District Court New South Wales Medium Neutral Citation: R v Bojcevski; Birkic; Drenovac [2024] NSWDC 299 Hearing dates: 6 October and 24 November 2023; 23 February and 24 April 2024 Decision date: 19 July 2024 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Offender: Mr Bojcevsk: Aggregate term of imprisonment of 12 years with a non parole period of 9 years. Offender: Mr Birkic: Aggregate term of imprisonment of 14 years with a non-parole period of 10 years 6 months. Offender: Mr Drenovac: Aggregate term of imprisonment of 13 years with a non parole period of 9 years 9 months. Catchwords: CRIME - SENTENCE - supply a prohibited drug greater than the large commercial quantity - knowingly take part in the manufacture of a prohibited drug in an amount greater than the large commercial quantity - knowingly deal with the proceeds of crime - participating in a criminal group - expert witnesses - departure from Code of Conduct. Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), ss25(2) and 24(2); Crimes Act 1900 (NSW), ss193B(2) and 93T(1) Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194; Parris v R [2013] NSWCCA 5; R v Shi [2004] NSWCCA 135; Flower v R; Mafiti v R [2024] NSWCCA 76 Category: Sentence Parties: Rex (Crown) Robert Bojcevski (Offender) Ante Birkic (Offender) Nikola Drenovac (Offender) Representation: (Variously) Messrs Christoff and Isaacs (Crown Prosecutors) Mr G. James KC and Mr E. James (Counsel for the offenders Bojcevski and Drenovac) Mr B. Walker SC and Mr R. Webb (Counsel for the offender Birkic) File Number(s): 2021/230184; 2021/230379; 2021/230577 Publication restriction: Nil Judgment 1. Robert Bojcevski, Ante Birkic and Nikola Drenovac, you all appear for sentence today in relation to various principal offences connected with the manufacture and / or supply of prohibited drugs. 2. Four of those offences are common to you all. 3. However, there is one additional principal offence which is unique to Mr Birkic; and there are two additional principal offences which are unique to Mr Drenovac. 4. In addition to these principal offences, there are matters on Form 1s. 5. Those principal offences and the Form 1 matters are as follows. 6. The first principal offence which is common to all of you, is supplying a prohibited drug greater than the large commercial quantity for that drug (viz 14.0221 kilograms of cocaine). This is sequence 2 for Mr Bojcevski; sequence 5 for Mr Birkic; and sequence 2 for Mr Drenovac. 7. The second principal offence which is common to all of you, is also supplying a prohibited drug greater than the large commercial quantity for that drug (viz 20.872 kilograms of methylamphetamine). This is sequence 1 for Mr Bojcevski; sequence 6 for Mr Birkic; and sequence 1 for Mr Drenovac. 8. The third principal offence which is common to all of you, is again supplying a prohibited drug greater than the large commercial quantity for that drug (viz 60.951 kilograms of cocaine). This is sequence 7 for Mr Bojcevski; sequence 12 for Mr Birkic; and sequence 3 for Mr Drenovac. 9. The fourth and final principal offence which is common to all of you, is knowingly take part in the manufacture of a prohibited drug in an amount greater than the large commercial quantity for that drug (viz 15.458 kilograms of cocaine). This is sequence 5 for Mr Bojcevski; sequence 8 for Mr Birkic; and sequence 8 for Mr Drenovac. 10. The three supply offences involve contraventions of s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), the maximum penalty for which is life imprisonment; and for which there is a standard non-parole period of 15 years imprisonment. 11. The knowingly take part in manufacture offences involve contraventions of s24(2) of the Drug Misuse and Trafficking Act, the maximum penalty for which is also life imprisonment; and for which there is also a standard non-parole period of 15 years imprisonment. 12. In relation to the first of those principal offences (sequence 2 for Mr Bojcevski; sequence 5 for Mr Birkic; and sequence 2 for Mr Drenovac), you have all asked me to take into account the same two matters on a respective Form 1, which I have certified. Those two matters are: one matter of knowingly deal with the proceeds of crime (viz $990,100.00 cash) (sequence 3 for Mr Bojcevski; sequence 3 for Mr Birkic; and sequence 6 for Mr Drenovac); and one matter of participating in a criminal group (sequence 4 for Mr Bojcevski; sequence 7 for Mr Birkic; and sequence 7 for Mr Drenovac). 13. The knowingly deal with the proceeds of crime matters involve contraventions of s193B(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 15 years. The participate in criminal group matters involve a contravention of s93T(1) of the Crimes Act for which the maximum penalty is 5 years imprisonment. 14. In addition to these various principal offences and Form 1 matters which are common to all three of you, Mr Birkic (alone) is also to be sentenced for a further offence of supplying a prohibited drug in an amount greater than the large commercial quantity for that drug (viz 2.892 kilograms of cocaine) (sequence 13 for Mr Birkic). This offence also involves a contravention of s25(2) of the Drug Misuse and Trafficking Act. 15. Furthermore, Mr Birkic has asked that a third matter on the relevant Form 1 (and which is referrable only to him) be taken into account in relation to (his) sequence 5 – and that is a second matter of knowingly deal with the proceeds of crime (viz $127,300.00 cash). This is sequence 4 for Mr Birkic. 16. In addition to the various principal offences and Form 1 matters which are common to all three of you, Mr Drenovac (alone) is also to be sentenced for two other principal offences: first, supplying a prohibited drug in an amount greater than the large commercial quantity for that drug (viz 2.531 kilograms of cocaine) (sequence 4 for Mr Drenovac); and secondly, supplying a prohibited drug in an amount greater than the large commercial quantity for that drug (viz 2 kilograms of the prohibited drug commonly known as "P2P") (sequence 5 for Mr Drenovac). Each of these two principal offences also involves a contravention a s25(2) of the Drug Misuse and Trafficking Act. 17. The facts surrounding the principal offences for each of you and the matters on the relevant Form 1, are contained, with an unnecessary level of detail, in a statement of agreed facts which is in the same terms for each offender. 18. For my purposes today, that statement of agreed facts can be summarised as follows. This summary has also relied upon the contents of MFI-1. 19. In May 2021, police commenced an investigation into the criminal activities of seven men: the three of you who appear before the Court today; Costandinos Peitsos (who was sentenced by Everson SC DCJ on 29 November 2023); Luka Zoric; Juan Ramirez; and Carlos Florez. 20. These seven men were involved in the manufacture of significant quantities of cocaine and methylamphetamine. 21. In the course of that investigation, police observed specific activities by each of the three of you (and the others I have referred to) throughout July and into early August 2021. 22. The drugs were manufactured by Messrs Ramirez and Florez at the remote rural location known as Pyramul, which is near the New South Wales city of Mudgee. The other five men were all involved (in various ways) in acquiring the materials necessary for the process of the manufacture of those drugs. This involved, amongst other things, the acquisition of materials from hardware stores in Sydney and Bathurst, temporarily storing those materials at Mr Drenovac's residential premises in Sydney, and the utilisation of three Kennards self-storage units in Sydney: two of which were "hired" by Mr Bojcevski (units B051 and B055); and the other "hired" by Mr Birkic (unit B086). Mr Drenovac also performed the task of transporting the raw materials to Messrs Ramirez and Florez at Pyramul. There is, however, no clear agreement as to who it was who collected the manufactured drugs and brought them back to Sydney. 23. In the early hours of the morning of 6 August 2021, police executed search warrants in relation to the three self-storage units. During the search that followed, the police found the following large amounts of cocaine, methylamphetamine and cash. They also located significant quantities of chemicals and solvents. 24. The total amount of Australian currency seized by police in that search was $990,100.00. 25. This quantity of cash is the knowingly deal with proceeds of crime matter, which is the sequence 3 Form 1 matter for Mr Bojcevski, the sequence 3 Form 1 matter for Mr Birkic, and the sequence 6 Form 1 matter for Mr Drenovac. As I have already said, this Form 1 matter is to be taken into account with the principal offence to which I shall now refer. It will result in a meaningful increase in the sentence for that principal offence for each offender. 26. Also in this search, the police seized a total of 14.0221 kilograms of cocaine (the individual packages constituting that total amount having purities which ranged from 57.5 per cent to 61 per cent). The threshold amount for the large commercial quantity of cocaine is 1 kilogram. The amount seized was, therefore, approximately 14 times the threshold amount. The Crown has submitted that this quantity of that drug had a street value of between $4.6 million to $6.4 million. These drugs originated from the Pyramul laboratory. 27. It is this quantity of cocaine which is the (deemed) supply (large commercial quantity) principal offence being sequence 2 for Mr Bojcevski, sequence 5 for Mr Birkic, and sequence 2 for Mr Drenovac. It is also one of two offences for which Judge Everson sentenced Mr Peitsos. The other offence is not relevant to these sentence proceedings. 28. Finally, in relation to this search, the police seized a total of 20.872 kilograms of methylamphetamine (the individual bags constituting that total amount having purities which ranged from 78.5 per cent to 80 per cent). The threshold amount for the large commercial quantity of methylamphetamine is 500 grams. The amount seized was, therefore, approximately 40 times the threshold amount. The Crown has submitted that this quantity of that drug had a street value of between $8.3 million to $10.4 million (and possibly up to $12 million). The provenance of these drugs is not agreed to be from the Pyramul laboratory. If not from that laboratory, this suggests that the operation may well have been more widespread than a superficial reading of the agreed facts might suggest. 29. It is this quantity of methylamphetamine which is the (deemed) supply (large commercial quantity) principal offence being sequence 1 for Mr Bojcevski, sequence 6 for Mr Birkic, and sequence 1 for Mr Drenovac. 30. Whilst executing the search warrant, and after removing the cash and prohibited drugs (but not the chemicals and solvents), the police installed two optical devices and one audio device in units B051 and B055. 31. At about mid-morning on 6 August 2021, Mr Drenovac attended Kennards unit B051 and discovered that the prohibited drugs and cash which had been stored in that unit were no longer there. 32. Mr Drenovac immediately informed Mr Birkic about this development. 33. Later that day, at about 1:00pm, Messrs Bojcevski, Birkic, Drenovac and Peitsos met at unit B051. Dismay and recriminations were expressed. 34. In the days which followed (7 to 10 August 2021), Messrs Bojcevski, Birkic, Drenovac and Zoric removed, and variously disposed of, chemicals, containers and other equipment in the Kennard storage unit which had not been taken by the police. 35. Between 10 and 12 August 2021, the police conducted surveillance of the property at Pyramul where the seized drugs had been manufactured by Messrs Ramirez and Florez. Those two men were the only people observed by police at that property at that time. 36. On 12 August 2021, the police executed search warrants at the Pyramul property; the residential premises of Messrs Bojcevski, Birkic and Drenovac; as well as further search warrants at the three Kennards self-storage units. 37. Inside Mr Birkic's residential premises, the police found a total of 2.892 kilograms of cocaine (the individual bags constituting that total amount had purities which ranged between 7 per cent to 8.5 per cent). The amount seized was not quite 3 times the threshold amount. Notwithstanding the low level of purity, the Crown has submitted it had a value of $1.3 million. 38. This is the principal offence, sequence 13, for (only) Mr Birkic. 39. Also inside those premises, the police found a total of $127,300.00 in Australian currency. 40. This is the Form 1 matter, sequence 4, for (only) Mr Birkic. As I have already said, this Form 1 matter is to be taken into account, not with respect to the principal offence sequence 13 to which I have just referred, but (his) sequence 5. It will result in a further meaningful increase in the sentence for Mr Birkic for that principal offence. 41. Inside the garage of Mr Drenovac's residential premises, the police found a number of containers which had been moved from the Kennard storage units in the immediately preceding days. Those containers contained a total of 60.951 kilograms of "pure" cocaine. The amount seized was, therefore, approximately 60 times the threshold amount for the large commercial quantity of that drug. It was intended that these drugs would be conveyed to the Pyramul laboratory for further refinement. The Crown has submitted that, once refined, this quantity of that drug would have had a street value of approximately $28 million. 42. This is the principal offence being sequence 7 for Mr Bojcevski, sequence 12 for Mr Birkic, and sequence 3 for Mr Drenovac. 43. Also inside that garage, the police found a container in which was 2 kilograms of P2P. 44. This is the principal offence, sequence 5, for (only) Mr Drenovac. Neither the agreed statement of facts, nor the submissions of the parties, identifies, for the assistance of the Court: (a) the threshold amount for this prohibited drug; (b) the purity of the drug (if that be a relevant consideration for this drug); or (c) its street value. These matters will not be used adversely to Mr Drenovac's interests when I come to assess the objective seriousness of this offence. 45. On the rural property at Pyramul were residential premises and four sheds. One of those sheds was a large sheering shed in which, upon the execution of the relevant warrant, the police found "…a sophisticated cocaine extraction clandestine drug laboratory with several stations established within the shed for stages of manufacture. Police located large quantities of chemicals, solvents, manufacturing equipment, as well as bricks of cocaine similar to that located during the covert search at Kennards…" (cf [123] of the statement of agreed facts). 46. During the search of that shed, the police found, amongst other things, 15.458 kilograms of cocaine hydrochloride. This amount is, therefore, a little over 15 times the threshold amount. The Crown has submitted that this quantity of that drug, once refined, had a street value of approximately $7 million. 47. This is the principal offence being sequence 5 for Mr Bojcevski, sequence 8 for Mr Birkic, and sequence 8 for Mr Drenovac. 48. I pause to observe that the statement of agreed facts states, at [125], that, at those premises, they found a further "…21.760 kilograms of cocaine hydrochloride could have been manufactured by conversion from the available free base at the premises". I have understood this "agreed fact" to have been included for background and / or context to establish that the charged offences were not isolated matters, but, rather, were part of an ongoing operation which had significant production capacity – a Crown contention which I do not understand to be in dispute. 49. At about the same time as police were searching that rural property, Mr Drenovac was driving a motor vehicle in its vicinity. The police stopped and searched the vehicle. Amongst other things, the police found two containers which contained 2.531 kilograms of cocaine with a purity of between 12 and 13 per cent. The amount seized was approximately 2.5 times the threshold amount. Unlike other principal offences, there is no evidence concerning the street value of these drugs. I shall not speculate about that topic adversely to Mr Drenovac's interests. 50. This is the principal offence, sequence 4, only for Mr Drenovac. 51. It is your overall participation in the criminal group that is the Form 1 matter (participation in criminal group) being sequence 4 for Mr Bojcevski, sequence 7 for Mr Birkic, and sequence 7 for Mr Drenovac which, as I have already said, is to be taken into account with the principal offence of supplying the large commercial quantity of cocaine which is sequence 2 for Mr Bojcevski, sequence 5 for Mr Birkic and sequence 2 for Mr Drenovac. It will result in a further meaningful increase in the sentence for that principal offence for each offender. 52. It is necessary for the Court to make a finding of the objective seriousness of each of the principal offences for an offence of its kind. 53. In relation to all principal offences, important factors in determining the objective seriousness of the offending are: 1. the quantity of the relevant drug and the extent to which it exceeds the relevant threshold amount; 2. the purity of the relevant drug; 3. the role played by the relevant offender; and 4. (to the extent known) the value of the drugs. 1. Insofar as the first, second and fourth considerations are concerned, I have already addressed those matters. 2. Insofar as the third consideration is concerned, the Crown, in its written submissions, has identified, with some specificity, the individual observed activities undertaken by each of you. For Mr Birkic, those activities are accurately identified at paragraphs [73] to [81]; Mr Drenovac, [83] to [93]; and Mr Bojcevski, [95] to [99]. And I accept the following Crown submissions as to what your roles involved by having regard to those facts. 3. In your case, Mr Birkic, your role involved: "(a) being fully appraised of the extent of the supply offences, in the sense that [you were] aware of the quantity of saleable drugs stored; (b) being aware of the presence and (at least approximate) quantity of the unrefined drug; (c) being aware of the chemicals and their use; (d) having control over the syndicate's narrative to other parties and some power to direct others; (e) profiting handsomely from [your] involvement in the offences; and (f) participating in the hands-on aspects of the operation." 1. In your case, Mr Drenovac, your role included: "(a) being fully appraised of the extent of the supply offences, in the sense that [you were] aware of the quantity of saleable drugs stored; (b) being aware of the presence and (at least approximate) quantity of the unrefined drug; (c) being aware of the chemicals and their use; (d) having unfettered access to the storage units; (e) making frequent trips to Pyramul to transport items to the laboratory, including chemicals, unrefined drugs and general supplies; (f) knowing the scale of the laboratory; (g) taking directions from others as to what items and / or chemicals were required at what time and executing those directions; and (h) participating actively and daily in the hands-on aspects of the operation." 1. In your case, Mr Bojcevski, your role included: "(a) being fully appraised of the extent of the supply offences, in the sense that [you were] aware of the quantity of saleable drugs stored; (b) being aware of the presence and (at least approximate) quantity of the unrefined drug; (c) being aware of the chemicals and their use; (d) having unfettered access to the storage units; (e) actively participating in the acquisition of items in furtherance of the operation both before and after the execution of the search warrant; and (h) participating actively and daily in the hands-on aspects of the operation." 1. Whilst there are "some points of variation" (cf [72] of the Crown's written submissions), looked at globally, although Mr Birkic had a slightly lesser active role and Mr Drenovac had a slightly more active role, each of you had roughly equivalent roles; and bear roughly equivalent criminal and moral culpability for the four principal offences that you have in common. (I pause to observe that it appears from the remarks on sentence of Judge Everson that Mr Peitsos had a very limited and much less significant role in relation to the first principal offence common to all of you.) 2. That being said, I do not understand it to be the Crown's case that any of you fulfilled the role of what is sometimes referred to as being the "mastermind of the operation". But each of you was clearly a highly trusted participant in the operation; and you each played a significant role in that operation. The activities you each engaged in were not that of the classic low-level courier or warehouse man. It was significantly more elevated than that, although the evidence does not establish that any of you was directly involved in the manufacture or sale or distribution of any of these drugs. 3. However, each of you was involved in this serious criminal activity to repay what you've each said were significant drug and gambling debts (without any specificity – except in Mr Birkic's subjective case where there is some opaque reference to his indebtedness being in the "tens of thousands of dollars" – see the report of Dr Allnutt, 27 April 2023, at page 3) and to make a significant amount of additional profit. There is no agreed fact, or admission by any of you, as to how much any of you anticipated to make (over and above the repayment of your non-specified debt). But, as you were not involved in the sale of these drugs, the only rational inference is that the $990,100.00 found by police on 6 August 2021 when the three self-storage units were searched; and the $127,300.00 found by police on 12 August 2021 when Mr Birkic's residential premises were searched, were indicative of the money each of you (and your other four co-offenders) might have anticipated receiving as profit for your involvement in this very serious criminal activity. Such amounts of personal profit are not inconsistent with the Crown's estimated values of the drugs I have earlier referred to (and which were based on evidence admitted without objection) – and which, I accept, whilst not necessarily precise, are "within the ballpark" of their value. (For the avoidance of doubt, I am unable to make any specific finding as to the actual amount any of you received or expected to receive from your involvement in this very serious criminal activity. But the only rational inference is that it was expected by each of you to be very substantial.). 4. Insofar as the four principal offences which are common to all of you are concerned, I am satisfied that each offence is an objectively serious example of that type of offence. 5. Insofar as the one additional principal offence which is unique to Mr Birkic is concerned, I am satisfied that the offence is towards, but not at, the bottom of the range for an offence of its kind. 6. Insofar as the two additional principal offences which are unique to Mr Drenovac are concerned, I am satisfied that sequence 5 is towards, but not at, the bottom of the range for an offence of its kind; and sequence 4 is also towards, but not at, the bottom of the range for an offence of its kind. 7. There are no additional aggravating factors in relation to any of the principal offences. 8. I shall now consider the subjective circumstances for each of you. Before doing so, I note that none of you gave direct oral evidence in the sentencing proceedings, but, rather, those subjective circumstances have been placed before me through the documents to which I shall refer. 9. In your case, Mr Bojcevski, you relied on the documents in a sentence bundle (Exhibit 1) which included a report from a psychologist (Mr Awit) dated 3 April 2023; an unsworn letter from you; an affidavit made by your mother; one reference (from a former employer); and a number of certificates of completion in connection with rehabilitation courses undertaken by you whilst you have been on remand. 10. In your case, Mr Birkic, you also relied on the documents in a sentence bundle (Exhibit 2) which included the report from Dr Allnutt to which I have already referred; a report from a psychologist (Mr Watson-Munro) dated 24 January 2023; an unsworn letter from you; and three references. 11. In your case, Mr Drenovac, you also relied on the documents in a sentence bundle (Exhibit 3) which included a report from a psychologist (Mr Albassit) dated 29 April 2023; an unsworn letter from you dated 1 May 2023; two certificates relating to courses you have successfully taken whilst on remand; and a collection of references. 12. A number of observations need to be made of the three experts reports, which are the principal documents in your subjective cases. 13. First, they were tendered without objection; and the authors were not required for cross-examination. 14. Secondly, none of you have given sworn evidence that the history given by you to the relevant author was true. 15. Thirdly, the following additional observation is applicable to the expert reports of (only) Mr Awit and Mr Albassit. The weight to be given to the reports (both as to history and opinion) are diminished by the clear conflict of interest in the relevant author purporting to comply with the expert witness code of conduct and, at the same time, seeking to obtain financial remuneration from respectively Mr Bojcevski and Mr Drenovac for future financial treatment services to be supplied. 16. Fourthly, there was a specific matter in your subjective case, Mr Birkic, which caused me some concern. 17. You told Dr Allnutt that you became involved in the criminal activities for which you are to be sentenced today "predominantly" to repay the debts you owed to your co-offenders - and after they had threatened you with physical violence. I have already implicitly found that that history was incorrect; and, in my opinion, deliberately so. I have found that you engaged in those activities as well for significant financial gain or profit. 18. Which of the six co-offenders I earlier identified you were intending to refer to in this context was not further revealed in the sentence hearing. Of course, your allegation of non-exculpatory duress has not been taken into account by me adversely to the interests of Mr Bojcevski or Mr Drenovac. 19. And it might not have been without significance, in my assessment of the reliability of the history you have given to Dr Allnutt, that the subject of non-exculpatory duress was not addressed in either the written or oral submissions made on your behalf by Mr Walker SC and the late Mr R Webb. But it was also not addressed in the written or oral submissions of the Crown. In the result, I have put that issue to one side, and it will not be used adversely to your interests. I mention it for completeness. 20. As at 12 August 2021, all of you were in your early 30s: Mr Bojcevski and Mr Birkic, you were 31 years old; and Mr Drenovac, you were 33 years old. 21. And as at that date, neither Mr Bojcevski nor Mr Drenovac were in any meaningful personal relationship, and neither of you have had any children. Mr Birkic, on the other hand, has been married since 2015, from which relationship three children have been born. (For completeness, I note that Mr Birkic's wife has (recently it would seem) been convicted of an offence or offences "referable to fraud" which resulted in a term of imprisonment to be served by means of an intensive corrections order (see the report of Mr Watson-Munro at page 7).) 22. Your childhood, Mr Bojcevski, was a rather unhappy one. 23. Your father was an alcoholic and a gambler. The relationship between your parents was, therefore, not a healthy one; and your father abandoned his family (i.e., your mother, your sister and yourself) when you were only 8 years old. 24. Although you were (and continue to be) angry with your father for leaving, you nevertheless had the firm love and support of your mother and her parents. Unfortunately, your grandfather, who became a father figure to you, died when you were 15 years old. 25. With one exception, Mr Birkic, your childhood was an unremarkable one in the sense that you were brought up in a loving and supportive family. That exception, however, is not insignificant. You told Dr Allnutt that you had been sexually abused by one of your teachers at high school. It may well be that that abuse was a factor, and possibly a significant one, in your starting to use illicit drugs in your mid to late adolescence. 26. Your childhood, however, Mr Drenovac, was a relatively unremarkable one. In making that observation, I have not overlooked that Mr Albassit stated that you had "a difficult and troublesome upbringing". He came to that conclusion because you said your parents were strict and because you had physical fights with your brothers. I do not regard those matters as justifying a description of "a difficult and troublesome upbringing". 27. After leaving school, you all participated in the building or painting industry and, it would seem, were hard workers and respected workers. 28. All of you have long term problems with illicit drugs and gambling which commenced in adolescence, problems which had increased significantly by the time of the offending. 29. When the COVID-19 pandemic struck, the legitimate businesses in which you were all involved effectively collapsed – and then your drug, gambling and financial problems got only worse. 30. It was in these circumstances that you each agreed (in circumstances not revealed) to participate in this criminal scheme. 31. Although it may be accepted (more easily in Mr Birkic's case because of the non-problematic nature of Dr Allnutt's report) that you each had some psychological issues at the time of your offending, it has not been submitted on behalf of any of you that those issues were an effective cause of your offending; nor has it been submitted on behalf of any of you that they engaged the principles in DPP (Cth) v De La Rosa [2010] NSWCCA 194. Rather, as I have already said, you all participated for clear financial benefit: to erase debt; and to make very significant additional profit. 32. None of you has any significant physical impairment, and none of you has any intellectual disability. 33. In making that comment about physical disability, Mr Birkic, I have not overlooked some reference in the reports of Dr Allnutt and Mr Watson-Munro that you might have had a stroke whilst in custody. But there is no expert's report, nor any Justice Health record, to support that second-hand history, nor to indicate the severity, or otherwise, of the stroke (if there had been one) and its consequences to you. 34. All three of you have only a very modest and limited criminal history. I shall treat each of you as if you were (effectively) a first offender. You are, therefore, "…entitled to a degree of leniency in view of [your effective] prior good character and lack of significant antecedents. However, the duration of the offending diminishes the significance of [your effective] prior good character" (cf Flower v R; Mafiti v R [2024] NSWCCA 76 at [91] per Hamill J; Davies and Sweeney JJ agreeing). 35. Each of you have, to an extent, expressed remorse – but, as I have already noted, not on oath. With some little hesitation, I am prepared to accept that those expressions of remorse are genuine. I can more easily do that in the case of Mr Birkic and Mr Drenovac because of the contents of the written references from the two relevant prison chaplains. 36. Since you have been in custody, none of you have used illicit drugs; and none of you have had any disciplinary charges laid against you. And in your case, Mr Drenovac, whilst on remand, you have been employed in the facilities maintenance section of the gaol where you are being held which, according to the prison chaplain, is a trusted position. 37. You all have meaningful trade qualifications which should mean that, upon your release, you should be able to obtain meaningful employment. 38. In all of the circumstances, I regard the prospects of rehabilitation for each of you as being cautiously reasonable. Nevertheless, specific deterrence remains a meaningful sentencing consideration. 39. And general deterrence is fully engaged; and, for serious drug offences such as this, general deterrence is a most important sentencing consideration "…and will generally outweigh subjective circumstances, particularly in the determination of the total sentence" (cf Parris v R [2013] NSWCCA 5 at [35] per Adamson J with whom McClellan CJ at CL and Latham J agreed; see also R v Shi [2004] NSWCCA 135). 40. No sentence other than a period of full-time imprisonment is appropriate for any of the principal offences. 41. I intend imposing an aggregate sentence for each of you. It is, therefore, necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence. In this regard, I note that each of you entered early pleas of guilty and, therefore, are entitled to a discount of 25 per cent in relation to each principal offence. That discount will be applied to the indicative sentences. And totality has been taken into account in fixing the aggregate sentence. 42. The start date of the sentence for you, Mr Bojcevski, and you, Mr Birkic, will be the date of your arrest, 12 August 2021. In your case, Mr Drenovac, I have noted item 7 in Exhibit 3 which sets out the number of days you were locked in your cell due to COVID issues. Your sentence will be backdated by an additional month to take that matter into account. 43. Each of you have asked that a finding of special circumstances be made to vary the ratio of the non-parole period to the head sentence. I decline to make such an order, notwithstanding that this is your first time in custody. None of you are young offenders; and the non-parole period that I shall fix will, in any event, be sufficient for furthering rehabilitation purposes. 44. In relation to the first principal offence, and taking into account the two matters on the Form 1s, the indicative sentences for Mr Bojcevski and Mr Drenovac, except for the plea of guilty, would have been imprisonment for 8 years. After the discount, the indicative sentence for each of them is imprisonment for 6 years. The indictive non-parole period is 4 years 6 months. In relation to Mr Birkic, for the first principal offence, and taking into account the three matters on the relevant Form 1, except for the plea of guilty, the indicative sentence would have been imprisonment for 9 years. After the discount, the indicative sentence is imprisonment for 6 years 9 months. The indicative non-parole period is 5 years. 45. In relation to the second principal offence in relation to each offender, except for the plea of guilty, the indicative sentence would have been imprisonment for 10 years. After the discount, the indicative sentence is imprisonment for 7 years 6 months. The indicative non-parole period is 5 years 7 months. 46. In relation to the third principal offence in relation to each offender, except for the plea of guilty, the indicative sentence would have been imprisonment for 13 years. After the discount, the indicative sentence is imprisonment for 9 years 9 months. The indicative non-parole period is 7 years 3 months. 47. In relation to the fourth principal offence in relation to each offender, except for the plea of guilty, the indicative sentence would have been imprisonment for 7 years. After the discount, the indicative sentence is imprisonment for 5 years 3 months. The indicative non-parole period is 3 years 11 months. 48. In relation to Mr Birkic, for the single matter for which he alone is to be sentenced, except for the plea of guilty, the indicative sentence would have been imprisonment for 5 years. After the discount, the indicative sentence is imprisonment for 3 years 9 months. The indicative non-parole period is 2 years 9 months. 49. In relation to Mr Drenovac, for the two offences for which he alone is to be sentenced, in each case, except for the plea of guilty, the indicative sentence would have been imprisonment for 4 years. After the discount, the indicative sentence in each case is imprisonment for 3 years. The indicative non-parole period is 2 years 3 months. 50. Robert Bojcevski, for the various offences to which, in your case, I have referred, I sentence you to an aggregate term of imprisonment of 12 years. I fix a non-parole period of 9 years to date from 12 August 2021 and which will expire on 11 August 2030. I fix a balance of 3 years to date from 12 August 2030 and which will expire on 11 August 2033. 51. Ante Birkic, for the various offences to which, in your case, I have referred, I sentence you to an aggregate term of imprisonment of 14 years. I fix a non-parole period of 10 years 6 months to date from 12 August 2021 and which will expire on 11 February 2032. I fix a balance of 3 years 6 months to date from 12 February 2032 and which will expire on 11 August 2035. 52. Nikola Drenovac, for the various offences to which, in your case, I have referred, I sentence you to an aggregate term of imprisonment of 13 years. I fix a non-parole period of 9 years 9 months to date from 12 July 2021 and which will expire on 11 April 2031. I fix a balance of 3 years 3 months to date from 12 April 2031 and which will expire on 11 July 2034. Amendments 23 August 2024 - "Issacs" changed to "Isaacs" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2024