Dacich (No.1) v The Queen
[2019] NSWDC 621
•06 September 2019
District Court
New South Wales
Medium Neutral Citation: Dacich (No.1) v R [2019] NSWDC 621 Hearing dates: 6 September 2019 Decision date: 06 September 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Adjournment of severity appeal refused
Catchwords: CRIME - Severity appeal - delay in disposition of appeal involving a custodial sentence Legislation Cited: Legal Aid Commission Act 1979 Category: Procedural and other rulings Parties: Regina (Crown)
Clare Dacich (Appellant)Representation: Mr Cupitt (for the applicant)
Ms Chan (ODPP - Respondent)
File Number(s): 2015/330425; 2016/9320; 2017/174438 Publication restriction: Nil
JUDGMENT
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As long ago as 9 July 2015, Clare Dacich was first arrested in relation to allegations of significant offences of dishonesty.
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Ms Dacich was sentenced for those offences in the Local Court on 24 March 2016 - at which time she received a sentence of imprisonment of 12 months with a non-parole period of 3 months.
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Ms Dacich then appealed to this Court against the alleged severity of that sentence and she was placed on a series of suspended sentences pursuant to s 12.
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Following her admission to those suspended sentences, Ms Dacich reoffended. The s 12 bonds were called up. Ms Dacich was then sentenced in the Local Court to an aggregate sentence of 3 years 6 months imprisonment, with a non-parole period of 2 years.
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It would seem that she was admitted to appeal bail approximately three weeks after that sentence was imposed.
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Throughout the course of this year, as I shall disclose, Ms Dacich has so conducted herself as to avoid the determination of that appeal.
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The appeal against the term of imprisonment was first listed in this Court on 22 February 2019, almost 7 months ago. The appeal was adjourned on the appellant’s application to obtain, it is said, subjective material. Why that subjective material had not been obtained in the 3 years previously when the matter had proceeded through other courts is not made clear.
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The matter was in this Court on its second listing on 22 March 2019. The appellant failed to appear. She sent an email to the registry saying she was unwell due to her alleged pregnancy and could not attend. That is an unsatisfactory explanation for not answering bail and (I would interpolate) it would seem that she became pregnant whilst the appeal was pending - a matter, in my view, which would be neither here nor there in determining the appeal.
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The third listing in this Court was on 29 March 2019. The Court was told that the appellant had lodged an application for Legal Aid funding on 27 March 2019 - that is, just 2 days before that third listing. Yet again the matter was adjourned.
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On 3 May 2019, being the fourth listing, Legal Aid was withdrawn. The appellant did not appear – she left a message at the Registry saying she had chicken pox and that she was appealing the withdrawal of Legal Aid.
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The appeal was then adjourned until today – its 5th listing.
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At 10 o’clock today there was no appearance by the appellant - in breach of her bail. At 10.13am a phone call was made to the Court Registry saying that the appellant was travelling from the Central Coast where she had spent the night – also in breach of her bail.
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Inquiries have been made this afternoon by both the Crown and Mr Cupitt who appears (at short notice) for the appellant. The Legal Aid Review Committee has no record of ever receiving any appeal from this convicted and (admitted) dishonest person.
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I am not persuaded on the balance of probabilities that any appeal has been filed with the Legal Aid Review Committee. I am persuaded, however, that this is yet another “dodge” by the appellant to seek to avoid facing up to her criminality, which she has been avoiding for some years.
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Furthermore, even if there had been satisfactory proof that an appeal had been lodged, I would have turned my attention to s 57 of the Legal Aid Commission Act. The section reads as follows:
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“Where it appears to a court on any information before it that a party to any proceedings before the Court has appealed in accordance with section 56 to a Legal Aid Review Committee and that the appeal has not been determined or that a party intends to appeal in accordance with s 56 to a Legal Aid Review Committee and that such an appeal is competent and where it appears to the Court that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings and where there are no special circumstances that prevent it from doing so the Court shall adjourn the proceedings to such date, on such terms and conditions as it thinks fit.”
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If it had been proved that there was a competent appeal before the committee, I would not have been persuaded that it was bona fide. I am not persuaded that it is not frivolous. In fact, I am persuaded that it is vexatious and intended to improperly hinder the conduct of this appeal. It is yet another step that this offender has taken for years to avoid the consequences of her dishonest conduct.
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I shall not, in those circumstances, adjourn the proceedings to allow any alleged appeal to the Legal Aid Review Committee to be processed.
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This matter had been given priority in my list this morning. It had been my intention for it to be the first matter in the list for hearing after calling through the administrative matters. By reason of the conduct of the appellant, it was necessary for me to issue a warrant for her arrest.
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The appeal will be heard by me at 10 o’clock on Monday. If there is no appearance by the appellant (with or without legal representation) at 10 o’clock the warrant for her arrest, which I issued today but which I have subsequently withdrawn, will be reissued.
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Whether or not Mr Cupitt, in the circumstances, you feel able to appear is entirely a matter for your professional judgment. I do not regard you as bound to appear for the appellant on Monday if that is not satisfactory to you. But I will not adjourn this matter any further.
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CUPITT: I thank the Court.
Decision last updated: 05 November 2019
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