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 1. 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 2. 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 1. 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. 2. 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. 3. 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; maximum penalty 15 years imprisonment. He has adhered to that guilty plea in this court. 4. The drug quantities supplied have been rolled up into one offence. This accumulation was accepted by the defence. It was appropriate: Hamzy v R (1994) 74 A Crim R 341 and Jadron v R [2015] NSWCCA Agreed facts 1. In April 2018, a Police Strike Force was investigating the supply of methylamphetamine in the Lake Illawarra area. Lawful telephone intercepts and other surveillance revealed that the supplier would purchase bulk amounts of methylamphetamine, which he then on-sold to Spinks, Frankcom, Kominkovski, Dekker and Kinzett for further distribution. The Supplier, Spinks, Frankcom, Kominkovski and Dekker were part of a criminal group. Kinzett had a discrete connection to Spinks and the supplier. 2. The prosecution allege that the Supplier purchased bulk amounts of methylamphetamine which he then on-sold to Spinks, Frankcom, Kominkovski, Dekker and Kinzett for further distribution. The 17 page agreed facts sets out the Supplier's association with the criminal group involving Spinks, Frankcom, Kominkovski and Dekker. And his relationship with Kinzett. 3. I have extracted and summarised those portions that relate to the separate arrangement the Supplier had with Kinzett. The calls and texts give some flavour to the nature of Kinzett's supply business and his relationship with the Supplier. 4. Five (5) supplies between 1 October 2018 and 24 December 2018 are relied on. The following transactions have been 'rolled up:' 1. 1 October 2018, the offender received 28.3g methylamphetamine for the purpose of supply. 2. 4 October 2018, the offender received 28.3g methylamphetamine for the purpose of supply. 3. 19 October 2018, the offender received 22.3g methylamphetamine for the purpose of supply. 4. 26 October 2018, the offender received 14.1g methylamphetamine for the purpose of supply. 5. 24 December 2018, the offender received 28.3g methylamphetamine for the purpose of supply Kinzett and the Supplier 1. On 7 September 2018, the Supplier made a phone call to Kinzett and told him he wanted to collect the 'rego payment' [Kinzett's debt]. The pair arranged to meet on Windang Bridge. 2. On 8 September 2018, the Supplier made a telephone calls trying to collect 'coin' before he saw 'his bloke' [upline supplier]. Kinzett told the Supplier he was at home and has 'most of it' [money owed] on him'. The Supplier said he would 'stop in' in five minutes'. Kinzett stated he would walk out and meet the Supplier. 3. On 28 September 2018, the Supplier called Kinzett and told him he owed $2500 and he wanted to take back the methylamphetamine previously supplied to him. The Supplier asked if there was 'a full one [ounce of methylamphetamine] there.' Kinzett replied there was only 'eight out of it' and there would be 2 grams left. Kinzett offered to pay the difference. The Supplier was upset that Kinzett opened the new package without paying for his previous package. 4. That evening the Supplier called Kinzett and told him he would 'drop over' for a 'quick chat' and to 'pick that stuff [methylamphetamine] up.' 1 October 2018 –supply to Kinzett – 1ounce methylamphetamine (28.3g) 1. On 1 October 2018, the Supplier called Kinzett and asked if he wanted his remaining one ounce of methylamphetamine. Kinzett was concerned about the quality, however, the Supplier assured him 'the shit smells and tastes like it smells normally. It's ok…' The Supplier and Kinzett agreed to meet to facilitate the supply. 2. On 3 October 2018, Kinzett made a phone call to the Supplier. Kinzett said he has a 'mate' looking at the methylamphetamine who is a 'cook' and they are working on getting 'rid of the taste' without ruining it. 4 October 2018 –supply to Kinzett – 1 ounce methylamphetamine 1. On 4 October 2018, Kinzett called the Supplier and asked if there was 'any chance for another one [an ounce of methylamphetamine]?' the Supplier said there was. Kinzett asked the Supplier to bring it to him. The Supplier agreed and said he would be '10 to 15 minutes.' The Supplier chases payment 1. On 9 October 2018, the Supplier made a phone call and told Kinzett he owed $4200 for one ounce of methylamphetamine he had supplied to him. The Supplier then reminded Kinzett he had supplied him with a further two ounces of methylamphetamine and he was owed $15,000 in total. Kinzett told the Supplier he would see him. Kinzett's payment to the Supplier 1. On 15 October 2018, the Supplier called Kinzett and said he was on the way to see him. The Supplier asked Kinzett for payment of $2400. Kinzett said he had $2000 to give the Supplier. Kinzett – States in possession of 2 ounces of methylamphetamine 1. On 17 October 2018, Kinzett called the Supplier and asked if he could postpone his payment. The Supplier agreed to give Kinzett another day to pay. Kinzett told the Supplier he was in possession of 'two' [ounces of methylamphetamine]. 2. On 19 October 2018, Kinzett confirmed he had 'the rest' of the money to pay the Supplier. The Supplier arranged to meet Kinzett in an hour to 'pick it up.' 19 October 2018 – the Supplier supply to Kinzett – 22.3g methylamphetamine 1. On 19 October 2018, the supplier asked if Kinzett has 'the coin'. Kinzett said he did. The Supplier told Kinzett he would meet him in 20 minutes. 2. In another call the Supplier said there were cops in his street and would send 'Morley' [to deliver one ounce methylamphetamine]. The Supplier also told Kinzett to give the 'six' [thousand dollars] to 'Morley'. 3. That afternoon, Kinzett made a phone call to the Supplier and said the methylamphetamine he had received was 'six grams under' the agreed weight. The Supplier told Kinzett he would 'fix it'. 4. On 20 October 2018, the Supplier called Kinzett and asked about the quality of the methylamphetamine. Kinzett stated 'everyone hates it' and are complaining. The Supplier agreed and said the batch is 'a weird one.' he told Kinzett he would 'grab it back' however Kinzett said he had 'almost got rid of it all' and would call when it is completely sold. 26 October 2018 – the Supplier supplies to Kinzett – 0.5ounce of methylamphetamine (14.1g) 1. On 26 October 2018, Kinzett made a phone call the Supplier. Kinzett told the Supplier he needed to see him to obtain a 'half' [ounce of methylamphetamine]. Kinzett asked the Supplier to come and see him. 2. Later the Supplier told Kinzett he would 'drop in'. The Supplier seeks payment from Kinzett 1. On 27 October 2018, the Supplier sent a text message to Kinzett which read, 'Can I grab that other 8 [thousand dollars]'. Kinzett replied, 'On Monday I'll give u 2 [thousand dollars] the rest I'll pay off'. 2. On 15 November 2018, the Supplier arranged to meet with Kinzett and informed him he owed '95' [$9500]. Kinzett pays debt to the Supplier 1. On 22 December 2018, Kinzett called the Supplier and told him he had '15 litres [$1500]. The Supplier told Kinzett he would meet him in the afternoon. Kinzett later updated the Supplier and informed him he had $2000. 24 December 2018 – the Supplier supply to Kinzett – 1ounce methylamphetamine 1. On 24 December 2018, Kinzett called the Supplier and asked if he could 'bring some with him [one ounce of methylamphetamine]' when he visited. The Supplier agreed with the request. Later, Kinzett called the Supplier and told him he would bring a $700 payment with him. 2. On 26 December 2018, Kinzett made a phone call to the Supplier and informed him he had $4000 to give him. Kinzett arrest and charge 1. On 19 November 2019, Kinzett attended Lake Illawarra Police Station and was arrested. 2. Kinzett agreed to participate in an electronically recorded interview where he made admissions to supplying methamphetamine. Kinzett was charged and given conditional bail. Objective seriousness 1. Kinzett supplied in total 121grams of methylamphetamine. The indictable quantity for this drug is 5g. The commercial quantity is 250g. He was recruited by criminal associates to supply to others in order to supplement his disability pension and obtain a regular supply of the drug for his own use. He was a long term user of methylamphetamine. He was in debt to his supplier. 2. Five (5) transactions over a 2 month period are relied on. While the number of transactions and the period over which they occurred remain relevant. the number of supplies cannot aggravate the sentence as s21A(2)(m) Crimes (Sentencing Procedure) Act 1999 could not apply to a rolled up offence. 3. Kinzett did what he did for his personal benefit and profit. He trafficked the drug to his own customers. He had control of his own street level business but he lacked the means to purchase the drugs up front. He was constantly in debt to the Supplier. As with many such matters he was a participant in organised criminal activity that had the potential to cause harm to many. General principles Guilty Plea 1. The guilty plea was entered in the Local Court. A 25% reduction of the otherwise appropriate sentence is required to recognise its utilitarian value: s 25D Crimes (Sentencing Procedure) Act 1999. It also indicates some practical remorse and acceptance of responsibility, matters that go to the offender's prospects of rehabilitation. Guidance 1. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include the maximum penalty, which here is 15 years. 2. I also have to take guidance from the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm drug supply causes our community. Drug Use 1. That a person committed the offence while suffering from a long term addiction cannot excuse their crime. The fact of their addiction and 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. It allows me to understand what he did and why he did it and to understand his state of mind and capacity to exercise sound judgment. Henry v R (1999) 46 NSWLR 346; (1999) 106 A Crim R 149: Jadron v R [2015] NSWCCA 217. Criminal antecedents 1. The offender was born in 1978. He was brought before the Children's Court on a number of occasions. He has been regularly appearing in the Local Court since 2001 for drug, driving and dishonesty offences. His last sentence expired on 5 June 2018. On 6 April 2018 he was placed on a bond to be of good behaviour by Wollongong Local Court. His offending broke that bond. 2. He was first detected for this matter in September 2018. It appears a pattern of offending, gaol, release, more offending and then more gaol, was broken only by his release to bail in this matter. He is not entitled to the leniency often given first offenders. His record would ordinarily mean that close attention be given to whether a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society. However, an apparent break with past associates means that principle should not be applied today. If Kinzett keeps to the promise made in court, society will be better protected by his staying out of gaol than being removed from the community for too long a period. Parity 1. I am endeavouring to hear all the matters for those involved with the Supplier to ensure parity and proportionality principles apply to each. Parity is a classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246. That said each sentence must also be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability - like must be compared with like; different offences, level of offending and personal and criminal histories may justify a real difference in the time each will serve in prison and how any sentence is to be served. 2. There must be some relatively and proportionality between this sentence and those sentences already imposed on others. Each entered early guilty pleas. My starting point for both Kominkovski and Dekker was 3 years. For Frankcom it was 3 years 3 months but he was sentenced for a s s25(2) Drug (Misuse and Trafficking) Act offence. In his case a substantail finding of special circumstances was made. 3. Kominkovski and Dekker spent time in custody and/or a residential rehabilitation centre. All three had actively engaged in rehabilitation with very positive results. Each received considerable reward for those efforts. For Kominkovski and Dekker that meant a sentence of less than 2 years could be imposed and an order made that the sentence be served subject to intensive correction in the community. The structure of a sentence and its parole period can attract parity principles: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271. It would seem all other things being equal the mode by which a sentence is to be served should also attract the principle; if an alternative disposition is available. 4. Redacted. 5. Redacted. 6. Redacted. 7. Redacted. 8. Redacted. Subjective Case 1. Now 42, Kinzett grew up with his mother is southern Wollongong. He struggled at school and left functionally illiterate. He has used methyl amphetamine since his 20's. He first went to gaol at 27 and has been on a disability pension because of depression and severe mood lability. At 14 he lost an eye following an attack by a magpie. He reports a number of serious assaults on him during periods in custody. Since first going to gaol he has, until his arrest for this matter, been enmeshed with criminal associates. He has however taken practical steps to break those associations. Sentence Assessment Reports 1. A Sentence Assessment Report (SAR) of 20 March 2021 set out Kinzett's long term problems with depression and the abuse of illicit drugs. He had a poor history of compliance with supervision. Parole has been revoked on a number of occasions. While he said he had stopped methylamphetamine use he had not engaged in any rehabilitation programmes, so this self-report could not be verified. The SAR noted a need for engagement with programmes such as EQUIPS and those run by the Illawarra Drug and Alcohol Service (IDAS). He also needed help to encourage engagement and compliance with mental health treatment and cognitive behaviour therapy. 2. An Updated SAR of 21 July 2021 indicates that Kinzett has kept up counselling treatment with his psychologist and engaged with IDAS. He has regularly attended sessions with SMART recovery but these have been suspended due to COVID restrictions. He remains suitable for community service work. 3. An IDAS report of 21 July 2021 confirms that prior to the current lock-down Kinzett had made a number of significant changes in his life. Although he finds counselling challenging, he has persevered. He has severed all contact with drug using associates and is accessing a peer support group with IDAS assistance. He has remained illicit drug free. He has been diligent in attending counselling and shown a determination to maintain the significant changes already achieved. Psychology report 1. Ms Dombrovski, a clinician psychologist, provided a report to the Court: Exhibit 1. She sets out a family history where his early development was harmed by exposure to emotional and physical abuse. She explains how he became enmeshed in a criminal and drug using subculture. His development was shaped by that background leaving him with a personality type with anti-social features predisposing him to drug use and associations with other anti-social peers. Assault in custody 1. A sentencing court cannot ignore the lived experience of gaol. That a person has been seriously assaulted in gaol is a relevant factor on sentence. Where a prisoner is assaulted in custody, even after the wounds heal a prisoner will inevitably suffer anxiety and other concerns as they are being kept in or returned to the same type of environment where they were previously assaulted. They could not be protected in the past. It needs no imagination nor is additional evidence required that a person who has lost an eye will find incarceration at the very least more worrying than someone who has not. However, paradoxically, that risk has not to date deterred Kinzett from offending again and again. Mental illness 1. Principles that can be applied when sentencing an offender suffering from a mental illness, intellectual disability or other mental problem were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. Here, it is clear that Kinzett's long standing drug use and depression can be linked to early childhood exposure to emotional and physical abuse. Those problems have not been addressed to date by his regular imprisonment. To the contrary his gaol terms have reinforced his associations with other criminals making return to crime more likely. He is at risk of re-offending but again, paradoxically, the longer he spends in gaol the more likely it is that he will reoffend on release. Submissions 1. Mr Rollestone, solicitor for the Director of Public Prosecutions, put appropriate weight on the offender's criminal history of offending and the guarded opinion of the author of the SAR of 20 March 2021. He submits that such was the amount supplied and the nature of the trafficking that only full time custody could meet the purposes of sentencing. In his initial submission he said the appropriate sentence could not attract an Intensive Correction Order (ICO). Even if it did, he said, the requirement that community safety be considered required a very careful assessment of how the mode of serving the sentence could best address the offender's risk of re-offending. Today, in light of the fresh material, he indicated that the Director would not be heard against an ICO. 2. Ms Parkes, Solicitor Advocate, for the offender, did not differ when it came to matters of principle but stressed that once appropriate matters in mitigation were taken into account a sentence of less than two years could be imposed and that the community interest and safety would be served if the cycle of gaol and offending could be broken. And that a return to gaol would hinder not bolster that objective. Synthesis 1. There are number or matters that mean a sentence of less than 2 years can be imposed. That leaves open the alternative method of serving the sentencing urged on me by Ms Parkes. 2. Time and time again Kinzett has committed drug related crime and time and time again he has been imprisoned. Harsh punishment has not deterred him. The violence inflicted on him by other prisoners has net deterred him. His preferred peers were those he met in gaol. Those associations led him to his present offending. Since his arrest he has made concerted efforts on a number of levels to deal with a very long standing addiction to methylamphetamine. Since his arrest he has made concerted efforts to remove himself from his criminal associates, with whom he was enmeshed. Those efforts require recognition and support. He has kept to the conditions of his s11 Crimes (Sentencing Procedure) Act 1999 remand. He has a long road ahead of him but if were I to gaol him it could derail his demonstrated progress toward rehabilitation. 3. He chose to engage in drug supply. His offending was serious and persistent and deserved gaol time. But in this case community protection would be best achieved by Kinzett serving his sentence by way of intensive correction in the community. 4. Redacted. Orders 1. You are convicted. 2. You are sentenced to a term of imprisonment to be served by way of intensive correction in the community in accord with the Crimes (Administration of Sentence) Act 1999 for a period of 1 year and 11 months. 3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an intensive correction order. The sentence will commence on 23 July 2021. 4. You must report to the Community Corrections Office at Wollongong by telephone as soon as practicable, but no later than 7 days from 23 July 2021. 5. The standard conditions of the order apply: ss 73(1), 73(2) 1. You must not commit any offence; and 2. You must submit to supervision by a community corrections officer. 1. The following additional conditions apply: s 73A(2): 1. Community service work condition requiring the performance of community service work for 50 hours. 2. To accept the guidance and supervision of Community Services NSW and obey all reasonable directions of that service in relation to continuing attendance with a psychologist. 3. To accept the guidance and supervision of Community Services NSW and obey all reasonable directions of that service in relation to continuing attendance at a drug rehabilitation programme. 4. To accept the guidance and supervision of Community Services NSW and obey all reasonable directions of that service in relation to continuing attendance at EQUIPS and other like programmes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2021