R v Bojlevski

[2024] NSWDC 415

District Court

New South Wales

Medium Neutral Citation:

R v Bojlevski [2024] NSWDC 415

Hearing dates:

26 July 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 3 years 9 months with a non-parole period of 1 year 11 months

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Quantity more than the indictable quantity and less than the commercial quantity — Participate in a criminal group — Knowingly deal with the proceeds of crime

TRAFFIC LAW AND TRANSPORT — Traffic law — Related offences — Drive motor vehicle whilst disqualified — Make a U-turn at traffic lights

SENTENCING — Penalties — Imprisonment

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Objective seriousness — Intensive Correction Order not available

SENTENCING — Subjective considerations on sentence — Drug addiction — Gambling addiction— Impact of COVID-19 — Progress toward rehabilitation— Powerful subjective case — Long period on remand — Compliance with bail conditions — Should there be a return to custody

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Administration of Sentence) Act 1999

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Road Rules2014 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

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

Texts Cited:

W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1

Category:

Sentence

Parties:

Daniel Bojlevski (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
T Edwards SC (for the offender)

Solicitors:
Karnib Saddik Law Firm (for the offender)
M Rollestone solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/374645

JUDGMENT – ex tempore revised

Introduction

1. When he was in the Local Court Daniel Bojlevski indicated that he would plead guilty to three serious offences. In accordance with pleas entered in the Local Court he also asked that I sentence him for three related traffic offences.

2. I intend to impose an aggregate sentence. That sentence has to take into account all purposes of sentencing, the seriousness of the crime he committed, and the case made for Bojlevski. The guilty pleas in the Local Court mean that he must have the otherwise appropriate sentence for each offence reduced by 25% to reflect the utilitarian value of that plea. There must be some accumulation of penalty here. I will take care that the process of accumulation does not erode that benefit.

3. The sentencing exercise also has to take into account his having served 16 months imprisonment following his arrest. He was then released to strict bail. The conditions of bail were moderated over time. One purpose, I am sure, for the Supreme Court Justice granting him bail, was so that he could participate in rehabilitation of programs, so that when he came for sentence, he could demonstrate positive progress towards rehabilitation. He has met those objectives. But any sentencing exercise must also consider what was done and the seriousness of what was done.

Agreed Facts

4. An extensive police operation resulted in the following charges to which he pleaded guilty:

• Sequence 3 – Participate in a criminal group by directing the activities of the group: Crimes Act 1900 (NSW), s 93T(1)(a), maximum penalty 10 years imprisonment.

• Sequence 9 – Supply a prohibited drug, cocaine, in more than the indictable quantity and less than the commercial quantity. Those quantities were rolled up from a number of transactions: Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), maximum penalty 15 years imprisonment and / or a substantial fine.

• Sequence 19 – Knowingly deal with the proceeds of crime in a sum of $75,990: Crimes Act 1900, s 193B(2), maximum penalty 15 years imprisonment.

5. The related matters before the court pursuant to a s 166 Criminal Procedure Act 1986 (NSW) certificate are:

• Sequence 14 – Drive motor vehicle during disqualification period: Road Transport Act 2013 (NSW), s 54(1)(a).

• Sequence 3 (H151760003) – Drive motor vehicle during disqualification period: Road Transport Act, s 54(1)(a).

• Sequence 4 – Make a U-turn at traffic lights: Road Rules2014 (NSW), s 40.

Agreed facts

6. There are Agreed Facts before the Court. They are comprehensive. What follows is a summary.

7. A police operation investigating the offender’s behaviour and those of a number of associates commenced in December 2020. Covert police measures were undertaken.

8. Between December 2020 and 4 September 2021 investigations revealed the offender was managing a drug supply operation that involved; the supply of cocaine, the use of “cipher” devices, a single drug runner, and hire cars. Others associated with the group were Morgan Swift and the offender’s father, Robert Bojlevski.

Direct criminal group offence

9. Most of the surveillance was directed at Swift but the offender was captured speaking in code to Swift about illicit drug trades. The criminal group offence matter for sentence however is – taking into account that background – specifically what occurred on 12 February 2021. It is agreed that what the specific offence for sentence is what occurred on 12 February 2021.

10. On that day he was coordinating and directing the activities of the group and he engaged in discussions about the supply of drugs. He coordinated the supply of prohibited drugs, and he gave specific directions to his father and Swift regarding their role in the supply of drugs.

11. It is noted that the average street price for a kilo of cocaine at the relevant time was $180,000 to $280,000.

Supply prohibited drug offences

12. The supply prohibited drug offence relates to the supply of cocaine between 23 January 2021 and 3 September 2021. This was comprised of supplies of; 3 grams of cocaine on 23 January 2021, 85 grams of cocaine on 24 January 2021, a quantity of cocaine on 28 January 2021 and, what is noted as a “deemed” supply of 28 grams, on 12 February 2021. The Crown concede it cannot prove to the requisite standard the quantity that was supplied on 28 January.

13. Approximate to these supplies the offender and Swift would attend a unit in Wollongong. At times, prohibited drugs were stored in that unit. The search warrant of the unit and other premises associated with the offender revealed items such as; digital money counters, a white Range Rover, a black BMW, drug ledgers and other matters associated with the business of supply.

14. The quantities of cocaine supplied were rolled up into a single offence. That process was agreed to by the defence and is a legitimate way of dealing with matters such as this: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217.

Knowingly deal with proceeds of crime offence

15. The third matter, knowingly deal with the proceeds of crime, relate to quantities of cash that were found on the arrest of the offender. Clearly those cash amounts were associated with the other two offences.

Objective seriousness

16. I must indicate a sentence for each offence and each offence has its discrete elements. Each offence, however, was part of a course of criminal conduct with the object of supplying, illicit drugs into our community for cash. It is accepted that each offence was so serious that only custodial sentences could be imposed.

17. So far as the criminal group offence is concerned, although I sentence for what occurred on the one day, context is not ignored. The group was a small one and only two individuals were involved. I previously sentenced Swift: R v Swift [2023] NSWDC 486.

18. The offence recognises that where people organise together, the safety of the community can be impacted. The offence targets those who are organised in their criminal behaviour. Although the Crown proffer a notional range, I do not think it is necessary that I find one in this case. It is not a practice that I find helpful. There are far more significant matters than this, and care has to be taken because this sentencing activity is limited to one day and there are only two people involved.

19. Care also has to be taken because an aggravating feature on sentence is often organised criminal activity: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A(2)(n). Here, there is little distinction between organised criminal activity and participation in this particular group.

20. Care also has to be taken when I come to consider this aggravating circumstance so far as the other two matters are concerned, because each of the crimes is inextricably interrelated, one with the other.

21. Turning to the supply. Bojlevski was the principal. He had, to the extent that was possible, some influence over Swift. His criminal group relationship with his father is not known to me. There was some planning. Clearly financial gain was intended. There was some degree of sophistication and the offences occurred over a period of days. Attempts were made, understandably, to try and avoid detection by police.

22. While the offender was a drug user, and I am prepared to accept, had a gambling addiction, those matters do not impact on the objective seriousness of the offence. Although, they are relevant when it comes to my general disposition of the matter.

23. Again, this crime showed a distain for the community and the harm caused by the trade in illicit drugs. As I said when I sentenced Swift, the community has to understand that any involvement in drug supply operations can result in gaol. To engage with others and, in this case, to be the principal with others in an offence that causes harm to individual users, their families, and economically to the community, means some time must be spent in gaol. The crimes often committed to obtain money to buy these drugs almost inevitably harm the community. No matter what excuses an offender makes, it is absolutely critical that the community understand that anyone who involves themselves in such supply, to the extent that the offender did, risks their liberty.

24. I have to consider the quantity of drugs, the harm they caused the community, and the community interest in a just and appropriate sentence. As I said when I sentenced Swift, the community also has to understand that problems caused by illicit drug trade cannot simply be solved by arresting and gaoling our way to a solution: W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1.

25. One purpose of the criminal law is to signal to others what might occur and to do what can be done to prevent reoffending by this offender and others. For those reasons given, the quantities, and his role, again, this is a serious example of this type.

26. The proceeds of crime offence reflects the profits that can be made by the sale of illicit drugs. Bojlevski had a relatively large quantity of illicit cash on him. He had other assets that did not reflect the lifestyle of an itinerant labourer; his job until this matter came to light. There is however no evidence he led an extravagant lifestyle. It is clear to me that if he is obtaining the quantities of drugs, the subject of the supply, he has to have cash on hand to buy the next instalment. But there is also material before me that he was anticipating making some profit – a cash return – and so there was an element of greed in what he was doing.

27. It may be that Bojlevski did have debts, but there is insufficient evidence before me to indicate that those debts were the sole motivation for his behaviour. To the contrary, there is material before me to indicate that he was living the “cool” life, although he may well have been gambling most of his profits away while he did so.

Parity

28. When I sentenced Swift, I had slightly different facts before me. The police had more information about Swift. He was facing a sentence for a more serious supply offence which carried a higher maximum penalty and a standard non-parole period. Judges are required to, as I did, give content to that standard non parole period. I described him in R v Swift [2023] at pars [11] and [24] as Bojlevski’s “willing apprentice”, but I have to be careful here.

29. I sentenced Swift on the basis of the facts before me in that matter. Those facts are not the same as the facts that I sentence Bojlevski on today. All I can say here is that he, as the Agreed Facts note, “directed” Swift. As Mr Edwards SC, who appears for Bojlevski today, correctly states, the problem with applying the parity principle here is that there is no direct comparison between offending and the offences.

30. I am sentencing Bojlevski, so far as the supply offence, for a lesser offence in the scale fixed in the Drug Misuse and Trafficking Act and for a more serious offence, so far as a criminal group offence is concerned. But the criminal group offence is restricted to one day and the supply offence shows the higher role of this offender. But Bojlevski had less drugs, and no matters on the Form 1. Their personal histories were quite different. There were matters in Swift’s background that reduced his moral culpability to a significant degree.

31. Sentences should be determined by having regard to the circumstances of co-offenders and their respective degrees of culpability – “Like should be compared with like”. Different personal criminal histories however, “justify a real difference in the time each will serve in prison”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. The principle is known as parity. It is a classic example of the need, so far as possible, to ensure equal justice. But the Courts have to also recognise that where there are differences between co-offenders those differences can be reflected in the length of the sentence and the structure of the sentence.

Subjective case for the offender

32. I have a lot of powerful subjective material before me. I have had a chance to review it today. I note it is now late on a Friday.

33. The defendant wrote a letter to me. He did not traverse the circumstances of his offending. Although the letter is not supported by evidence on oath, I can give weight to it.

34. He sought to explain how he managed to ruin his life and what he was doing now to become a “better man … a better version of [himself]”. He thought at the time spending money on gambling and drugs was “cool” and he enjoyed this time. But going to gaol “was a big wake up call” for him. He said it “scared the hell out of him".

35. Coming out of gaol he said, “felt like a second chance”. He said how he “hated” being confined to his house but that he was determined with the help of family and friends to change his life.

36. He was referred to the Illawarra Drug and Alcohol Service. Initially he did not think he had a problem but with time and acceptance of counselling and engagement of programs he has changed that view.

37. The Crown made a submission that he was motivated by self-interest; but one of the purposes of sentencing is personal deterrence, and self-interest is a powerful motivating factor. It is clear that he does not want to go back to gaol. He has no intention of going back to crime.

38. During his time in custody, he was locked in cells for, he says for “150 days” due to COVID-19. He twice caught COVID-19 and became sick. The courts have received much information about what was happening in gaols during the pandemic. The courts, as I will, take that into account in mitigation of sentence. People in gaol had no control over their lives and they were, and are, still subject to COVID-19 restrictions to an extent far greater than those in the community.

39. Bojlevski says he has worked. He has not gambled. He has a partner. They now have a very young child. He has taken on the role of stepfather to his partner’s other child. His assertions are supported by other material. I have an affidavit from his wife who was initially sceptical but has been reassured by his behaviour. Also from his mother, from his employer, local sports clubs with which he has been involved as a volunteer. Family and friends speak of the dramatic change that has come about in his life and that he is now a different person.

40. I have mentioned the gambling addiction. I will mention it again when considering subjective matters. A gambling addiction can explain why an offender has committed offences in the same way as a drug addiction can, but it generally does not warrant the extension of leniency. However, efforts to overcome the addiction can be reflective of favourable prospects of rehabilitation: Siwek v R [2017] NSWCCA 178; R v Henry (1999) 46 NSWLR 346 at [203]; R v Molesworth [1999] NSWCCA 43.

41. The material before me indicates that bail conditions were strict. It indicates that when in custody, unlike many prisoners who simply wait to be sentenced, he engaged in industry and in programs. He was described as polite, willing, and an excellent worker. He took initiative and engaged in whatever programs would assist him. Since coming out of custody he has engaged in the Lives Lived Well and the Watershed Rehabilitation Program. He has joined Gambling Anonymous and has taken steps to ensure that he cannot engage in online gambling.

42. The Illawarra Drug and Alcohol Service describe him as a diligent person who is working hard to lead a drug free life and the urine tests support that. The Sentence Assessment Reports confirm that progress towards rehabilitation has been met and that programs and work in the community can be made available to him.

43. A report from two psychologists, Mr McLean and Ms Zhou, sets out his background. He has family support. There were no particular problems in the family home. The family led an ordinary lifestyle in the local community. He had supportive parents, although nothing before me indicates why or how his father came to involve himself with his son in drug supply. The material notes the impact on the family dynamic of his father serving a relatively short period in custody before Bojlevski went to gaol. And, before this crime he had come to notice of police and came before the courts.

44. His record denies him the leniency often given to first offenders, but otherwise I do not take it into account.

45. Drug use in his twenties escalated. There is some history of bullying at school, and he had only intermittent work. He appears to be vulnerable to drug abuse and as it escalated, I am sure, that he did not have the funds to pay for the drugs that he was consuming.

46. There is evidence that he had gambling debts but there is nothing specific before me other than those assertions. It is impossible for me to work out if there were debts and if so, how that related directly to the offences for sentence. There is comment in the psychologists’ report at par [53] referring to his assertions that “selling illicit drugs would be an ‘easy’ way of funding his gambling and to pay off outstanding debts”, but as I said that cannot be an excuse. The psychologists at par [55] believe there is a “nexus between the gambling disorder and the … offences”, but that condition is said to be in “sustained remission”. For the reasons I have outlined I cannot take it into account when I assess the objective seriousness of the offence, but all the reports confirmed by the psychologists is that his “prognosis is good”.

Submissions

47. I have comprehensive written submissions and I have sought to address them in these remarks. The submissions of the defence can be reduced to a few simple well supported propositions.

• Bojlevski committed a series of serious offences.

• He deserves a gaol penalty.

• He has served 16 months in custody.

• He does not need to go back to gaol for any rehabilitative or personal deterrent purpose.

• If he goes back to gaol there is a risk that the good work that he has done will be compromised.

• That he has demonstrated a capacity to lead a law-abiding life in the community and have support programs in place and has engaged and done everything that one would expect a person to do.

• That it would not be in his or the community interest for him to be returned to custody.

48. The Crown accept that he has done what he can to ensure that he does not reoffend, but their fundamental proposition is equally simple, that the aggregate sentence that I must impose to meet all the purposes of sentencing would exceed 3 years.

49. Mr Edward SC’s proposition is that taking the forward-looking approach enunciated by the High Court in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, there are no community safety issues and the community would in fact benefit from him not being sent back to gaol.

50. Only an aggregate sentence of 3 years or less opens up the prospect of the balance of the sentence given, time being served, subject to intensive correction in the community: Crimes (Sentencing Procedure) Act 1999, s 68(2).

Synthesis

51. I have given this matter anxious consideration. An Intensive Correction Order can only be imposed if the aggregate sentence is less than 3 years.

52. On a practical level there is simply no utility in returning Bojlevski to gaol but the crimes he committed individually and collectively require a sentence, even taking into account the plea of guilty reduction that must be given him, a sentence of more than 3 years. That sentence will have a non-parole period that reflects a significant finding of special circumstances. A sentence of 3 years or more requires that before release to parole there be a consideration by the State Parole Authority. They will consider afresh the interests of community safety: Crimes (Administration of Sentence Act 1999, s 135. It requires that Bojlevski be returned to custody.

53. I appreciate that that his history of depression and anxiety, which may well be related to his time custody, might reappear. I appreciate how disruptive that might be.

54. Mr Edwards SC submitted that a return to gaol would be “crushing”. I cannot accept that submission. All the material put before me indicates that Bojlevski has the personal resources and the support to get through a further period in custody. All the material before me indicates that he has the capacity to do his time and resume the trajectory towards leading a normal life in the community. He has demonstrated his capacity to do.

55. If judges were given more discretion or if we had any access to Drug Court Programs in the Illawarra, a different result might be achieved but I have to return to the crimes that he committed. They were, even making proper allowance for all his efforts, and they are considerable, serious crimes committed against the community. They justify terms of imprisonment which I cannot reduce below what is proportionate to the seriousness of each of the matters.

Orders

56. In relation to the traffic matters, I do not believe it expedient to impose any other penalties other than convictions. Each will be dealt with pursuant to s 10A Crimes (Sentencing Procedure) Act. In relation to both drive while disqualified matters there will be disqualification from driving for a period of 6 months, the minimum period, from date of conviction; today.

57. The indicated sentences take into account the pleas of guilty. They take into account that there will be aggregation and considerable concurrence as between the offences, which were part of a course of conduct. The ultimate or aggregate sentence must be just and proportionate to all crimes for sentence.

• In relation to the supply, I indicate a sentence of 3 years and 3 months.

• In relation to the criminal group, I indicate a sentence of 1 year and 1 month.

• In relation to the proceeds of crime, I indicate a sentence of 1 year and 1 month and I have already made a forfeiture order.

58. There will be a sentence of 3 years and 9 months. Taking into account time served, that sentence will date from 12 March 2023. I note that in formulating the sentence and its non-parole period, I have taken into account the strictness of bail. The non-parole period will be 1 year and 11 months – a significant finding of special circumstances. Bojlevski will be eligible for consideration for release to parole on 11 February 2025. The balance of the sentence of 1 year and 10 months will commence on 12 February 2025 expire on 11 December 2026. Release date; February next year.

59. With the consent of the defendant, I endorse the forfeiture order and make the orders in the terms specified.

**********

Decision last updated: 12 September 2024