Dukic v The Queen

[2021] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0205

SASA DUKIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2021
DATE OF JUDGMENT:	11 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 18
JUDGMENT APPEALED FROM:	DPP v Dukic (Unreported, County Court of Victoria, Judge Meredith, 29 August 2019)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in large commercial quantity of drug of dependence –Applicant sentenced to 11 years’ imprisonment – Sentencing judge purported to sentence applicant as serious drug offender under pt 2A of Sentencing Act 1991 – Error corrected before sentence recorded in court records – Sentencing judge withdrew comments about pt 2A of Sentencing Act 1991 – Length of sentence unchanged – Whether sentenced on basis that community protection was principal purpose for sentence – Whether sentencing judge erred in failing to re–sentence applicant to lesser term of imprisonment – Applicant not sentenced on basis that community protection principal sentencing purpose – No vitiating error –– Leave to appeal refused – Sentencing Act 1991 pt 2A – Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29, R v Beary (2004) 11 VR 151, Gillespie (a pseudonym) v The Queen [2018] VSCA 151 applied.

CRIMINAL LAW – Appeal – Sentence – Multiple offences – Whether sentence of 11 years’ imprisonment for trafficking in large commercial quantity of drug of dependence manifestly excessive – Whether total effective sentence of 11 years and 10 months’ imprisonment manifestly excessive – Standard sentence – Sentences not beyond the available range – Sentencing judge considered all relevant matters – No error disclosed – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Ms C Dwyer	Emma Turnbull Lawyers
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

FERGUSON CJ
BEACH JA:

1. The applicant pleaded guilty to a number of drug and firearm offences, and was sentenced as follows on 29 August 2019: 

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Trafficking Methylamphetamine (Large Commercial Quantity)	Life imprisonment	11 years	Base
2	Prohibited person in possession of firearm	10 years’ imprisonment	18 months	6 months
3	Storing cartridge ammunition in an insecure manner whilst unlicensed	4 years’ imprisonment	3 months	—
4	Possession of a drug of dependence	5 years’ imprisonment	1 month	—
5	Knowingly deal with proceeds of crime	20 years’ imprisonment	12 months	4 months
Summary Offence 13	Possess prohibited weapon without approval	2 years’ imprisonment	6 months	—
Summary Offence 14	Store unauthorised explosives without approval	100 penalty units	Conviction and fine of $250	—
Total Effective Sentence:		11 years and 10 months’ imprisonment
Non-Parole Period:		8 years
Pre-sentence Detention Declared:		253 days
Section 6AAA statement		15 years’ imprisonment, with a non-parole period of 11 years
Other orders: Forfeiture orders.

Grounds of Appeal

1. The applicant seeks leave to appeal against his sentence on the following grounds: 

1The learned sentencing judge erred in the exercise of his discretion in imposing sentence on charge 1 on the indictment on the basis that he regarded ‘protection of the community as the principal purpose for which the sentence on … charge [1] is imposed’.

2In imposing the sentence on charge 1 on the indictment, the learned sentencing judge determined to impose sentence on the basis that the Applicant fell to be sentenced as a ‘serious drug offender’ for the purposes of Part 2A of the Sentencing Act 1991 (Vic), with the consequence that the sentencing judge ‘regard[ed] protection of the community as the principal purpose for which the sentence on this charge [was to be] imposed’, thereby determining to impose an individual sentence of 11 years imprisonment on this charge, but subsequently, upon correctly determining that the Applicant did not fall to be sentenced as a ‘serious drug offender’ on this charge, the learned sentencing judge erred in the exercise of his discretion by failing to re-sentence the Applicant on this charge to a lesser term of imprisonment.

3The learned sentencing judge erred in the exercise of his discretion in imposing sentence on charge 1 on the indictment by giving excessive weight to the sentencing principle or objective protection of the community.

4The individual sentence of imprisonment imposed on charge 1 on the indictment, namely 11 years’ imprisonment, is in all the circumstances of the case, manifestly excessive.

5The Total Effective Sentence, namely, 11 years and 10 months imprisonment, is in all the circumstances of the case, manifestly excessive.

1. For the reasons which follow, we would refuse leave to appeal. 

The commission of the offences[1]

[1]This section is drawn from DPP v Dukic (Unreported, County Court of Victoria, Judge Meredith, 29 August 2019) (‘Reasons’) [6]-[13] and the Amended Summary of Prosecution Opening tendered on the plea.

1. The applicant was 34 years old at the time he offended.  He lived in Cranbourne North with his partner, Melinda Norton.  Police executed a search warrant at that property.  Both Ms Norton and the applicant’s younger brother were present.  Police saw a clear plastic container with a green lid containing a crystallised substance in the lounge room.  They formed the view that it was a drug of dependence and arrested both Ms Norton and the applicant’s brother. 

1. The applicant was not at home at the time the search warrant was executed.  He was attending an appointment at the Cranbourne community corrections office.  The police arrested him there.  When they searched his car they found two mobile telephones.  They then took the applicant to his home. 

1. In the garage, there was a large plastic container labelled, ‘Continental n‑Butanol’, as well as a portable stove top.  Members of the clandestine laboratory unit then attended the property and conducted a search.  They located, tested and seized a number of items.  These included a plastic bottle with a handwritten label marked, ‘Tone’, which contained a liquid, glass bowls containing liquids and solids, and a plastic bottle labelled acetone, as well as an envelope containing a quantity of printed documents titled, ‘Large scale methylamphetamine manufacture’. 

1. Various quantities of substances containing methylamphetamine in mixture were located inside the house.  In total there was 1,334.8 grams.  A large commercial quantity of this substance in mixture form is designated as 750 grams.  The methylamphetamine was of varying purity ranging from 0.4% (14g) to 85% (691.4g).  The applicant was charged with trafficking in a drug of dependence (methylamphetamine) in a large commercial quantity (Charge 1).  

1. A small black handgun was found in the bedroom of the house (Charge 2).  The applicant was a prohibited person as a result of having been dealt with in the Magistrates’ Court in March 2017.  Also found in the same bedroom was cartridge ammunition (Charge 3).  This included five .380 cartridges and a magazine, 18 .38 cartridges, one .357 magnum cartridge and two speed loaders, 31 .22 long rifle calibre cartridges and five .38 special cartridges, as well as one .45 automatic cartridge. 

1. In the lounge room, a press sealed bag containing smaller press sealed bags, which in turn contained five tablets of MDMA or ecstasy was found (Charge 4).  The total quantity of the drug was 1.7 grams.

1. Various bundles of cash in different denominations totalling $102,830 were found at the house (Charge 5). 

1. Assorted fireworks were located inside a speaker in a bedroom (Summary Offence 14).  A taser was also found inside the speaker (Summary Offence 13). 

The sentencing judge’s remarks

1. The judge described the offending.  In imposing a sentence, he noted that he must have regard to the seriousness of the offending, general and specific deterrence, rehabilitation, denunciation and community protection.  The judge referred to the applicable standard sentence of 16 years for a mid-range example of the offence of large commercial quantity trafficking. 

1. The judge stated:

Consequent upon your prior conviction for trafficking and the fact that you received a term of imprisonment, you do fall to be sentenced as a serious drug offender on Charge 1. This means pursuant to part 2A of the Sentencing Act, I must regard protection of the community as the principal purpose for which the sentence on this charge is imposed and unless I otherwise direct the term of imprisonment which I impose on this charge must be served cumulatively on any other sentence of imprisonment imposed on you and further I must and do direct that it be entered into the records of the court the fact that I am sentencing you on Charge 1 as a serious drug offender.

Regarding the operation of these provisions, I agree with the prosecutor’s submission that a sentence beyond that, which is proportionate to the gravity of your offending, is not required to address community protection.[2] 

[2]Reasons [29]-[30]. Section 6D of the Sentencing Act 1991 (‘Sentencing Act’) provides:

If … [the Court]  in sentencing a serious offender… considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence—

(a)must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b)may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

1. The judge described the personal circumstances of the applicant.  The applicant was exposed at an early age to a criminal world which involved drug use and associated offending.  He was also exposed to extreme levels of family violence.  The applicant has poor literacy, with English being his second language.  He attended various schools in the Dandenong area but did not perform well.  He got in with the wrong crowd and started using drugs at the age of 15.  The applicant left school having completed Year 10.  He also completed approximately three years of a four year painting apprenticeship with his father.  The volatile relationship between father and son led to the end of their working relationship.  The applicant did not complete the apprenticeship but worked as a painter until his mid-20s.  He then worked in the construction industry until he was about 32.  The applicant’s employment history was adversely affected by drug use and associated offending. 

1. The applicant’s drug use began with cannabis, moving to ecstasy and amphetamines and escalating to an ice addiction by the age of 20.  Occasionally the applicant used heroin. 

1. In December 2018, the applicant began a Hader Clinic 90 day treatment program as an inpatient.  He participated fully but left as an inpatient as the result of testing positive for stimulant drugs.  The applicant then participated in the program as an outpatient with all subsequent drug screenings being negative. 

1. The applicant satisfied the criteria for substance use disorder.  Previous emotional instability, paranoia and psychotic symptoms are related to his drug use.  At the time of sentencing, the applicant was prescribed antidepressants for mild reactive depression. 

1. At the time of sentencing, the applicant and Ms Norton were engaged, having been in a relationship for approximately 11 years.  Both used drugs.  Ms Norton was supportive of the applicant, encouraging him to bring his drug use to an end while also addressing her own abuse of drugs. 

1. The judge assessed the applicant’s prospects of rehabilitation as reasonable if he engaged in treatment for his drug addiction. 

1. The judge noted the applicant’s plea of guilty and treated this as having occurred at an early stage. 

1. As set out above, the judge sentenced the applicant to a total effective sentence of 11 years and 10 months, including the base sentence of 11 years on the trafficking charge. 

1. Having delivered the sentence, counsel for the applicant (who had not appeared on the plea) raised the fact that the applicant had not previously received a term of imprisonment for a ‘drug offence’,[3] with the consequence that the serious offender regime in pt 2A of the Sentencing Act 1991 (‘Sentencing Act’) did not apply. The judge stood the matter down and said he would not enter the sentence into the court’s records in case there needed to be any further submissions. We would record that at the earlier plea hearing both counsel had indicated that pt 2A did apply.

   [3]See Sentencing Act sch 1 cl 4.

1. Upon returning to the bench, the judge noted from email correspondence he had received that the collective position of the prosecution and the defence was that pt 2A did not apply. The judge then said:

So, in light of that, I withdraw the comments that I made initially in regard to that part of the Sentencing Act.  I do not propose to alter the sentence that I impose on Charge 1, of large commercial quantity trafficking, which will remain as 11 years, and the other sentence which I announced will also remain as announced, and they are Charge 2, 18 months; three, three months; four, one month; Charge 5, 12 months; and the summary offence of storing an unlawful explosive, a fine of $250; and possessing a prohibited weapon, namely the taser, six months.

1. The orders for cumulation and the non-parole period that was fixed remained the same. 

1. The written reasons were not revised to remove the reference to pt 2A. The judge, after re-declaring the amount of pre-sentence detention, said that he would ‘make the declaration under s 89(D1)’.[4]  The Record of Orders made stated: 

Pursuant to s 89D1 of the Sentencing Act 1991 (Vic), offender is sentenced as a serious drug offender in respect of Charge(/s) 1.

[4]Reasons [109].

1. We assume that the references to ss 89(D1) and 89D1, were intended to be references to s 89DI. Section 89DI(1) provides:

On the conviction of a person by a court for a serious drug offence, the court must make an order declaring the person to be a serious drug offender.

Grounds 1-3 – serious drug offender

(a)       Contentions

1. The applicant and the respondent agree that pt 2A of the Sentencing Act did not apply as the applicant was not to be sentenced as a serious drug offender. 

1. The applicant submits that the sentence on the trafficking charge of 11 years was vitiated by error in applying those provisions.  He submits that the judge gave excessive weight to the objective of protection of the community elevating it from a relevant consideration to the principal purpose for which the sentence was to be imposed.  He submits that the protection of the community should have had a lesser role in the exercise of the sentencing discretion given the judge assessed the applicant’s prospects of rehabilitation as reasonable if he continued to engage in treatment for his drug addiction. 

1. The applicant submits that the Court cannot be satisfied that this error did not materially affect the sentence on the trafficking charge. Put simply, his submission is that if pt 2A does not apply, a lesser individual sentence of imprisonment must necessarily be imposed on that charge.

1. In oral submissions, counsel for the applicant contended that even though the judge had said that a sentence beyond what was proportionate to the gravity of the offending was not necessary, that did not mean that s 6D played no role in the judge’s instinctive synthesis process. He relied on Director of Public Prosecutions (Cth) v Guest (‘Guest’).[5] In that case, the respondent was convicted of offences related to accessing, transmitting and possessing child pornography. The serious sexual offender provisions applied to one of the charges. The respondent was sentenced to a Community Correction Order. The sentencing judge had reasoned that the expression ‘protection of the community’ in s 6D of the Sentencing Act could possibly be used to justify a non‑custodial sentence. In allowing the Director’s appeal, this Court observed that the serious offender provisions contained in pt 2A of the Sentencing Act are intended to be entirely punitive and have nothing to do with protection of the community through rehabilitation.[6]

   [5][2014] VSCA 29 (‘Guest’).

   [6]Ibid, [28] (Coghlan JA, Weinberg and Whelan JJA agreeing).

1. Counsel for the applicant submitted that having appreciated the error, the judge did not re-exercise the discretion following a fresh instinctive synthesis process.  Counsel submitted that the judge had given no reasons for retaining the original sentence. 

(b)       Consideration

1. The first consideration is whether there was any error by the judge in the sentence he finally imposed. Before the sentence was entered into the records of the court, the error was brought to the attention of the judge. He stood the matter down. Subsequently, he received correspondence from the parties confirming that pt 2A of the Sentencing Act did not apply. The judge took further time for reflection. Having done that, he withdrew the comments he initially made about protection of the community being the principal purpose of the sentence. In the circumstances and chronology of events we have described, there was no need for the judge to refer to or explain why the sentence he finally imposed was of the same length as the sentence he had initially announced. Rather, the Reasons should simply be read as if the paragraphs set out above in which the judge referred to pt 2A of the Sentencing Act did not appear in the text. That being so, the judge did not sentence on an erroneous basis; that is, he did not sentence on the basis that community protection played a principal role in the sentencing task.  Consequently, there was no vitiating error. 

1. In any event, even if the judge did make an error and sentenced on the basis that community protection was the principal purpose of the sentence, that does not automatically lead to the sentencing discretion being reopened.  Not every mistake vitiates the sentencing discretion.[7]  Insignificant errors do not have that effect.  The sentencing discretion will not be re-opened if the Court is satisfied that the error could not have materially affected the sentence.[8]  

   [7]R v Beary (2004) 11 VR 151, 159 [21]; [2004] VSCA 229, [21] (Callaway JA, Buchanan JA agreeing, Ormiston JA not addressing); Gillespie (a pseudonym) v The Queen [2018] VSCA 151, [53] (Whelan and McLeish JJA).

   [8]Ibid.

1. Protection of the community was a relevant consideration.  It always is.  As was observed in Guest, the serious offender provisions are punitive. But, it does not follow that a sentence where protection of the community is the principal purpose will necessarily be longer than one where it is not. So much is recognised in s 6D of the Sentencing Act itself.  The section provides: 

If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence—

(a)must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b)may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

1. The provision recognises that to achieve the requirement of protection of the community as the primary purpose it might (not must) be necessary to impose a longer sentence than is warranted by the gravity of the offending in the circumstances.  Logically it follows that in some instances it is not necessary to impose a sentence longer than that warranted by the seriousness of the offending.  That is, the sentence may be of such length as is both proportionate to the gravity of the offending in the circumstances and satisfies the primary purpose of protecting the community and all other sentencing purposes. 

1. Here, it is clear from the passage of the Reasons set out above that the judge formed the view that a sentence that was appropriate given the gravity of the offending would also be sufficient for the purposes of protection of the community regardless of whether that protection was the principal purpose of the sentence or not.  That is, given the gravity of the offending and all other relevant matters considered as part of the instinctive synthesis, no lesser sentence was to be imposed on charge 1 simply because protection of the community was not the principal purpose of the sentence. 

1. Consequently, if the judge made an error we are satisfied that it could not have materially affected the sentence.  It was not a vitiating error.  But in any event, as we have already said, the judge ultimately did not make the error contended for by the applicant in grounds 1 to 3. 

Grounds 4 and 5 — manifest excess

(a)       Contentions

1. By grounds 4 and 5, the applicant contends that the individual sentence on the trafficking charge and the total effective sentence were each manifestly excessive. 

1. In relation to the ground concerning the individual sentence on the trafficking charge, the applicant relies on his submissions in support of grounds 1 to 3.  He submits that when the early guilty plea, his residency at the Hader Clinic, his reasonable prospects of rehabilitation and the fact that part of the mixture in liquid form was of very low purity are taken into account, a sentence of the magnitude imposed was beyond the range of sentences which might reasonably have been imposed. 

1. As to the total effective sentence, the applicant relied on his submissions in relation to all earlier grounds, contending that a total effective sentence of 11 years and 10 months’ imprisonment was beyond the range. 

(b)       Consideration

1. To succeed, the applicant must establish that the sentence was wholly outside the range of available sentencing options. 

1. There is nothing in either the individual sentence for trafficking or the total effective sentence that takes either beyond the range of sentence that was within the bounds of a sound exercise of the sentencing discretion. 

1. The judge considered all of the matters relevant to his sentencing task.  He gave each the weight that he thought it deserved.  The sentence which resulted from this process does not disclose any error on his part. 

1. This was a serious example of the offence of trafficking in a large commercial quantity and there were few matters that the applicant could rely upon in mitigation.  The standard sentence for this offence is 16 years.  Taking those and all other relevant matters into consideration, the individual sentence imposed on the trafficking charge and the total effective sentence were within range. 

Conclusion

1. We would refuse leave to appeal. 

1. We were informed by the applicant’s counsel that the form of wording used in this case for the declaration required under s 89DI is commonly used. In our view, that wording would benefit from amendment. Under s 104A(5A) of the Sentencing Act, we will direct that the declaration under s 89DI of that Act be amended in the Record of Orders to read:

Having been convicted on Charge 1 for a serious drug offence, the offender is declared under s 89DI of the Sentencing Act 1991 to be a serious drug offender.

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