Citation: Bojlevski v R [2024] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 13 November 2024
Judges: Leeming JA, Campbell J, Fagan J
Background
The applicant pleaded guilty in the District Court to three offences: directing the activities of a criminal group (under s 93T(1A) of the Crimes Act 1900), supplying cocaine in more than the indictable quantity (over 116 grams, under the Drug Misuse and Trafficking Act 1985), and knowingly dealing with the proceeds of crime (under s 193B(2) of the Crimes Act 1900). Judge Haesler SC sentenced the applicant on 26 July 2024, applying a 25% discount for guilty pleas.
The sentencing judge imposed an aggregate sentence of 3 years and 9 months with a non-parole period of 1 year and 11 months, backdated to account for 16 months already served on remand. The indicative sentences attached to each count were 1 year and 1 month (directing a criminal group), 3 years and 3 months (drug supply), and 1 year and 1 month (proceeds of crime).
The applicant sought leave to appeal on three grounds, arguing errors in the accumulation of indicative sentences, the handling of an aggravating circumstance, and manifest excess in the overall sentence.
Legal Issues
- Whether the sentencing judge erred by partially accumulating the indicative sentences for the three counts when imposing an aggregate sentence
- Whether the sentencing judge erred by failing to specify how the statutory aggravating circumstance of "planned or organised criminal activity" (s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999) affected the sentence
- Whether the aggregate sentence of 3 years and 9 months was manifestly excessive in all the circumstances
Decision
Ground 1: Accumulation of indicative sentences
The Court unanimously rejected this ground. Leeming JA, with whom Fagan J and Campbell J agreed, explained that the aggregate sentence involved no actual accumulation; it was a single sentence. The indicative sentences serve a statutory disclosure function under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, and a sentencing judge imposing an aggregate sentence is not required to specify the precise degree of notional concurrency or accumulation between each indicative term. Requiring such specificity would undermine the very purpose of aggregate sentencing, which is to relieve sentencing judges of the "cascading or stairway" structure required when individual sentences are imposed.
Leeming JA observed that it was theoretically possible to interpret the arithmetic of the sentence in multiple ways, and the applicant's attempt to infer error from the silence of the reasons was misconceived. The Court noted that the applicant's own counsel conceded it was not only open, but arguably required, for the judge to notionally accumulate the proceeds of crime sentence, given that offending extended beyond the drug supply in both timing and amount. No patent error in the exercise of the sentencing discretion could be identified from the indicative sentences.
Ground 2: Aggravating circumstances
Fagan J, with whom Leeming JA and Campbell J agreed, found no error in the sentencing judge's treatment of the "planned or organised criminal activity" aggravating factor. On a fair reading of the remarks on sentence, the judge had properly avoided double-counting: he did not treat the s 93T charge (directing a criminal group) as further aggravated by the same organised criminality that formed its essential gravamen, and he did not apply that aggravating circumstance to the supply and proceeds offences to the extent that that criminality was already captured by the first count. This approach was described as orthodox.
Ground 4: Manifest excess
Fagan J rejected this ground as insupportable. Having regard to the objective gravity of the offending and the maximum penalties prescribed, the aggregate sentence was characterised as "very moderate." The remarks on sentence reflected careful consideration of whether a lighter sentence was available, and the judge had given full weight to the applicant's favourable subjective circumstances and prospects for rehabilitation.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Under the aggregate sentencing regime in NSW, a sentencing judge is not required to specify the precise degree of notional concurrency or accumulation between indicative sentences; attempting to infer error from that silence alone will not succeed.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the purpose of aggregate sentencing is to free judges from the laborious task of constructing a cascading sentence structure, and grounds of appeal that presuppose that structure are misconceived.
- Where an offence's essential elements substantially overlap with a statutory aggravating circumstance (here, "organised criminal activity" and the charge of directing a criminal group), a sentencing judge acts orthodoxly by declining to apply that circumstance as a further aggravating feature.
- Sufficient consideration of double-counting may be conveyed implicitly through a sentencing judge's reasons without explicit enumeration of each aggravating factor's precise effect on the sentence.
- A sentence characterised as "very moderate" having regard to maximum penalties and objective gravity is not susceptible to a finding of manifest excess, even where the judge acknowledged considering whether a lesser sentence was possible.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 53A(2)(b)
- Crimes Act 1900 (NSW), ss 93T(1A), 193B(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Cases
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- JM v R [2014] NSWCCA 297
- Ngati v R [2018] NSWCCA 32
- R v Bojlevski [2024] NSWDC 415
- R v Brown [2012] NSWCCA 199
- R v Grover [2013] NSWCCA 149
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36