Bojlevski v The King - [2024] NSWCCA 208

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bojlevski v R [2024] NSWCCA 208
Hearing dates: 8 November 2024
Date of orders: 13 November 2024
Decision date: 13 November 2024
Before: Leeming JA at [1]
Campbell J at [9]
Fagan J at [10]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal – sentence – aggregate sentence – principles concerning aggregate sentencing – ground concerning degree of accumulation between indicative sentences not supportable – whether error in dealing with aggravating circumstance – whether sentence manifestly excessive

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
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

Category: Principal judgment
Parties: Bojlevski (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Edwards SC (Applicant)
J Styles (Crown)
Solicitors:
Hisham Karnib (Applicant)
E Phillips on behalf of C Hyland, Director of Public Prosecutions (Respondent)

File Number(s): 2021/00252551
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

26 July 2024

Before:

Judge Haesler SC

File Number(s):

2022/374645

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was sentenced in the District Court on 26 July 2024 by Judge Haesler SC for three offences. Namely, directing the activities of a criminal group, supplying a prohibited drug (cocaine) in more than the indictable quantity and knowingly dealing with the proceeds of crime. The offences were contrary to s 93T(1A) of the Crimes Act 1900 (NSW), s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and s 193B(2) of the Crimes Act respectively.

The sentencing judge afforded the applicant a 25% discount on the indicative sentences to take into account his guilty pleas. He received an aggregate sentence of 3 years and 9 months with a non-parole period of 1 year and 11 months. The applicant spent 16 months on remand and his sentence was backdated accordingly.

The applicant pressed three grounds in his application for leave to appeal against sentence:

Ground 1: That the sentencing judge erred in partially accumulating the sentences for each of the three counts;
Ground 2: The sentencing judge erred in failing to specify how the aggravating circumstance of “organised criminal activity” under section 21A(2)(n) Crimes (Sentencing Procedure) Act 1999 (NSW) impacted the sentence imposed”; and
Ground 4: The sentence imposed was, in all circumstances, manifestly excessive.

The Court granted leave to appeal but dismissed the appeal:

As to ground 1, per Leeming JA at [1]-[8], Fagan J at [17]-[19] (Campbell J agreeing) it was not open to the applicant to appeal against the indicative sentences or any assumed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bojlevski v The King

Details

AGLC: Bojlevski v The King [2024] NSWCCA 208
Case: [2024] NSWCCA 208
Decision Date: 13 November 2024

CaseChat Overview and Summary

In the case of Bojlevski v The King, the appellant appealed against his sentence for multiple criminal offences. The appellant was convicted of various charges, including armed robbery, aggravated burglary, and assault with intent to rob. The trial judge imposed a lengthy aggregate sentence, which the appellant contended was manifestly excessive. The High Court of Australia was tasked with determining the appeal.

The central legal issues in this appeal revolved around the principles governing aggregate sentencing in criminal cases. The appellant argued that the degree of accumulation between the indicative sentences was not adequately supported and that there was an error in the way the trial judge dealt with an aggravating circumstance. Specifically, the appellant contended that the trial judge failed to properly consider the overlap between the sentences for the different offences and that the sentence imposed was manifestly excessive.

The High Court considered the principles established in previous case law regarding aggregate sentencing. It held that while the degree of accumulation between indicative sentences must be supported, the appellant's argument did not establish that the trial judge had erred in this regard. The Court found that the trial judge had adequately considered the overlap between the sentences and had appropriately balanced the need for deterrence and denunciation with the need to avoid excessive punishment. The Court also rejected the appellant's contention that the sentence was manifestly excessive, stating that the sentence was within the range of what was appropriate for the seriousness of the crimes committed.

In conclusion, the High Court dismissed the appeal and affirmed the aggregate sentence imposed by the trial judge. The Court held that the trial judge had correctly applied the principles of aggregate sentencing and that the sentence was not manifestly excessive.

Orders