SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0254

BILLY DIMOVSKI	Applicant	
		
v		
		
THE QUEEN	Respondent	

----

----

JUDGES:	PRIEST and NIALL JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	21 January 2022	
DATE OF JUDGMENT:	28 January 2022	
MEDIUM NEUTRAL CITATION:	[2022] VSCA 6	
JUDGMENT APPEALED FROM:	[2020] VCC 1513 (Judge McInerney)	

---

CRIMINAL LAW — Appeal – Sentence – Trafficking in a drug of dependence in not less than a large commercial quantity – Judge mistakenly sentenced offender as a ‘serious drug offender’ – Whether material error – Error could have affected sentence – Whether different sentence ought be imposed – Appeal allowed – Applicant re-sentenced to 11 years’ imprisonment with non-parole period of 7 years. 

---

APPEARANCES:	Counsel	Solicitors	
			
For the Applicant:	Mr G Hughan	Eliopoulos Lawyers	
			
For the Respondent:	Ms S Clancy	Ms A Hogan, Solicitor for Public Prosecutions	

PRIEST JA:
1	I agree with Niall JA, whose reasons for judgment I have had the advantage of reading in draft.

NIALL JA:
2	On 21 September 2020, Billy Dimovski (‘Dimovski’ or ‘the applicant’) was sentenced by a judge of the County Court to 12 years’ imprisonment for trafficking in a drug of dependence in not less than a large commercial quantity.  After leaving New South Wales, Dimovski was apprehended in his vehicle by police in Barnawartha, northern Victoria.  Secreted in a steel cavity within the rear seats of the car, police found 24 packages wrapped in gold foil and further foil and plastic bags, containing a total of 25.4 kilograms of methylamphetamine with a purity ranging from 84 to 86 percent.  
3	The cavity in which the drugs were encased was fashioned in a sophisticated manner:  the rear seat had been modified post manufacture with the addition of several steel sections welded to the back of the steel seat frame.  A steel hinged hatch was attached to the back of the centre rear seat armrest cavity via the custom steel frame and had been covered in a black fabric material.  The cavity was locked and could be opened by an electronic card reader that was located in the driver’s footwell.
4	In addition to the methylamphetamine, police also found a relatively small amount of ephedrine and, secreted in another carefully designed cavity in the bull bar of the vehicle, 300 rounds of 0.40 calibre ammunition.  These two items formed the basis of two other charges, possession of a drug of dependence and possession of ammunition without a permit, which resulted respectively in 2 months’ 
imprisonment to be served concurrently with the methylamphetamine charge and a fine of five penalty units.  In the result, the total effective sentence was 12 years’ imprisonment and a non-parole period of 8 years’ imprisonment was fixed by the judge.
5	In addition, purportedly under s 6F of the Sentencing Act 1991 (’the Act’), the judge recorded in the orders of the Court entered on 21 September that Dimovski was being sentenced as a ‘serious drug offender’.  That was an error.  Dimovski was not to be sentenced as a ‘serious drug offender’, a statutory description that applies to a person who, when being sentenced for a ‘relevant offence’, being an offence listed in cl 4 of sch 1 of the Act, had already been sentenced to a term of imprisonment for the same type of offence.  After correspondence from the parties on 25 September, the judge acknowledged his error and relying on s 412 of the Criminal Procedure Act 2009 (‘the CPA’), he amended the order by deleting the reference to the applicant being sentenced as a serious drug offender.  I shall return to the validity of that amendment later in these reasons.  
6	Dimovski applies for leave to appeal his sentence on two grounds.  The first proposed ground asserts that the judge erroneously sentenced the applicant as a serious drug offender.  The second is that the sentence imposed was manifestly excessive.
The reasons for sentence
7	The judge noted that the standard sentencing regime applied to the trafficking offence, with a standard sentence of 16 years’ imprisonment.  He noted that the gravity of the offending was informed by the quantity of drugs, here some thirty three times the minimum amount that constituted a large commercial quantity.  He said that the quantity, although not determinative, was ‘of utmost significance’.  He noted the commercial value of the drugs was between $3.0 and $4.5 million and nearly triple that at street value.  
8	The judge accepted that the role played by the applicant was as described in the prosecution opening, namely that the applicant ‘was a courier as part of a sophisticated trafficking operation’.  The judge described the applicant’s role as indispensable and ‘inherently grave’.  He earlier referred to the manner in which the applicant’s car, which he had purchased a few months before the offending, had been modified, in the context of explaining the level of sophistication employed in the endeavour.  
9	The judge noted that, at age 40, the applicant had no prior drug offences although he had ‘one concerning matter’, namely a conviction in 2015 for dealing with the proceeds of crime which involved him carrying $400,000 in cash in a brown paper bag from Victoria to New South Wales.  
10	As to the motivation for the crime, the judge said the account given by the applicant to a psychologist, that the applicant was not sure what he would get in return for agreeing to transport the drugs, was very hard to accept.  He noted that the applicant was not a drug user.
11	The judge referred to the matters put in mitigation, the most important of which were the applicant’s limited criminal history, excellent employment record, that the applicant was not a principal in the operation, his plea of guilty, and a history of depression that would render incarceration more onerous.  In relation to the reasons for the offending, the applicant had submitted that he was under financial strain and had fallen under the spell of some people he had befriended in a hotel and was eager to please them and unable to resist their blandishments.  
12	Near the end of the reasons for sentence, the judge said:
Insofar as this criminality is concerned, in regard to Charge 1, you will be sentenced to imprisonment of 12 years.  I note as I am required under s.6F of the Sentencing Act to cause to be entered the fact that you are sentenced as a serious drug offender in the records of this Court.
13	Shortly thereafter, the prosecutor asked the judge to clarify whether the judge had said the applicant was to be sentenced as a serious drug offender, to which the judge replied in the affirmative.  That led to the following exchange:

PROSECUTOR: 	I don’t believe he is.
HIS HONOUR: 	Well I was told that he is.  If you look at the definition, you are a serious drug offender with one offence of this matter.
PROSECUTOR: 	My understanding Your Honour is that a person becomes a serious drug offender upon a subsequent conviction for a similar offence.
HIS HONOUR: 	I think it is only one.  Anyway, that was what was put to me by the prosecutor in the plea.  I will check the matter before I sign the order.
14	As already noted, the judge recorded in his signed order that the applicant was sentenced as a serious drug offender.  
15	On 25 September, the order was amended by the deletion of the reference to the applicant being a serious drug offender and the addition of the following note:
Note: Order amended on 25 September 2020 by His Honour Judge McInerney pursuant to section 412 of the Criminal Procedure Act, in respect to the removal of the offender being classed as a ‘serious drug offender’.
16	Following an application for leave to appeal being filed, the judge provided to the Registrar of this Court a report under s 316 of the CPA in which he said:
I did not sentence Mr Dimovski as a serious drug offender.  What I did, given the definition in s 6B(2) of the Sentencing Act 1991, was mistakenly consider that after I sentenced Mr Dimovski I had to note he was thereby sentenced as a serious drug offender.  Such view was wrong, as it failed to align with the application of Part 2A, as provided by s 6A. 
This matter was raised by the Director of Public Prosecutions Instructor after the sentence was pronounced, see the reference made to s 6F at the bottom of p 8 of the Sentencing Remarks, and at p 10 when I said I felt I had to record such. 
I had not referred to any of the relevant provisions as to a sentence contained in Part 2A, but for s 6F. 
On 22 of September 2020 the DPP emailed my Associate indicating that it maintained the view raised at the sentence hearing, which was shared by defence. 
I sought submissions on the matter, and indicated that such Sentencing Remarks could be amended under the slip rule.
Upon further consideration on the 25th of September 2020 I indicated that I accepted that I was incorrect, and the Order was amended pursuant to s 412 of the Criminal Procedure Act accordingly and sent to parties via email later that day.
17	The judge also acknowledged that he was mistaken in saying that the prosecutor had submitted that the applicant was to be sentenced as a serious drug offender.
Ground 1
18	There is no contest between the parties that the judge was mistaken in recording that the applicant was to be sentenced as a serious drug offender.  The issue that separates the parties is whether the error was material and whether a different sentence should be imposed.  
19	The respondent submits that the Act provides for specific consequences that a judge may apply to a serious drug offender, including: by making protection of the public the principal purpose of the sentence; imposing a disproportionate sentence; and in relation to orders for cumulation.  It is said that none of these consequences were visited on the applicant.  The respondent submits that the recording of the applicant as a serious drug offender was an error without any practical consequence.
20	In order to address the arguments it is necessary to refer to the provisions of the Act dealing with serious offenders and the principles that apply to this Court where there is an error in a sentence.
The statutory provisions:  serious offenders
21	Part 2A of the Act is entitled ‘serious offenders’.  The provisions apply to serious arson offenders, serious drug offenders, serious sexual offenders and serious violent offenders.  Essentially, the part makes special provision for offenders who are being sentenced for repeat offending of the same kind.  Thus, a serious drug offender is a person who has earlier been convicted and sentenced to a term of imprisonment for a relevant drug offence, essentially trafficking and other more serious drug offences.  
22	When a serious drug offender is being sentenced for a subsequent relevant drug offence, the operative provisions of pt 2A of the Act apply.  
23	Section 6D deals with factors relevant to the length of the prison sentence to be imposed.  In determining the length of the sentence to be imposed on a serious drug offender, the judge must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and may for that purpose impose a sentence longer than that which is proportionate to the gravity of the relevant offence for which the person falls to be sentenced.
24	By s 6E of the Act, every sentence imposed on a serious offender for a relevant offence must be served cumulatively with any uncompleted sentence, unless the judge otherwise orders.
25	Section 6F provides that where a court sentences a serious offender for a relevant offence it must, at the time of doing so, cause to be entered in the records of the court the fact that the offender was sentenced as a serious offender.
26	It will be necessary to refer to some authorities of this Court where a sentencing judge has mistakenly recorded an offender as a serious offender.  Before doing so, it is convenient to address some basal principles concerning the role of the Court on an application of the present kind.
27	On an appeal against sentence under s 278 of the CPA, this Court must allow an appeal if the appellant satisfies the Court that there is an error in the sentence first imposed and that a different sentence should be imposed.  Addressing cognate provisions from New South Wales, the High Court observed that in the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence unless, in the separate and independent exercise of its discretion, it concludes that no different sentence should be passed.  By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence. 
28	Their Honours continued:
When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome.  The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit.  As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be “warranted in law”.  A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not “warranted in law” unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence.  This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer’s discretion. 
29	The Court gave as an example of a non-vitiating error the sequence of imposing a non-parole period in the context of some specific statutory provisions.  
30	In R v Beary, a case concerning an error as to the maximum penalty for an offence, Callaway JA, with whom Buchanan JA agreed on this point, said:
First, the law is settled in this State that not every mistake as to the maximum penalty vitiates the sentencing discretion.  It depends on the circumstances.  Secondly, the only possible justification for that view, in the face of s 5(2)(a) of the Sentencing Act, is that, in Mason J’s words, a factor may be so insignificant in a particular case that the failure to take it into account could not have materially affected the decision.  Thirdly, consonantly with our emphasis on instinctive synthesis, before we hold that such a mistake does not re-open the discretion we have to be satisfied that it could not have materially affected the sentence.  Of course, even where the discretion is re-opened, the court may be of opinion that no different sentence should be passed.
31	Gillespie (a pseudonym) v The Queen, concerned an error of the kind seen in the present application.  Whelan and McLeish JJA applied the approach in Beary and said that a mistake that was so insignificant that it ‘could not have materially affected the decision’ would not be an error ‘in the sentence’.  Their Honours said that the Court must be satisfied that the mistake could not have materially affected the decision, before concluding that there was no error in the sentence.  If there is such an error, the Court must then consider whether it is satisfied that a different sentence should be imposed.  In that case, their Honours noted that the risk of further offending was extremely low which would suggest community protection had a lesser role to play, but that the sentencing judge had said she was required to treat community protection as the principal purpose for the sentence to be imposed.  This Court was not satisfied that the error made by the sentencing judge ‘could not have materially affected’ the sentence, but ultimately concluded that no lesser sentence should be imposed.
32	In R v Arnautovic, a judge had wrongly attributed to an offender the status of a serious offender.  The impact on the sentence was obvious because the sentencing judge had stated that he intended to utilise the power in s 6D of the Act to impose a sentence greater than that which would be proportionate to the gravity of the offending.  On appeal, the Court ordered a correction of the record by deleting the direction that the applicant fell to be a sentenced as a serious drug offender.  The majority nevertheless upheld the sentence imposed.  In Cardona v The Queen, the same error was made but its impact was less clear.  The judge had expressly discounted imposing a disproportionate sentence.  Nevertheless, the error was found to vitiate the sentence.  As Redlich JA explained, s 6D(a) of the Act provides that when sentencing a serious drug offender, the sentencing judge must regard protection of the community as the principal purpose for which the sentence is imposed.  It followed that ‘as it must be assumed that [the sentencing judge] gave effect to that directive, the error that had been made may have been material to the sentence imposed.’ The sentence was set aside for that reason.  I note that in Gillespie, Whelan and McLeish JJA noted that the result in Cardona appears to have been influenced by a concession made by the prosecution.  
33	A different outcome was reached in R v LD.  The Court referred to the requirement, mistakenly imposed in that case, to regard the protection of the community from the offender as the principal purpose for which the sentence was imposed.  The Court found no vitiating error:
The corollary, of course, is that nothing in s 6D(a) justifies the imposition of a sentence longer than is necessary to protect the community against the risk which the offender actually presents.  Thus, if the risk of re-offending is assessed as low — as it was in the present case — the protection of the community will weigh less heavily as a consideration than if the risk had been assessed as high. 
Since protection of the community is always a relevant consideration in sentencing, the directive in s 6D(a) will ordinarily have little impact on the determination of the appropriate sentence.  Its main purpose, we would think, is to make sure that sentencing judges give proper consideration to the question of community protection, and undertake the requisite risk assessment.  Seemingly, the only circumstance in which compliance with the directive might directly affect sentence would be where protection of the community required a longer sentence but where mitigating factors called for a shorter sentence.  In that circumstance, it would seem, s 6D(a) contemplates that the dictates of protection should take precedence.
34	It is important to observe that the consideration of the particular facts in LD and Gillespie and the significance to the outcome in those cases of the role played by community protection in the particular sentences imposed, does not govern the outcome in this case.  The different conclusions reached in LD and Gillespie on the possible impact of the error demonstrates that each case is fact specific.
35	The starting point must be the reasons for sentence.  Here, the judge did not say that he was giving any particular weight to community protection.  Indeed, he made no express finding as to the prospects of rehabilitation and did not refer to the need for specific or general deterrence.  However, the judge made it clear that offending of this kind was very serious and noted the maximum penalty was life imprisonment.  It is axiomatic that general deterrence is extremely important in calibrating sentences for trafficking large commercial quantities of illicit drugs.  I cannot accept that community protection, especially through general deterrence, was not a matter that the judge took into account in arriving at the applicant’s sentence.  The reasons do not disclose how community protection was to be advanced by the sentence imposed.  Because community protection was potentially a very important matter that had to be balanced by other mitigating matters, including a relatively modest criminal history, the fact that, according to his reasons, the judge considered himself bound to sentence the applicant as a serious offender cannot be treated as insignificant.  
36	The fact that the sentence could not be said to be disproportionate to the gravity of the offending (and therefore the power in s 6D(b) of the Act was not deployed by the judge), does not mean that s 6D played no role.  The extent to which community protection was to be factored into the sentence through the weight to be given to deterrence and by upward pressure on the length of the sentence was a matter for the judge on which there was no single correct approach.  Section 6D affects this calculus in every case to which it applies.  It does not necessarily produce a particular outcome but it does affect the process of reasoning.  
37	Having regard to the reasons for sentence, including that the judge recalled that the prosecutor had told him that the applicant was to be sentenced as a serious offender and that he recorded, as a fact, that the applicant was to be sentenced as a serious offender after the issue had been raised by the prosecutor, I am not satisfied that the error made by the sentencing judge in this case ‘could not have materially affected’ the sentence.  The failure to refer to the role played by community protection in a context where it was an important matter in offending of this type increases rather than allays my concern about the possible role played by the serious offender provisions.  As explained by the High Court in Kentwell, the role of this Court is not to hypothetically unpick the error as if it had not been made.  
38	In reaching that conclusion I have considered the judge’s report.  The import of the first paragraph appears to be that the judge considered he was required to record that the applicant had, by reason of the sentence, become a serious offender for the purposes of any future offending, as opposed to being sentenced as a serious offender for the trafficking charge.  
39	I accept that, in certain circumstances, a judge’s report may be taken into account by this Court.  It has been accepted by this Court that a report may be taken into account in ‘informing the Court… of matters the judge did, or did not, take into account in passing sentence’, but that ‘it is not the role of the report to construe the words used by the judge in passing sentence, or to inform the Court… what the words were intended to mean’.  The difficulty in relying on the report in this case is twofold.  First, the report contradicts the plain language of the record of the Court and the reasons for sentence.  Second, it essays on the very topic which this Court must decide.  I do not think this Court should act on the basis of the report which says that the declaration was made, in effect, for future reference in circumstances where the judge said at the time of sentence, that the applicant was being sentenced as a serious offender and this was reflected in the formal order of the Court.  
40	Finally, before leaving this ground, I would add that s 412 of the CPA did not authorise the judge to amend the order in the way that he did.  Section 412 relevantly provides that ‘for the purpose of correcting any defect or error in substance or in form, a court may amend any summons, warrant, plea, judgment or order.’  The construction of that section, and the width of the power it confers, must take into account, amongst other things, two competing principles.  On the one hand, where an Act confers a power on a Court it is usually to give the power a broad meaning.  The second principle is that of finality in Court proceedings.  In D’Orta-Elkenaike v Victoria Legal Aid, the High Court said:
A central and pervading tenant of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.
41	By way of illustration, a superior court has an inherent power to correct errors before orders are formally recorded.  However: 
The inherent power to correct an order after it is perfected by being drawn up as a record of the court is very limited.  In such a case the proceeding, apart from any statutory power to the contrary, is at an end in that court and is in substance beyond its recall.  That does not prevent limited correction of an order after final entry so that the record represents what the court pronounced or intended to pronounce.  That aspect of the power is called the ‘slip rule’.  However, it does not permit reconsideration or alteration of the substance of the result that was reached and recorded.
42	Of course, I am here concerned with a statutory power (which in terms would apply to both the County Court as an inferior court and the Supreme Court as a court of record).  The point is that there is a well understood and important limitation on the power of a court to alter its orders that derives from fundamental principle.  In my view, s 412 of the CPA must be construed in that context. 
43	If the power in s 412 extended to every error including those of substance, it would substantially erode finality and disturb the proper appellate process.  Judges of all courts make mistakes, however, if they were given the power to alter perfected orders when they are persuaded they have made an error, it would risk an endless process of revision and accord a provisional status to final orders.  Better it is to construe s 412 as a statutory embodiment of the slip rule, designed to allow a judge to correct administrative clerical errors, even those that, left uncorrected, might have a substantive effect.  By way of example, an error in the calculation or recording of pre-sentence detention might provide the occasion for a correction using s 412. 
44	Section 412 of the CPA had no operation here.  The recording of the fact that the applicant was sentenced as a serious drug offender, although erroneous, reflected the judge’s decision and intent.  This case is not one in which the record did not represent what the Court pronounced or intended to pronounce as its order. In its terms it was a substantive declaration as to the process by which the applicant was sentenced. There was no clerical error. 
Should a different sentence be imposed?
45	It follows that the applicant has established an error in the sentence.  The issue then becomes whether, in the exercise of this Court’s judgment, a different sentence should be imposed.  As explained above, in answering this question, the Court is not to approach its task by assessing whether the sentence imposed was within range or open to the judge in the sound exercise of his discretion.   
46	There is no doubt that this was serious offending.  It involved a large amount of drugs.  Although the applicant describes his role as that of a courier, he was no mere driver.  He used his own vehicle and took advantage of substantial modifications of a sophisticated kind to conceal the contraband.  It was undertaken for material gain.  His account that he had no idea what he stood to gain could only be accepted by the gullible.  In any event, as Nettle JA explained in Dao v The Queen, where there is insufficient evidence to sustain an inference on the balance of probabilities that the offender was at a low level of any business hierarchy, or had no expectation of financial reward or was for some other reason less culpable, the judge must assume that there is nothing which can be said in mitigation about those factors.  Whilst I do not need to make a finding of the precise return the applicant stood to gain, I accept that it was a commercial endeavour undertaken for financial reward. 
47	The role played by the applicant was an important one.  He brought a substantial quantity of drugs into the State.  It is important that persons who might contemplate embarking on drug trafficking in pursuit of substantial financial rewards, do so in the clear knowledge that, if detected, they will be sentenced to a lengthy term of imprisonment.
48	I accept that the applicant is vulnerable in gaol and that the offending was on a very different scale to that which he had earlier engaged in.  His strong employment history, powerful references, family support, and relatively minor prior criminal history point to reasonable prospects of rehabilitation.  As the judge explained, the applicant has a history of depression that will render his incarceration more onerous.  Further, the exigencies of the current pandemic are highly relevant to the sentence to be imposed.  It increases the utilitarian value of the plea given the enormous demands on the court system caused by pandemic induced delays, and at the same time, materially increases the burden of incarceration given the risks of lockdowns, reduced contact with visitors, and reduced access to programs.  
49	I would set aside the sentence and impose a term of 11 years’ imprisonment on charge 1.  I would impose the same sentences on the other charges and order that the sentence of 2 months’ imprisonment on charge 2 be concurrent with the sentence on charge 1.  I would set a new non-parole period of 7 years’ imprisonment.
50	Having arrived at that conclusion on ground 1, it is not necessary to deal with ground 2 which alleges manifest excess.  I would simply say that when regard is had to all of the factors pertinent to sentence, this ground could not have succeeded.  
51	For the purposes of s 6AAA of the Act, I indicate that I would have imposed a sentence of 15 years’ imprisonment with a non-parole period of 11 years’ imprisonment. 
---