R v Kinzett - [2021] NSWDC 339

District Court

New South Wales

Medium Neutral Citation: R v Kinzett [2021] NSWDC 339
Hearing dates: 25 March 2021, 19 July 2021, 23 July 2021
Decision date: 23 July 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Custodial order to be served subject to an intensive correction order. For orders see [65]-[70]

Catchwords:
CRIME – Supply prohibited drug
SENTENCING — Relevant factors on sentence —early plea –parity- psychological conditions- long term drug addiction - previously intractable recidivist - significant turnaround while on remand –demonstrated progress toward rehabilitation drug free at last - severing of ties with criminal associates - community protection

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

Cases Cited:
Afu v R [2017] NSWCCA 246
Bell v R [2019] NSWCCA 271
DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Green v The Queen (2011) 244CLR 462
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 Dekker; R v Kominkovski [2021] NSWDC 186
R v Frankcom [2021] NSWDC 294

Category: Sentence
Parties: Luke Arthur Kinzett (the offender)
Director of Public Prosecutions
Representation: Solicitors:
Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender)
Mr M Rollestone (for Director of Public Prosecutions)

File Number(s): 2019/00363761
Publication restriction: Portion of published judgment redacted

Judgment

Non-publication – matters have been removed from the published version of this judgment as they are subject to a Suppression Order: Courts (Suppression and Non publication Orders) Act 2010
The person referred to by the pseudonym “the supplier” is still before the Local Court. If his matters are listed for trial publication of his name may prejudice that trial.

Introduction

In March 2021 sentence proceedings were commenced at Wollongong District Court for a group of people associated with the supply of the illicit drug, methylamphetamine, in the local area. Although they started together the proceedings have been since been separated. On 25 March 2021 I sentenced Dekker & Kominkovski: R v Dekker; R v Kominkovski [2021] NSWDC 186. Frankcom was sentenced on 1 July 2021; R v Frankcom [2021] NSWDC 294. Another co-offender, Spinks, is for sentence in August 2021.
Luke Kinzett is for sentence today. His sentence proceedings were adjourned from 25 March 2021 to enable him to engage with Community Corrections and demonstrate progress toward rehabilitation. A Sentence Assessment Report (SAR) from 20 March 2021 had noted his poor history of complying with conditions and a failure to engage with drug rehabilitation programmes. Recent reports indicate that despite him finding counselling challenging he has persevered. His period on remand since his arrest for this matter is his longest crime free period since he was in his 20s.
In the Local Court Kinzett indicated he was guilty of supplying 121.2 grams of the prohibited drug methylamphetamine: s25 (1) Drug (Misuse and Trafficking) Act 1985

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.

Continue reading R v Kinzett

Details

AGLC: R v Kinzett [2021] NSWDC 339
Case: [2021] NSWDC 339
Decision Date: 23 July 2021

CaseChat Overview and Summary

The case of R v Kinzett involved the defendant, Kinzett, who was charged with the supply of a prohibited drug. The matter was heard in a court of criminal jurisdiction. The primary issue before the court was the determination of an appropriate sentence for the offence, considering various mitigating and aggravating factors.

The court was tasked with weighing factors such as Kinzett's early plea of guilt, his psychological conditions, history of long-term drug addiction, and prior criminal conduct. Despite being considered an intractable recidivist, Kinzett had shown significant turnaround while on remand, demonstrating progress towards rehabilitation, and was drug-free at the time of sentencing. Additionally, he had severed ties with criminal associates. These factors were weighed against the need for community protection and deterrence.

In considering the relevant factors, the court determined that an intensive correction order, coupled with a custodial sentence, was appropriate. The court emphasised the importance of rehabilitating Kinzett and protecting the community, while also recognising his progress and efforts towards rehabilitation. The court outlined specific conditions for the intensive correction order in its detailed orders.

The court ordered that the custodial sentence be served subject to the imposition of an intensive correction order. The specific terms and conditions of the order were set out in the court's detailed orders, ensuring a balanced approach that addressed both punitive and rehabilitative objectives.

Orders

Orders of the court

Custodial order to be served subject to an intensive correction order. For orders see [65]-[70]

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 Kinzett [2021] NSWDC 339
Hearing dates:	25 March 2021, 19 July 2021, 23 July 2021
Decision date:	23 July 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Custodial order to be served subject to an intensive correction order. For orders see [65]-[70]
Catchwords:	CRIME – Supply prohibited drug SENTENCING — Relevant factors on sentence —early plea –parity- psychological conditions- long term drug addiction - previously intractable recidivist - significant turnaround while on remand –demonstrated progress toward rehabilitation drug free at last - severing of ties with criminal associates - community protection
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	Afu v R [2017] NSWCCA 246 Bell v R [2019] NSWCCA 271 DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Green v The Queen (2011) 244CLR 462 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 Dekker; R v Kominkovski [2021] NSWDC 186 R v Frankcom [2021] NSWDC 294
Category:	Sentence
Parties:	Luke Arthur Kinzett (the offender) Director of Public Prosecutions
Representation:	Solicitors: Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender) Mr M Rollestone (for Director of Public Prosecutions)
File Number(s):	2019/00363761
Publication restriction:	Portion of published judgment redacted