Dacich (No.2) v The Queen

[2019] NSWDC 620

District Court

New South Wales

Medium Neutral Citation:	Dacich (No.2) v R [2019] NSWDC 620
Hearing dates:	9 September 2019
Decision date:	09 September 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Severity appeal allowed; aggregate sentence of imprisonment imposed in the Local Court set aside - and in lieu thereof an aggregate sentence of 2 years imprisonment is imposed.
Catchwords:	CRIME - Severity appeal - offence of dishonesty
Legislation Cited:	Crimes (Sentencing and Procedure) Act 1999 (NSW)
Category:	Principal judgment
Parties:	Regina (Crown) Clare Dacich (Appellant)
Representation:	Mr Rajeev (Solicitor for the applicant) Ms Chan (ODPP - Respondent)
File Number(s):	2015/330425; 2016/9320; 2017/174438
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 28 November 2018 Before: Cheetham LCM File Number(s): 2015/330425; 2016/9320; 2017/174438

judgment ​

1. Clare Dacich has appealed against the sentence imposed upon her in the Picton Local Court on 28 November 2018.

2. The history of her offending needs to be briefly referred to. 

3. Ms Dacich was sentenced in the Picton Local Court for fifteen offences of dishonesty which covered the period March 2014 to September 2016. 

4. Initially Ms Dacich was sentenced in the Local Court, for the first twelve offences, to a period of fulltime imprisonment.

5. Ms Dacich appealed against that sentence and her appeal was heard by a judge of this court on 25 November 2016.  At that time, his Honour imposed suspended terms of imprisonment, each for a period of twelve months. 

6. Ms Dacich breached those suspended sentences and, in consequence, all of the suspended sentences were called up before the Local Court on 28 November 2018.

7. By reason of s 98(3) of the Crimes (Sentencing and Procedure) Act that Court was required to revoke the s 12 bonds unless it was satisfied that the failure to comply with the bonds was trivial or that there were good reasons for excusing the breaches. His Honour necessarily formed the view that the breaches of the s 12 bonds were not trivial nor were there good reasons for excusing the breaches.  Consequently, it was necessary for his Honour to impose a term of fulltime imprisonment. 

8. It is in relation to that sentence that Ms Dacich has appealed to this Court.

9. It may seem surprising, at first blush, that a sentence imposed on 28 November 2018 is only being disposed of today, 9 September 2019.  That is because Ms Dacich has, by various devices, sought to avoid the consequences of the decision of the Local Court.  Today, in fact, is the fifth occasion on which this appeal has been listed.

10. I am not satisfied that there is any causal connection between Ms Dacich’s prolonged and sophisticated crimes of dishonesty and the post‑traumatic stress disorder diagnosed over the immediate past weekend - a diagnosis which to, a very large extent, depends on the honesty of the appellant, something which these sophisticated frauds show she is not. 

11. But even assuming she does have post-traumatic stress disorder, there is no causal connection between that disorder and the offending.

12. I am far from satisfied that the matter should be dealt with by way of the diversionary regime of s 32 of the Mental Health (Forensic Provisions) Act.

13. I am satisfied that no sentence other than a period of fulltime imprisonment is appropriate for Ms Dacich. 

14. I have given specific consideration as to whether the appropriate sentence could be dealt with by means of an intensive correction order. I have concluded that the offending is so serious as to not require that. Furthermore, her conduct in relation to her breach of s 9 bonds and her breach of s 12 bonds is such that the Court could have no confidence that she would comply with the requirements of an intensive correction order.

15. The Crown has submitted that the term of imprisonment imposed by the learned magistrate of three years and six months adequately reflects the criminality of the appellant’s conduct.  I have come to a different view.  I have come to the view that the accumulated sentence of three years and six months is excessive.  In my opinion, an aggregate sentence of two years imprisonment is appropriate.  I agree with the indicative sentences given by the learned magistrate in relation to the first twelve offences.  However, in relation to the last three offences, in my view the more appropriate indicative sentence is six months for each.

16. By having regard to the appellant’s psychological condition (assuming it to be as she has said – about which I have some doubts) I make a finding of special circumstances to vary the ratio of the head sentence. 

17. Moreover, I note that the appellant did spend a period of twenty-three days in custody before being granted bail at some point.

18. Therefore the appeal is allowed. 

19. In lieu thereof, I impose an aggregate sentence of 2 years imprisonment.  I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. 

20. Taking into account the twenty-three days already spent in custody, the non‑parole period of one year will date from 17 August 2019 and will expire on 16 August 2020.  I fix a balance of one year, to date from 17 August 2020 and which will expire on 16 August 2021.

21. Whether or not, Ms Dacich, you are admitted to parole on 17 August 2020 will depend upon how you perform in custody.  You will now go with the officers, thank you.

Decision last updated: 05 November 2019