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District Court 26 July 2024

R v Bojlevski

[2024] NSWDC 415

DrugsPublic order & justice offences

Citation: R v Bojlevski [2024] NSWDC 415
Court: District Court of New South Wales
Date: 26 July 2024
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to three serious criminal offences arising from a police operation that commenced in December 2020. The investigation revealed that the offender had been managing a cocaine supply operation in the Wollongong area involving coded communications, a drug runner, hire cars, and cipher devices. Two associates were also involved: a co-offender named Swift (sentenced separately) and the offender's father.

The principal criminal charges related to directing a criminal group on 12 February 2021, supplying cocaine across multiple transactions between January and September 2021, and knowingly dealing with approximately $75,990 in proceeds of crime found at the time of arrest. The offender also asked the court to deal with three related traffic matters, including two instances of driving while disqualified and making an illegal U-turn at traffic lights.

The offender had already served 16 months in custody before being released on strict bail conditions. During the bail period, he participated in rehabilitation programs and demonstrated, to the court's satisfaction, meaningful progress toward rehabilitation. The sentencing exercise required the court to balance the objective seriousness of the offending against what the judge described as a powerful subjective case.

  • Whether the three serious offences warranted custodial sentences, and if so, what aggregate term was appropriate
  • How to apply the 25% utilitarian discount for the early guilty pleas entered in the Local Court
  • Whether an Intensive Correction Order (a community-based custodial alternative) was available
  • How to treat the offender's drug addiction, gambling addiction, and rehabilitation progress as mitigating factors
  • How to approach parity with the sentence imposed on co-offender Swift
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • How to sentence for the traffic offences dealt with alongside the principal charges

Decision

Haesler SC DCJ found that all three principal offences were so serious that only custodial sentences were appropriate. The offender was the principal in the drug supply operation, exercising a degree of influence over co-offender Swift. The offending involved planning, financial motivation, some sophistication, and deliberate steps to avoid police detection. The judge noted that while drug and gambling addiction were relevant to subjective considerations, they did not reduce the objective seriousness of the offending.

The court acknowledged the offender's powerful subjective case. The 16 months served on remand, the strictness of his bail conditions, and his genuine engagement with rehabilitation programs all weighed in his favour. The judge noted that if Drug Court programs had been available in the Illawarra region, a different outcome might have been achievable, but those programs were not accessible in this case.

An aggregate sentence of 3 years and 9 months was imposed. The court made a significant finding of special circumstances, departing from the standard non-parole period ratio, and set a non-parole period of 1 year and 11 months. The sentence was back-dated to 12 March 2023 to account for time already served in custody, and the strictness of bail conditions was factored into the calculation of the non-parole period. The judge noted that the accumulation of individual sentences had to be managed carefully to ensure the 25% guilty plea discount was not eroded by the aggregation process.

For the traffic offences, the court recorded convictions under section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) without imposing additional penalties beyond conviction, and imposed the minimum six-month driving disqualification for each of the two drive-while-disqualified matters.

Orders Made

  • Traffic offences (both drive while disqualified and the U-turn): convictions recorded under s 10A Crimes (Sentencing Procedure) Act 1999; no further penalty imposed; six months' disqualification from driving for each drive while disqualified matter, from date of conviction
  • Supply prohibited drug (cocaine, indictable quantity): indicated sentence of 3 years and 3 months
  • Participate in a criminal group: indicated sentence of 1 year and 1 month
  • Knowingly deal with proceeds of crime: indicated sentence of 1 year and 1 month
  • Forfeiture order made in respect of the proceeds of crime
  • Aggregate sentence: 3 years and 9 months, commencing 12 March 2023
  • Non-parole period: 1 year and 11 months (special circumstances found)
  • Eligible for parole: 11 February 2025
  • Balance of sentence (1 year and 10 months): commences 12 February 2025, expires 11 December 2026

Key Takeaways

  • An aggregate sentence requires careful management to ensure that the accumulation of individual terms does not erode the utilitarian discount an offender is entitled to receive for early guilty pleas.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established where an offender has served an extended period on strict bail conditions and has demonstrated genuine and sustained rehabilitation progress during that time.
  • Where an offender is both a drug user and the principal in a supply operation, personal addiction does not diminish the objective seriousness of the offending, though it remains a relevant subjective consideration.
  • The District Court highlighted a tension between the therapeutic outcomes that Drug Court programs can offer and the unavailability of such programs in regional areas, noting that limited sentencing options can constrain outcomes even where rehabilitation progress is substantial.
  • Participation in a criminal group under s 93T(1)(a) of the Crimes Act 1900 (NSW) must be sentenced with care where the aggravating circumstance of organised criminal activity under s 22A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 also applies to related offences, to avoid double-counting conduct that is common to multiple charges.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93T(1)(a), 193B(2)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 22A(2)(n)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Road Rules 2014 (NSW), s 40
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Henry (1999) 46 NSWLR 346
- R v Molesworth [1999] NSWCCA 43
- R v Swift [2023] NSWDC 486
- Siwek v R [2017] NSWCCA 178
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3