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R v Kishinscand

R v Kishinscand

Case [2025] NSWDC 167 30 April 2025

Drug Offences

Sentencing

Forfeiture of Proceeds of Crime

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Kishinscand [2025] NSWDC 167
Hearing dates: 27 March 2025
Date of orders: 30 April 2025
Decision date: 30 April 2025
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
109 I make the following orders:
(1) The offender is convicted of the offences.
(2) The indicative sentences are set out above. I impose a total aggregate sentence of 3 years’ imprisonment commencing 1 December 2023 to expire on 30 November 2026.
(3) I impose a non-parole period of 1 year 11 months to expire on 31 October 2025. The earliest possible date for release is 31 October 2025.
(4) With respect to H77019363 sequences 2, 7 and 13, pursuant to s 10A of the Crime (Sentencing Procedure) Act, the offender is convicted of each of these offences without imposing any other penalty.
(5) In accordance with the Short Minutes of Consent Order signed by the parties and by me today:
(a) Pursuant to s18(1) of the Confiscation of Proceeds of Crime Act 1989, cash in the approximate sum of $9,935 found at Glebe on 13 January 2023 is to be forfeited to the State.
(b) Pursuant to s 18(3) of the Confiscation of Proceeds of Crime Act 1989, the Court considers that the value today of the property forfeited is $9,935.
(c) Pursuant to s 19(3)(a) of the Confiscation of Proceeds of Crime Act 1989, the Court gives leave that the property forfeited herein be disposed of forthwith.

Catchwords:
CRIME — drug offences — supply prohibited drug — indictable quantity
SENTENCING — relevant factors on sentence — Form 1 offences
SENTENCING — subjective considerations on sentence — drug addiction — personal use
CRIME — summary offences — custody of knife in public place or school

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

Cases Cited:
Baden v R [2020] NSWCCA 23
Bugmy v The Queen (2013) 302 ALR 192
DC v R [2023] NSWCCA 82
Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Giles-Adam v R; Preca v R [2023] NSWCCA 122
Hall v R [2021] NSWCCA 220
Hoskins v R [2021] NSWCCA 169
Jadron v R [2015] NSWCCA 217
Leigh Brown v R [2014] NSWCCA 335
Lowe v The Queen (1984) 154 CLR 606
Muldrock v R (2011) 244 CLR 120
NGO v R [2017] WASCA 3
Parente v R [2017] NSWCCA 284
Pham v R [2013] NSWCCA 217
Postiglione v The Queen (1997) 189 CLR 295
R v Brown [2023] NSWDC 477
R v Henry [1999] NSWCCA 111
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
RA v R [2024] NSWCCA 149
Re-Attorney General's Application under section 37 of the Crime (Sentencing Procedure) Act 1999…

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 Kishinscand

Details

AGLC: R v Kishinscand [2025] NSWDC 167
Case: [2025] NSWDC 167
Decision Date: 30 April 2025

CaseChat Overview and Summary

The case of R v Kishinscand involved the defendant, Kishinscand, who was charged with multiple drug and weapon-related offences. The offences included the supply of a prohibited drug in an indictable quantity, and the possession of a knife in a public place or school. The case was heard in a relevant Australian court. The primary issues for the court to determine were the appropriate sentences for the various offences, taking into account the specific circumstances of the defendant, such as his drug addiction and personal use of drugs. The court also needed to decide on the confiscation of the proceeds of crime under the Confiscation of Proceeds of Crime Act 1989.

The court examined the nature of the offences and the principles of sentencing for both indictable and summary offences. It considered the indicative sentences for each offence, the principles of totality in sentencing, and the specific aggravating and mitigating factors in this case. The court noted the defendant's drug addiction as a mitigating factor, but also considered the public interest in deterring drug supply and the need for appropriate punishment for carrying a knife in public. The court determined the aggregate sentence and the non-parole period, ensuring that the total sentence reflected the seriousness of the offences, while also considering the defendant's personal circumstances.

In the final ruling, the court convicted the defendant of all charged offences and set a total aggregate sentence of three years’ imprisonment. The non-parole period was set at one year and eleven months. The court also ordered the forfeiture of cash found at Glebe, amounting to approximately $9,935, under the Confiscation of Proceeds of Crime Act 1989. This decision reflects the court's consideration of the relevant factors and the overall circumstances of the case, balancing the need for punishment and deterrence with the personal circumstances of the defendant.

Orders

Orders of the court

109 I make the following orders:

(1) The offender is convicted of the offences.

(2) The indicative sentences are set out above. I impose a total aggregate sentence of 3 years’ imprisonment commencing 1 December 2023 to expire on 30 November 2026.

(3) I impose a non-parole period of 1 year 11 months to expire on 31 October 2025. The earliest possible date for release is 31 October 2025.

(4) With respect to H77019363 sequences 2, 7 and 13, pursuant to s 10A of the Crime (Sentencing Procedure) Act, the offender is convicted of each of these offences without imposing any other penalty.

(5) In accordance with the Short Minutes of Consent Order signed by the parties and by me today:

(a) Pursuant to s18(1) of the Confiscation of Proceeds of Crime Act 1989, cash in the approximate sum of $9,935 found at Glebe on 13 January 2023 is to be forfeited to the State.

(b) Pursuant to s 18(3) of the Confiscation of Proceeds of Crime Act 1989, the Court considers that the value today of the property forfeited is $9,935.

(c) Pursuant to s 19(3)(a) of the Confiscation of Proceeds of Crime Act 1989, the Court gives leave that the property forfeited herein be disposed of forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Kishinscand [2025] NSWDC 167

Cases Citing This Decision

No citing cases yet.

Cases Cited

RG v The King [2025] NSWCCA 36
Citation 1 (Para 51)

…The Crown referred to the recent judgement of Yehia J in RG v R [2025] NSWCCA 36 in which four propositions could be elicited from the various authorities on the issue of causation when considering childhood sexual abuse. The Crown accepts that there may be some reduction in the offender’s moral culpability. It was…
RA v The King [2024] NSWCCA 149
Citation 2 (Para 99)

…In RA v R [2024] NSWCCA 149, the Court noted that “the severity of the sentence increases at a rate that is not linear in comparison with the increase in length. That is, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time.”…
Tukuafu v The King [2024] NSWCCA 84
Citation 3 (Para 75)

…ked the Court take into account the offences on the Form 1 attached to each of the offences for which the offender is to be sentenced. In Tukuafu v R [2024] NSWCCA 84, Huggett J (with whom Ward P and Chen J agreed) set out the relevant principles when considering offences on the Form 1 at [129]. Further, at [130] h…
R v Zarad Brown [2023] NSWDC 477
Citation 4 (Para 98)

…ul life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ): R v Brown [2023] NSWDC 477 at [90].…
Giles-Adams v R; Preca v R [2023] NSWCCA 122
Citation 5 (Para 72)

…ctor in that it reflects the willingness of the offender to facilitate the course of justice: Baden v R [2020] NSWCCA 23; Giles-Adam v R; Preca v R [2023] NSWCCA 122. It is also consistent with the offender’s expressions of remorse.…
DC v R [2023] NSWCCA 82
Citation 6 (Para 67)

…f reduced weight being afforded to punishment and deterrence: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; Muldrock v R (2011) 244 CLR 120; DC v R [2023] NSWCCA 82 at [74] to [76].…
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Citation 7 (Para 86)

…I accept that the relevant Form 1 offences place the various substantive offences in context: Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [24]. I am satisfied that the various Form 1 offences demand a modest increase in the penalty that would otherwise be imposed for the underlying offences. Desp…
Harris v R [2023] NSWCCA 44
Citation 8 (Para 17)

…mpared to the total length of their sentence exceeds three-quarters to a substantial extent, then they must acknowledge that circumstance: Harris v R [2023] NSWCCA 44 at [17].…
Hall v R [2021] NSWCCA 220
Citation 9 (Para 98)

…ce, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total senten…
Hoskins v R [2021] NSWCCA 169
Citation 10 (Para 65)

…bility is reduced by reason of his childhood experiences including exposure to domestic violence: Bugmy v The Queen [2013] 249 CLR 571; Hoskins v R [2021] NSWCCA 169.…
Qoro v R [2020] NSWCCA 276
Citation 11

…e effect of accumulation will be to mathematically alter the ratio between the overall effective non-parole period, and the head sentence: Qoro v R [2020] NSWCCA 276.…
Tatur v The Queen [2020] NSWCCA 255
Citation 12 (Para 34)

…for an accused should be permitted to make submissions to a sentencing judge about the bounds of the available sentencing range (see also - Tatur v R [2020] NSWCCA 255 at [34]-[35] and [83]-[85]).…
Baden v R [2020] NSWCCA 23
Citation 13 (Para 72)

…’s plea of guilty is a further mitigating factor in that it reflects the willingness of the offender to facilitate the course of justice: Baden v R [2020] NSWCCA 23; Giles-Adam v R; Preca v R [2023] NSWCCA 122. It is also consistent with the offender’s expressions of remorse.…
Parente v R [2017] NSWCCA 284
Citation 14 (Para 62)

…In Parente v R [2017] NSWCCA 284 , the Court (MacFarlan JA, Hoeben CJ at CL, Leeming JA, Johnson J and R A Hulme J) observed at [107] that sentencing in drug supply cases should be approached in a manner consistent with general principles, although it was appropriate that some matters be emphasised. First, it was ne…
GP v R [2017] NSWCCA 200
Citation 15

…omprise no more than 75% of the total sentence, although if it does, the sentencing judge must advert to the impact of that accumulation: GP v Regina [2017] NSWCCA 200. In other words, if a sentencing judge imposes a sentence that cumulates upon an existing sentence, such that the ratio of the total minimum period t…
Robertson v R [2017] NSWCCA 205
Citation 16 (Para 62)

…deposts, observing that the drug supply offences were set at a high level. Thirdly, the Court adopted the observations of Simpson JA in Robertson v R [2017] NSWCCA 205 at [50], that where the facts of an offence demonstrate drug dealing to a substantial degree a sentence of imprisonment will ordinarily be imposed. F…
Jadron v R [2015] NSWCCA 217
Citation 17 (Para 50)

…The Crown referred to the decision in Jadron v R [2015] NSWCCA 217 in the context of the relevance of an offender supplying prohibited drugs to fund his drug use. The Court would take into account that it was likely the offender was spending considerable amounts of money on his drug use.…
Leigh Brown v The Queen [2014] NSWCCA 335
Citation 18 (Para 66)

…the offender’s offending, does have its genesis in the offender’s difficult childhood experiences: R v Henry [1999] NSWCCA 111; Leigh Brown v R [2014] NSWCCA 335. This is consistent with the more recent opinion of Dr Furst, which I accept, that the offender’s early illicit substance use, and the various disorders id…
Barbaro v The Queen [2014] HCA 2
Citation 19

…As a starting point, the Crown notes the principles set out in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 88 ALJR 372, which make clear that neither the prosecution or counsel for an accused should be permitted to make submissions to a sentencing judge about the bounds of the available senten…
Bugmy v The Queen [2013] HCA 37
Citation 20 (Para 58)

…nded that the offender’s deprived upbringing continued to be relevant on sentence in accordance with the principles enunciated in Bugmy v The Queen (2013) 302 ALR 192. Further, the offender’s mental health was entitled to be taken into account in accordance with the principles enunciated in Director of Public Prosecu…
Pham v R [2013] NSWCCA 217
Citation 21 (Para 63)

…In Pham v R [2013] NSWCCA 217 McCallum J observed at [27] that:…
Muldrock v The Queen [2011] HCA 39
Citation 22 (Para 67)

…educed with a consequence of reduced weight being afforded to punishment and deterrence: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; Muldrock v R (2011) 244 CLR 120; DC v R [2023] NSWCCA 82 at [74] to [76].…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 23 (Para 58)

…was entitled to be taken into account in accordance with the principles enunciated in Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1. In the circumstances, the offender was not an appropriate vehicle for general deterrence and the court should give emphasis to rehabilitation in the sen…
R v MAK [2006] NSWCCA 381
Citation 24 (Para 98)

…ential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ): R v Brown [2023] NSWDC 477 at [90].…
Markarian v The Queen [2005] HCA 25
Citation 25

…or instinctive synthesis, and cannot be conducted arithmetically: Pearce v The Queen (1998) 194 CLR 61 at [46]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 26 (Para 86)

…erms of accountability for the offences: Re-Attorney General's Application under section 37 of the Crime (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.…
R v Henry [1999] NSWCCA 111
Citation 27 (Para 66)

…h has substantially contributed to the offender’s offending, does have its genesis in the offender’s difficult childhood experiences: R v Henry [1999] NSWCCA 111; Leigh Brown v R [2014] NSWCCA 335. This is consistent with the more recent opinion of Dr Furst, which I accept, that the offender’s early illicit substanc…
Pearce v The Queen [1998] HCA 57
Citation 28

…principle of totality is an exercise of the sentencing judges discretion, intuitive or instinctive synthesis, and cannot be conducted arithmetically: Pearce v The Queen (1998) 194 CLR 61 at [46]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.…
Postiglione v the Queen [1997] HCA 26
Citation 29

…v R (2011) 244 CLR 120 NGO v R [2017] WASCA 3 Parente v R [2017] NSWCCA 284 Pham v R [2013] NSWCCA 217 Postiglione v The Queen (1997) 189 CLR 295 R v Brown [2023] NSWDC 477 R v Henry [1999] NSWCCA 111 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 RA v R [2024] NSWCCA 149 Re-Attorney General's Applicati…
Lowe v R [1984] HCA 46
Citation 30 (Para 88)

…e treated alike" whilst accepting that if there are differences as between co-offenders “due allowance should be made for them": Lowe v The Queen (1984) 154 CLR 606 at [617] to [618]; Postiglione v The Queen [1997] 189 CLR 295 at [301].…

Legislation Cited

Confiscation of Proceeds of Crime Act 1989 (NSW)
1 mention (from Para 1)
Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 86)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 62)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)
Firearms Act 1996 (TAS)
1 mention (from Para 2)
Poisons and Therapeutic Goods Act 1966 (NSW)
1 mention (from Para 3)
Summary Offences Act 1988 (NSW)
1 mention (from Para 4)
Weapons Prohibition Act 1998 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Kishinscand [2025] NSWDC 167
Hearing dates:	27 March 2025
Date of orders:	30 April 2025
Decision date:	30 April 2025
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	109 I make the following orders: (1) The offender is convicted of the offences. (2) The indicative sentences are set out above. I impose a total aggregate sentence of 3 years’ imprisonment commencing 1 December 2023 to expire on 30 November 2026. (3) I impose a non-parole period of 1 year 11 months to expire on 31 October 2025. The earliest possible date for release is 31 October 2025. (4) With respect to H77019363 sequences 2, 7 and 13, pursuant to s 10A of the Crime (Sentencing Procedure) Act, the offender is convicted of each of these offences without imposing any other penalty. (5) In accordance with the Short Minutes of Consent Order signed by the parties and by me today: (a) Pursuant to s18(1) of the Confiscation of Proceeds of Crime Act 1989, cash in the approximate sum of $9,935 found at Glebe on 13 January 2023 is to be forfeited to the State. (b) Pursuant to s 18(3) of the Confiscation of Proceeds of Crime Act 1989, the Court considers that the value today of the property forfeited is $9,935. (c) Pursuant to s 19(3)(a) of the Confiscation of Proceeds of Crime Act 1989, the Court gives leave that the property forfeited herein be disposed of forthwith.
Catchwords:	CRIME — drug offences — supply prohibited drug — indictable quantity SENTENCING — relevant factors on sentence — Form 1 offences SENTENCING — subjective considerations on sentence — drug addiction — personal use CRIME — summary offences — custody of knife in public place or school
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Poisons and Therapeutic Goods Act 1966 Summary Offences Act 1988 Weapons Prohibition Act 1998
Cases Cited:	Baden v R [2020] NSWCCA 23 Bugmy v The Queen (2013) 302 ALR 192 DC v R [2023] NSWCCA 82 Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1 Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 Giles-Adam v R; Preca v R [2023] NSWCCA 122 Hall v R [2021] NSWCCA 220 Hoskins v R [2021] NSWCCA 169 Jadron v R [2015] NSWCCA 217 Leigh Brown v R [2014] NSWCCA 335 Lowe v The Queen (1984) 154 CLR 606 Muldrock v R (2011) 244 CLR 120 NGO v R [2017] WASCA 3 Parente v R [2017] NSWCCA 284 Pham v R [2013] NSWCCA 217 Postiglione v The Queen (1997) 189 CLR 295 R v Brown [2023] NSWDC 477 R v Henry [1999] NSWCCA 111 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 RA v R [2024] NSWCCA 149 Re-Attorney General's Application under section 37 of the Crime (Sentencing Procedure) Act 1999…