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[2026] NSWCCA 52
Court of Criminal Appeal (NSW)
2026-05-01
Mitchelmore JA at [1] Campbell J at [2] Rigg J at [76]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bojcevski v R [2026] NSWCCA 52
Hearing dates: 1 December 2025
Date of orders: 1 May 2026
Decision date: 01 May 2026
Before: Mitchelmore JA at [1]
Campbell J at [2]
Rigg J at [76]
Decision: (1) Grant leave to the applicant pursuant to rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to apply for leave to appeal against sentence after expiry of the period prescribed by rule 3.1(3).
(2) Grant leave to appeal.
(3) Appeal dismissed.
Catchwords: SENTENCING – onerous conditions of custody said to arise from COVID-19 – requirement for evidence establishing basis for submission – whether procedural fairness denied where sentencing judge does not provide notice that submission will not be accepted
SENTENCING – parity – whether consideration of parity can be inferred from sentencing judge’s reasons absent formulaic expression – whether justifiable sense of grievance
SENTENCING – relevant factors on sentence – whether applicant’s childhood was sufficiently deprived to enliven the principles contemplated in Bugmy – where no submissions were made at sentence – whether a requirement to consider Bugmy factors absent submissions
Legislation Cited: Crimes Act 1900 (NSW), ss 93T(1), 193B(2)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5
Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
BE v R [2024] NSWCCA 100
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Church v R [2012] NSWCCA 149
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Eakin v R [2020] NSWCCA 294
Flower v R; Mafiti v R [2024] NSWCCA 76
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffin v R [2018] NSWCCA 259
He v R (Cth) [2022] NSWCCA 205
Hoskins v R [2021] NSWCCA 169
Ingray v R [2023] NSWCCA 292
Kliendienst v R [2020] NSWCCA 98
Scott v R [2020] NSWCCA 81
Smith v R [2022] NSWCCA 123
Smith v R [2024] NSWCCA 59
Wass v R [2022] NSWCCA 143
Whipp v R [2024] NSWCCA 79
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Robert Bojcevksi (Applicant)
Rex (Respondent)
Representation: Counsel:
C O’Neill (Applicant)
S Lind (Respondent)
Solicitors:
MacDougall & Hydes (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2021/230184
Publication restriction: Nil.
[This headnote is not to be read as part of the judgment]
The applicant sought leave to appeal against an aggregate sentence imposed upon him in the District Court of NSW for two counts of supplying a large commercial quantity of cocaine, one count of supplying a large commercial quantity of methylamphetamine and one count of knowingly taking part in the manufacture of a large commercial quantity of cocaine. After the discount to the respective indicative sentences of 25% for his early plea of guilty, the applicant was sentenced to a term of 12 years imprisonment with a nine-year non-parole period.
The applicant was one of seven men involved in the enterprise of the large-scale manufacturing and supply of cocaine and methamphetamine. The applicant was sentenced with two co-offenders. Another member of the enterprise, Mr Peitsos, already had been sentenced. The applicant sought leave to appeal on the following grounds:
(a) The sentencing judge failed to adequately consider parity principles relating to Mr Peitsos; and (b) The applicant has a justifiable sense of grievance in relation to the sentence imposed having regard to the disparity between the indicative sentences in relation to sequence 2 and the indicative sentence nominated in relation to Mr Peitsos for the same offence (count 2).
The Court (Campbell J, Mitchelmore JA and Rigg J agreeing) held, granting leave to appeal but dismissing the appeal:
MITCHELMORE JA: I agree with the orders proposed by Campbell J, for the reasons his Honour has given.
CAMPBELL J**:** The applicant seeks leave to appeal pursuant to section 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against an aggregate sentence imposed upon him by Colefax SC DCJ in the District Court of New South Wales on 19 July 2024. This appeal was heard concurrently with an appeal against sentence by a co-offender, Mr Ante Birkic.
The applicant came for sentence on a plea of guilty to four offences. Two co-offenders, Mr Birkic and Mr Nikola Drenovac were dealt with at the same time. As against the applicant, sequence 1 was an offence of supplying a large commercial quantity of a prohibited drug (methylamphetamine) contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”), sequences 2 and 7 were offences of supplying a large commercial quantity of a prohibited drug (cocaine) contrary to the same section, and sequence 5 was an offence of knowingly taking part in the manufacture of a large commercial quantity of cocaine contrary to section 24(2) of the DMT Act. Each offence carries a maximum penalty of life imprisonment and a 15-year standard non-parole period.
Additionally, the applicant asked for two offences to be taken into account on a Form 1 in relation to sequence 2. These were an offence of knowingly deal with proceeds of crime contrary to section 193B(2) of the Crimes Act 1900 (NSW), and an offence of participating in a criminal group contrary to section 93T(1) of the same Act. The four offences for which the applicant was sentenced and the Form 1 matters were common among the three co-offenders.
The learned sentencing judge imposed on the applicant an aggregate sentence of twelve years imprisonment with a non-parole period of nine years, commencing on 12 August 2021, being the date the applicant was taken into custody. After allowing a 25% discount for each offence for the utilitarian value of the applicant’s early pleas, his Honour specified the following indicative sentences:
Sequence 1: 7 years and 6 months imprisonment, with a non-parole period of 5 years and 7 months.
Sequence 2: 6 years imprisonment, with a non-parole period of 4 years and 6 months.
Sequence 5: 5 years and 3 months imprisonment, with a non-parole period of 3 years and 11 months.
Sequence 7: 9 years and 9 months imprisonment, with a non-parole period of 7 years and 3 months.
The applicant relies upon three grounds of appeal:
Ground 1: the sentencing judge erred by failing to take into account the applicant’s onerous conditions in custody arising from COVID-19; or the sentencing judge did not afford the applicant procedural fairness in failing to take it into account.
Ground 2: in relation to the sentence imposed on another co-offender Mr Costandinos Peitsos for supplying a large commercial quantity of drug (14.0221kg of cocaine):
(a) The sentencing judge failed to adequately consider parity principles relating to Mr Peitsos; and (b) The applicant has a justifiable sense of grievance in relation to the sentence imposed having regard to the disparity between the indicative sentence in relation to sequence 2 and the indicative sentence nominated in relation to Mr Peitsos for the same offence (count 2).
The Notice of Intention to Appeal was duly filed on 9 August 2024. The Notice of Appeal was brought 14 months later in October 2025, which is outside of the period for which the Notice of Intention to Appeal has effect: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1(3) (“Criminal Appeal Rules”). Consequently, leave is required to make the application for leave to appeal: Criminal Appeal Rules r 3.5(5).
The affidavit of Ms Phoebe MacDougall, the applicant’s solicitor, affirmed 23 October 2025 which was read in support of the application under r 3.5(5) provides adequate explanation for the delay. It is apparent that issues over both legal aid funding and access to essential material from the applicant’s previous solicitors arose, which are not referable to any lack of forensic diligence on the part of the applicant. Moreover, the grounds of appeal propounded appear more than fairly arguable. I would grant leave for the applicant to seek leave to appeal.
This narrative of the facts of the offending is derived from the agreed facts tendered on sentencing. The applicant first came to the attention of police in May 2021. The applicant was engaged with six other men (of whom Messrs Birkic, Drenovac and Peitsos were three) in the manufacture and supply of cocaine and methylamphetamine.
Two of the other co-offenders, 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 transporting the drugs back to Sydney for supply for financial gain (although no finding was made about exactly whom of the five were responsible for the latter).
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 the applicant and one in the name of Mr Birkic. From them police seized the following:
20.872 kilograms of methylamphetamine, with an estimated street value of between $8.3 million and $10.4 million (sequence 1).
14.0221 kilograms of cocaine, with an estimated street value of between $4.6 million and $6.4 million (sequence 2).
$990,100.00 in cash (sequence 3, taken into account on the Form 1 in relation to sequence 2).
Large quantities of chemicals and solvents.
On 12 August 2021, after a period of surveillance, police executed further search warrants against the Pyramul property, the residences of the applicant, Mr Birkic and Mr Drenovac as well as the same three self-storage units.
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 5). 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 7).
The applicant and Messrs Birkic and Drenovac were additionally charged with an offence of participating in a criminal group, which was taken into account on the Form 1 on sequence 2.
Mr Peitsos was another member of the criminal group in question, although he was sentenced separately by Everson SC DCJ on 29 November 2023. Mr Peitsos was sentenced for two offences, one of which overlapped with the applicant (sequence 2 for the applicant). For that offence, his Honour indicated a sentence of 3 years and 6 months with a non-parole period of 1 year and 9 months (noting that but for the early guilty plea and commensurate discount, his Honour would have imposed a sentence of 4 years and 8 months). There was no Form 1 offending applicable to Mr Peitsos.
“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.’”
His Honour found that each of the co-offenders sentenced on that day had “roughly equivalent roles”: ROS [59]. While none of the offenders could be described as the “mastermind”, the role played by each exceeded that of a “classic low-level courier or warehouse man”. The criminal activity was motivated by gambling and drug debts, but also by the motivation to “make a significant amount” of profit: ROS [61]. In relation to each of the four offences, his Honour was satisfied that each was an “objectively serious example” of those offences: ROS [62].
On the applicant’s subjective case his Honour recorded the applicant was 31 years old when arrested. He had never married, was not in a relationship and had no children. After leaving school the applicant worked in various capacities in the home building industry until settling permanently into work as a self-employed painter. When work collapsed during the pandemic and with his co-offenders, the applicant turned to a life of crime to fund his lifestyle: ROS [87].
The sentencing judge took into account the applicant’s “rather unhappy” childhood (which is referred to more completely below): ROS [80]-[82]. Findings were also made about the applicant’s limited criminal history consisting of two minor drug possession convictions, a mid-range PCA conviction and a speeding offence. His Honour favourably regarded the absence of drug use and disciplinary infringements in custody. These limited antecedents led his Honour to conclude the applicant was entitled to a degree of leniency, but the duration of the offending diminished the mitigatory effect of prior good character: ROS [92]; by reference to Flower v R; Mafiti v R [2024] NSWCCA 76 at [91].
In relation to remorse, his Honour found (at [93]):
“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.”
Ms C O’Neill of counsel, who appeared for the applicant, submitted that the learned sentencing judge’s failure to take into account the onerous conditions of custody during the COVID-19 pandemic amounted to an error of principle. As a secondary position, learned counsel for the applicant submitted that his Honour’s failure to announce his intention not to accept that submission amounted to a denial of procedural fairness.
The applicant’s written submissions on sentence at first instance contained the following (at [11]):
“The offender has been in custody through all the rigour of the covid regime since 12 August 2021…. and should receive a sentence backdate and further consideration for the onerous nature of custody during the covid period as well as the inability to participate in those programs etc that were suspended.”
This circumstance was not addressed orally. The onerous nature of the conditions to which the applicant was subject was not specified nor was evidence adduced regarding them or their effect on the applicant.
The ROS make no reference to the conditions of custody during the pandemic being taken into account for the applicant, whereas in relation to the sentence imposed on Mr Drenovac, his Honour found (at ROS [100]):
“… 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.”
Ms S Lind, Crown Prosecutor, submitted that the written submissions for the applicant on sentence seeking consideration for the COVID-19 conditions, unlike Mr Drenovac’s case, were unsupported by evidence, and to an extent inconsistent with the evidence otherwise adduced by the applicant.
In particular, the Crown points to the letter of the applicant to the Court, tendered on sentence as Exhibit 1, which refers to him having undertaken six courses in custody, as well as exercising every day. Such is inconsistent with onerous conditions of custody normally associated with COVID-19 lockdowns.
Further, the Crown submits that no error arose from an absence of reasons or a declaration of his Honour’s intention not to accept the applicant’s contention about onerous conditions of custody arising from COVID-19. In particular, the Crown points to the decisions of this Court in Whipp v R [2024] NSWCCA 79 (“Whipp”), BE v R [2024] NSWCCA 100 (“BE”) and Ingray v R [2023] NSWCCA 292.
This Court was quick to recognise that steps taken by Corrective Services in response to the COVID-19 pandemic may have the effect of making conditions of custody for a particular offender more onerous: Scott v R [2020] NSWCCA 81 (“Scott”). In that judgment, Hamill J particularly referred to the suspension of visitation as one such factor: Scott at [166].
Importantly, as this Court recognised in Wass v R [2022] NSWCCA 143 (“Wass”), it is not the mere existence of COVID-19 that requires the sentencing judge to give it weight; rather it is the adverse consequences for the conditions of inmates which flowed from it: Wass [69] and [71]; BE at [90]-[98]. Any submission that the sentencing judge take account of such a fact must be supported by evidence going to the existence and effect of those adverse consequences.
There was no evidence adduced before the sentencing judge which provided a proper basis for a finding of onerous conditions sufficient to ameliorate the length of a sentence to be imposed. Further, there is weight in the Crown’s submission that the applicant’s own letter militates against such a finding. On one hand, the applicant seeks the benefit of a reduction in sentence due to COVID-19 reducing the availability of programs and courses, and on the other tendered certificates of completion of courses and a letter espousing that he was engaging in exercise every day in support of his subjective case. Putting this inconsistency to one side, there was no evidence to support the argument.
The applicant points to the remarks made in respect of Mr Drenovac as indicative of a failure to take the matter into account. The applicant and Mr Drenovac were represented by the same experienced senior counsel at sentence. The ROS make clear that material was in evidence setting out the period for which Mr Drenovac was under lockdown conditions in his cell due to COVID-19 restrictions: ROS [100]. Plainly, the evidence established that in Mr Drenovac’s case, COVID-19 restrictions had resulted in more onerous conditions in custody. The same cannot be said for the applicant, which is conceded by the applicant: Applicant’s Written Submissions at [23].
A submission of the type made by the applicant on sentence cannot be accepted without evidence. No error is established by not taking account of a proposition which is not properly supported by evidence or other material properly before the sentencing judge. A submission unsupported by the evidence is insufficient.
The applicant’s secondary position on this ground is that the learned sentencing judge denied procedural fairness to the applicant by not raising his Honour’s intention to deviate from a position which had not been challenged by the Crown.
There are a number of issues with this submission. To the extent that the applicant relies upon the remarks of Adamson JA in Smith v R [2024] NSWCCA 59 at [10], that some allowance should be made for the onerous conditions of custody owing to COVID-19, this was not the joint position of the parties in the case at hand. The Crown made no submissions, agreeing or otherwise, on the point, and the Crown cannot be taken to have conceded the point by silence. While procedural fairness may require a sentencing judge to indicate to parties an intention to depart from a position they jointly adopt in some circumstances, this is not a universal rule. Fixing the appropriate sentence is a matter solely for the judge: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2. There is no requirement for a sentencing judge to alert parties to an intention not to accept a submission advanced by only one party.
In this context, one should bear in mind the dictum of Button J about the undesirability of transforming the sentencing exercise into a “box-ticking exercise”. Button J (Davies and Sweeney JJ agreeing) said (Whipp at [61]):
“Finally, in considering more broadly the forensic context of this ground, I do not believe that sentencing has devolved to the point where a sentencing judge is required to deal ritualistically, by way of a ‘tick a box’ process or rote recitation, with every single written and oral submission – without discrimination as to its significance or triviality – made on behalf of an offender or the Crown, for fear of an appeal by one party or the other. That would be a victory of form over substance. It would also be an intellectual debasement of what should be a process of considered reflection. It would also impose an intolerable, unworkable burden on sentencing judges. That would be especially so in the District Court, bearing in mind its combination of extreme busyness with error-based appeals from that court in criminal matters.”
The differences between the evidence put forward for Mr Drevnovac and the absence of evidence for the applicant on this point demonstrates to my mind that his Honour did not overlook the bare argument advanced for the applicant. His Honour was not obliged to deal with a bare argument of fact unsupported by any evidence.
This ground should be dismissed.
The applicant and Mr Peitsos had both pleaded guilty to the same offence, being sequence 2 for the applicant. The learned sentencing judge indicated a pre-discount sentence of 8 years for this offence for the applicant, whereas Everson SC DCJ indicated a pre-discount sentence of 4 years and 8 months. The applicant adopted the submissions of learned senior counsel for Mr Birkic on this ground, with additional submissions made in respect of the applicant’s subjective case.
The first sub-ground is that the learned sentencing judge failed to consider parity principles between Mr Peitsos and the applicant. The applicant points to the decision of this Court in He, in which it was held (at [32]-[33]) that failure to consider the operation of the parity principle constituted error in circumstances where both the offender and the Crown had made submissions about its effect.
The applicant submits that there was no reference to the parity principle in the ROS, and in particular, there is no reference to the length of sentence imposed on Mr Peitsos. The applicant concedes that, in accordance with He (at [34]), even if he is successful in establishing that this was an error of law, it does not axiomatically follow that he has established a justifiable sense of grievance.
The second sub-ground therefore is that the discrepancy in sentence between the applicant and Mr Peitsos gives rise to a justifiable sense of grievance on behalf of the applicant.
As both the applicant and Mr Peitsos received a 25% discount, and neither were aggravated by any factors under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the main point of distinction between them is found in their role in the offending, particularly where the applicant submits that their subjective case was “not dissimilar”: Applicant’s Written Submissions at [35].
The applicant also accepts that two Form 1 offences attached to his sequence 2, which were not present in the case of Mr Peitsos. Further, he concedes that Mr Peitsos’ role was more limited than his, although both were involved in the warehousing of the drugs rather than their manufacture. Even taking those differences into account, there is no reasonable explanation for the extent of the difference between their indicative sentences.
The Crown points out that the absence of a specific mention of a factor does not by itself establish error: Church v R [2012] NSWCCA 149 at [36] (Button J, McLellan CJ at CL and Price J agreeing). The reasons may indicate the matter has been considered without specific reference to it. Further, the Crown argues that while indicative sentences may be of assistance in a parity exercise, it is ultimately the aggregate sentences which must be compared: Smith v R [2022] NSWCCA 123 at [49] (Bell CJ, Button and N Adams JJ agreeing).
In relation to parity considerations, the Crown points to [59] of the ROS, which provides in part:
“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.)”
The Crown submits that this aspect of his Honour’s reasons indicates that parity between the sentences passed in respect of the applicant and Mr Peitsos was considered.
The Crown further submits that this matter can be distinguished from He, where there was an active contest as to the roles of the offenders. The error arose in that case following a disputed facts hearing where submissions were made from both parties on the issue of parity, but the sentencing judge failed to address it as a consideration. Conversely in this case, there were limited submissions on the issue during sentencing proceedings and indeed, the learned sentencing judge did make specific reference to the differing roles of the applicant and Mr Peitsos.
Should the Crown fail on ground 2(a), it says that the applicant has no justifiable sense of grievance. It points to the different roles the pair played in the offending, the inclusion of two additional offences on a Form 1, and differences in their subjective cases, particularly with respect to findings related to the effect of Mr Peitsos’ mental health conditions.
As has been previously recounted in this Court, the parity principle reflects precepts of justice so long held that its origin is difficult to pinpoint: Eakin v R [2020] NSWCCA 294 at [42]-[43]. As Rothman J pointed out in Eakin, the maxim ‘like cases should be treated alike’ can be traced back through Western philosophy to at least Aristotle, in turn derived from Solon’s Isonomia in the seventh century BC. The principle found its way into the common law in the 16th century: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152. As an aspect of equality before the law, the principle has constitutional significance for the Rule of Law. The inverse of the principle is likewise true: it is repugnant to justice to treat the unlike as like.
Parity in sentencing co-offenders is a fundamental principle in sentencing law. A modern rendering of this rule was expressed by the High Court in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] where Gaudron, Gummow and Hayne JJ said (emphasis in original):
“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.”
Relevant difference may relate equally to the nature of each offending and the subjective case of each offender. Disparity is to be adjudged objectively and not from the subjective standpoint of an aggrieved co-offender.
Quite clearly, the learned sentencing judge, by referring to the different roles in the offending between the applicant and Mr Peitsos, albeit pithily, took into account the parity principle (ROS [59]; extracted above at [48]). “Parity” need not be mentioned by name. His Honour’s analysis involves the express comparison of criminality and culpability among the co-offenders, first between each of the applicant, Mr Birkic and Mr Drenovac, then also Mr Peitsos.
The language used in ROS [59] describing Mr Peitsos as having a “very limited and much less significant role” should be read with his Honour’s remarks in the following paragraph, where his Honour finds “each of you was clearly a highly trusted participant in the operation… the activities you each engaged in were not [those of] the classic low-level courier or warehouse man.” Likewise, express findings were made of the individual roles of the offenders in ROS [56]-[58].
This line of reasoning indicates that his Honour considered the varying respective levels of culpability between each of the co-offenders and Mr Peitsos. There is no requirement for a formulaic expression dictating that parity has been considered where the reasons disclose that that principle has been woven into the sentencing judge’s reasons: see Church at [42]. I would reject ground 2(a).
As to ground 2(b), the cases of the applicant and Mr Peitsos are sufficiently different that no justifiable sense of grievance can be said to arise from the different penalties imposed.
Contrary to the submission of the applicant that Mr Peitsos’ role was “marginally more limited”, his Honour found that Mr Peitsos had a “very limited and much less significant role”. That finding of fact, which was not challenged on appeal, makes a parity argument difficult, but of course not impossible. But when taken together with the two serious Form 1 offences included on sequence 2 (which of course were not considerations in sentencing Mr Peitsos), together with evidence of Mr Peitsos’s mental health issues which was taken to reduce his moral culpability, the differences between the cases for the applicant and Mr Peitsos are such that objectively speaking no concern of disparity arises.
I would dismiss this ground.
The applicant’s third ground of appeal is that the learned sentencing judge failed to consider the significance of the applicant’s “rather unhappy” childhood in assessing his moral culpability for the offences having regard to the objects of sentencing.
His Honour relevantly found that the applicant’s childhood was a “rather unhappy one”, pointing to a fraught relationship between his mother and father, attributable to the latter’s alcoholism and gambling and the father’s ultimate abandonment of the family when the applicant was 8 years old: ROS [80]-[82] His Honour also found that despite this, the applicant had the benefit of ‘firm love and support’ of his mother and maternal grandparents, although his grandfather, “who became a father figure”, passed away when the applicant was fifteen years of age: ROS [82].
However, his Honour did not proceed to any assessment of the impact of this on the applicant’s moral culpability for the offending, nor how this finding would interact with the principles of specific and general deterrence, as contemplated by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). It is conceded by the applicant that submissions of this nature were not made at first instance, which raises a hurdle for the applicant in this Court: Zreika v R [2012] NSWCCA 44 at [81] (Johnson J) (“Zreika”).
The applicant points to the reasons of N Adams J (as her Honour then was) (Simpson AJA and Rothman J agreeing) in Kliendienst v R [2020] NSWCCA 98 at [67] (“Kliendienst”):
“… but it seems to me that the fact that the applicant’s counsel did not expressly raise the Bugmy approach does not mean that there was no error in the failure to consider it given the uncontested material before the Court….”
The Crown’s position is that due to the failure of the applicant to advance this argument on sentence, no error is established by the sentencing judge not considering it.
The Crown further sought to distinguish this case from Kliendienst and Griffin v R [2018] NSWCCA 259 on the basis that in both those cases, the evidence plainly established a causal link between the childhood dysfunction of the offenders and their offending as adults. This case was not so unequivocal, in the submission of the Crown.
Finally, the Crown submitted that the present case, being one of a carefully planned and sophisticated criminal enterprise, did not as readily engage the principles of Bugmy, which are less applicable in such circumstances: Hoskins v R [2021] NSWCCA 169 at [57] (Brereton JA, Basten JA and Beech-Jones J agreeing) (“Hoskins”).
The applicant is right to concede that the hurdle contemplated by Zreika is applicable here. Plainly, these submissions were not advanced below, despite ample opportunity to do so.
At the hearing of this appeal, learned counsel for the applicant confirmed that there was no challenge to the finding by his Honour that the applicant’s childhood was “rather unhappy”. I expressed the provisional view during argument that I did not think that finding engages with the principles of profound childhood deprivation contemplated by Bugmy (23.30T).
While I acknowledge that there may be “no magic in the word ‘profound’” (Hoskins at [57]), a “rather unhappy” childhood does not rise to the level of deprivation necessary to attract the Bugmy principles in relation to a reduction in moral culpability. Without a challenge to the factual findings of the learned sentencing judge, for the applicant to succeed he must demonstrate that on those findings, it was an error to not proceed to assess the impact of the applicant’s childhood on his moral culpability, and any consequential impact on the importance of specific and general deterrence.
The findings disclose somewhat difficult circumstances in aspects of his upbringing. The applicant’s father’s departure from the family at a young age would doubtless have an effect on a boy of 8 – but the applicant was not left without support in his absence. The applicant lived with his grandparents and with the “firm love” of his mother. The loss of his grandfather at 15, while a tragedy compounded by their closeness, is not the level of deprivation contemplated by Bugmy. Moreover, the applicant was able to function in a prosocial manner in the workforce after leaving school eventually in his own successful business as a tradesman painter, acquiring a reputation as a hard worker.
The inclusion of those factual findings indicate that his Honour did consider those factors as part of the instinctive synthesis of the applicant’s subjective case, and they are certainly relevant for that purpose. In the (acknowledged) absence of any submission taking its effect further into his consideration of moral culpability, no error is established by his Honour not making such a finding in accordance with Bugmy*.* I should also say that I have difficulty in accepting that a “rather unhappy childhood” explains, or accounts for, offending of the type in question here (Bugmy at [44]).
The effect of Kliendienst is not to impose an onus upon a sentencing judge to consider a reduction of moral culpability in accordance with Bugmy in the absence of any submissions on the point. Rather, as the Crown contended, in both Kliendienst and Griffin the case for deprivation was so overwhelming that error was established even where the parties had not addressed the sentencing court on the point. They are cases which arguably fall into the “exceptional” category and should not be understood as creating a rule of general application in cases where such circumstances are absent. This is not a case where a compelling mitigatory factor was apparently inexplicably overlooked by both counsel and sentencing judge giving rise to a miscarriage of justice: Zreika at [82]. Bugmy is not an incantation, which, once recited, automatically comes to the aid of an offender in reducing the sentence which otherwise would have been imposed.
I reiterate that no challenge is made to the factual findings on sentence. Those findings, while a relevant consideration to the applicant’s subjective case, are certainly not in a category requiring the sentencing court, on its own initiative in the absence of any submissions by the applicant, to consider a reduction in moral culpability to avoid error.
This ground should be dismissed.
Consequently, the orders I propose are as follows:
Grant leave to the applicant pursuant to rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 to apply for leave to appeal against sentence after expiry of the period prescribed by rule 3.1(3).
Grant leave to appeal.
Appeal dismissed.
RIGG J**:** I agree with Campbell J.
**********
Bojcevski
R
[2013] HCA 37
(2014) 253 CLR 58
(2013) 249 CLR 571
(2011) 244 CLR 462
(2001) 207 CLR 584