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[2025] NSWDC 332
General information, not legal advice.
District Court of NSW
2025-08-22
Newlinds SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Dabrowski; R v Zielinski [2025] NSWDC 332
Hearing dates: 18 August 2025
Date of orders: 22 August 2025
Decision date: 22 August 2025
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision: As to both Offenders:
(1) A term of imprisonment of 6 years to commence on 27 February 2024 and expire on 26 February 2030.
(2) There will be a minimum non-parole period of 3 years and 6 months, to commence on 27 February 2024 and expire on 26 August 2027.
(3) The first date the Offenders will be eligible for parole is 26 August 2027.
Catchwords: CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug — Commercial quantity
SENTENCING — Objective seriousness — Offenders came to Australia for the purpose of picking up some drugs in exchange for AUD$20,000 — Objective seriousness towards bottom end of range
SENTENCING — General deterrence important factor to be understood by people in other countries tempted to come to Australia to commit serious crimes
SENTENCING — Subjective considerations on sentence — Difficult upbringing — Alcohol abuse — Financial difficulties — Mental health — Prospects of rehabilitation — Effect on Offenders’ families — Time in custody — Custody more onerous than usual
SENTENCING — Parity — No relevant difference between objective and subjective cases — Same penalty appropriate
Legislation Cited: Crimes Act 1914 (Cth) s 16A
Criminal Code (Cth) s 11.1(1); s 307.8(1); s 311.1(1)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Hili v The Queen [2010] 242 CLR 520
R v Kassir [2020] NSWCCA 88
R v Nguyen; R v Pham (2010) 205 A Crim R 106
Category: Sentence
Parties: Rex (Crown)
Pawel Dabrowski (First Offender)
Adrian Zielinski (Second Offender)
Representation: Counsel:
S Love (Crown)
N Hanna (Solicitor) (First Offender)
O Samin (Solicitor) (Second Offender)
Solicitors:
CDPP (Crown)
Hanna Legal (First Offender)
Australian Criminal and Family Lawyers (Second Offender)
File Number(s): 2024/76069; 76073
Publication restriction: Nil
The Co-offenders – Adrian Zielinski (“Mr Zielinski”) and Pawel Dabrowski (“Mr Dabrowski”) – each stand to be sentenced for one offence, to which they pleaded guilty in the Local Court of New South Wales on 7 May 2025, being the first available opportunity.
The offence is attempting to possess a commercial quantity of a border-controlled drug reasonably suspected of having been unlawfully imported contrary to s 11.1(1), s 307.8(1), and s 311.1(1) of the Criminal Code (Cth). The maximum penalty for which is life imprisonment.
Both Offenders were arrested on 27 February 2024, and have been in custody since that time, being a period of 542 days.
It is accepted by the Crown that any period of imprisonment I impose ought be backdated to take into account that time.
As to the offending, the facts relating to each Offender are the same.
They are both Polish citizens who flew into Sydney, via Melbourne, from Dubai on 27 February 2024. They were on tourist visas but there only purpose in coming to Australia was to commit the crime they have been charged with.
They almost immediately went to a warehouse at Banksmeadow where a container containing drugs had been delivered and identified by law enforcement authorities. The Offenders attempted to open the storage unit whilst carrying a large shopping bag each. They were arrested with a large green shopping bag containing drug paraphernalia.
Both Offenders provided full and frank admissions to police upon their arrest and have provided explanations via psychologist and medical reports and letters to the Court explaining that, having both found themselves in difficult financial circumstances in Poland, they were offered AUD$20,000 to come to Australia for the purpose of picking up what they assumed would be illicit drugs.
The weight of each of the drugs seized was significant. The following weights are agreed:
420.6 kilograms of MDMA (pure weight); and
135.87 kilograms of ketamine (pure weight).
In addition to any other relevant factors, the Court must specifically take into account the matters listed in s 16A(2) of the Crimes Act 1914 (Cth) (“Crimes Act”) that are relevant and known to the Court.
The overarching requirement imposed by Part lB is that the Court must impose a sentence "that is of a severity appropriate in all the circumstances of the offence", having considered the non-exhaustive list of matters in s 16A(2) that are relevant and known to the Court.
Section 17A provides that a Court shall not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case.
The maximum penalties provide a yardstick for the appropriate sentence but must be balanced against all other factors. That being said, it is important to not lose sight of the stark fact that the maximum penalty here is life imprisonment.
In relation to sentencing for drug offenders under the Criminal Code (Cth), a series of well-known general propositions were stated by the Court of Appeal in R v Nguyen; R v Pham (2010) 205 A Crim R 106 at [72], which do not need repeating. In relation to the quantity of drugs involved, Bathurst CJ said in R v Kassir [2020] NSWCCA 88:
“I would only add what was said by Bell and Gageler JJ in R v Pham (2015) 256 CLR 550 at [45] that 'the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness’ but will usually be a relevant and in some cases the most significant consideration.”
The nature and circumstances of the offending has been set out in a detailed Agreed Statement of Facts which I have already summarised.
I accept the submissions made on behalf of each Offender, that their involvement in what was obviously a much larger criminal operation, was limited to travelling to Australia so as to pick up some drugs.
The Offenders were not involved in the actual importation of the drugs, the receipt into Australia of the drugs, communicating with the principles of the operation, the distribution of the drugs, or recruiting or instructing any other person. The tasks to be performed by each of the Offenders were menial in nature. They brought no relevant expertise or know-how to the role and were entirely dispensable.
For all of this they were to be paid AUD$20,000 for their role.
On behalf of each Offender, it is submitted that the Offender's role should be seen as falling towards the very lower end of the scale of objective seriousness for this type of offending and that they can properly be described as “dispensable minnows," or perhaps “mules," or “couriers."
As to the weight of the drug, there is no evidence that the Offenders knew of the actual quantity of drugs involved. However, it is conceded on behalf of the Offenders, that they knew that drugs were involved and that there must have been a significant quantity. How much above the commercial quantity they thought was involved is not known. The quantity of drugs involved is a relevant, but not determinative factor when assessing objective seriousness.
There is evidence on behalf of each Offender that, at the time of the offending, they were suffering from mental health issues.
On behalf of Mr Zielinski, there is a report of Mr Sam Borenstein dated 29 July 2025, and on behalf of Mr Dabrowski, there is a report of Dr Mark Milic dated 14 August 2025.
Both practitioners record extremely difficult lives lived by the Offenders in Poland, which involved abusive upbringings to which I will come, which led to them finding themselves in severe financial distress at the time and it was succumbing to that financial stress that caused them to offend. Whilst the evidence of each practitioner as to any connection between their issues and the offending is, if I may say so, weak and equivocal, I am prepared to accept that there was some degree of causation between those mental health issues and the offending, but in relation to each Offender, I consider that link to be tenuous to say the least. I will give some weight to that factor in favour of the Offenders, but not significant weight.
What that means is that, in relation to each Offender, I consider their moral culpability for the purpose of determining the objective seriousness of the offending to be somewhat diminished.
Both Offenders have told me in letters that their motivation for the offending was the lure of AUD$20,000.
That is a factor to be taken into account on the sentence. However, I do record that the Crown does not submit it should be taken into account as a statutory aggravating factor.
Principles of general deterrence and denunciation are prime considerations in sentencing for drug importation offences. Stern punishment will be warranted in almost every case. This is because of the difficulty in detecting offending and the great detrimental social consequences that flow from the movement of illicit drugs into Australia and their distribution within Australia.
Those who are involved at any level in the importation of a border-controlled drug into Australia should know that they run the risk of incurring a substantial sentence if they are apprehended.
People in faraway countries with different laws to Australia also need to understand with clarity that travelling to Australia for the purpose of committing crime in Australia, tempting as it may be, will be met with stern punishment that may well involve being imprisoned in a foreign country, far from family and friends.
The Crown submits that both general and specific deterrence have equally important roles to play for this sentencing exercise for these Offenders even though both have a limited criminal history. I accept that submission.
The Offenders pleaded guilty at the first opportunity.
Under New South Wales legislation, the Offenders would be entitled to a statutory 25% discount from what might otherwise have been their sentence because of that early plea.
I see no reason why I ought not apply that same discount to this Commonwealth offence, which is what I propose to do.
The Offenders are aged 33 (Mr Zielinski) and 48 (Mr Dabrowski). Neither has any relevant criminal history. They are of otherwise good character.
Both Offenders have put significant and persuasive evidence before me in the form of letters signed by each of them, together with some character-type references from family members, which corroborate the life story of each Offender.
They have also given a consistent history to the medical practitioners I have already referred to.
As to Mr Zielinski, the evidence can be summarised as follows:
There is an intertwined web of issues going back to his childhood, which, when added to the personal circumstances of financial stress leading up to the offence, demonstrates to a significant degree the reason for the offending. These circumstances include:
His father was an aggressive alcoholic who abandoned the Offender and his family when he was approximately 7 years old.
His mother could not afford her own accommodation, and he therefore moved between extended family members.
His mother worked long hours, and while doing her best, was absent due to that fact.
He received very little emotional support and had no male role models in his life. In fact, he had very little parental supervision or guidance.
He and his family suffered financially, and he was deprived of many of the basics that most people take for granted. They effectively lived in poverty.
He was incessantly bullied as a child due to his physical appearance. His family were not able to afford correctional surgery.
He completed school, and while he enrolled in tertiary education with ambitions to pursue a career in pharmacy, he felt he had no choice but to forego the opportunity to work so that he could financially assist his mother.
He worked tirelessly and even travelled internationally to work as a labourer so that he could assist his family.
He attempted to run his own business; however, it failed because he did not have the skills to do so alone.
He worked hard to establish a second business, and this time employed a friend whom he trusted to assist him.
Unbeknownst to him, his friend accumulated large debts and hid them from him.
He was then being pursued for these debts, and his friend abandoned him.
He was desperate and in significant need of financial assistance.
His mental well-being took a substantial hit, and he turned to alcohol to self-medicate.
“Mr Zielinski was in a very low ebb in his life when he agreed to enter into the offending behaviour. Mr Zielinski said he agreed to packing drugs, and he did not know the amount of drugs confirmed in the Agreed Facts.
Mr Zielinski said he was in a desperate state of mind and sought to avoid another business failure in his life, which led him to agree to enter the offending behaviour at which time he was struggling with a mental health impairment, defined as a chronic and severe Adjustment Disorder with Mixed Anxiety and Depressed Mood and a background of binge alcoholism. Mr Zielinski relates a history of depression which dates to childhood, the result of family upbringing and being bullied throughout primary and high school years.”
As to Mr Dabrowski, the evidence can be summarised as follows:
He had a difficult childhood which was marred by poverty and family violence perpetrated by his father towards his mother.
He was 7 years old when his father abandoned the family and he was subsequently raised by a single mother.
He left school at age 13 and his history of employment has been largely confined to casual labouring work.
He has battled with alcohol abuse for a significant period.
He was responsible for supporting his family and unwell mother prior to his offending.
His support for his family and ailing mother reflects positively on his character.
In relation to each Offender, the offending was committed in the context of a history of significant financial problems, marriage strains, and adjustment disorders, combined with alcohol addiction.
Because of their significant remorse and insight which I have identified, and because of their behaviour, which has been exemplary in prison to date, I consider their prospects of reoffending to be low.
Both Offenders have elderly mothers in Poland.
There is some evidence, albeit I am a little sceptical about it, that the Offenders provide financial assistance to their mothers. Nonetheless, I am satisfied that, for a mother, the imprisonment of her son in a faraway country on the other side of the world would be profoundly distressing and take that into account in favour of the Offenders.
Neither Offender speaks English very well at all. They find themselves in gaol in what, to them, must be a strange foreign land far from family and friends.
Accordingly, they have found, as would be expected, their time in prison to date to be extremely isolating and difficult and I consider they will continue to suffer to a greater degree than might ordinarily be expected from their time in prison and I take this into account in their favour.
The courts of this country have been clear and consistent that drugs disseminated into the community cause significant harm to the whole of the community. It has also repeatedly been emphasised that, just because drugs are intercepted by law enforcement agencies and not disseminated into the community, that of itself diverts law enforcement resources that ought properly be taken up with investigating and preventing other criminal drug activity.
The short point is, just because these drugs were intercepted and therefore no particular victim can be identified, it would be quite wrong to approach the sentencing exercise upon the basis that drug importation does not cause significant injury, loss, and/or damage to the community generally.
The Crown has put before me a table of cases that may be of some assistance.
When sentencing for Commonwealth matters, consistency between Australia by reference to cases of intermediate Courts of Appeal is important: see Hili v The Queen [2010] 242 CLR 520.
The Offenders have also put before me a table of sentencing statistics produced by the Judicial Commission of New South Wales.
As has often been emphasised and is so obviously true, there is no such thing as a comparable case, as each case must be determined by reference to its own special facts.
Nonetheless, I have taken into account the various cases referred to by the parties.
On behalf of both of the Offenders and the Crown, ultimately, it was accepted that the objective seriousness of the offending in relation to each Offender is the same and that, whilst their subjective cases are different in subtle and various ways, those differences point in different directions and, in my view, are not significant enough to justify a different outcome for each Offender.
Whilst I have taken into account the principles of parity, in that cases with differences need to be treated differently, in this instance I consider it appropriate that each Offender receive the same sentence, which result I do not believe will leave either with a legitimate grievance as to that outcome.
In light of the need for general deterrence and denunciation, the available maximum penalty, which is life imprisonment, the sentences imposed in other matters, and with perhaps a little less emphasis, the need for personal deterrence, a substantial sentence of full-time imprisonment is inevitable. The s 17A threshold has been satisfied.
I have taken into account in favour of the Offenders, what I consider to be, their powerful subjective cases. I do not consider their very difficult upbringings to be such as to properly engage the principles described in cases like Bugmy v The Queen (2013) 249 CLR 571. Nonetheless, I do accept that their upbringings were difficult and that they have had to deal with hardship along the way. I think there is a connection, albeit slight, between those difficult lives and the offending and have taken that into account in their favour.
I have also taken into account their mental health issues as diagnosed, as well as the difficulty both of them have had with alcohol. I understand and have great sympathy to the effect any sentence of imprisonment will have on their family in Poland, and I also acknowledge that their time in custody will be more onerous than for others because of their inability to communicate in English.
They have no criminal history, which entitles them to leniency. If there is a ladder of hierarchy within the criminal syndicate, I consider that they were on the very bottom rung.
There is no doubt that their role in the offending was at the most low-end of the scale. However, I consider it significant that the only reason they visited this country was to commit this most serious crime.
Nonetheless, I cannot lose sight of the objective seriousness of the offending and the fact that I am dealing with matters which carry a maximum penalty of a life sentence.
Taking all those matters into account and seeking to synthesise them so as to arrive at an appropriate sentence, for each Offender I have determined that the starting point is a head sentence of 8 years imprisonment, to be reduced by 25% to give effect to the early guilty plea, thus reducing the head sentence to 6 years.
Whilst the New South Wales arithmetical system for calculating a standard non-parole period does not apply, I do not see any reason why it should not be used as a yardstick and propose to set as a non-parole period slightly less than the 75% that is considered usual in New South Wales.
**********
(2013) 249 CLR 571
(2015) 256 CLR 550
I conclude that the objective seriousness of the offending is very much towards the bottom of what might be described as a range for offences of this type.
It was in those circumstances that Mr Zielinski was taken advantage of by a person who was aware of his desperate situation and offered to undertake the criminal activity in Australia.
Mr Borenstein, at page 7 of his report, provides the following opinion about Mr Zielinski’s mental state at the point at which he agreed to engage in the offending: