Birkic v R

1. [1]

   MICHELMORE JA: I agree with the orders Rigg J has proposed, for the reasons her Honour has given. I also agree with the reasons for judgment of Campbell J in the matter involving Robert Bojcevski, to which her Honour refers in these reasons.

2. [2]

   CAMPBELL J: I agree with Rigg J.

3. [3]

   RIGG J: On 19 July 2024 the applicant Ante Birkic was sentenced by his Honour Judge Colefax SC in the District Court to an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years and 6 months following pleas of guilty to five offences. These were four offences of supplying a large commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”) (sequences 5, 6, 12 and 13) and one offence of knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug, contrary to s 24(2) of the DMT Act (sequence 8). All offences carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment.

4. [4]

   Three further offences were taken into account on a Form 1 in relation to sequence 5. These were two offences of knowingly dealing with proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW) (sequences 3 and 4) and one offence of participating in a criminal group, contrary to s 93T(1) of the Crimes Act (sequence 7).

5. [5]

   The sentencing judge specified the following indicative sentences for the offences after applying a discount of 25% for the applicant’s guilty pleas:

   1. (1)

      For sequence 5, an indicative sentence of 6 years and 9 months, with a non-parole period of 5 years.

   2. (2)

      For sequence 6, an indicative sentence of 7 years and 6 months, with a non-parole period of 5 years and 7 months.

   3. (3)

      For sequence 8, an indicative sentence of 5 years and 3 months, with a non-parole period of 3 years and 11 months.

   4. (4)

      For sequence 12, an indicative sentence of 9 years and 9 months, with a non-parole period of 7 years and 3 months.

   5. (5)

      For sequence 13, an indicative sentence of 3 years and 9 months, with a non-parole period of 2 years and 9 months.

6. [6]

   The applicant’s sentence was backdated to commence on the date of his arrest on 12 August 2021. The applicant is first eligible for release to parole on 11 February 2032. The parole period ends on 11 August 2035.

7. [7]

   The applicant seeks leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). He relies upon the following grounds of appeal:

   1. (1)

      The sentencing judge erred by failing to take into account the applicant’s onerous conditions in custody arising from COVID-19.

   2. (2)

      In relation to the sentence imposed on Mr Peitsos for supplying a large commercial quantity of drug (14.0221 kg of cocaine):

8. [8]

   His appeal was argued at a joint hearing with that of his co-offender Robert Bojcevski. I have had the benefit of reading the draft judgment of Campbell J in that matter, and as will be seen have utilised aspects of that judgment regarding the equivalent issues in Mr Birkic’s case. Both men were sentenced at the same time by Colefax SC DCJ, as well as with Nikola Drenovac.

Circumstances of the offending

1. [9]

   The circumstances of the offending were before the sentencing judge by virtue of a detailed statement of agreed facts and expert evidence from Detective Sergeant Bradley Goodhart relevant to the street value of the various drugs. The basic facts have been summarised in Campbell J’s judgment in Mr Bojcevski’s case, and I have extracted the relevant part of his Honour’s judgment, amended as appropriate for Mr Birkic’s case, with some additional detail.

2. [10]

   A police investigation into the relevant drug manufacture and supply commenced in May 2021. The applicant was engaged with six other men (of which Messrs Bojcevski, Drenovac and Peitsos were three) in the manufacture and supply of cocaine and methylamphetamine. Observations of the men by way of surveillance occurred through July and early August 2021.

3. [11]

   Two men, Mr Juan Ramirez and Mr Carlos Florez, operated what was described as a “sophisticated” laboratory where the drugs were manufactured on a rural property in Pyramul, outside of Mudgee. The role of the remaining five men was the acquisition and transport of the requisite raw materials from Sydney and Bathurst to Messrs Ramirez and Florez, and ultimately the transport of the drugs back to Sydney for supply for financial gain (although there was no clear agreement as to who of the five were responsible for the latter).

4. [12]

   In early August 2021, police executed a series of search warrants, first targeting three self-storage units in Sydney on 6 August. Two of these were leased in the name of Mr Bojcevski and one in the name of the applicant. From them police seized the following:

   1. (1)

      20.872 kilograms of methylamphetamine, with an estimated street value of between $8.3 million and $10.4 million (sequence 6).

   2. (2)

      14.0221 kilograms of cocaine, with an estimated street value of between $4.6 million and $6.4 million (sequence 5).

   3. (3)

      $990,100 in cash (sequence 3, taken into account on the Form 1 in relation to sequence 5).

   4. (4)

      Large quantities of chemicals and solvents.

5. [13]

   On 12 August 2021, after an additional period of surveillance, police executed further search warrants against the Pyramul property, the residences of the applicant, Mr Bojcevski and Mr Drenovac as well as the same three self-storage units.

6. [14]

   The search of the Pyramul property revealed the aforementioned sophisticated laboratory, together with large quantities of chemicals, solvents and manufacturing paraphernalia. Police also uncovered 15.458 kilograms of cocaine hydrochloride, which after refinement would have had an estimated street value of approximately $7 million (sequence 8). A further quantity of 21.760 kilograms of cocaine hydrochloride was discovered, but no charges were brought in respect of it. Instead the Crown relied upon it as evidence of the ongoing nature of the drug manufacturing operation. In Mr Drenovac’s home, police uncovered 60.951 kilograms of cocaine, with an estimated street value of $28 million (sequence 12).

7. [15]

   At the applicant’s residence, police found 2.892 kilograms of cocaine (sequence 13) and $127,300 in cash (sequence 4). This cocaine was in individual bags with purity ranging between 7 and 8.5 per cent, with an estimated street value of $1.3 million.

8. [16]

   The applicant and Messrs Bojcevski and Drenovac were additionally charged with an offence of participating in a criminal group (sequence 7, which was taken into account on the Form 1 on sequence 5).

9. [17]

   The sentencing judge accepted the submission for the Crown that the applicant’s role involved:

Applicant’s subjective case

1. [18]

   The evidence regarding the applicant’s subjective case is complex. For present purposes only the important aspects that are either referred to in his Honour’s sentencing judgment, or directly relevant to the grounds of appeal, are outlined.

2. [19]

   The applicant did not give evidence on sentence. His subjective case was primarily drawn from his criminal and custodial history tendered by the Crown, and reports by Dr Stephen Allnutt (psychiatrist) dated 27 April 2023 and Mr Tim Watson-Munro (psychologist) dated 24 January 2023 tendered on his behalf, together with his letter to the sentencing judge, character references and a certificate of completion of drug rehabilitation treatment in custody.

3. [20]

   The applicant was 31 years of age at the time of his arrest, and married with three young children. The sentencing judge found that the applicant’s childhood was, with one exception, an “unremarkable one”, having been brought up in a loving and supportive family. His Honour referred to the applicant’s disclosure to Dr Allnutt of an incident of sexual abuse by a teacher at school, and held that such abuse may well be a factor, and possibly a significant one, in the applicant starting to use illicit drugs in his mid to late adolescence.

4. [21]

   The applicant had long term problems with illicit drugs and gambling, commencing in adolescence and increasing significantly by the time of the offending. The offending occurred in the context of the applicant’s legitimate business (as a painter) collapsing due to COVID-19. His Honour found that the applicant was involved in the offending to repay significant drug and gambling debt. His Honour held that whilst the applicant had psychological issues at the time of his offending, he participated for a clear financial benefit: to erase debt and to make very significant additional profit.

5. [22]

   The applicant had a limited criminal history and was entitled to a degree of leniency in view of his prior good character and lack of significant antecedents. His Honour accepted the applicant’s expressions of remorse as genuine. His prospects of rehabilitation were assessed as “cautiously reasonable”. He had not used illicit drugs in custody, and had no internal disciplinary events. He had trade qualifications which should enable meaningful employment on release from custody.

6. [23]

   The report of Mr Watson-Munro stated the following regarding aspects of the applicant’s incarceration:

7. [24]

   The dates of these moves corresponded generally with the Corrective Services records. The applicant’s letter to the Court relevantly stated:

Verdicts and sentences of co-accused and co-offenders

1. [25]

   As noted earlier the applicant was sentenced by the same sentencing judge on the same day as Robert Bojcevski and Nikola Drenovac. Mr Bojcevski was sentenced to an aggregate sentence of 12 years imprisonment with a non-parole period of 9 years. Mr Drenovac was sentenced to an aggregate sentence of 13 years imprisonment with a non-parole period of 9 years and 9 months.

2. [26]

   The three co-offenders stood to be sentenced for four of the same offences, with the applicant additionally sentenced for sequence 13, and Mr Drenovac sentenced for two additional offences of supplying a large commercial quantity of a prohibited drug, contrary to s 25(2) of the DMT Act. Two offences on the Form 1 attached to sequence 5 (and the corresponding sequences for Mr Bojcevski and Mr Drenovac) were common to all three co-offenders, with an additional offence, being sequence 4, also to be taken into account on the Form 1 attached to sequence 5 in sentencing the applicant.

3. [27]

   Another co-offender Costandinos Peitsos was found not guilty of a number of charges. He pleaded guilty to one offence of supplying a large commercial quantity of a prohibited drug (his count 2, corresponding with the applicant’s sequence 5, and Mr Bojcevksi and Drenovac’s count 2) and one offence of knowingly dealing with proceeds of crime which was unique to him (count 10). There was no Form 1 offending applicable to Mr Peitsos. He was sentenced by Judge Everson SC to an aggregate sentence of 4 years and 6 months, with a non-parole period of 2 years and 4 months. An indicative sentence of 3 years and 6 months, with a non-parole period of 1 year and 9 months was nominated for count 2 (noting that but for the early guilty plea his Honour would have imposed a sentence of 4 years and 8 months) and an indicative sentence of 2 years and 8 months was nominated for count 10.

4. [28]

   A further male Luka Zoric was found not guilty of a number of charges. He pleaded guilty to an offence of possessing an unauthorised firearm and was sentenced by Judge Everson SC to a community correction order. Juan Ramirez and Carlos Florez were found not guilty of all charges by Judge Everson SC in a judge alone trial.

Sentence proceedings

1. [29]

   There are a number of aspects of the sentence proceedings relevant to the grounds of appeal. Written submissions filed in advance of the primary sentencing hearing on 6 October 2023 advanced the following relating to the applicant’s hardship in custody:

2. [30]

   During the sentence proceedings on 6 October 2023, senior counsel appearing for the applicant made the following oral submission:

3. [31]

   His Honour adjourned the proceedings to 15 December 2023 for sentence. The transcript of further sentence proceedings on 24 April 2024 indicates that the 15 December 2023 sentencing date had been vacated due to the fact that Mr Peitsos had been sentenced, and it was necessary to provide his Honour with that sentencing judgment for parity purposes. Further written submissions addressing parity with Mr Peitsos were filed in advance of 24 April 2024, and further oral submissions advanced on that occasion, when the Crown also re-opened its case and formally tendered the sentencing judgment of Everson SC DCJ.

4. [32]

   In the further written submissions on parity, both the Crown and the applicant submitted that Mr Peitsos’ sentence and his subjective and objective circumstances may be considered and applied to the sentencing exercise for the applicant, Mr Bojcevski and Mr Drenovac.

The sentencing judgment of Mr Peitsos

1. [33]

   In sentencing Mr Peitsos, his Honour Judge Everson SC made the following relevant findings:

2. [34]

   His Honour accepted psychiatric evidence that Mr Peitsos was suffering from an adjustment disorder with mixed anxiety and depressed mood, for which he was self-medicating with alcohol and drugs, and which affected his judgment, giving rise to his involvement in the offending. This was found to reduce the need for general and specific deterrence.

The sentencing judgment of the applicant, Mr Bojcevski and Mr Drenovac

1. [35]

   His Honour made a number of findings regarding the offending in addition to those already set out. None of these are challenged on appeal.

2. [36]

   His Honour found that the applicant and Mr Drenovac “bear roughly equivalent criminal and moral culpability for the four principal offences” which they have in common, although the applicant had a slightly less active role and Mr Drenovac had a slightly more active role. His Honour found that neither the applicant nor the two men being sentenced with him were the mastermind of the operation, but each was a highly trusted participant and played a significant role in it. His Honour found that each of their roles was significantly more elevated than a “classic low-level courier or warehouse man”, although none of the applicant, Mr Drenovac or Mr Bojcevski was directly involved in the manufacture, sale or distribution of any of the drugs.

3. [37]

   His Honour also found that the two sums of money (sequences 3 and 4) were indicative of what each of the offenders might have anticipated as receiving as profit.

4. [38]

   Each of the principal offences common to all three offenders was found to be an “objectively serious example of that type of offence”. Sequence 13 which was unique to the applicant was found to be towards, but not at, the bottom of the range for an offence of its kind.

5. [39]

   On the issue of the onerousness of custody due to COVID-19, the sentencing judge stated at [100] of his judgment:

6. [40]

   On the issue of parity with Mr Peitsos’ sentence, the sentencing judge stated at [27] and [59] of his judgment:

Ground 1

1. [41]

   Ground 1 is that sentencing judge erred by failing to take into account the applicant’s onerous conditions in custody arising from COVID-19.

2. [42]

   It was submitted for the applicant that the sentencing judge made no reference in his remarks on sentence to the applicant’s hardship in custody as a result of COVID-19. It was submitted that there was unchallenged evidence before his Honour demonstrating that the applicant’s custody was more onerous due to COVID-19, namely the reports of Dr Allnut and Mr Watson-Munro and the letter written by the applicant. It was also submitted that this factor was raised before his Honour in both oral and written submissions by senior counsel appearing for him and that the Crown did not respond either orally or in writing to those submissions.

3. [43]

   The applicant submitted that the sentencing judge’s statement at [100] of his judgment (extracted above at [39]) demonstrates:

   1. (1)

      Firstly, that his Honour determined that the appropriate method of taking into account periods of lockdown for Mr Drenovac was by backdating his sentence.

   2. (2)

      Secondly, that the applicant’s sentence was not reduced by backdating to take into account his experience of more onerous COVID-19 conditions (including lockdowns).

   3. (3)

      Thirdly, that his Honour must have overlooked this factor in relation to the applicant because it was explicitly taken into account in relation to Mr Drenovac but not in relation to the applicant.

4. [44]

   On the third point, the applicant further submitted that throughout the sentencing remarks, his Honour tended to consider factors relating to the three co-offenders before him at the same time, and in that context it could be expected that if his Honour intended to take into account the onerousness of custody arising from COVID-19 in relation to the applicant, his Honour would have stated that at the same time as when dealing with that factor for Mr Drenovac. It was submitted that even if the applicant’s sentence was not to be reduced for that factor, his Honour should have explained why the applicant was to be treated differently.

5. [45]

   The applicant relied upon PH v R [2023] NSWCCA 176 (“PH”) at [51]-[55] where this Court (Cavanagh J with whom Simpson AJA and Rothman J agreed) found error was correctly conceded by the Crown in relation to an absence of a finding in remarks on sentence as to the impact of COVID-19 on prisoners, such that this Court was unable to ascertain whether that factor was taken into account on sentence. The applicant’s case was submitted to demonstrate error more strongly than in PH because here evidence was adduced and specific oral and written submissions were made at first instance in relation to COVID-19.

6. [46]

   The observations made by this Court in Wass v R [2022] NSWCCA 143 (“Wass”) at [71], relied upon by the respondent, were submitted to relate to the lack of any evidence supporting the actual impact of the pandemic other than “the existence of the virus generally”, whereas in the present case there was specific evidence of the impact of COVID-19 upon the applicant. On this point, the applicant also relied on Lloyd v R [2022] NSWCCA 18 at [41]-[47].

7. [47]

   It was submitted that the respondent’s submission as to the unreliability of the evidence of the onerous COVID-19 conditions should be rejected for reasons including: the evidence was tendered without objection or requirement for cross-examination; the Crown raised no issue in relation to it at first instance; the sentencing judge in his sentencing remarks only raised an issue of reduced weight to be given to the expert reports at the hand of the same psychologist tendered on behalf of Mr Bojcevski and Mr Denovac, not the applicant, for the different reason of the author’s potential conflict of interest; and the sentencing judge generally accepted the applicant’s expert reports, including stating Dr Allnutt’s report was “nonproblematic”. Insofar as the respondent sought to contrast the evidence in the applicant’s case with that relied upon for Mr Drenovac, the applicant contended that Mr Drenovac’s document was also not corroborated, sworn or tested and had no greater value than the applicant’s account to Mr Watson-Munro. The applicant also noted that the applicant and Mr Drenovac were arrested and in custody at the same time in NSW.

8. [48]

   Senior counsel for the applicant also addressed the respondent’s reliance on BE v R [2024] NSWCCA 100 at [97] (“BE”), citing Whipp v R [2024] NSWCCA 79 at [61] (“Whipp”). It was submitted that BE is not of assistance because there, the evidence was scant in relation to COVID-19, and the offender’s restrictions in custody were not COVID-related but instead due to his poor behaviour in custody, such that it was not erroneous for the sentencing judge to not refer to the impact of COVID-19 on his conditions in custody. (T 4-5)

9. [49]

   The respondent submitted that the sentencing judge did not err by failing to take into account the applicant’s onerous conditions of custody arising from COVID-19. It was submitted that the only evidence as to that factor consisted of hearsay assertions made by the applicant to Mr Watson-Munro and his letter to the Court, neither of which was supported by sworn evidence or any corroborative evidence. The respondent emphasised that sentencing courts are not obliged to accept such assertions which are unsupported by sworn evidence and are entitled to give it little or no weight, referring to R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 (“Qutami”) at [58]-[59] and [79], Imbornone v R [2017] NSWCCA 144 at [3], [9] and [57] and Salameh v The King [2024] NSWCCA 239 at [40]. The applicant’s letter was said to contain no details as to the hardship experienced in custody resulting from COVID-19 and his assertions to Mr Watson-Munro were submitted to fall short of the standard referred to in Wass at [71] – that claims that the pandemic rendered custody more burdensome require current, reliable evidence of the specific adverse consequences said to have been experienced, given the fluid nature of restrictions that applied during the pandemic.

10. [50]

    The respondent submitted that the fact the sentencing judge backdated Mr Drenovac’s sentence by one month to reflect time he spent confined to his cell due to COVID-19 does not demonstrate that the same consideration was overlooked in the applicant’s case. The respondent also contrasted the applicant’s evidence with that adduced for Mr Drenovac, which documented specific dates when he was in solitary confinement because of COVID-19.

11. [51]

    The respondent sought to distinguish PH on the basis that the sentencing judge in that case expressly stated judicial notice would be taken of the impact of COVID-19 on custodial conditions but thereafter failed to refer to it, whereas in the present case the sentencing judge made no such remark in the sentence hearing.

12. [52]

    The respondent relied upon the judgment of Button J (Davies and Sweeney JJ agreeing) in Whipp at [61], where his Honour said:

13. [53]

    The respondent noted that this passage was recently followed by this Court in BE at [97] (Kirk JA, Davies and Sweeney JJ), in rejecting a contention that the sentencing judge erred in not referring to the impact of COVID-19 on the applicant’s conditions in custody in circumstances of scant evidence.

14. [54]

    Campbell J has set out principles relevant to resolving contentions of error regarding taking into account the impact of COVID-19 in sentencing in his judgment in Mr Bojcevski’s appeal at [30]-[37]. I will refer to some of these, and other authorities relied upon by the parties in this applicant’s appeal. The same principles have different application in this case due to the significantly different evidence and focus of submissions at first instance relevant to the impact of COVID-19 in Mr Birkic’s case.

15. [55]

    Campbell J refers to the decision of this Court in Scott v R [2020] NSWCCA 81, in which Hamill J at [166] referred to the suspension of visitation as a factor that may make conditions of custody for a particular offender more onerous. Hamill J’s judgment at [158]-[166] also made clear the need for evidence to substantiate any claimed harshness of incarceration.

16. [56]

    In Wass the applicant sought without evidence to obtain an amelioration of any custodial sentence that might be imposed by reference to the likelihood that he might be infected with COVID-19 if he was incarcerated: at [2]. There was no evidence provided other than his affidavit on sentence in which he deposed that he was very anxious that, if incarcerated, he might be infected with COVID-19, which he thought would have a much greater deleterious effect on him, including causing his death, than on other prisoners, because of his asthma, a lung condition, and other health complications. He expressed the view that if the virus entered the prison system – there being no instances of infection in the custodial system at the time the affidavit was sworn – it would spread at a faster rate than in the community. This was the only evidence before the sentencing court concerning the COVID-19 pandemic. Written submissions for the applicant at first instance contended that prisoners were affected by the virus because of an apprehended danger of infection, an actual danger of infection, and greater isolation from family and friends due to restrictions on visits to inmates. It was argued that for the “foreseeable future”, additional hardship would be occasioned to prisoners. An analogy was drawn between the effect on conditions of custody of the virus, and that caused by a prisoner’s protection status.

17. [57]

    The sentencing judge rejected that contention by reference to three matters that were not in dispute at the time sentence was imposed, namely that at that time COVID-19 was not circulating in the community, there had not been outbreaks within the prison system, and prisoners were being vaccinated: Wass at [2] (Beech-Jones CJ at CL), [61] (Wilson J). The relevant ground of appeal was that “The sentencing judge erred in finding Covid-19 to be ‘a complication that had gone away with the deflection [sic: effluxion] of time’”.

18. [58]

    This Court held that the sentencing judge was not referring to the pandemic itself, but the prospect of widespread infection in the custodial system adversely affecting a large proportion of the prison population, which was correct. His Honour was doing no more than stating a generally known position, not making a finding on evidence. It was in that context that Wilson J referred to the need for evidence to support an amelioration of sentence due to COVID-19 concerns.

19. [59]

    Here, the applicant was not asking the Court to take into account any onerousness of his custody in the future, requiring current and reliable evidence of adverse consequences, but the known adverse consequences of the past, of which there was evidence.

20. [60]

    The applicant in PH was sentenced in October 2021. The ground of appeal that this Court upheld was “The sentencing judge erred by failing to take into account the onerous impact of the COVID-19 pandemic on the conditions of imprisonment.” The Court (Cavanagh J with whom Simpson AJA and Rothman J agreed) held at [54] that the onerous conditions imposed on a person in custody during the COVID-19 pandemic is a relevant factor in the determination of sentence, citing McKinnon v R [2020] NSWCCA 106 (“McKinnon”) at [32] per Payne JA, with whom Beech-Jones J and N Adams J (as her Honour then was) agreed. It was correctly submitted for the respondent that the sentencing judge had indicated during the hearing that she would take judicial notice of that impact. However, as the applicant submitted, that was not the reason the ground was upheld – it was an aspect of how the Court was satisfied the sentencing judge had failed to take the impact of COVID-19 into account, which was the error. There was no evidence of its actual impact on the applicant referred to in that case.

21. [61]

    In McKinnon, in resentencing the applicant in May 2020, Payne JA stated at [32]:

22. [62]

    The part of Button J’s judgment in Whipp relied upon by the respondent was not concerned with the impact of COVID-19 on the onerousness of custody, but of his mental health condition on the same. His Honour went on to find that it was incumbent upon the sentencing judge in that case to engage explicitly with the submission made at first instance in that regard. The ground alleging that the sentencing judge had erroneously failed to take this factor into account was upheld. The reliance upon this passage in BE is not germane to the current appeal. In BE there was held to be no error by reason of the sentencing judge not making mention of the impact of COVID-19 on the applicant’s incarceration in circumstances where evidence about the matter was scant. There was a brief written submission on the topic and no oral submission. The restrictions that applicant faced in custody were largely due to his poor behaviour: see at [90]-[98] per Kirk JA, Davies and Sweeney JJ.

23. [63]

    In contrast to Mr Bojcevski’s case, a number of the cases just outlined, and Ingray v R [2023] NSWCCA 292, evidence was adduced in relation to the impact of the pandemic on the applicant, including the lockdowns, his contraction of COVID-19 in custody and the extremely limited family contact which was particularly hard for someone with his psychological vulnerabilities. I am not of the view that the line of authority relied upon by the respondent referred to above at [54] including Qutami detracts from the applicant’s case. His Honour did not state that he did not accept the evidence for that reason, all of the findings regarding the applicant’s subjective case were based on unsworn and untested evidence, and Mr Drenovac’s document was not apparently sworn either but was simply a tally kept by him of the days he spent in solitary confinement owing to COVID-19. The document tendered in Mr Drenovac’s case is in fact not before the Court, but the respondent’s written submissions referred to the stated backdate based upon it being “to reflect the 121 days he spent confined to his cell due to COVID-19”.

24. [64]

    In circumstances where the factor was expressly referred to in Mr Drenovac’s case and not in the applicant’s, I am satisfied that his Honour overlooked this consideration in the applicant’s case, and his failure to take it into account was in error. Ground 1 should be upheld. In circumstances where the Court is required to resentence the applicant, there is no utility in considering ground 2.

Resentence

1. [65]

   The applicant has argued that based on the material that was before the District Court, a number of different, favourable findings should be made. One of these relates to his prospects of rehabilitation. This will be returned to, as there is significant additional material available on resentence which does support a more favourable finding in that respect than that made at first instance. However the applicant also argues that this Court should place greater weight on the applicant’s mental condition and background of disadvantage than the sentencing judge did, on the basis of the evidence that was before the District Court. For the following reasons, I am not satisfied that this is a suitable course in this case.

2. [66]

   The applicant was represented at first instance by very experienced senior counsel. His two co-offenders were represented by King’s counsel. When the case for the co-offenders was being presented, King’s counsel stated of the psychological reports he was tendering “I tender in each of the matters involving my two clients psychologist’s report on the basis that it indicates surrounding circumstances and relates to the general mix of subjective considerations. I’m not seeking to press it beyond that”. It was stated that it was not relied upon “in a De La Rosa sense”, nor for any causal connection with the offending. The reference to “De La Rosa” was to DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”).

3. [67]

   Senior counsel for the applicant tendered the material relied upon, and noted that the Crown had initially required the two experts for cross-examination, and that they had been made available for the sentencing hearing, but that cross-examination was no longer pressed by the Crown. During the submissions of the prosecutor, he stated that the expressly limited basis on which the reports for Mr Drenovac and Mr Bojcevksi had been tendered was the reason for the authors not being required for cross-examination. He stated that he did not expect any De La Rosa submission to be advanced in Mr Birkic’s case either, nor any submission that there was a clear diagnosis at the time of offending which reduced moral culpability. Senior counsel for the applicant explicitly stated:

4. [68]

   This concession was acknowledged in the written submissions filed for the applicant. It was argued at the hearing however that this submission could not be said to be the product of a tactical decision and the Court should take a different approach.

5. [69]

   The oral submission at first instance continued:

6. [70]

   It was submitted that although the offending was clearly for reward, the applicant was not a “Mr Big” in the enterprise.

7. [71]

   The applicant asks the Court in resentencing to find that the principles in De La Rosa are engaged, namely that: mental health contributing to the commission of the offence in a material way reduces his moral culpability, and the need to denounce the crime; general and specific deterrence may be reduced; and custody may weigh more heavily on a person with such a condition. Conversely there may be more of a danger to the community. The applicant further relied upon authority such as Moiler v R [2021] NSWCCA 73 and DB v R [2023] NSWCCA 323 indicating that too prescriptive an approach should not be taken in the process of instinctive synthesis of requiring mental illness to be established as a direct or precipitating cause of offending before it is taken into account.

8. [72]

   The following aspects of Dr Allnutt’s report regarding the applicant’s prior mental state are relied upon. As part of his opinion regarding psychiatric illness, Dr Allnutt stated:

9. [73]

   To Dr Allnutt the applicant reported one incident of sexual abuse by a teacher in 1999 (when he would have been 9 or 10 years old). Under the heading “Mental State at the Material Time of the Offending” Dr Allnutt noted the applicant’s sexual abuse by a teacher and associated post-traumatic stress symptoms which have “improved through the years but persisted and probably fluctuated in intensity”. Dr Allnutt suggested that it was likely that the sexual abuse, along with peer pressure contributed to the applicant’s substance use from age 15 or 16 which the applicant found “took him to another world” and that “In the context of this, he developed a cocaine use disorder”.

10. [74]

    Dr Allnutt described the financial pressures commensurate with COVID-19 and stated that the applicant “describes several depressive symptoms and likely experienced the onset of chronic adjustment disorder or an aggravation of his chronic adjustment disorder”. Dr Allnutt further opined that at the material time, in the context of a number of factors, the applicant’s substance use disorder became aggravated and “Experiencing depressive symptoms, he would have been prone to proceeding the circumstances in more negative terms and in this way the depressive condition, in the context of his circumstances, would have impacted his judgement.”

11. [75]

    The applicant relied upon Dr Allnutt’s opinion as to psychiatric illness at the time of writing the report, which was that he:

12. [76]

    The applicant also noted that Mr Watson-Munro reported the applicant to be experiencing symptoms of depression and anxiety at the time of the offending, and that his involvement in cocaine escalated.

13. [77]

    The applicant submitted that based on the opinions of Dr Allnutt, this Court exercising its sentencing discretion afresh would find that there is “a” causal connection (not a direct causal connection) with the offending because the applicant’s chronic adjustment disorder had a role to play in the development of his substance use disorder and the applicant’s use of cocaine at the time of the offending, and the depressive symptoms he was experiencing impacted his judgement at the time of the offending.

14. [78]

    If the Court was to assess the evidence in that way, it was submitted that the applicant’s moral culpability could be found reduced, and the significance of specific and general deterrence could be moderated.

15. [79]

    It was also submitted that Dr Allnutt’s report of the applicant continuing to experience continued panic attacks intermittently with increased reactivity to sudden sounds and avoidance of triggers that remind the applicant of abuse makes his time in custody more onerous.

16. [80]

    It was further submitted that the Court should find the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) invoked because of the incident of sexual abuse by a teacher disclosed to Dr Allnutt and the applicant’s subsequent problems associated with this.

17. [81]

    The respondent opposed the course advanced by the applicant regarding these issues, relying upon the High Court’s statement in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (“Betts”) at [2] that:

18. [82]

    The respondent’s submissions also made reference to DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 (“DL”) at [9] and this Court’s consideration of similar issues in Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [251] per N Adams J as her Honour then was (Cavanagh J agreeing, Brereton JA reaching a different conclusion on the factual contest but proceeding on the basis of the same principles) and LS v R [2020] NSWCCA 27 at [43]. It was submitted that a party (whether it be the offender or the Crown) should not be permitted to run a different case unless it forms part of a ground of appeal relying upon a miscarriage of the sentencing exercise.

19. [83]

    An analogy was also advanced with this Court’s well established reluctance, outlined in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (“Zreika”) (in relation to a ground of appeal), to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made.

20. [84]

    The Crown submitted that even if the course proposed by the applicant was permitted, the Court would not find that any depressive condition materially contributed to the applicant’s offending. In part, this was because the applicant’s self-report to Dr Allnutt was in other respects unreliable (including his assertion that his offending was because of threats from co-offenders).

21. [85]

    The Crown submitted that the same principles should apply to prevent the applicant from mounting the different case that the principles in Bugmy arise. It was further submitted that the background relied upon was not properly categorised as one of “deprivation” or “disadvantage” in the sense outlined in Bugmy, including by reference to Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [8]-[13] per Bell P (as his Honour then was) (Price AJA agreeing and Hamill J dissenting).

22. [86]

    Detailed analysis of the application of the principles in Betts, DL and Zreika to the making of different submissions on a resentencing exercise, based on the same evidence as was before the Court at first instance, is not required in this matter to accept the submission of the respondent that the course proposed by the applicant should not be permitted.

23. [87]

    The course deliberately taken by experienced senior counsel in the District Court can be seen to have been plainly taken for forensic reasons to advance the applicant’s position, acknowledging that this Court does not know all that was within his knowledge. Most fundamentally, it would seem clear that the Crown abandoned its requirement that Dr Allnutt and Mr Watson-Munro be made available for cross-examination on the basis of the express and stressed acknowledgment of senior counsel that their opinions were not relied upon to support application of the principles in De La Rosa. This alone is enough reason to not permit a different course to be taken now. The Crown’s loss of opportunity to cross-examine the witnesses cannot be undone, and there would be a denial of procedural fairness to the Crown to use Dr Allnutt’s report in a way that is contrary to the agreement reached between the parties in the District Court.

24. [88]

    Even on the limited basis of the material before this Court on appeal, a clear forensic basis for senior counsel for the applicant placing a soft focus on the expert reports is apparent. Firstly, the applicant provided an account to Dr Allnutt that by virtue of his gambling he accumulated a debt of tens of thousands of dollars, some of which was owed to his co-offenders, and he committed the offences predominantly because of this debt and the fact that his co-offenders had made threats that if he did not pay them back he would be “gone”. This account was not supported by any sworn evidence, was not the same as his account to Mr Watson-Munro, and was at odds with the way in which the applicant engaged with and directed his co-offenders as set out in the agreed facts, and with other evidence such as the very large amounts of money connected with the applicant’s offending and the three Rolex watches found when his premises were searched. There was no submission advanced at first instance that non-exculpatory duress was made out. There is no challenge to his Honour’s factual finding that the offending was to repay debt and obtain significant profit. His Honour noted this history of threats provided to Dr Allnutt, indicated that he had already implicitly found it to be incorrect, and went on to find that it was deliberately incorrect as he found the applicant engaged in those activities as well for significant financial gain or profit. His Honour noted that this deliberately incorrect report to Dr Allnutt might have had significance in his assessment of the reliability of the history given to Dr Allnutt, but in circumstances where neither his representatives nor the Crown had made any submissions upon it, he was prepared to put it to one side.

25. [89]

    Secondly, the case advanced for the applicant by way of character references, his letter to the Court and submissions on his behalf was strongly focused on this offending being profoundly out of character, with the applicant being deeply remorseful, making no excuses for his conduct, and having very impressive prospects of rehabilitation. Nuanced reliance on the expert reports to present the applicant as having some troubles at the time, which indicated the applicant was not a cold, hard “Mr Big”, alongside his other favourable subjective features, was an effective way to present his case in the face of such serious offending.

26. [90]

    Thirdly, the expert reports were meaningfully different from eachother in relation to the applicant’s mental health conditions and any possible connection with his offending. The case the applicant urges on resentence in relation to his mental health and background deprivation is based on the report of Dr Allnutt.

27. [91]

    Mr Watson-Munro described no adverse childhood incidents. He described cocaine usage from 16 years of age but only on a recreational basis of once every two to three weeks until the applicant married in 2015, at which stage his use escalated, against a backdrop of ongoing financial pressures (paying for the wedding and then moving into a larger house). Mr Watson-Munro found that the applicant suffered significant symptoms of depression and anxiety arising from financial pressures which commenced proximal to his marriage.

28. [92]

    He described the applicant taking on the lease for a larger home in Prospect which was an escalation in costs three to four years prior to his report (January 2023), coinciding with the birth of his second child, his wife’s income being reduced due to the nature of her maternity leave, and the onset of COVID with a downturn in his income as a painter. He stated in his report:

29. [93]

    Mr Watson-Munro describes the applicant’s heavy reliance on cocaine as a means of self-medication, increasing to two grams a day, with inevitable impact on his psychological state, increase in anxiety and depression, and isolation from his marriage and home life. He drifted in with an adverse peer group and developed a strong addiction to gambling which became compulsive by 29 years of age (which he also described as the time of moving to the second home). He described the applicant borrowing $10,000 to $20,000 to pay bills but using this to fuel his cocaine addiction. Alcohol consumption also increased to abuse and dependence and, in addition to his financial losses from gambling, further impacted upon his mood state and judgement. Following setting out aspects of this history he expressed the opinion:

30. [94]

    Mr Watson-Munro also described the applicant’s report of protracted sleep disturbance caused by the cocaine use, with him receiving only one to two hours of sleep per night at the time of offending and having high levels of paranoia but no significant rebound depression, because he never gave himself an opportunity to come down. He reported:

31. [95]

    To Mr Watson-Munro the applicant described his escalating cocaine use and gambling, resulting in him dissociating in time and place, and borrowing money he had no intention of paying back because he was “clouded” by cocaine. He reported:

32. [96]

    In light of a further aspect of the report, it may be that the last word should be “invincible”. The finding summarised above at [91] of depression and anxiety commencing proximal to the applicant’s marriage was in the second paragraph under the heading “Opinion”. In the third paragraph under that heading he stated:

33. [97]

    As part of the fourth paragraph he stated:

34. [98]

    Mr Watson-Munro reported that:

35. [99]

    Thus Mr Watson-Munro reported no instance of sexual abuse as a child, infrequent recreational use of cocaine as a teenager, but symptoms of depression and anxiety arising from financial pressures which commenced proximal to his marriage in his 20s with a cocaine problem developing from that time. Rather than a negative outlook or perception of circumstances at the time of offending, he reported the applicant had a “highly subjective” outlook and a sense of invincibility and lacked recognition of the gravity of what he was doing. To Mr Watson-Munro the applicant also made some reference to “loose threats” in terms different to the history provided to Dr Allnutt, and having the same problems as outlined above in relation to this aspect of Dr Allnutt’s report.

36. [100]

    Fourthly, sharper focus on Mr Watson-Munro’s report would also have risked attention being paid to the applicant’s acknowledgment that he had turned to selling cocaine to fund his cocaine and gambling addictions. This is not mentioned in his Honour’s sentencing judgment. That term may simply refer to his guilt in relation to all the supply offences. However the applicant’s offence of supplying a large commercial quantity of cocaine that was unique to him and not committed as part of a joint criminal enterprise with others (sequence 13) involved 2.892 kilograms of cocaine found in his residence, with an estimated street value of $1.3 million, with $127,300 cash and designer watches also present. Whereas the other large commercial quantities of cocaine were either still in the process of refinement, or had been refined but with a high purity and apparently ready for wholesale distribution, the low purity of the cocaine found in the applicant’s premises could suggest its readiness for retail distribution.

37. [101]

    All of the above factors demonstrate that there were objectively clear and cogent reasons for the approach taken at first instance to the use of the expert reports, such that not only should the applicant be bound by the course taken, but there is no indication of injustice in this being so. Further, having given close consideration to the childhood incident as described in Dr Allnutt’s report, I am not of the view that it gives rise to Bugmy considerations. The finding of the sentencing judge that it may well be that the abuse was a factor, and possibly a significant one, in the applicant starting to use illicit drugs in his mid to late adolescence was a favourable finding that will be taken into account in resentencing. I am satisfied further that the applicant has some psychological vulnerability which, when taken into account with the additional material on resentence, demonstrates onerous circumstances of incarceration, and supports a finding of special circumstances.

38. [102]

    The applicant has presented a substantial body of evidence on resentence. This includes affidavit evidence from the applicant, his solicitor and his wife. His solicitor annexed significant records regarding the applicant’s progress in custody and concerning a particular aspect of his time in custody. There was also a report from a registered psychologist and two from a mental health social worker – one dated September 2025 and another dated October 2025. Objection is taken to some of this evidence by the respondent. The applicant also seeks a non-publication order in relation to some of it.

39. [103]

    The respondent objects to the evidence of the applicant’s wife regarding the impact on her and her children of the applicant’s incarceration, as it does not bear upon his post-offence conduct nor demonstrate his progress towards rehabilitation. The report of the registered psychologist is relevant only to Ms Birkic’s mental state. Aspects of Ms Birkic’s evidence are relevant and able to be taken into account on resentence in relation to her continuing support for the applicant, her direct observation of his ongoing remorse and rehabilitation and his understanding of the impact of his offending on his family, as well as the limited visits and contact available between the applicant and his family because of his custodial movements. Ms Birkic’s evidence is also relevant and taken into account regarding her observation of the impact of the custodial events, to which I will return, on the applicant. I do not place weight on the psychologist’s report regarding Ms Birkic’s presentation.

40. [104]

    The evidence on resentence indicates that there have been two related significant events for the applicant in custody which bear upon the appropriate sentence to impose. The first of these occurred prior to his sentence proceedings in the District Court, although after both the experts’ examination of him and the preparation of his own letter to the Court. The evidence of the applicant’s solicitor read in the proceedings in this Court confirms that the applicant did bring this incident to the attention of his solicitor in the District Court, but that no further enquires were made by his solicitor to facilitate the provision of evidence of this to the Court. The second event occurred after the applicant was sentenced. It is inextricably linked to the first incident. Rather than making a non-publication order in relation to these events I regard it as sufficient to not set out detail of them, and to make an order preventing access to the relevant evidence without the order of a Supreme Court judge. The details are clearly known to the parties and enough can be stated about the events for their impact on the resentencing exercise to be made apparent. Both incidents have a bearing on the harshness of the applicant’s incarceration, and the second in particular bears upon his ongoing reform and rehabilitation.

41. [105]

    The respondent’s position is that the immediate consequences of the first event upon the applicant should not be taken into account as it pre-dates the original sentencing proceedings, but accepts that the applicant’s continued engagement with psychologists to address psychological issues associated with that event, and the existence of the second event, is admissible, as it is capable of demonstrating post-sentence progress towards rehabilitation: Betts at [2].

42. [106]

    The interests of justice require the whole of this material to be taken into account. It cannot be sensibly understood otherwise. Further, it is through no fault of the applicant that evidence of the first incident was not placed before the District Court.

43. [107]

    The two reports of the mental health social worker, in combination with the evidence of the applicant, demonstrates that the first incident has had a profound psychological impact on him. Further, it has exacerbated and intensified symptoms arising from the childhood abuse referred to in Dr Allnutt’s report and accepted by the sentencing judge. The applicant is engaged in trauma-informed psychotherapy which comprehensively addresses underlying issues from both events. As at the time of the October 2025 report the applicant had attended 25 sessions of counselling, involving cognitive behavioural therapy, and engaged consistently and meaningfully in trauma-informed therapy. The treatment was ongoing. He was reported to have demonstrated a sincere commitment to self-improvement and rehabilitation and reflected a high level of motivation and responsibility for his personal growth. This therapy is the first the applicant has received in relation to the consequences of his experience of childhood abuse. He was reported to have made notable psychological, emotional and behavioural changes.

44. [108]

    The applicant has continued to live as a model prisoner. He has continued to take opportunities for significant and trusted employment positions, which have enhanced his skills. He has remained drug-free and committed to remaining so on his release. He has undertaken as much training as he has been able to, including in fitness. The second incident is highly supportive of the applicant’s commitment to reform and rehabilitation, and also increases the onerousness of custody for him.

45. [109]

    I take into account all the findings of the sentencing judge which are not challenged. In light of the additional evidence on resentence, a less cautious assessment of the applicant’s prospects of rehabilitation can be made. I am satisfied that with ongoing support his prospects of rehabilitation are good, and he is unlikely to reoffend. In light of the additional evidence on resentence, supported to some extent by the expert evidence at first instance, I am satisfied that the applicant’s experience of custody is significantly more onerous than for a person without his psychological background, and who has not experienced the two events that are established by the additional evidence on resentence.

46. [110]

    I take into account the evidence in Mr Watson-Munro’s report about the impact of solitary confinement due to COVID-19 in the first eight months of the applicant’s incarceration. Although the sentencing judge utilised apparently similar evidence in Mr Drenovac’s case to backdate the sentence, I propose to take it into account as adding to the understanding of the harshness of the applicant’s circumstances of incarceration.

47. [111]

    The offences are all extremely serious, and I take into account the maximum penalties of life imprisonment and standard non-parole periods of 15 years imprisonment. The four offences in common with the other offenders were serious instances of offences of their kind, given the applicant’s role, and the quantities and street values of the drugs the subject of the supply charges. The manufacturing was part of a sophisticated ongoing operation. The significant amounts of money, the proceeds of crime, and the applicant’s participation in a criminal group is required to be taken into account in connection with sequence 5. I regard the supply offence unique to the applicant as also serious, although note that no argument was advanced by the Crown regarding his Honour’s favourable finding that it was towards, but not at, the bottom of the range for an offence of its kind.

48. [112]

    I would nominate indicative sentences as high as or slightly higher than those indicated by the sentencing judge. Accordingly I do not nominate any lower indicative sentences. They should remain as nominated by the sentencing judge, as follows:

    1. (1)

       For sequence 5, an indicative sentence of 6 years and 9 months, with a non-parole period of 5 years.

    2. (2)

       For sequence 6, an indicative sentence of 7 years and 6 months, with a non-parole period of 5 years and 7 months.

    3. (3)

       For sequence 8, an indicative sentence of 5 years and 3 months, with a non-parole period of 3 years and 11 months.

    4. (4)

       For sequence 12, an indicative sentence of 9 years and 9 months, with a non-parole period of 7 years and 3 months.

    5. (5)

       For sequence 13, an indicative sentence of 3 years and 9 months, with a non-parole period of 2 years and 9 months.

49. [113]

    However I am of the view that a somewhat lower aggregate sentence is appropriate, and that special circumstances should be found. Both those findings reflect the whole of the evidence, but particularly the onerousness of the applicant’s circumstances of incarceration. The applicant’s psychological issues, including his prior substance abuse, also warrant an extended period of supported reintegration into the community. Although he may not receive active support for the whole of the parole period I propose, the risk of reincarceration will also assist to prevent reoffending.

50. [114]

    The two men sentenced at the same time as the applicant had roughly similar subjective cases as known at that time. However the evidence now available to the Court indicates that the applicant’s prospects of rehabilitation are good, and his incarceration more harsh than theirs. The parity principle requires that the applicant’s sentence reflects this difference, as well as the other differences in the number of offences and Form 1 matters. Campbell J has set out relevant aspects of the parity principle in Mr Bojcevski’s case at [51]-[52]. The unchallenged finding that Mr Peitsos had a very limited and much less significant role than the applicant, general and specific deterrence having a reduced role, and there being no Form 1 matters in his case, indicates that his pre-discount sentence of 4 years and 8 months for the common offence is of very limited weight.

Conclusion and orders

1. [115]

   For these reasons, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed in the District Court on 19 July 2024 and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 13 years, commencing on 12 August 2021 and expiring on 11 August 2034, with a non-parole period of 8 years and 6 months. The earliest date upon which the applicant will be eligible for release to parole is 11 February 2030.

   4. (4)

      No access is to be permitted to the evidence on resentence other than by an order of a judge of the Supreme Court.