Markovic v The Queen (No. 5)

[2023] NSWDC 278

District Court

New South Wales

Medium Neutral Citation:

Markovic v R (No. 5) [2023] NSWDC 278

Hearing dates:

03 July 2023

Date of orders:

25 July 2023

Decision date:

25 July 2023

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) The Community Corrections Order is revoked

(2) Sentence the offender to a fixed term of imprisonment of 6 months commencing on 8 May 2023 and to expire on 7 November 2023

(3) Any sentence that might follow the further prosecutions to which he is subject may be adapted to these dates

Catchwords:

APPEALS — Jurisdiction of appellate court — District Court

APPEALS — Leave to appeal — Leave granted to withdraw appeal

APPEALS — Nature of appeal — Functions of appellate court

APPEALS — Orders on appeal — Finality

APPEALS — Orders on appeal — Powers of appellate court

APPEALS — Procedure — Orders on appeal

APPEALS — Procedure — Record of court

SENTENCING — Appeal against sentence — Powers of court — “Sentence”

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Appeal and Review) Act 2001

Crimes (Sentencing Procedure) Act 1999

Road Rules 2014

Cases Cited:

Belan v Office of the Director of Public Prosecutions (NSW) [2021] NSWCA 96

Crimes (Appeal and Review) Act 2001

Crimes (Sentencing Procedure) Act 1999

DPP (NSW) v Jones [2017] NSWCCA 164

Markovic v R (No. 1) [2022] NSWDC 353

Markovic v R (No. 2) [2022] NSWDC 354

Markovic v R (No. 3) [2022] NSWDC 675

Markovic v R (No. 4) [2022] NSWDC 742

Parker v The Director of Public Prosecutions (1992) 28 NSWLR 282

Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653

Category:

Sentence

Parties:

Duro George Markovic (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Paul Bolster (Counsel for the Applicant)

Jason Rafeeq (Solicitor for the Respondent (ODPP))

File Number(s):

2020/00295833

JUDGeMENT

Introduction

1. Duro George Markovic, who appears by the name Duro Markovic, was called before this court upon alleged breaches of a Community Corrections Order to which he was subject commencing on 11 August 2022 after the determination of several appeals pursuant to the Crimes (Appeal and Review) Act 2001.

2. The proceedings against Mr Markovic in the Local Court and subsequently by way of his appeals in the District Court were extensive and protracted. I delivered judgements for each of the appeals and applications including my judgement leading to imposition of the Community Corrections Order upon which I made orders in chambers for him to appear to answer for alleged breach.

Previous Judgements

3. On 11 August 2022 I delivered the following judgements:

1. Markovic v R (No. 1) [2022] NSWDC 353 – file 2020/00337852, in respect of which I held there was no power to deal with the matter after orders by Judge Robinson on 12 October 2021.

2. Markovic v R (No. 2) [2022] NSWDC 354 file – 2021/00071644 in which I remitted the proceedings to the Local Court. A magistrate convicted Mr Markovic in his absence, but he did not thereafter seek annulment pursuant to s 12(2) Crimes (Appeal and Review) Act 2001 and thus the District Court had at this point no jurisdiction to deal with the matter.

3. Markovic v R (No. 4) [2022] NSWDC 742 – file 2020/00295833, in respect of which these call up proceedings are extant.

4. On 14 December 2022 I delivered judgement in Markovic v R (No. 3) [2022] NSWDC 675 – files 2020/00117336, 2020/00121158, 2020/00236206. This concerned an application for leave to appeal from conviction (2020/00236206), appeals from the severity of sentences (2020/00117336, 2020/00121158), and ultimately an application for recusal which I refused, and dismissal of the appeals for want of prosecution when the applicant/appellant did not appear.

5. Throughout Mr Markovic’s several appearances in this court he has been a difficult litigant. In Markovic v R (No. 3) ibid I provided the history of the proceedings in this court until the determination of all matters.

6. Difficulties created by Mr Markovic continued. Before the appeals and applications for leave to appeal before me were concluded his then counsel on 18 November 2022 sought leave to withdraw for want of instructions. In the breach proceedings after adjournments to allow Mr Markovic to arrange for representation, counsel appeared and mounted the arguments with which this judgement is concerned. On that occasion, 3 July 2023, as I entered the court Mr Markovic was speaking on the audio-visual link from custody loudly, sometimes yelling, at counsel at the bar table. He quietened when the court commenced sitting but interjected from time to time as submissions were made and during exchanges between the bench and counsel.

7. The hearing was adjourned to 13 July 2023 to allow consideration of the arguments. In the interim I was allocated a trial which could not be adjourned on that date. The Crown and Mr Markovic’s representatives were notified by email and in response his representatives advised that they were no longer retained. On that day Mr Markovic said his lawyers had demanded further money from him which he did not pay after which they abandoned him. I do not include the entirety of his adverse remarks directed to his former representatives.

8. The proceedings were thereupon adjourned with Mr Markovic’s consent to 25 July 2023 for conclusion.

The Breach Proceedings

9. The judgement relevant to the breach proceedings is Markovic v R (No. 4) ibid.

10. Mr Markovic appealed from three convictions in the Local Court at Manly on 26 November 2021 for the following offences:

1. Sequence one contrary to s 60(1) Crimes Act 1900 of intimidating a police officer in execution of duty.

2. Sequence four contrary to s 68(1) Road Rules 2014, not stopping at or before a stop line or stop sign.

3. Sequence five contrary to s 195(1)(a) Crimes Act 1900 of damaging property.

11. I dismissed each of the appeals. At paragraph [43] et seq I wrote (emphasis added),

Conclusions

[43]   I am satisfied upon the information provided and the evidence presented to the magistrate that there were reasonable grounds for the police to suspect that the appellant had committed the traffic offences of disobeying the stop sign and driving in excess of the speed limit, between the point when they first saw the vehicle and when ultimately they came to intercept it. I am also satisfied that those circumstances gave a reasonable basis to be suspicious that [the occupant of the vehicle] was fleeing for some reason, perhaps because it was a stolen vehicle. I am satisfied that the police officer was justified in affecting the arrest, to stop the appellant committing further offences as was demonstrated in his response to the police when he was confronted.

[44]   I do not believe I could find that he was demonstrating any intention to flee, but his presentation was such that there was justification in coming to the view that he might be willing to offer violence to these police officers. For that reason, I am satisfied there was a need to protect the safety and welfare of both the police officers and the appellant in the circumstances.

[45]   The offences were established.

[46]   There was no justification for the appellant to have behaved as he did in the face of the police officers exercising their powers, which I believe they were doing appropriately in the circumstances.

[47]   Accordingly, the appeals from the convictions in each case are dismissed and the findings of guilt confirmed. I shall leave the documents on file for whatever need the parties might have for them. I will also include the written submissions provided by the Crown and the appellant.

[48]   The appellant seeks leave to withdraw the appeals from sentence. Leave is granted. Confirm the convictions in each case and the orders imposed by the magistrate.

[49]   In each case the CCO will commence from today. The appellant is to report to St Leonards Community Corrections office within 7 days from today.

12. The Community Corrections Orders made by the magistrate following conviction did not include a condition for supervision. Though not stated expressly, implicit in my final paragraph is my intention was that the Community Correction Orders be supervised.

13. For the determination of the alleged breach the Crown tendered a bundle by consent, marked Exhibit A. The information provided by this material is uncontroversial.

14. At the time of the alleged breach there remained one Community Correction Order in place in respect of the offence Sequence one, contrary to s 60(1) Crimes Act 1900 of intimidating a police officer in execution of duty. The order issued to Mr Markovic included:

Order: You are convicted and directed to enter into a Community Correction Order for 18 months pursuant to Section 8 of the Crimes (Sentencing Procedure) Act 1999 to commence on 11 August 2022.

Standard Conditions:   The Community Correction Order is subject to the following standard conditions:

(a)   You must not commit any offences.

(b)   You must appear before the court if you are called on to do so during the term of the order

This Community Correction Order is subject to the following additional conditions:

You are subject to supervision by a Community Corrections Officer at St Leonards Community Corrections for the period of the Community Correction Order.

15. The order listed the directions for supervision with which he was required to comply.

16. On 12 April 2023 a Community Corrections Officer from the St Leonards office reported that Mr Markovic breached the order in two respects.

17. First, he was arrested on 6 February 2023 and charged with two further offences. There are in fact a larger number of further offences with which Mr Markovic is charged pending in the Local Court. He said that he is defending them all. Some are alleged to have occurred on 11 August 2022 after he left court following the determination of the appeal, and the more recent on 16 March 2023. He is bail refused in respect of the more serious of those. I have put those allegations aside in the determination of this matter.

18. Secondly Mr Markovic failed to comply with supervision. He did not report on five occasions, leading to numerous attempts to provide him with further reporting dates. He could not be located. On 23 March 2020 he reported that he was injured in an accident. He failed to engage with services to address his risk factors and refused to provide particulars of third-party contacts to verify and monitor his circumstances.

19. The report noted compliance with the supervision order remained poor. He continuously failed to comply with obligations, to meaningfully engage with interventions, and showed no progress toward change in his basic anti-social attitudes. He failed to report regularly, and on the occasions that he did he failed to productively engage. The officer recommended the supervision component be removed. I did not accept the recommendation.

20. On 1 May 2023 I directed he be called up before me on 4 May 2003. He did not appear on that day. I adjourned to 24 May 2023. He did not appear on that day but a man representing himself to be his son attended and reported that his father was In Parklea gaol charged with an unrelated matter. I adjourned to 29 May 2023. Mr Markovic was confirmed to be in custody for other matters, he appeared by audio-visual link, reported that he was unwell because of a head injury, and sought an adjournment to obtain representation. I adjourned to 5 June 2023 when he reported that he sought legal aid but that the process would take four to six weeks. I adjourned to 3 July 2023 and on that date counsel appeared to challenge the proceedings.

The Challenge to the Breach Proceedings

21. On 3 July 2023 counsel appeared with Mr Markovic who attended from custody by audio visual link.

22. The case presented on behalf of the offender was confined to the proposition that the court had no jurisdiction to call the offender to account for breaches of the order to which he submitted upon my determination of the appeal from conviction and the grant of leave for him to withdraw appeals from sentences.

23. There was no argument advanced by counsel that if he was bound by the community correction order he was not in breach of it for failing to comply with supervision. There is evidence and no submission relevant to the outcome that should follow if he was bound by the order and breached it.

The Offender’s Submissions

24. Counsel argued that the court should take no action regarding the breach. He did not suggest that if the Community Correction Order was effective Mr Markovic was not in breach of it. His argument is that this court had no jurisdiction to order that Mr Markovic submit to a further Community Correction Order after the grant of leave to withdraw the sentence appeal for the following reasons:

1. Mr Markovic appealed from the conviction and the sentence imposed by the magistrate,

2. The court dismissed the appeal from conviction, whereupon Mr Markovic sought leave to withdraw the appeal from sentence,

3. The court confirmed the magistrate’s orders.

4. Therefore, the court lacked jurisdiction to impose a fresh Community Correction Order.

25. Counsel submitted that the grant of leave followed a warning in accordance with Parker v The Director of Public Prosecutions (1992) 28 NSWLR 282. This is not correct. I expressed the intention to provide a “Parker warning” on 26 October 2022 when listed before me were the proceedings to which files 2020/00121158, 2020/00117336, and 2020/00236206 related and with which I dealt in Markovic v R (No. 3) ibid.

26. On that day Mr Markovic did not appear after he sent an email to the court registry alleging that he was unwell and asking for the matters to be adjourned to the following week or another date convenient to the court. Mr Milanovic of counsel appeared. The transcript records the following exchange with counsel at page 3:

Just one matter I need to clarify. In relation to these matters, these are the matters ending in 321 [1] . In respect of those, the matters were listed for severity appeals initially and there’s been a stay granted. There was a stay granted in relation to the orders by the magistrate including the disqualification period. I just wanted to clarify that. The other point is this. Any accommodation extended to the applicant in accordance with the decision in Borkowski allowing a discount to whatever order might have otherwise been made, in light of the course taken, if this application fails, I would think that it’s appropriate to give your client a Parker warning notifying him that the power of this Court extends to increasing the penalty the magistrate imposed. I don’t advise you of that for any reason other than to let you know so that you can let him know so he’s not denied any procedural fairness should that issue become one to be agitated on the next occasion.

MILANOVIC: Your Honour, the Parker warning, I hear your Honour quite clearly on that. If that could probably be said in front of him in the circumstances.

HIS HONOUR: I’ll be saying it in front of him at the appropriate time. You’ll be representing him and no doubt have taken instructions from him and you’ll be giving him advice but be aware that that is a matter that would be before the Court if his application to go behind these pleas of guilty is not successful.

MILANOVIC: Thank you, your Honour.

1. Here I misspoke and the reference to the last 3 digits in the file number should have been 206 rather than 321

27. The outcome and orders recorded were:

1.   Appellant/applicant emailed the registry saying he is unwell today and asks for the matter to be adjourned to next week or a date convenient to the court.

2.   Adjourned to 18 November 2022, 10:00am for sentence appeals and traversal of plea application part heard before his Honour Judge Bennett SC. 1 hour estimate.

3.   Attend in person.

4.   Registry is to send fresh notices to the appellant at:

a.   [ADDRESS REDACTED], Kanwal NSW 2259

b.   [ADDRESS REDACTED], Mona Vale NSW 2103

c.   [EMAIL ADDRESS REDACTED]

5.   The fresh notices should also contain the advice to the appellant/applicant that the matter will proceed on the next occasion. If the appellant is not here in person or by representation then then matter will be dismissed for want of prosecution.

6.   Should the application to traverse the pleas entered in the Local Court fail, his Honour intends to give the appellant a Parker warning in respect of matter 2020/00236206.

28. On the next occasion, 18 November 2022, Mr Milanovic once more appeared but sought leave to withdraw in the absence of instructions. There was an unfortunate abusive outburst by Mr Markovic directed toward my court officer, witnessed by counsel appearing in the trial in which I was then presiding and I adjourned the hearing to 23 November 2022. Mr Markovic explicitly declined to waive client legal privilege in respect of the proceedings in which he sought leave to appeal and go behind his pleas of guilty and the hearing was adjourned to 14 December 2022. Once more he failed to appear, with an email to the registry reporting that he had come down with a virus. I required that he attend the court by phone or audio-visual link, but he failed to respond. I gave judgement on the issues anticipated in those matters, including recusal, and ordered the appeals to be dismissed for want of prosecution, confirmed the orders of the magistrate, and directed that Mr Markovic be informed of his rights to ask for resurrection of the proceedings pursuant to s 22 Crimes (Appeal and Review) Act 2001: Markovic v R (No 3) ibid. In that judgement at paragraphs [12], [55] and [56] I refer to the “Parker warning” and the reasons for it when Mr Milanovic appeared in Mr Markovic’s absence.

29. I have no memory of announcing a “Parker warning” in respect of the offences before my in the present file.

30. Counsel submitted that the court should not take action for the further offences with which Mr Markovic stands charged, pending as defended proceedings, for the following reasons:

1. S 107C Crimes (Administration of Sentences) Act 1999 provides (emphasis added),

107C   Breach of community correction order 

(1)    If it suspects that an offender may have failed to comply with any of the conditions of a community correction order—

(a)  the court that made the order, or

(b)  any other court of like jurisdiction, or

(c)  with the offender’s consent, any other court of superior jurisdiction,

may call on the offender to appear before it.

(2)    If the offender fails to appear, the court may—

(a)  issue a warrant for the offender’s arrest, or

(b)  authorise an authorised officer to issue a warrant for the offender’s arrest.

(3)    If, however, at the time the court proposes to call on an offender to appear before it, the court is satisfied that the location of the offender is unknown, the court may immediately—

(a)  issue a warrant for the offender’s arrest, or

(b)  authorise an authorised officer to issue a warrant for the offender’s arrest.

(4)    For the purposes of subsection (1) (c), a court is of superior jurisdiction to the court that made the community correction order if it is a court to which the offender has (or has had) a right of appeal in respect of the conviction or sentence from which the order arises.

(5)    If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a community correction order, a court—

(a)  may decide to take no action in respect of the failure to comply, or

(b)  may vary or revoke any conditions of the order (other than standard conditions) or impose further conditions on the order, or

(c)  may revoke the order.

(6)    To avoid doubt, the court that made an order may deal with a breach of a community correction order even though the court is constituted differently from the court as constituted at the time the order was made.

(6A)    A court may exercise any function under this section in relation to a community correction order after the order has expired, but only in respect of matters arising during the term of the order.

(7)    In this section—

“authorised officer” has the same meaning as it has in the Criminal Procedure Act 1986.

2. Since this court had no jurisdiction to impose a Community Correction Order after leave was granted to withdraw the appeal from sentence, the relevant Orders were those in the Local Court on 22 April 2021 and 26 November 2021.

3. The District Court is not a court of like jurisdiction for the purposes of this provision. In DPP (NSW) v Jones [2017] NSWCCA 164 dealing with s 98(1)(a) Crimes (Sentencing Procedure) Act 1999 as it as at the time, Basten JA with whom Harrison and R A Hulme JJ agreed wrote (emphasis added),

[20] Section 98(1)(a) refers to the court “with which” the offender has entered into a bond. This language suggests a relationship between the court and a party giving a form of undertaking to the court. That language accords primacy to the content of the document, which will identify the court and judicial officer which directed the entry into the bond, and the officer before whom the offender signed the bond, accepting its terms. It has been held that the relevant court for the purposes of s 98(1)(a) was the Local Court in circumstances where the bond was imposed by that court, but was confirmed on appeal by the District Court: Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653 (Rothman J). In the result, it was held that the District Court had no jurisdiction to call up the offender for non-compliance with a condition of the bond. It was also held that the District Court was not a court of “like jurisdiction” for the purposes of par (b) in s 98(1). (There may be a need to reconcile that approach with Wishart v Fraser [6] and Blacker v Parnell, [7] stating that even if the District Court dismisses an appeal from the Local Court, its order supersedes that of the court below.)

[21] The last conclusion followed from the distinction in s 98(1) between a court “of like jurisdiction” and a court “of superior jurisdiction”, in circumstances where the latter is identified as a court to which the offender has or had a right of appeal with respect to the sentence from which the bond arises. The District Court is, on that approach, a court of superior jurisdiction to the Local Court and the terms of s 98(1) require that the District Court cannot call on an offender to appear before it to answer for a failure to comply with a condition of the bond imposed in the Local Court, unless the offender consents pursuant to s 98(1)(c). That circumstance does not arise in the present case.

There is no significance in the replacement of s 98 Crimes (Sentencing Procedure) Act 1999 with s 107C with comparable effect in Crimes (Administration of Sentences) Act 1999.

4. Mr Markovic does not consent to the court dealing with the breach of the Community Correction Order from the Local Court: s 107C(1(c) Crimes (Administration of Sentences) Act 1999.

5. Counsel submitted that if there were doubt about these propositions it would be appropriate to state a case for the Supreme Court. In the alternative, counsel submitted that it was not appropriate to proceed upon the breaches by way of further offences unless and until Markovic is proven to have committed them.

31. To summarise the arguments advanced,

1. There is one Community Correction order for consideration, namely that which was imposed by the magistrate on 26 November 2021 for the offence of intimidation of the police officer, of 18 months duration expiring on 25 May 2023. In addition the magistrate imposed a fine of $1,000.00.

2. The appeal from conviction for that offence was unsuccessful. Leave to withdraw the appeal from the sentence was granted, whereupon the court had no power to impose a greater penalty which it purported to do with imposition of a Community Correction Order from 11 August 2022 with the additional condition of supervision.

3. The District Court is not a court of like jurisdiction to the Local Court in which the relevant Community Correction Order was imposed and entered, but a court of superior jurisdiction which could not deal with any breach of the order made in the Local Court without Mr Markovic’s consent which was not forthcoming.

4. The provisions governing the disposition of breaches of a community corrections order are found in s 107C Crimes (Administration of Sentences) Act 1999, which replaced the provision with which Basten JA dealt with as discussed.

The Crown Submission

32. The Crown submitted that the Court had jurisdiction to call upon the offender to answer for the breach of the community corrections it imposed, and which it was required to impose since the pursuit of an appeal from the sentence enlivened the stay of the community corrections order imposed by the Local Court. The Crown referred to Belan v Office of the Director of Public Prosecutions (NSW) [2021] NSWCA 96 where Leeming JA, with whom Meagher and McCallum JJA agreed, wrote (emphasis added),

[61]   In oral submissions in this Court, responding to the Crown’s submission in writing that he had failed sufficiently to identify the judicial acts sought to be quashed, Mr Belan sought to rely on a series of matters which occurred on 23 October 2020:

“It’s the applicant’s case that it relies upon Parker warning, the decision not to grant leave and then the decision to withdraw the appeal, so that the applicant says there are a series of decisions that are being made which are reviewable and that is what should occur.

[62]   This submission makes it necessary to examine more closely what occurred at the conclusion of the hearing.

(1)   The giving of the Parker warning was not of itself an order or decision which was susceptible to judicial review. The Parker warning was necessary lest there be a denial of procedural fairness in the event that upon resentencing, a longer sentence was imposed. But the warning did not itself carry with it a legal effect or consequence, save for expanding the possible outcomes of Mr Belan’s appeal against sentence which might be reached following a hearing which was procedurally fair. In Parker v Director of Public Prosecutions (1992) 28 NSWLR 282itself, Kirby P said:

“Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer’s conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view.”

But drawing such considerations of importance to the parties’ attention, in order for the court to be procedurally fair, is not to perform a judicial act capable of attracting certiorari.

(2)   Mr Belan is correct to submit that there should have been a grant of leave: Crimes (Appeal and Review) Act, s 67(1). However, the order which was made is to be understood as carrying with it the requisite grant of leave to withdraw the appeal, because it is plain that his Honour considered that that was the only appropriate course. Contrary to Mr Belan’s submissions, there was no order refusing leave.

(3)   There is a further difficulty, raised in this Court but not by the parties, insofar as the Local Court’s aggregate sentence turned on 60 convictions, and two were quashed (one by consent, and another because the primary judge concluded that the elements had not been proved). But the withdrawal of the appeal against sentence left the sentence in place, in substance acknowledging that the sentence remained appropriate for the remaining 58 charges.

(4)   It may seem unusual for an appellate court to make orders altering the orders at first instance when an appeal is withdrawn. However, that is made necessary by the regime for an automatic stay of execution, in light of which there is express legislative provision. Section 67(2) of the Crimes (Appeal and Review) Act provides:

“In granting leave for an appeal or application for leave to appeal to be withdrawn, the appeal court may make such orders as are necessary to place the appellant as nearly as practicable in the same position as if the appeal or application had not been made.”

(5)   The orders altering the dates of Mr Belan’s term of imprisonment and non-parole period, made shortly after the appeal was withdrawn, and before any orders had been entered, are authorised by that power. Those orders are essentially administrative, and are consequential upon the withdrawal of the appeal against sentence.

(6) Finally, it may be noted for completeness that there was on one view an irregularity insofar as the appeal against sentence was withdrawn, and only thereafter were corrections made to the dates and the indicative sentences. However, it is difficult to see, in light of s 53A(5) of the Crimes (Sentencing Procedure) Act, how the Local Court’s error in relation to the indicative sentences had any consequence, or how its purported correction by the District Court matters. Neither party addressed this in submissions.

[63]   Thus, as the Crown submitted, the only operative order made by the primary judge was the withdrawal of the appeal against sentence.

Consideration

33. The District Court has jurisdiction to hear appeals from convictions and sentences determined in the Local Court provided by the Crimes (Appeal and Review) Act 2001. The orders the Court may make upon the determination of sentence appeals are provided in s 20(2):

20   Determination of appeals 

(1)    ….

(2)    The District Court may determine an appeal against sentence—

(a)  by setting aside the sentence, or

(b)  by varying the sentence, or

(c)  by dismissing the appeal.

34. S 63 provides for the stay of execution of sentence pending determination of an appeal:

(1) This section applies to—

(a) any sentence, and

(b) …,

in respect of which an appeal or application for leave to appeal is made under this Act.

(2) The execution of any such sentence …, is stayed—

(a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or

(b) …, or

(c) ….

(2A) ….

(2B) ….

(2C) ….

(3) Subject to any order of the appeal court, a stay of execution continues in force until the appeal is finally determined.

(4) Such an order is to be made only if the appeal court is satisfied, in proceedings on an application by the prosecutor, that the appellant has unduly delayed the appeal proceedings.

(5) ….

35. Sentence is defined in section 3 to mean various outcomes, among them any community correction order: s 3(1)(a)(iia).

36. Consistently, in this case, upon the lodgement of the appeal, the community corrections order by the magistrate was stayed.

37. Thus:

1. Upon the application of s 63(3) the stay of execution continues until the appeal is finally determined, but subject to any order of the appeal court.

2. Upon the application of s 63(4) such an order may be made only if the appeal court is satisfied in proceedings on an application by the prosecutor that the appellant has unduly delayed the appeal proceedings. The prosecutor has not made such an application, but in any event upon the history of the proceedings I would not find that Mr Markovic has unduly delayed them, although his response to them and to the efforts of his counsel might have been more considered than was demonstrated.

3. It must be that the order contemplated in s 63(3) and 63(4) is one made in respect of the stay of execution, which might be required upon a finding that the appellant has unduly delayed the proceedings, including to address manipulation of the proceedings by an appellant looking to avoid the appropriate consequences of the wrongdoing founding the proceedings.

4. Upon Mr Markovic’s sentence appeal the execution of the Community Correction Order in the Local Court was stayed until the determination of the appeal in the District Court, but subject to any order of the court, which upon the application of s 67 included the grant of leave for the withdrawal of the appeal. This section provides (emphasis added),

(1) An appeal or application for leave to appeal may at any stage be withdrawn by the appellant, but only by leave of the appeal court.

(2) In granting leave for an appeal or application for leave to appeal to be withdrawn, the appeal court may make such orders as are necessary to place the appellant as nearly as practicable in the same position as if the appeal or application had not been made.

(3) Any order made by the appeal court in respect of an appeal or application for leave to appeal that is withdrawn is taken to have been made by the Local Court.

38. S 69 provides for the effect of confirmation of sentence on good behaviour bonds, community correction orders and conditional release orders (emphasis added):

(1) The following continue to have effect if an appeal court confirms a sentence on appeal—

(a) a good behaviour bond entered into by the appellant as a consequence of the original sentence,

(b) a community correction order or conditional release order made in relation to the appellant as a consequence of the original sentence.

(2) The bond or order continues to have effect—

(a) according to its terms, except to the extent to which the appeal court otherwise directs, and

(b) despite any stay of execution that has been in force in respect of the sentence.

39. The appellate court when deciding the outcome of the proceedings in which the sentence is appealed, may make orders with regard to the community corrections order that was stayed, which must include orders pursuant to s 20, and extend to orders pursuant to s 67(2).

40. The argument by Mr Markovic that there was one community corrections order, in the form imposed by the magistrate, ignores the power of the court to address the hiatus in the operation of the order by reason of the stay of execution brought upon lodgement of the appeal by adjusting the date of the commencement of the order: Belan v Office of the Director of Public Prosecutions ibid.

41. The question that arises is as to the nature of the order specifying conditions in addition to the standard conditions that apply.

42. I do not accept that the scope of the power given by the provisions to which I referred, does not extend to allow the administrative decision to structure the community corrections order to meet circumstances at the time of the determination of the appeal by confirming the duration of the order, and when it is to commence, to ensure that the appellant suffers the constraints imposed for the specified period. Moreover, whether the order is supervised is ultimately an administrative decision which those given the task of providing the supervision have power to suspend. S 107E Crimes (Administration of Sentences) Act 1999 provides:

(1)    This section applies to the following conditions of a community correction order—

(a) a condition referred to in section 89 (2) (g) of the Crimes (Sentencing Procedure) Act 1999 (a “supervision condition”),

(b) a curfew condition, non-association condition or place restriction condition referred to in section 89 (2) of that Act.

(2)    A community corrections officer may, by order in writing and subject to the regulations, suspend the application of a supervision condition to an offender for a period or periods or indefinitely.

(3)    A community corrections officer may, by order given orally or in writing and subject to the regulations, suspend the application of any other condition to which this section applies to an offender for a period or periods.

(4)    The suspension may be unconditional or subject to conditions.

(5)    For the purposes of this Act, a failure to comply with a condition of the suspension is taken to be a failure to comply with the obligations of the community correction order. This subsection does not limit the power of the community corrections officer to revoke the suspension order.

(6)    The regulations may make provision for or with respect to the following—

(a)  the periods for which a condition may be suspended,

(b)  notice to an offender of the making or revocation of a suspension order,

(c)  requiring the power to make, amend or revoke a suspension order to be exercised subject to and in accordance with any specified requirements.

(7)    A reference in this section to a community corrections officer is, in relation to an offender who is subject to supervision or management by a juvenile justice officer, taken to be a reference to a juvenile justice officer.

(8)    If a supervision condition is suspended by a juvenile justice officer and the offender has reached the age of 18 years, a community corrections officer may revoke the suspension order.

43. The relevant community corrections order was that which I imposed upon Mr Markovic, in breach whereof the District Court of New South Wales was empowered as the court that made the order to call him to appear and answer for the breach. The legislative scheme allowing for the determination of appeals in the manner taken in this instance allowed this court when confirming the orders of the magistrate upon the lifting of the stay to specify additional conditions to meet the circumstances as they were at the time the appeals were so determined.

44. The decision in Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653 cited by Basten JA in DPP (NSW) v Jones ibid was concerned with a decision of the District Court after appeals were allowed, save for one in which the judge made an order simply confirming the magistrate’s bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. The District Court was held to have no jurisdiction to call the offender to answer for beach without his consent in those circumstances in which there was but one bond imposed in the Local Court, later without further order specifically confirmed in the District Court. This is not the case here.

The Consequence of the Breach

45. This decision is confined to the failure to submit to the supervision required of Mr Markovic. I do not bring to account the further prosecutions to which he is subject.

46. He has on any view demonstrated contumacious disregard for the efforts of the court to provide the structure of arrangements to discourage anti-social attitudes and behaviour upon which he engaged leading to the myriad of offences charged as a consequence in these and the proceedings in which I have published judgements. The specific offence to which the community corrections order relates is a serious one, and objectively without the benefit of ameliorating subjective circumstances to detract from the effect of s 5 Crimes (Sentencing Procedure) Act 1999 there is no option other than imprisonment require in this instance.

47. The offending is clearly set forth in my earlier judgement in Markovic v R (No 4) ibid wherein I wrote,

Factual Matters

1. The brief facts upon which the prosecution advanced are that on 14 October 2020, two police officers, the senior of whom [was] Senior Constable Richard Giblin, at the time on duty with Constable Meriki Ann Buckman as the junior member of the team, a female.

2. The events began when around 9.45pm, the two officers were patrolling in a Hyundai marked police vehicle, a sedan, in Ponderosa Parade, Warriewood. Ahead of the vehicle was a black utility, a Ford, which had a distinctive red decal down the sides.

3. The police officers saw the vehicle proceed through an intersection at Jubilee Avenue, without stopping at the stop sign erected at the intersection. It turned right onto Warriewood Road. This was observed after the police officers had seen three vehicles. They were intending to stop one of them for the purposes of a random breath test in accordance with their patrol duties, until it appears by the decision of the driver of the Ford utility to proceed through the stop sign.

4. According to Constable Buckman, the vehicle continued toward Hill Street, at which point Senior Constable Giblin said, “Jump on the radio.” Her response was, “What do you want me to say? They might not realise it is a police car driving behind them. Let’s activate the lights and sirens and see if they slow down and stop.” The Senior Constable activated the lights and sirens. He was driving [the] police vehicle. The vehicle turned left into Hill Street. As the police car made that turn, the two officers lost sight of the Ford utility, and did not know at that point whether to turn left or right into a cross-street ahead of them. The police turned right into that street, Elimatta Road. it took them onto Pittwater Road. They still could not see the other vehicle.

1. Senior Constable Giblin said to his partner, “I reckon that car is stolen.” He broadcast on the radio, “Northern Beaches cars, keep a lookout for a black Ute with a red stripe down the length of the vehicle. It took off from police at high speed in Elimatta Road Mona Vale.”

2. The police car was turned around and driven down Warriewood Road, patrolling. In the course of looking for the vehicle, Senior Constable Giblin said, “That’s the car” again on the radio, at which point the constable saw the black utility exit Alameda Way and turn left on Warriewood Road, driving directly toward the police car. Senior Constable Giblin activated the lights and sirens and drove the vehicle to the incorrect side of the road, in front of the Ford. Both came to a stop.

3. [Constable Buckman] activated her body worn video camera, broadcast that they had stopped the vehicle, and Senior Constable Giblin exited and walked towards the driver’s door.

4. He drew his firearm, and said to the driver, “Put your hands up. Put your hands up and hand me the keys now. Put your hands up. Put your hands up now. Put your hands on your head.” He thereupon holstered his firearm and took out his OC spray which he held in his left hand as depicted in the video recording played. Thereafter, the statement provided by the constable exhibited before the magistrate provides some of the abuse and profanity that came from the appellant, directed toward Senior Constable Giblin.

5. At one point, he said to Senior Constable Giblin, “Why are you fucking trying to twist my arms for? I will rip your fucking eyeballs out you motherfucker.” He was then told he was under arrest for assaulting police because of the threat to rip his eyeballs out.

6. Other police officers provided statements which were exhibited before the magistrate. They were not required to give evidence, and correspondingly, were not required for cross-examination.

7. Senior Constable Giblin’s statement was not tendered, but he gave evidence on 26 November 2021. In response to examination-in-chief, he described in comparable terms what the statement from Constable Buckman provided. He was cross-examined.

8. The appellant was unrepresented and conducted the case alone, and thus was properly permitted significant latitude in the topics that he pursued testing the evidence of the senior constable.

9. It was revealed in the course of the cross-examination that the appellant and the senior constable at some point in the past had some contact with each other. Little turns upon it in the circumstances. The telling part of this case is that there were body worn cameras activated by both Senior Constable Giblin and Constable Buckman and others, in the sequence of events from when the police officer approached the driver’s door of the car, which graphically captured the aggression demonstrated by the appellant from the very start of his interaction with the police.

10. What seems to have been the catalyst for all of it, was the fact that the police officer drew his pistol for that brief period immediately after the vehicle was stopped.

11. There is no doubt in my mind, having looked at the recordings and observed them as they were each played in Court, that the appellant was intimidating the police officer as he was in the performance of his duty. No other conclusion could be drawn from the recordings that were played.

12. The magistrate heard submissions from the prosecution and the appellant, who tended to amplify the material upon which the magistrate was required to come to a decision, effectively, giving in some instances, unsworn versions of what occurred. Accordingly, there was no evidence of those matters before the Court. As the magistrate correctly observed at p 56 in the reasons for the decision at line 42, the allegation against the accused as he was then, came out of the video and spoke for itself.

Determination of the Breach Proceedings

48. Against the offending relevant to this charge, which I find is below mid-range, and the antecedents accumulated by the offender to the time of that offence, I specify a sentence of imprisonment of six months fixed term.

49. The maximum penalty to which the offender is exposed is imprisonment for five years, subject to the jurisdiction of the Local Court of two years.

50. He has been in custody for other matters since 8 May 2023.

Orders

51. The Community Corrections Order is revoked.

52. I sentence the offender to a fixed term of imprisonment of 6 months commencing on 8 May 2023 and to expire on 7 November 2023.

53. Any sentence that might follow the further prosecutions to which he is subject may be adapted to these dates.

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Endnote

Decision last updated: 27 July 2023