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

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.
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.

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 R v Bojlevski

Details

AGLC: R v Bojlevski [2024] NSWDC 415
Case: [2024] NSWDC 415
Decision Date: 26 July 2024

CaseChat Overview and Summary

The case before the court was a matter of serious criminal charges against an individual, Bojlevski, involving drug supply, driving offences, and participation in a criminal group. The defendant was charged with supplying a prohibited drug in quantities exceeding indictable but falling short of commercial levels, as well as engaging in a criminal group and dealing with the proceeds of crime. Additionally, Bojlevski faced charges related to traffic law violations, specifically driving while disqualified and making an illegal U-turn at traffic lights. The case was heard in a higher court where sentencing decisions were made.

The primary legal issues before the court were determining the appropriate sentence for Bojlevski's multiple offences and weighing the mitigating factors presented. The court had to consider the defendant's plea of guilty, the objective seriousness of the offences, the need for deterrence, and the suitability of an intensive correction order. Furthermore, subjective considerations such as Bojlevski's drug and gambling addictions, the impact of COVID-19, his progress toward rehabilitation, and his compliance with bail conditions were evaluated. The court also needed to decide if there should be a return to custody given the long period Bojlevski had already spent on remand.

In delivering the judgment, the court meticulously applied the principles of instinctive synthesis to the sentencing process, ensuring a balanced approach to both the objective and subjective factors. The court acknowledged the plea of guilty as a mitigating factor and recognised Bojlevski's progress toward rehabilitation. However, the objective seriousness of the drug supply offence and the need for general deterrence weighed heavily in favour of a custodial sentence. The court found that an intensive correction order was not appropriate in this case. The court balanced these considerations with Bojlevski's addiction issues and the other mitigating factors to arrive at an aggregate sentence of imprisonment of 3 years and 9 months, with a non-parole period of 1 year and 11 months.

The court concluded that Bojlevski should serve this sentence in custody, taking into account the totality of the circumstances, including his lengthy period on remand and the need to ensure public safety. This decision reflected a careful consideration of all relevant factors, leading to a sentence that aimed to achieve justice for the offences committed while also considering the personal circumstances of the defendant.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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