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District Court 19 July 2024

R v Bojcevski; Birkic; Drenovac

[2024] NSWDC 299

DrugsFraud & dishonesty
CRIME SENTENCE PARTICIPATING IN A CRIMINAL GROUP EXPERT WITNESSES DEPARTURE FROM CODE OF CONDUCT.

Citation: R v Bojcevski; Birkic; Drenovac [2024] NSWDC 299
Court: District Court of New South Wales
Date: 19 July 2024
Judge: Colefax SC DCJ

Background

Three offenders, Robert Bojcevski, Ante Birkic, and Nikola Drenovac, appeared for sentencing following guilty pleas to a series of serious drug and proceeds-of-crime offences. The offences arose from a police investigation commenced in May 2021 into a seven-person criminal operation manufacturing and supplying large quantities of cocaine and methylamphetamine.

The drugs were manufactured at a remote rural property near Mudgee, New South Wales, known as Pyramul, by two co-offenders. The three men before the court each played roles in acquiring raw materials, storing them at residential premises and self-storage units in Sydney, and transporting them to the manufacturing site. Police executed search warrants on the storage units in the early hours of 6 August 2021, seizing large quantities of cocaine, methylamphetamine, chemicals, solvents, and approximately $990,100 in cash.

A fourth co-offender, Costandinos Peitsos, had already been sentenced separately by Everson SC DCJ in November 2023. The remaining three offenders were sentenced together in these proceedings.

  • The appropriate aggregate sentences for each offender, taking into account the nature, scale, and number of offences
  • The application of standard non-parole periods to offences carrying a maximum of life imprisonment under the Drug Misuse and Trafficking Act 1985 (NSW)
  • The weight to be given to guilty pleas as a mitigating factor, reflected in a discount on the indicative sentences
  • The treatment of Form 1 matters (proceeds of crime and participation in a criminal group) as aggravating factors to be taken into account with the principal offences
  • The role and relative culpability of each offender given their different levels of involvement

Decision

Each offender was convicted of four principal offences in common: three counts of supply of a prohibited drug in an amount greater than the large commercial quantity (covering 14.0221 kg of cocaine, 20.872 kg of methylamphetamine, and 60.951 kg of cocaine respectively), and one count of knowingly taking part in the manufacture of a prohibited drug in an amount greater than the large commercial quantity (15.458 kg of cocaine). All four offences carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

Each offender also had two Form 1 matters taken into account: knowingly dealing with the proceeds of crime ($990,100 in cash) and participating in a criminal group. The court noted that the proceeds of crime matter would result in a meaningful increase to the sentence for the relevant principal offence. Birkic had an additional Form 1 proceeds matter ($127,300) and one further principal supply offence (2.892 kg of cocaine). Drenovac had two additional principal supply offences (2.531 kg of cocaine and 2 kg of P2P).

The court applied a discount to each indicative sentence to reflect the guilty pleas. For example, the indicative sentence for the third principal offence, absent the plea, would have been 13 years; after the discount it became 9 years and 9 months with a non-parole period of 7 years and 3 months. Similar discounting applied across the other offences.

Aggregate sentences were then constructed for each offender, reflecting totality principles and the individual circumstances of each person, including their respective roles, the quantities involved, and any offences unique to them.

Orders Made

  • Bojcevski: aggregate imprisonment of 12 years; non-parole period of 9 years from 12 August 2021, expiring 11 August 2030; balance of term of 3 years expiring 11 August 2033.
  • Birkic: aggregate imprisonment of 14 years; non-parole period of 10 years and 6 months from 12 August 2021, expiring 11 February 2032; balance of term of 3 years and 6 months expiring 11 August 2035.
  • Drenovac: aggregate imprisonment of 13 years; non-parole period of 9 years and 9 months from 12 July 2021, expiring 11 April 2031; balance of term of 3 years and 3 months expiring 11 July 2034.

Key Takeaways

  • The District Court imposed aggregate sentences ranging from 12 to 14 years for participants in a large-scale drug manufacturing operation involving quantities of cocaine and methylamphetamine many multiples above the large commercial quantity thresholds.
  • Guilty pleas attracted a meaningful discount from the indicative pre-plea sentences across all offences, reducing individual indicative terms before they were aggregated.
  • Where offenders had different levels of involvement and different numbers of offences, the court calibrated sentences accordingly, with Birkic receiving the longest aggregate term reflecting his additional principal offence and additional Form 1 proceeds matter.
  • Form 1 matters, including dealing with nearly $1 million in cash proceeds of crime and participating in a criminal group, were expressly stated to increase the sentence for the associated principal offence rather than being treated as neutral background.
  • The provenance of the 20.872 kg methylamphetamine was not agreed to be from the Pyramul laboratory, a finding the court noted may indicate the operation was more widespread than the agreed facts superficially suggested.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2) and 25(2)
- Crimes Act 1900 (NSW), ss 93T(1) and 193B(2)

Cases:
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Parris v R [2013] NSWCCA 5
- R v Shi [2004] NSWCCA 135
- Flower v R; Mafiti v R [2024] NSWCCA 76