Bojlevski v R

LEEMING JA: I agree with Fagan J, but wish to add the following directed to ground 1. Ground 1 was that the sentencing judge “erred in partially accumulating the sentences for each of the three counts”. The sentence imposed was a single aggregate sentence of imprisonment for 3 years and 9 months with a non-parole period of 1 year and 11 months. The ground as formulated is misconceived. There was no accumulation. There was notional accumulation, because the indicative sentences stated in compliance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were 3 years and 3 months (supply), 1 year and 1 month (s 93T) and 1 year and 1 month (s 193B).

Mr Edwards, who had not prepared the written submissions, candidly conceded as much. He made a further concession, which was that it was open to the sentencing judge to notionally accumulate the sentence for the s 193B offence upon the sentence for the supply offence. The concession was a proper one: the criminality of the proceeds of crime offence extended beyond that of the supply and in a number of respects (including timing and the amount of money). The concession was only that it was open to the sentencing judge notionally to accumulate, but in truth it would have disclosed error for his Honour not to have done so.

The further submission was that it should be inferred that the sentencing judge had in part notionally accumulated the indicative sentence for the s 93T offence with the indicative sentence for the supply of illicit drugs, and in doing so there was error. I cannot accept this submission.

The first is that there is nothing on the face of the reasons to suggest that that is what occurred. To the contrary, his Honour said explicitly that “Here, there is little distinction between organised criminal activity and participation in this particular group”. That is consistent with an approach to sentencing in which the sentence for participating in a criminal group contrary to s 93T was wholly or substantially notionally concurrent with the sentence for the supply of illicit drugs.

The applicant contended, however, that if it were wholly notionally concurrent, the reasons would have said so, and in the absence of any such statement, it should be assumed that, wrongly, there was some partial notional accumulation. But there was no reason for his Honour to turn his attention to questions of accumulation or concurrency, at least not at the level of detail which is the premise of the submissions advanced in support of this ground. The main point of the power to impose an aggregate sentence was to obviate the need separately to identify start dates and end dates of individual sentences, which required an explicit addressing of accumulation and concurrence of the actual sentences. It is well settled that there is no need to identify the precise amount of accumulation of each indicative sentence. As was said in Ngati v R [2018] NSWCCA 32 at [17]:

To take the example debated during the hearing, it was possible that the aggregate sentence imposed reflected a notional accumulation upon the 3 years and 3 months indicative sentence for the supply of an additional 3 months for the s 93T offence and a further additional 3 months for the s 193B offence. But it is also possible that the 93T sentence was notionally to be served wholly concurrently with the sentence for the supply, such that the entirety of the additional 6 months (representing the difference between the actual sentence of 3 years and 9 months and the notional sentence for the supply of 3 years and 3 months) was attributable to the s 193B offence.

Based merely on the aggregate sentence imposed and the indicative sentences stated, both those possibilities (and many others) are theoretically possible. It is idle to seek to construe the reasons with a view to working out what particular possibility the judge had in mind, in circumstances where the point of imposing an aggregate sentence is that his Honour was not required to attend to any of the detail. Another way of putting this is that the proper exercise of the discretion to impose an aggregate sentence requires regard to be had to the individual sentences that would have been imposed for each offence, and to the principle of totality, but not to the questions of concurrency and accumulation which would have been required had individual sentences been imposed. It follows that to construe the reasons given by the sentencing judge in order to infer what he or she had in mind concerning concurrency or accumulation is to seek to impute an intention which may never have existed.

In short, the submission advanced by the applicant collides with the premise of aggregate sentencing. That is not to deny that in some cases it is possible to identify patent error in the exercise of the sentencing discretion by reference to indicative sentences; sometimes the indicative sentences may be a guide to whether error is established in relation to the aggregate sentence: JM v R [2014] NSWCCA 297 at [40(11)]. In such cases, it is always necessary to bear in mind that “there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively” and “[t]he issue is determined by the application of the principle of totality of criminality”: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]. But it is not possible in the present case to infer patent error as to notional accumulation in the manner sought to be advanced by the applicant.

CAMPBELL J: I agree with the reasons of, and orders proposed by, Fagan J. I also agree with the additional reasons of Leeming JA.

FAGAN J: The applicant seeks leave to appeal against an aggregate sentence imposed by Judge Haesler SC in the District Court at Wollongong on 26 July 2024. The applicant pleaded guilty to three offences as follows, which attracted the indicative sentences as shown. The statutory maximum penalties are also shown:

The indicative sentences were arrived at after allowing a 25% discount for the applicant’s pleas of guilty. His Honour fixed an aggregate term of 3 years and 9 months with a non-parole period of 1 year and 11 months.

The facts are stated fully in the learned judge’s Remarks on Sentence: R v Bojlevski [2024] NSWDC 415. The following is a sufficient summary for present purposes. Between 23 January 2021 and 12 February 2021 the applicant supplied four quantities of cocaine with a total weight in excess of 116 g. Surveillance of his communications with a co-offender, Morgan Swift, showed that the appellant discussed the supply of drugs with Swift and at least one other. On 12 February 2021 he gave specific instructions to Swift in terms that amounted to him directing him as to the role he was to play in the supply activity.

On 21 May 2021 the applicant was stopped for a traffic offence and $68,850 in cash was found in his possession. Of that amount, $66,850 was seized by police as proceeds of crime. On 23 July 2021 a search warrant was executed at a residential unit in Wollongong, which was frequented by the applicant and Morgan Swift. A digital currency counter was located there, consistent with the applicant being engaged in a drug supply business.

On 3 September 2021 the applicant was arrested and his residence was searched. He was in possession of drug sale ledgers and another $9,140 in cash. The addition of that amount brought to $75,990 the total proceeds of crime that became the subject matter of count 3.

After his arrest the applicant served 16 months on remand. On 9 December 2022 he was released on strict bail conditions. He made good use of his time on remand and on bail so that he came before the sentencing judge with a strong subjective case of reform. The learned judge backdated the commencement of the aggregate sentence to give full credit for time served. His Honour found special circumstances and gave full effect to that finding by setting a non-parole period of only 50% of the aggregate head sentence.

Ground 1 of the proposed appeal is that the judge “erred in partially accumulating the sentences for each of the three counts”. Noting that the highest indicative sentence was a 3 years and 3 month term for the supply charge, the aggregate reflects a notional accumulation of only 6 months for the two other offences. It is submitted that the facts constituting the applicant’s direction of a criminal group, for the purposes of the first charge, were limited to the conversation with his co-offender on 12 February 2021. The applicant argues that those events were an aspect of one of the several occasions of distribution of drugs that constituted the supply offence in count 2. He further submits that there should have been no notional accumulation of the indicative sentence for count 1 upon that for count 2. The applicant accepts that count 3 concerning his dealing in proceeds of crime involved criminality over and above what was comprehended in the supply charge. He acknowledges that some degree of accumulation between the indicative sentences for those two matters was open to the learned judge.

The whole point of aggregate sentencing is that a judge at first instance is not required to decide upon or identify the extent of concurrence or accumulation between individual sentences. It follows that on appeal it is not possible to impute to a sentencing judge that he or she has allowed any particular proportion of one or more of the indicative sentences to contribute to the total effective term constituted by the aggregate. Where an aggregate sentence is imposed, an appeal to this Court is an appeal against the aggregate and not against the indicative sentences or any assumed or inferred degree of accumulation between them: see JM v R [2014] NSWCCA 297 at [40], point 13 (RA Hulme J, Hoeben CJ at CL and Adamson J agreeing). At that reference RA Hulme J cited from the following passage in Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] (Button J, McClellan CJ at CL and Garling J agreeing):

The applicant’s argument pursuant to ground 1 must therefore be rejected in principle. In an appropriate case it may be open to consider the potential for accumulation or concurrency in so far as that would cast light upon whether the sentencing discretion has been soundly exercised: R v Brown [2012] NSWCCA 199 at [35] (Grove AJ); R v Grover [2013] NSWCCA 149 at [60]-[66] (Hoeben CJ at CL, Fullerton and McCallum JJ agreeing). However, the applicant’s argument seeks to analyse the approach of the sentencing judge in the present case at a mathematical level which is not open.

If it were necessary to examine the applicant’s argument any further, it may be said that although the supply charge in count 2 comprehended conduct in concert with a co-offender for the distribution of drugs on 12 February 2021, there is an additional element of criminality in the s 93T(1A) offence, namely, that he directed the co-offender. Further, the dealing with proceeds of crime charged in count 3 involved criminality over and above that of the supply of drugs. Notional accumulation of the penalties for counts 1 and 3 on the penalty for the supply count was therefore open to the learned judge. Ground 1 must be rejected.

Ground 2 concerns the following passages in the remarks on sentence:

Ground 2 asserts that his Honour “erred in failing to specify how the aggravating circumstance of ‘organised criminal activity’ under section 21A(2)(n) Crimes (Sentencing Procedure) Act 1999 (NSW) impacted the sentence imposed”. The statutorily prescribed aggravating feature to which his Honour was referring at [19] is in the following terms:

On a fair reading, his Honour’s reference at [19] to taking “care” meant that he would not treat the offence against s 93T(1A) as aggravated on account of it involving “organised criminal activity” because that concept is in substance the same as the gravamen of the charge, namely, “participates in a criminal group by directing any of the activities of the group”. His Honour’s statement at [20] merely conveyed that he would not treat the offences of supply and of dealing with proceeds of crime as aggravated by characterisation of them as “planned or organised criminal activity”, so far as that aspect of his criminality would be punished under count 1. Thus understood, the learned judge’s approach was orthodox and there was no “failing to specify how the aggravating circumstance … impacted the sentence imposed”. It is difficult to see what further specification his Honour could have been given. Ground 2 should be rejected.

The applicant did not press ground 3 at the hearing of the appeal. Ground 4 is that “the sentence imposed was, in all circumstances, manifestly excessive”. In view of the objective gravity of the whole course of the applicant’s offending and having regard to the maximum penalties prescribed by Parliament, the aggregate sentence was very moderate. It gave full effect to the applicant’s favourable subjective circumstances including his prospects for future good conduct. The Remarks on Sentence show that the learned judge gave anxious consideration to whether he could fix a lesser sentence of less than 3 years, which would open up an alternative to having the applicant return to full-time custody after having first served 16 months on remand and then having been at liberty under strict bail conditions for 19 months before sentence was passed. However, his Honour recognised the limited sentencing alternatives open to him and he dutifully applied the law. Characterisation of the resulting sentence as manifestly excessive – meaning, “unreasonable or plainly unjust” – is insupportable. Ground 4 is also rejected.

I propose the following orders: