Director of Public Prosecutions v Dimovski

[2020] VCC 1513

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-02001

DIRECTOR OF PUBLIC PROSECUTIONS

v

BILLY DIMOVSKI

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2020
DATE OF SENTENCE:	21 September 2020
CASE MAY BE CITED AS:	DPP v Dimovski
MEDIUM NEUTRAL CITATION:	[2020] VCC 1513

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Traffic drug of dependence large commercial quantity – Methylamphetamine - Possess a drug of dependence – Ephedrine - Possess cartridge ammunition without a licence – Courier – Unknown financial benefit - Limited priors and excellent employment record – Imprisonment – Non parole period

Legislation Cited: s.71, s.73 Drugs, Poisons and Controlled Substances Act 1981

Cases Cited:Peter Brown v The Queen [2019] VSCA 286 – Lugo v The Queen [2020] VSCA 75 - Dao v The Queen [2014] VSCA 93 – Nguyen v The Queen [2019] VSCA 184 - R vPidoto & O’Dea [2006] VSCA 185 - R v McLeish (1982) 30 SASR 486 – DPP vDalgliesh [2017] 91 ALJR 1063 - Gregory [2017] 268 A Crim R 1 - Fernando [2017] 268 A Crim R 26 - Verdins [2007] VSC 102 – DPP vBourke [2020] VSC 130

Sentence:Total effective sentence of 12 years imprisonment with a non-parole period of 8 years imprisonment. Further declare 867 days of pre-sentence detention. In addition, convicted and ordered to pay a fine in the sum of $805.95.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Tang (Sentence) Mr S. Devlin (Plea)	Office of Public Prosecutions
For the Accused	Mr C. Eliopoulos (Sentence) Mr D. McMahon (Plea)	Eliopoulos Lawyers

HIS HONOUR:

1In this matter, Mr Dimovski is 40 years of age, having been born on
27 September 1979.  He was 38 when these crimes were committed. 

2On 27 August of this year, Mr Dimovski pleaded guilty to two charges set out in indictment number J11209145.1. The first of those charges is an offence under s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981, that on 8 May 2019, at Barnawartha North, Mr Dimovski trafficked in a large quantity of a drug of dependence, in this instance, methylamphetamine.

3Pursuant to s.3(1)(j) of the Sentencing Act, such is a Category 1 offence and pursuant to s.5(2G), this Court must impose a period of imprisonment by way of a sentence. In fact, the maximum period of imprisonment determined by Parliament, pursuant to s.71(1) is life imprisonment, such in itself, gives an indication of the seriousness of this charge.

4Pursuant to s.71(2) of the Drugs, Poisons and Controlled Substances Act, this offence is subject to the standard sentencing scheme and is therefore pursuant to s.5(2)(ab) a standard sentence offence. The standard sentence set by Parliament in regard to this offence is one of 16 years imprisonment.  It is to be remarked that such scheme became applicable to your crime Mr Dimovski, on 1 February 2018, pursuant to Act 2017/34.

5Now this sentence that I am to pronounce is therefore subject to s.5A(3) and s.5B(2)(a) and (b) of the Sentencing Act.  As detailed by the Court of Appeal in Brown [2019] VSCA 286, [4], and in Lugo [2020] VSCA 75 such standard sentence is but one of the factors to be considered under s.5(2)(ab) and does not have primary focus. It is simply one of the factors in the intuitive synthesis which I must bring to the sentence, which relates of course to all factors that have been put before me, in particular the factors on your behalf by way of mitigation.

6The second charge on the indictment is pursuant to s.73 of the Drugs, Poisons and Controlled Substances Act.  The drug in that instance being ephedrine.  The amount was 97.3 grams.  Pursuant to the plea agreement, the prosecution has accepted that the purpose of such possession was not for trafficking, hence the maximum penalty that can be prescribed by this Court is one year.

7Pursuant to s.145 of the Criminal Procedure Act, your counsel on your behalf pleaded guilty to a summary charge, Charge 5, under s.124 of the Firearms Act, possession of cartridge ammunition, that is the 300 rounds of ammunition which were found in the secret compartment located behind the bull bar in your car.  The maximum penalty prescribed for such offence is 40 penalty units.

8Your priors were admitted by your counsel.  They do not contain any drug offences.  I make the point at your age, that it is not, as your counsel put to me, a history filled with criminality.  The one concerning matter is at the Griffith Court in New South Wales which was heard in April of 2015. 
This was a proceeds crime and the circumstances were similar to that put to me on the plea, being that for some unknown reason, you succumbed to a suggestion at a gym you were attending, to take from Victoria into New South Wales a sum of approximately $400,000 in a brown paper bag. You were paid a sum to do that.  Apparently you never looked in the bag and wondered yourself whether it might have been drugs.  You were picked up on a random search in Hay and again, as I say, it was done according to your record of interview apparently, as a favour to your ‘mates’.  You do not of course, and I stress, come to be sentenced again in regard to that.  The point being, you were given a suspended sentence on that time.  You were therefore given an opportunity, despite the seriousness of such criminality, to stay out of gaol and despite that opportunity, here you are again

9The pre-sentence detention has been agreed this morning at 867 days and the prosecutor seeks by consent, orders which, I think I have already signed Madam Associate have I, or are they not ‑ ‑ ‑

10ASSOCIATE:  Yes, they're signed, Your Honour.

11HIS HONOUR:  Yes, which is a disposal order, a firearms forfeiture order in regard to the ammunition and a forfeiture in regard to the car, the mobile phone and the $2,955 found in cash on this day. 

12As I indicated pronouncing the maximum penalty, Charge 1 is inherently a serious offence, whatever the role played. Such seriousness was described as axiomatic by the Court of Appeal in Dao v The Queen [2014] VSCA 93, [14].

13As to the volume of methylamphetamine which you were found with, such was 25.4 kilograms. The purity was between 84 and 86 per cent.  Hence, the methylamphetamine was as described at a commercial level. 
The threshold figure for a large commercial quantity is 750 grams, hence the amount that you had in your possession that day was thirty-three times such figure.

14As the Court of Appeal said in Nguyen [2019] VSCA 184, [56], a case which involved again some twenty times over the threshold, these crimes are obviously as detailed in R vPidoto and O’Dea [2006] VSCA 185, subject to a quantity based sentencing regime. The gravity of the offending is obviously informed by the quantity trafficked, although as the Court made clear in Dao v The Queen [2014] VSCA 93, [14], quantity is clearly not determinative of the sentence, but of utmost significance.

15There was no issue with the value of the drug, being between $3 to $4.5 million in commercial form as it was when detected, and if retailed in grams between $8.89 and $15.5 million.

16We then come to Mr Dimovski's role.  This plea was settled on the basis that Mr Dimovski was to come before this Court as a courier.  See at [20] of the prosecution opening, Exhibit A.  As set out in that opening, and these were the facts accepted by the defence, Mr Dimovski was a courier as part of a sophisticated trafficking operation. The manner in which the Hilux had been modified is indicative of such.  Mr Dimovski having purchased this car, second-hand on approximately 21 January and it being modified to the extent of the secret compartment in the bull bar, which is set out in Exhibit B, and the alterations to the hatch of the rear seats, involving both the RFID card reader and key card operation to gain access behind the seats.  These matters are set out in Exhibit C and D, which also involves a video.  This concealed area was the area where the drugs were found 

17Mr Dimovski was apprehended pursuant to a warrant issued in Moorabbin four days before, consequent on what was known as Operation Badbrake.  The Court has not been advised of your prior movements, as to why the warrant was issued and indeed, pronounces sentence only upon the circumstances of this day.  However, I do want to congratulate all that were involved, from the informant to all of the officers, in such operation.  The detection of trafficking of this degree is obviously a very very important task being undertaken by the police and in the public interest.

18On this particular day, as a courier, you had travelled 503 kilometres from your home in Flinders in New South Wales.  As is pointed out, not only did you have the keys to the various hidden compartments, but you had been entrusted on this day with this large amount of drugs.  Such is serious offending, both by way of criminality and moral culpability.  It was clearly done for financial benefit.

19As to precisely what that benefit to you was to be, is not clear.  You told the psychologist Mr Borenstein that you were not sure what you were getting.  See p.3 of his report, Exhibit 2.  I must say, I find that very hard to accept.  It is also noted that you are not a person who is afflicted by drug addiction. 

20The authorities have for some time detailed that persons who participate in such criminality, whatever their role, can expect condign punishment.  R v McLeish (1982) 30 SASR 486, [492]. I, looking at the circumstances, would have been inclined to proceed on the basis of there being uncertainty as to what your actual role was, see in Dao v The Queen [2014] VSCA 93, [8], the manner in which Courts can proceed to sentence purely on the facts that were known to the Court, given the vast quantity of the drugs. However, given the agreement made before your plea, I accept totally and sentence only on the basis of that agreement made, that your role was of courier. That role, in regard to the sophisticated operation that you were working for, is clearly indispensable and as I have already said, inherently grave.

21I must of course, Mr Dimovski, sentence you upon the circumstances of your criminality as has been agreed by your counsel in this matter.  You are entitled as said by the High Court, to a just sentence upon those facts and that is what I intend to do, see Dalgliesh [2017] 91 ALJR 1063, [1075].

22In discussion of the various cases that I have already recited, the matters put to me in the written plea and orally by Mr McMahon, and Nguyen, none of those cases of course were standard sentencing cases.  Pursuant to Parliament's intent expressed in the Act, of course as I have said, the Court must be guided by s.5B(2)(b).  However, I refer to those non-standard sentence cases for the general principles, exactly the way Mr McMahon put them to me, and as broader guideposts while at the same time, understanding the mandate of Parliament.

23As to your sentencing Mr Dimovski, Mr McMahon acknowledged, albeit in a
pre-standard sentence time, the comments and suggested recalibration of sentences for this offence, made by the Court of Appeal, in Gregory [2017] 268 A Crim R 1, [102] and in Fernando [2017] 268 A Crim R 26 and further in Nguyen, [49].

24I then come to the plea put by Mr McMahon on your behalf, Mr Dimovski. 
Those matters were set out in his written submissions and spoken to during the plea.  Firstly, the matter that I've already stressed, given the agreement pre-plea, you are to be sentenced not as a principal but as a courier.  Secondly, given your age, you come before the Court with limited priors, certainly no priors for drugs.

25By way of background, it was put by Mr McMahon I should note not only your age, not only your limited priors, but your excellent employment record, see Exhibit 5.  It was put that due to a combination of loss of employment for a period of six months and reduced income that you were vulnerable to acceptance of this offer made to you in a local hotel. It was not disputed that you accepted this for the purpose of material gain or monetary gain.

26The prosecution in response to Mr McMahon's submissions put to the Court that in regard to accepting such proposition, I should take into account the fact that you in fact had purchased in that year or in that period of unemployment a unit for the sum of $999,000 and also had purchased the car which was used in this crime.

27It was put by the Crown that I shouldn't take the view that you were struggling for cash.  No further evidence was called on this matter.  You have been employed for many years in remunerative occupations and in those circumstances, it seems to me that with no further information being put to the Court, I can only accept what's been put before the Court as to the explanation as to why you undertook this criminality.

28That explanation, that is that you very unwisely entered into this enterprise after discussions during the period of unemployment at the hotel with certain unknown persons certainly was a huge step in your life, and as was stressed by your counsel, it is a huge step given your limited priors.

29Next, your counsel relied on the psychologist report of Mr Borenstein dated 12 August 2020.  The issue of your vulnerability was spoken of.  The ongoing impact apparently of the early death of your mother, although it happened when you were very young.  Your concerns at the time as to your partner's pregnancy relating back apparently to sexual issues in your own young life when you were abused, were all such that Mr Borenstein, having had the benefit to being able to see the earlier report of psychologist Mr Kirton, used apparently at the Griffith matter in November 2015, determined that you had longstanding depression, issues with self-worth, and in particular your father's appreciation of you.  It was Mr Borenstein's opinion that those issues constrain you, and will impact upon you in gaol. I accept the proposition put that it may well be that your time in gaol may be more difficult than a normal person, and the manner in which Mr McMahon put those and utilised the principles set out in the case of Verdins [2007] VSC 102 five and six. That is that your time will be more difficult because of that ongoing depression.

30The next matter stressed was your plea of guilty.  It was put that such indicated remorse on your behalf, that it was utilitarian in the totality of the circumstances which I accept.  It was also in the current COVID-19 circumstances equally further utilitarian based upon the principles recently set out by the Supreme Court in Bourke [2020] VSC 130. I accept that you are entitled to an appropriate discount for that plea, and as I am required by Parliament,
Mr Dimovski, I will indicate to you the basis of such discount that I provide.

31The further matter put as to your remorse was your own letter. Exhibit 4.  I have reread your letter, I accept that letter as genuine.  I accept your own assessment, having now been in gaol I think for about nearly two and a half years, as being the biggest mistake, you have ever made in your life. 
I note in particular your steps taken while in gaol to effect rehabilitation and the various courses that have been undertaken as set out in Exhibit 8.  Those matters are confirmed in the affidavit of Ms Hosking, Exhibit 9, and also the matters that were put to me by your counsel. I am not fully aware of the reasons for this, but they are set out in Ms Hosking's affidavit and that is that you may have had, and may have in the future, issues within gaol for reasons I am not sure of, but you have been subject to threats from various sources.

32I also accept that you have been present in gaol during the introduction of COVID-19 and the restrictions.  You have been obviously subject to the risk in gaol, to the lock downs and the restrictions of visits brought about by that.  There is numerous instances of authority from the Supreme Court as to the appropriateness of that being taken into account in regard to your sentence.

33Your personal references are of some strength.  They mirror I think essentially the life that you have led with your limited priors that I have already referred to.  The character reference of Mr Fallshaw, Ms Bonnici, Ms Visser, Mr Nikolovski and Mr Tanevski speak strongly of not only your character, but of your resolve to change your life.

34Further, your family references, your brother and indeed your sister, which are part of Exhibit 7 not only opine that this serious crime was out of character, as the character references say, but that you are indeed remorseful and will continue to get family assistance and as I say, those two persons are here present by way of phone today.

35Your sister's letter in particular, sets out some of the difficulties and hardships in your life which have led to the diagnosis of Mr Borenstein. I take that into account obviously that as I have already said, not only the utilitarian benefit of your plea, in these COVID-19 times, but that you will continue to be subject to those issues.  I also take into account the order that I have made insofar as the forfeiture of your car, having been used for this criminality.

36Mr Dimovski, normally I would ask you to stand if we were in a normal Court.  We are not.  Can I tell you that in regard to your sentence, I take into account all of the above factors put to me, but in particular your role as a courier, as has been accepted before you made this plea by the Director in this matter.

37Insofar 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.

38In regard to Charge 2, you will be sentenced to a period of imprisonment of two months. 

39The total effective sentence imposed upon you will be therefore 12 years imprisonment.  The non-parole period that I will set in regard to such sentence is eight years imprisonment.  I order pursuant to s.18 that the pre-sentence detention that you have served, that is 867 days, as agreed by counsel today, be deemed to be part service of your sentence and that a record of such declaration be recorded in the records of this Court.

40In regard to the summary offence, you will be fined five penalty units.  As I have said, penalty units at the time were $161.19.  As has been indicated, I made the forfeiture orders and disposal orders.

41I am required by Parliament, and no doubt it is somewhat difficult for you, for me to tell you this because you have just received a significant sentence. 
However Parliament asks or insists that the Court express to you, Mr Dimovski, what would be the sentence had you not pleaded guilty.  As you have heard, I sentenced you to a total effective sentence of 12 years with a minimum to be served before you are eligible for parole of eight years.  Can I indicate as Parliament requires me to, had you not pleaded guilty, the sentence I would have sentenced you to is not 12 years with a minimum of eight years, but 15 years with a minimum of 11 years.  Just so there is no uncertainty, your sentence however is not that high a sentence.  Because you have pleaded guilty, your sentence is one of 12 years with a non-parole period of eight years.

42Madam Prosecutor or Mr Eliopoulos, is there any other matters I need to attend to or anything that's not clear or that you need to raise with me?

43MS TANG:  No, Your Honour.

44HIS HONOUR:  Mr Eliopoulos?

45MR ELIOPOULOS:  I apologise, Your Honour, I just had a technical issue. 
Your Honour, I just want to be clear, Your Honour will back date the eight year non-parole period with the time he has already done?

46HIS HONOUR:  I do not back date it, I just declare that he served pre-sentence detention of 867 days and that is part of his sentence.  So he has been serving his sentence from the first day.

47MR ELIOPOULOS:  Sure.

48HIS HONOUR:  In remand.

49MR ELIOPOULOS:  Yes, Your Honour.  So it will come off the time that Your Honour sentenced.

50HIS HONOUR:  Yes.

51MR ELIOPOULOS:  Yes, I understand.  Just for his benefit.

52HIS HONOUR:  Yes, not a problem.  Sorry, Ms Tang?

53MS TANG:  Your Honour, could I just clarify, did Your Honour state that he was to be sentenced as a serious drug offender?

54HIS HONOUR:  I did.

55MS TANG:  I don't believe he is.

56HIS 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.

57MS TANG:  My understanding Your Honour is that a person becomes a serious drug offender upon a subsequent conviction for a similar offence.

58HIS 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.

59MS TANG:  Thank you, Your Honour.

60HIS HONOUR:  All right.

61MR ELIOPOULOS:  Thank you, Your Honour.

62HIS HONOUR:  Mr Eliopoulos, do you wish to talk to your client now?  If I vacate the Court and we all vacate the Court, I think the term is they put us into the lobby, you can have any discussion you want at this time.

63MR ELIOPOULOS:  Your Honour, I do not mind if we finalise.  He can contact me and I can speak to him over the phone.

64HIS HONOUR:  All right, I just wanted to offer that to you.

65MR ELIOPOULOS:  Thank you, Your Honour.

66HIS HONOUR:  All right.  Subject to me checking that issue as to his being sentenced as a serious drug offender, you might check your opening, Ms Tang, because that is what is set out in the opening but I will check the Sentencing Act.  I did check it and I did not think for a serious drug offender you needed the two offences.  You do certainly if you are a serious sex offender but for this matter - but anyway, I will check it and thank you for raising the issue.

67MS TANG:  Yes, Your Honour, thank you.

68HIS HONOUR:  All right.  Yes, we can otherwise adjourn the Court.  Yes, good luck, Mr Dimovski.  I hope that the matters that you expressed in that letter as to your very serious mistake, which is obvious, are correct and that your rehabilitation is effected and that you no longer perform any tasks for people which are as proved as dangerous to you as they have.

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