Citation: Birkic v R [2026] NSWCCA 53
Court: Court of Criminal Appeal (NSW)
Date: 1 May 2026
Judge(s): Mitchelmore JA, Campbell J, Rigg J
Background
The applicant was sentenced in the District Court to an aggregate sentence of 14 years' imprisonment (with a non-parole period of 10 years and 6 months) after pleading guilty to five serious drug offences. These comprised four counts of supplying a large commercial quantity of a prohibited drug and one count of knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug, all under the Drug Misuse and Trafficking Act 1985 (NSW). Three further offences were taken into account on a Form 1. Each principal offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
The offending arose from a police investigation in mid-2021 into a drug syndicate involving seven men who manufactured and supplied cocaine and methylamphetamine. The operation centred on a sophisticated laboratory on a rural property near Mudgee. The applicant's role included being fully aware of the drug quantities, controlling aspects of the syndicate's operations, profiting from the offending, and participating in hands-on aspects. Police seized tens of kilograms of cocaine and methylamphetamine, along with nearly $1.12 million in cash.
The applicant sought leave to appeal against sentence, arguing that the sentencing judge erred by failing to take into account the onerous conditions of his custody during the COVID-19 pandemic and that parity principles were not adequately applied in relation to a co-offender's sentence.
Legal Issues
- Whether the sentencing judge erred by failing to take into account the applicant's onerous conditions of custody during the COVID-19 pandemic, particularly where the judge expressly referred to COVID-19's impact in sentencing a co-offender at the same proceedings but made no equivalent finding for the applicant.
- Whether the sentencing judge failed to adequately consider parity principles in relation to the co-offender Mr Peitsos, and whether the applicant had a justifiable sense of grievance arising from disparity between indicative sentences for the same supply offence.
- On resentencing, what findings should be made regarding the applicant's prospects of rehabilitation and the onerousness of custody, taking into account additional evidence of events subsequent to the original sentencing.
Decision
The Court of Criminal Appeal (Rigg J, with Mitchelmore JA and Campbell J agreeing) found error in the sentencing judge's failure to account for the applicant's onerous COVID-19 custody conditions. The evidence before the sentencing judge, including the psychologist Mr Watson-Munro's report, detailed extended periods of solitary confinement, severely restricted family contact, and a lack of psychological treatment during the applicant's remand. Despite this evidence, the sentencing judge expressly referred to the impact of COVID-19 only in relation to a co-offender sentenced at the same time, but not in relation to the applicant. The Court held this constituted an error in the circumstances.
Having found error, the Court proceeded to resentence the applicant. On resentencing, the Court made more favourable findings on the applicant's prospects of rehabilitation and on the onerousness of his custodial conditions, taking into account additional evidence about subsequent events in custody that had occurred since the original sentencing. However, the applicant was not permitted to depart from the approach adopted at first instance regarding the relevance of the principles in DPP (Cth) v De La Rosa.
The appeal was heard jointly with that of a co-offender, Robert Bojcevski, with the related judgment of Campbell J in that matter informing certain aspects of the analysis.
Orders Made
- Leave to appeal against sentence was granted.
- The appeal was allowed.
- The applicant was resentenced by the Court of Criminal Appeal (specific terms of the resentence are set out in the orders proposed by Rigg J, with which Mitchelmore JA and Campbell J agreed).
Key Takeaways
- The Court of Criminal Appeal found sentencing error where the sentencing judge expressly addressed the impact of COVID-19 custody conditions for one co-offender but failed to do so for another offender sentenced at the same proceedings who had also presented evidence of onerous conditions.
- On resentencing, more favourable findings were made regarding the applicant's prospects of rehabilitation and the onerousness of his custody, drawing on additional evidence about his conduct and circumstances in custody after the original sentencing date.
- A party was not entitled to depart on appeal from the approach taken at first instance regarding the relevance of De La Rosa principles, limiting the scope of arguments available on resentence.
- Where evidence of harsh custodial conditions during the COVID-19 pandemic (including prolonged isolation, restricted family contact, and lack of psychological treatment) is properly raised before a sentencing court, it remains a relevant consideration that must be addressed in the sentencing remarks.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
Key Cases:
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
- Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16
- Lloyd v R [2022] NSWCCA 18
- Wass v R [2022] NSWCCA 143
- Ingray v R [2023] NSWCCA 292
- DB v R [2023] NSWCCA 323
- BE v R [2024] NSWCCA 100
- Whipp v R [2024] NSWCCA 79
- Salameh v The King [2024] NSWCCA 239