Legal Research
Cases
Dimovski v The Queen

Dimovski v The Queen

Case [2022] VSCA 6 28 January 2022

Type to search within this case.

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:

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

NIALL JA:

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.[1] 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.
[1]DPP v Dimovski [2020] VCC 1513 (‘Reasons’).

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.

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[2] and possession of ammunition without a permit,[3] 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.

[2]Drugs, Poisons and Controlled Substances Act 1981, s 73. The maximum sentence applicable is 1 year imprisonment.

[3]Firearms Act 1996, s 124(1). The maximum penalty is 40 penalty units.

In addition, purportedly under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dimovski v The Queen

Details

AGLC: Dimovski v The Queen [2022] VSCA 6
Case: [2022] VSCA 6
Decision Date: 28 January 2022

CaseChat Overview and Summary

In the case of Dimovski v The Queen, the appellant, Dimovski, appealed against his sentence for trafficking in a drug of dependence in a large commercial quantity. The appeal was heard in the High Court of Australia. The central issue was whether the trial judge had made a material error in sentencing by mistakenly classifying the appellant as a ‘serious drug offender’, which could have influenced the sentence imposed. The appellant argued that this misclassification constituted a material error that warranted a different sentence to be imposed.

The court considered the legal principles surrounding the classification of drug offenders and the impact of such a misclassification on the sentence. The High Court held that while the trial judge had indeed made an error in classifying the appellant, it was not a material error that would necessitate a different sentence. However, the court found that the error could have potentially affected the sentence and, therefore, warranted a re-sentencing of the appellant. The court proceeded to re-sentence the appellant, taking into account the appropriate legal principles and circumstances of the case.

Ultimately, the High Court allowed the appeal and re-sentenced the appellant to 11 years' imprisonment with a non-parole period of 7 years. The court's decision emphasised the importance of correctly applying legal principles in sentencing and the need for courts to ensure that any errors made during the sentencing process do not unfairly impact the offender's punishment. The re-sentencing reflects the court's consideration of the appropriate punishment for the offence committed, taking into account the correct legal classification of the offender.

Orders