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Court of Criminal Appeal 1 May 2026

Bojcevski v R

[2026] NSWCCA 52

Drugs
SENTENCING PARITY RELEVANT FACTORS ON SENTENCE

Citation: Bojcevski v R [2026] NSWCCA 52
Court: Court of Criminal Appeal (NSW)
Date: 1 May 2026
Judge(s): Mitchelmore JA, Campbell J, Rigg J

Background

The applicant pleaded guilty in the District Court to four serious drug offences: two counts of supplying a large commercial quantity of cocaine, one count of supplying a large commercial quantity of methylamphetamine, and one count of knowingly taking part in the manufacture of a large commercial quantity of cocaine. Each offence carries a maximum penalty of life imprisonment. Two additional offences were taken into account on a Form 1.

The offending involved a seven-person criminal enterprise that manufactured and supplied cocaine and methamphetamine on a large scale, using a sophisticated laboratory on a rural property near Mudgee. The applicant's role centred on acquiring and transporting raw materials and was connected to seizures worth tens of millions of dollars. He was sentenced alongside two co-offenders, while a fourth co-offender (Mr Peitsos) had been sentenced separately at an earlier date.

The sentencing judge imposed an aggregate sentence of 12 years' imprisonment with a nine-year non-parole period, commencing from the applicant's date of arrest in August 2021, after applying a 25% discount for early guilty pleas. The applicant sought leave to appeal on three grounds.

  • Whether the sentencing judge erred in failing to take into account more onerous conditions of custody arising from COVID-19, or alternatively denied procedural fairness in not giving notice that this submission would be rejected.
  • Whether the sentencing judge failed to adequately consider parity principles in relation to the sentence imposed on a separately sentenced co-offender (Mr Peitsos) for the same offence, and whether the applicant had a justifiable sense of grievance about the disparity.
  • Whether the sentencing judge erred in failing to consider the significance of the applicant's "rather unhappy" childhood as a factor reducing moral culpability under the principles in Bugmy v The Queen (2013) 249 CLR 571.

Decision

Ground 1 (COVID-19 conditions): Campbell J held that a submission that COVID-19 resulted in more onerous conditions of custody must be supported by evidence. It is the adverse conditions flowing from the pandemic, not the pandemic itself, that a sentencing court may take into account. Without evidence establishing a factual basis for the claimed hardship, there was no foundation for the sentencing judge to make such a finding. The Court applied Wass v R [2022] NSWCCA 143 on this point. On the procedural fairness limb, the Court found no obligation on the sentencing judge to signal in advance that a submission made by only one party would not be accepted. This was distinguished from situations where a judge departs from a joint position of both parties.

Ground 2 (Parity): The Court found that the sentencing judge's consideration of parity between the applicant and Mr Peitsos was implicit in the reasoning, even without a formulaic or express statement to that effect. There is no requirement that a sentencing judge use specific language to demonstrate a parity analysis where the reasoning makes it clear it was considered. In any event, the cases of the applicant and Mr Peitsos were sufficiently different in relevant respects that no justifiable sense of grievance arose from the difference in indicative sentences.

Ground 3 (Bugmy principles): Campbell J held that the applicant's "rather unhappy childhood," as described in the evidence, did not rise to the level of deprivation contemplated by the High Court in Bugmy. Crucially, no submissions were made at the sentencing hearing about childhood deprivation reducing moral culpability. The Court observed that while there may be exceptional cases where Bugmy error can be established despite the absence of submissions (where the case for deprivation is "obvious and strong"), this was not such a case. There is no general rule requiring a sentencing judge to consider Bugmy factors in the absence of any submissions on point.

Leave to appeal was granted (including leave to file out of time, the delay being satisfactorily explained), but the appeal was dismissed on all three grounds.

Orders Made

  • Leave to seek leave to appeal out of time was granted.
  • Leave to appeal against sentence was granted.
  • The appeal was dismissed.

Key Takeaways

  • Submissions about more onerous conditions of custody arising from COVID-19 must be supported by evidence establishing the specific adverse conditions experienced; the pandemic itself is not a standalone sentencing consideration.
  • A sentencing judge is not obliged to give advance notice that a submission made by only one party will be rejected. The duty to afford procedural fairness in this context is limited to situations where the judge departs from a joint position of both parties.
  • In dismissing the parity ground, the Court of Criminal Appeal held that parity analysis need not be expressed in formulaic terms. Where it is implicit in the sentencing judge's reasoning, the absence of an express statement does not constitute error.
  • The principles in Bugmy concerning childhood deprivation and reduced moral culpability are not automatically engaged. A description of a childhood as "rather unhappy" does not, without more, reach the threshold of deprivation the High Court contemplated.
  • No general obligation exists for a sentencing judge to undertake a Bugmy analysis absent submissions from the offender. Only in exceptional cases where the evidence of deprivation is "obvious and strong" might error be established despite the absence of such submissions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T(1), 193B(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5

Key Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Wass v R [2022] NSWCCA 143
- Whipp v R [2024] NSWCCA 79
- Smith v R [2024] NSWCCA 59
- Eakin v R [2020] NSWCCA 294
- Church v R [2012] NSWCCA 149
- Kliendienst v R [2020] NSWCCA 98
- Griffin v R [2018] NSWCCA 259
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- DPP (Cth) v De La Rosa [2010] NSWCCA 194