.

• 20 February 2019 - 7 grams.

• 20 February 2019 - 14.1 grams.

Objective Seriousness

42. The role of the offender is very relevant to my assessment of the objective seriousness of the offending and its location on some notional range. I have to consider; the nature of the supply operation, any profit that an offender sought to make, whether they had any role in the management of the operation in a decision making role.

43. So far as these supply offences are concerned they were; relatively disorganised, relatively low level, conducted on credit by user/dealers who were seriously addicted and using considerable quantities of their own product. They were constantly in debt to the up line supplier and acted at his direction. At the same time both offenders had their own customers. They were selling drugs so that they could obtain drugs for their own purposes and to support their addiction to the drugs. As is common with most such offences they were committed without regard for public safety and, as is evident by the Form 1 matter to which each has admitted their guilt, part of organised criminal activity.

44. The actions of both accused involved repetition. There was some system, it was very loose but some organisation, they were active participants and although acting under direction they had some autonomy. They were clearly haphazard financial arrangements.

45. The operation was run by the supplier, assisted by MS and to a degree Frankcom. It appears he recruited each of the two offenders for sentence directly or indirectly as they were users from the drugs he ultimately supplied on credit. In Dekker’s case she had been indebted initially to Frankcom.

46. Quantity is one important measure of the seriousness of the offence. The indictable quantity fixed by Parliament is 5 grams, the commercial quantity 25 grams. Here, they purchased generally in portions of the imperial measure, an ounce. They expected to make some profit although it would appear most of it was profit by drugs for their own use.

47. Dekker voluntarily stopped her involvement but unfortunately for her, resumed it.

48. Kominkovski ceased involvement and voluntarily withdrew from the syndicate in February 2019.

49. The Director of Public Persecutions in written submissions submits that Dekker was on par with Kominkovski. Each offender’s role within the operation was below that of the supplier and MS, and slightly below Frankcom. The evidence suggests the offenders acted as a street level dealer as they lacked the financial means to purchase methylamphetamine up front and were regularly in debt to the up line supplier. Each offender possessed limited autonomy within the syndicate and relied on their relationship with the supplier to obtain methylamphetamine. However, what each did with the methylamphetamine on receipt, appeared, to be at their own discretion.

50. Mr Healy who appears for Dekker accepts that as a reasonable assessment. Mr Steward for Kominkovski in his oral and written submissions advanced a similar proposition.

51. They will be sentenced as street dealers but those who were prepared to engage on multiple occasions for their own benefit.

Early guilty pleas

52. Each of the offenders pleaded guilty in the Local Court. Each must receive a reduction of 25% for the utilitarian value of those pleas. Both offenders’ pleas have other values. They indicate a degree of remorse and acceptance of responsibility. The early pleas of guilty and their cooperation with the course of justice in negotiating the matters in the Local Court give me some grounds for believing that their rehabilitation prospects are good.

Guidance

53. Each offender must receive individualised treatment but I in the exercise of my discretion take guidance from a number of sources. They include here; the maximum penalty, decisions of other courts, particularly those designed to give guidance to sentencing judges dealing with those who distribute illicit drugs in our community. One of the purposes of sentencing, one expressed repeatedly by appellant courts, and sentencing courts such as mine, is the need for deterrent sentences. That is, sentences which by the severity of the punishment imposed deter the present offenders and others from engaging in drug supply. Behaviour, which they were both well aware of, has a considerable detrimental impact on the users of the drug and consequently our community. The sale of illicit drugs in our community causes considerable harm, not just to the users, but because crimes are committed by others to obtain funds to purchase drugs. The illicit economy fuelled by the drug business causes considerable harm as well. Every sentence must give proper recognition to the harm done to individual victims and the community.

54. The matters on the Form 1 are important. They do operate to increase the sentence as I must recognise the need for personal deterrence and retribution for the crimes of sentence: Attorney General’s Application No. 1 (2002) 56 NSWLR 146. I am not imposing a separate penalty for them. Where, as here, the criminal group offence went hand in hand with the organised criminal activity aspect of the principal offence, I cannot double punish for factors which are effectively in tandem.

55. It is clear from all of the material before me that each of the offenders had long term addictions to illicit drugs. A long term addiction to drugs cannot and will not mitigate the crime and cannot be used to excuse the crime of supply. The fact of the addiction, its consequences, how it came about, and what is to be done about it may however, be taken into account as a factor relevant to sentencing. In both cases their addiction and its causes allows me to understand why people with limited criminal records did what they did and continued to do it: Henry v R (1999) 46 NSWLR 346; (1999) 106 A Crim R 149.

56. Ms Dekker returned to the sale of drugs when she had previously sought to disassociate herself from the supplier. It is clear that addiction to illicit drugs affects a person’s state of mind and their capacity to exercise sound judgment. It can help explain in some cases the impulsivity of the offence but as Mr Rollestone pointed out here there was a pattern of offending and some degree of planning. Neither case was a simple one off supply.

53. Mr Rollestone notes, citing Jadron, that the Court of Criminal Appeal has recognised that a drug addict engaging in the supply of drugs makes a choice to engage in a crime as a way of supporting their drug use. That is a relevant factor on sentence.

54. Secondly, it is relevant the offender was able to remain clear thinking enough to be able to carry on with the selling of the drugs. Jadron referred to selling drugs in a rational, clandestine and efficient manner. Neither offender here was particularly efficient, clandestine or rational.

55. Thirdly, even when an offender is funding their own drug habit the serious of the distribution lies in the offender servicing and maintaining the market for illegal drugs which in turn provides the economic incentive for manufacture, importation and distribution.

56. In both Dekker's case and Kominkovski’s they have demonstrated progress towards rehabilitation. The protection of the community is one critical factor on sentencing. The community is assisted by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance for those who do not have significant criminal antecedents: Blackman and Waltersv R [2001] NSWCCA 121.

An Intensive Corrections Order

61. In both cases submissions were made that a sentence that could be served by Intensive Corrections in the community would be appropriate. The Court cannot even consider an Intensive Corrections Order (ICO) unless they first determine that no penalty other than imprisonment is appropriate. Both Mr Steward who appears for Kominkovski and Mr Healy who appears for Dekker concede that threshold has been crossed.

62. The Court must then determine the length of the sentence. In both cases it had accepted that had it not been for a plea of guilty and time served that a sentence of more than two years would have been imposed. In both cases it is submitted that ultimately and taking into account either time served or in Kominkovski’s case, time served and time spent in full time rehabilitation at Odyssey House, a sentence of less than two years could be imposed.

63. I have already today remarked that the Illawarra is not serviced by any drug court facilities. The Court and our community do not have the benefit of those programs, which have been proved to enhance community protection where people such as the two offenders are brought before a Court. In matters such as this the Court can, in the appropriate case, use an Intensive Corrections Order to serve one of the paramount considerations of sentencing and one referred to in s 66 of the Crimes (Sentencing Procedure) Act 1999.

64. Community safety is a broad concept. It is not simply achieved by incarcerating a person. Although at times removal of the person from the community is apposite and appropriate. Before making an ICO a Court has to assess whether it will assist in reducing the offender’s risk of reoffending. This determination must take place without any preconception in favour of incarceration as the only path to rehabilitation: Wany v DPP [2020] NSWCA 318 at [65]. However, even if I reach a conclusion favouring an ICO I do not necessarily have to make such an order. I have to weigh that determination with all the other material and the other purposes of sentencing. I must then synthesise all those considerations and make a discretionary judgment aimed at imposing a just and appropriate sentence: R v Fangaloka [2019] NSWCCA 173 at [65]; Wany v DPP.

65. A court’s sentencing discretion cannot be judicially constrained but the Court has to give full and proper consideration to the guidance offered by past sentencing decisions. As Simpson J, as she then was, said in Robertson v R [2017] NSWCCA 205; “Absent perhaps some unusual circumstances those who engage in trafficking illicit drugs no matter what their level can expect a sentence of imprisonment.”

Further Submissions

66. In this case I have had the benefit of comprehensive written submissions prepared by Mr Rollestone. The Director’s position is simple and clear for both offenders’: custodial sentences of some length should be imposed. Such a sentence is justified in each case after proper consideration of the factors discussed above, the purposes of sentencing and the maximum penalty. Both engaged in multiple conscious decisions to obtain drugs in not insignificant quantities and then supply them to others. They did so for profit. As a consequence there were multiple harms and multiple consequences to their victims.

67. Mr Healy for Dekker accepts all those propositions but says that when I have regard to the subjective circumstances of the offender and ultimately the community needs that the severity of any sentence could be moderated in two ways. First, so as to fall below two years imprisonment. Secondly, by it being served by intensive correction in the community. He said this result would be in the community interest.

68. Mr Steward made similar submissions. He put considerable and justifiable emphasis on Kominkovski’s evidence before me today. Evidence that was supported by material indicating that he had successfully completed the 11 month Odyssey House program.

69. Turning now to the matters that are said to justify those submissions.

Subjective cases

Michael Kominkovski.

70. Kominkovski was born in 1988. He has been before the Courts on a number of occasions for driving and dishonesty offences. Fines were generally imposed although in September 2018 he received a Community Correction Order.

71. He was arrested for these matters on 14 November 2019. He was granted bail on 7 March 2020 after four months, four days custody. The fact that he committed the offence during the period that he was subject to a bond meant that he breached his promise to be of good behaviour to the Court. However, he kept to his bail conditions. He entered into the Odyssey House program on 17 March 2020 and successfully completed that program on 26 February 2021.

72. He gave evidence before me, I find he was open; he did not seek to step away from the seriousness of what he did. It is clear from his attempts while giving evidence to recall what he was doing that he was obviously using too much of his own product at the relevant time.

73. His reasons for stopping engaging with the supplier and the insight gained from his time at Odyssey, his statements about that insight appear genuine and well informed.

74. His Sentence Assessment Report is a very positive one and confirms other material before me. It shows; his growing maturity and notes his capacity, even though he is working full time, to engage in community service. If he did so he could give something back to the community. If he engages with a follow up to Odyssey he is regarded as a low risk of re-offending.

75. The evidence before me demonstrates remorse and insight. He has strong family support. As a young man his background was, I do not say this in a disparaging way, uneventful. He left school and was able to find work. He took up the use and abuse of drugs and alcohol when he was young. He started using ice initially socially in his early twenties. As his psychologist, Mr Jones, points out by the time he committed these offences he had a severe amphetamine use disorder. He still has that disorder but it is currently in remission.

76. Odyssey House reports that he worked positively with that program. He has the confidence of those he worked with and they note he pursued his responsibilities diligently. He has subsequently engaged with the Illawarra Drug and Alcohol Service (IDAS).

77. His parents speak highly of a man who has changed and is highly motivated.

78. His time spent in the residential program constitutes in my view a period of quasi custody, the Odyssey House program has been so recognised by a number of courts. I can and should reduce the sentence to take that quasi custody into account. The rationale for the allowance for such quasi custody is the need to factor into the sentencing exercise the restriction on the offender’s liberty during the period of the program. Here the program resembles, in a sense, a form imprisonment given it involves a significant restriction of the offender’s liberty. While I do not have to quantify such matters it is my normal practice to allow a figure of around 50% for a program like that run by Odyssey House; and I will do so here.

Dekker

79. Turning now to Ms Dekker. Although she did give evidence the subjective material before me is relatively uncontroversial.

80. She was born in 1996. She has a criminal record for drugs and dishonesty offences but not a significant one. She was arrested on 13 November 2019 and received bail on 15 April 2020. She spent just over five months in custody. It would appear from all the material before me that the purposes of sentencing meant to be served by gaol have had an effect on her. I am reasonably confident that she is determined never to return to gaol.

81. Her Sentence Assessment Report notes; her progress, her insight and puts forward a plan for her future. Mr Jones’ report sets out her personal history. He notes a history of anxiety and depression. He notes the early uptake of illicit drugs and addiction to drugs. He her history as a victim of domestic violence. As I said during the course of the proceedings I dealt with her former partner for a serious violence offence. The Report notes, as is consistent with her offending, her long term drug and gambling addictions. Mr Jones proposes and sets out at paragraph 4.5 a comprehensive treatment plan and stresses the need for ongoing therapy and follow up.

82. Dekker is the mother of a four year old. Ms Ridge report notes that she is engaged with and receiving considerable assistance every day from Care South. Dekker is, engaged in a Brighter Futures Program designed to avoid harm to children who may be at risk. And certainly at the time the child’s mother was addicted to amphetamines and supplying amphetamines the child would have been at significant risk.

83. Dekker has actively engaged with that program and proactively accepted referrals to counselling and parenting support. She has obtained her driver’s licence and secure housing. She has engaged with drug and alcohol counselling. There is a positive report from IDAS to confirm that engagement.

84. Gaol was a wakeup call. To date she has met all expectations of the bail granted to her.

85. Dekker had an unstable early home life. She did not fit in at school. She had a poor relationship with her parents but, as she has got older, she reconciled with her father; who has his own problems.

86. She took up the use and abuse of illicit drugs far too young. It appears a poker machine addiction was another significant factor in her life but as with her addiction to drugs gambling cannot and does not excuse what occurred: R v Henry (1999) 46 NSWLR 346 at [203]; R v Molesworth [1999] NSWCCA 43.

87. I am prepared to accept that she was the victim of long term domestic violence. Domestic violence can contribute to the subordination of women. They can lose power and control over their lives. Judges take into account the impact of domestic violence on victims. A Court can take such factors into account in coming to assess all relevant matters on sentence.

88. It would appear that while she was indebted to Frankcom she took up the opportunity of paying off the debts and using the drugs offered by the supplier. All the material before me indicates that she was, to some extent, proactive. It was the debt and her addiction that kept her supplying.

89. She is a mother, if she is returned to gaol she will not be able to care for her child and engage in the programs. Although I am aware that Corrections New South Wales have a mothers and children facility I have no information as to whether she would qualify for it.

90. It has to be recognised that where female offenders and mothers are imprisoned there are a number of complex results that can flow from it. The Bringing Them Home Report from 1997 found that the effects on children of separation from the primary care giver can have serious long term consequences on children’s’ lives: Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families

91. Imprisonment of a mother leaves children with unresolved trauma and grief. Separation of children at a young age can result in their suffering depression and trust and self-worth issues. Where a mother is incarcerated it can significantly disrupt the family unit with an increased risk the child will end up in a child protection system and potentially the criminal justice system. In R v Togias [2001] NSWCCA 522, a Commonwealth case, the court referred to articles 3.1, 9.1 and 9.5 of the United Nations Convention on the Rights of a Child. I have had regard to them. That said in the appropriate case courts have to harden their hearts and take the view that welfare services will care for a child while their mother is incarcerated.

Synthesis

92. I now have to synthesise all those matters. A Court can and should by the length of the sentence imposed send a signal to all of the community that if they engage in the sale of illicit drugs they will go to gaol.

93. Both offenders have spent months in gaol. It could be said, and in many cases it would be entirely appropriate to say, that longer in gaol is necessary to meet the purposes of both general and specific deterrence. Here however, powerful cases have been made for leniency. And here, in both cases, there is demonstrated progress towards rehabilitation. That demonstrated progress will be interfered with by a further full-time custodial sentence.

94. That said, so far as Ms Dekker is concerned there are nine supplies for a total sum of 180 grams of illicit drugs. No exorbitant profit made. She was always in debt. Her supply was at the lowest level. The amount of drug and the number of transactions however call for a significant custodial sentence. The same to a slightly lesser degree can be said for Mr Kominkovski. There were six supplies and a lesser amount of the drug. Kominkovski also voluntary desisted from his supply activity: This provides additional evidence of rehabilitation: R v Burns [2007] NSWCCA 228 at [30].

95. In both matters the plea of guilty and the time served have to be given full weight, as must mitigating and aggravating factors. In relation to both matters I have formed a view that, taking into account timed served, sentences of less than two years can be imposed. Having regard to all the matters to which I have been referred I propose to direct that each sentence be served by an intensive correction in the community.

Orders

Kominkovski

96. Mr Kominkovski could you please stand. If had not been for your plea of guilty a sentence of three years imprisonment would have been imposed upon you. Taking into account the four months spent in custody and taking into account quasi custody, which I equate to five months in custody, I impose a sentence on you of one year and six months. That sentence is to be served by intensive correction in the community. Although you are working full time I believe it is necessary to have a condition that you perform community service but there will only be 50 hours to recognise the progress you have made.

97. You are to report to Community Corrections within seven days. A further condition is that you engage in any psychological treatment as recommended by Community Corrections. Further conditions are that you continue with the IDAS Program or any other drug program recommended and that you undertake any urine or other analysis required by Community Corrections.

Dekker

98. If you could please stand Ms Dekker. Had it not been for your plea of guilty a sentence of three years of imprisonment would have been imposed upon you. Taking into account the five months that you have served there will be a sentence in this matter of one year and ten months to be served by intensive correction in the community. It is a condition of your order that you perform 150 hours of community service. Further conditions are; that you engage in psychological or mental health treatment as recommended, that you engage in drug and alcohol treatment as recommended, that you engage in anti‑gambling programs as recommended and that you continue to engage with services designed to provide domestic assistance to you as a mother.

99. I am indebted to Mr Rollestone and counsel for their submissions in this matter. Dekker and Kominkonski will have to enter their bonds in the Court office before they leave today.

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Decision last updated: 20 May 2021