Police v Dacich

[2021] NSWLC 15

Local Court

New South Wales

Medium Neutral Citation:

Police v Dacich [2021] NSWLC 15

Hearing dates:

3 February 2021

Date of orders:

5 February 2021

Decision date:

05 February 2021

Jurisdiction:

Criminal

Before:

Stewart LCM

Decision:

Imprisonment 18 months with NPP 10 months

Catchwords:

Obtain financial advantage by deception – history of dishonesty offences an aggravating factor – offences occurred on conditional liberty pending appeal to NSWCA for dishonesty offences – degree of planning – need for both general and specific deterrence – totality of sentence – misleading and false submissions

Legislation Cited:

Crimes Act 1900 (NSW), s192E

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 53A

Cases Cited:

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Greaves v R [2020] NSWCCA 140

Imbornone v R [2017] NSWCCA 144

Meissner v The Queen (1995) 184 CLR 132

R v Borkowski [2009] NSWCCA 102; 195 A Crim 1

R v Dacich [2019] NSWSC 1517

Hopley v R [2008] NSWCCA 105

R vMerrin (2007) 174 A Crim R 100; [2007] NSWCCA 255

Nguyen v R [2007] NSWCCA 14

Category:

Sentence

Parties:

NSW Police Force (Prosecutor)
Clare Dacich (Defendant)

Representation:

Sergeant Osten, Police Prosecutor

Solicitors:

Ms Y Shah, solicitor for Defendant

File Number(s):

2020/321748

Publication restriction:

Nil

Judgment

The Charges and the Pleas

1. The offender Clare Dacich pleaded guilty to 3 counts of Dishonestly Obtain Financial Advantage by Deception contrary to section 192E(1)(b) Crimes Act1900 (NSW).

2. Those pleas were entered via email from the defendant’s solicitor when the matter was listed for reply on 2 February 2021.

3. The matters were stood over to 3 February 2021 for sentence. Ms Shah appeared for the offender, and Ms Dacich appeared via video link.

4. Each of the 3 counts was read aloud to the offender who then confirmed pleas of guilty.

5. In accordance with the principles enunciated in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [32], I allow a discount of 20% for the utilitarian value of each plea.

Maximum penalties

6. The maximum penalty for each offence is 10 years imprisonment.

7. In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J. with Hoeben CJ at CL and Hamill J. agreeing, said:

“[66]…the sentencing principles applicable to the process of sentencing remain the same in the local and district courts…

The magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit.”

8. The principle in Greaves is clear. The Local Court in sentencing an offender is no different to the way in which the District Court should sentence an offender, subject to the jurisdictional limit if the sentence that should be imposed for an individual offence exceeds that limit.

Agreed facts

9. Upon pleas of guilty being indicated, the police fact sheet was tendered.

Sequence one

10. The offender was in a relationship with the victim Ian Perry for about 5 years. It was described as an on and off relationship which resulted in the birth of 2 children. The eldest child was removed by Family and Community Services and placed into care with the offender’s 2 other children from a previous marriage.

11. In November 2018, the victim and offender separated and Mr Perry had care of their son. Discussions took place regarding the payment of outstanding debts and how they could access money to pay off some of those debts. There had been previous attempts by them to access funds from the victim’s superannuation account to assist with debt payments, however those attempts were unsuccessful.

12. The conversations took place between the pair on 4, 5 and 8 December 2018. During the latter phone call, the victim said, “I’m not using my super for a fucking bond on a house that I’m going to struggle to pay every week.”

13. Further conversation took place on 15 December 2018 concerning their relationship and the prospect of them living together. The victim was noncommittal and the offender asked him if he had made a claim on his superannuation funds.

14. Further conversations took place between 15 and 21 December 2018 concerning the relationship and various debts. On 23 December 2018 Mr Perry allowed the offender to visit at the premises he had moved to. Ms Dacich placed their son in the car and drove away to premises where she was living with her mother and grandmother. Police were called by the victim but the child was not removed from the offender’s premises as there were no Family Court custody orders.

15. On 27 December 2019 an online application was made to Australian Super seeking a hardship claim for the entire funds held in the superannuation account of Ian Perry. Mr Perry did not make that application. The account payment details on the application related to an account held by the offender.

16. On 2 January 2019, $3997.70 was deposited from Australian Super into the Westpac bank account held by the offender. The victim was notified via text message that is hardship claim was approved and the money had been deposited into his nominated account. Mr Perry contacted Australian Super to question the claim and was advised to contact the police. He spoke with the offender who admitted making the claim, and asked her to return the money to him, but she refused.

Sequence 2

17. On 18 January 2020, the victim Laura Farano contacted the seller of a Louis Vuitton Neverfull handbag posted for sale on Gumtree. The seller used the name Kathy with mobile xxxxxx4888. A price of $600 was agreed and on the 19 January 2020 the victim transferred the money to a Westpac bank account nominated by the seller.

18. 20 January 2020 the victim received a message from the seller notifying that funds had been cleared in her account and that the bag would be posted. The victim did not receive the bag and did not receive any postage tracking information. The seller stopped all communication. The bag was never received, nor did the victim receive a refund.

19. The phone number provided by the seller is that of a mobile phone issued to the offender when she was employed by Ally Fashion on 9 August 2019. The offender ceased employment on 6 September 2019 but did not return the phone. The Westpac bank account used for the deposit by the victim is an account held by the offender. Ms Farano has not been refunded the $600 from any other source.

Sequence 3

20. On 5 April 2020, the victim Laura White made contact with the offender Ms Dacich who had advertised a Louis Vuitton Neo Noe bag for sale on Gumtree. The victim communicated via Gumtree messenger and Facebook messenger. The offender gave the victim the details using her correct name address and phone number. The sale price of $1200 was agreed upon and Ms White made payment by way of part-payment using bank transfer to the offender’s Westpac account, and the balance through PayPal.

21. The offender spoke with the victim in relation to postage of the purchased bag.

22. On 8 April 2020 the offender went to Bradbury Post Office and paid for postage for a package and paid for postal insurance in the sum of $1000. The package was left at the Post Office and the offender left the store, returning about 5 minutes later. She asked for the package back as she had to fix some details. The package was handed to the offender who then left the Post Office with it. The victim was sent the tracking details of the paid postage but never received the bag that she had purchased from the offender. The offender ceased contact and did not refund any money to the victim. However, the victim received a refund of $760 from PayPal.

23. On 28 May 2020, the offender sold a Louis Vuitton Neo Noe bag to another buyer which was not received by the buyer and the money not refunded. Also in May 2020, the offender sold her Louis Vuitton Neverfull handbag to another buyer for $1300. Payment was made in instalments to an account nominated by the offender however despite arrangements being made, the buyer did not receive the bag and reported the matter to police. With the assistance of police, the buyer attended an address and was given the bag by the offender’s grandmother.

24. The offender attended Campbelltown Police station on 11 November 2020 upon arrangement through a legal advisor. She was charged with the matters now before the court.

Criminal record

25. The offender was charged with 9 counts of dishonestly obtain financial advantage by deception in 2015. She was sentenced on 24 March 2016 by way of a combination of concurrent good behaviour bonds and concurrent prison sentences. On appeal to the Campbelltown District Court, orders in relation to a 12 month period of imprisonment were confirmed however the sentence suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as it then was. Other orders for imprisonment were reduced to 2 concurrent sentences of 1 month.

26. The offender was sentenced in the Local Court to a term of imprisonment of 3 years and 6 months in November 2018 for further similar criminal offences as well as the suspended sentences that were called up and revoked. Once again, the offender appealed the severity of the sentence imposed in the Local Court.

27. On appeal, the offender was sentenced by his Honour, Judge Colefax SC at Campbelltown District Court to an aggregate term of 2 years with a non-parole period of 12 months from 17 August 2019. The sentence was handed down on 9 September 2019 and was backdated to take into account time in custody.

28. Ms Dacich appealed to the New South Wales Court of Appeal and was granted conditional bail by the Supreme Court on 23 October 2019 pending that appeal: see R v Dacich [2019] NSWSC 1517.

29. The appeal to the Court of Appeal was dismissed with the 2 year sentence imposed by Colefax SC DCJ to recommence upon the offender’s return to custody.

30. The offender’s criminal record is an aggravating factor pursuant to section 21A(2)(d) Crimes (Sentencing Procedure) Act.

Conditional liberty

31. As indicated previously, having appealed against a sentence of 2 years imprisonment imposed by Judge Colefax SC, the offender was granted strict conditional bail by Rothman J. In the New South Wales Supreme Court on 23 October 2019.

32. All of the offences for which this offender is to be sentenced were committed while she was on Supreme Court bail pending her appeal to the Court of Criminal Appeal. It bears repeating that the multitude of offences for which she received an aggregate sentence of 2 years imprisonment were predominantly for dishonestly obtain financial advantage by deception.

33. The commission of further offences whilst on conditional liberty is a statutory aggravating factor pursuant to section 21A(2)(j) Crimes (Sentencing Procedure) Act.

Plea in mitigation

34. The offender is 29 years old and I am told has the care and responsibility for her 3-year-old son. She has other children in foster care and claims to have filed for a dispute resolution conference with a view to the children living with her, her mother and grandmother. A copy of a Supreme Court Order dated 29 December 2018 was tendered granting, until further order, parental responsibility to Ms Dacich. No current documents were tendered. It was said that the child remains living with the offender’s mother.

35. It was submitted that due to the offender’s incarceration, it was difficult for her mother and grandmother to pay the rent.

36. Ms Shah submitted on behalf of the offender that the earliest release date for Ms Dacich was 12 March 2021.

37. She later submitted that her client had been ‘deemed suitable by Probation and Parole for early release subject to a Home Detention Intervention Order’ which had ‘already been authorised by a person at Dillwynia’ Women’s Correctional Centre where the offender was housed. No documentation was forthcoming to confirm that submission.

38. Later, it was submitted that “for the offender to be found eligible, it was almost an impossible task.” No document was tendered from the State Parole Authority supporting this assertion.

39. I note that the offender made no attempt to correct those submissions, and it was only upon the defendant giving short evidence that she disclosed that the State Parole Authority had not even met.

40. I enquired as to the outcome of appeal proceedings which I accept were held in the Court of Appeal. I am not aware why the criminal record refers to a reserve judgment of the Court of Criminal Appeal. I was informed that all other Court matters had been finalised. Ms Dacich informed me that the appeal was dismissed on 19 November 2020 and that one of the Orders was that she be returned to custody. Ms Shah was unable to tell me when the sentence imposed by Judge Colefax SC was now to date from. I calculated that the non-parole period of 12 months would expire on 12 September 2021, based upon the defendant saying that she had spent 68 days in custody prior to her 2 year sentence with 12 month non-parole recommencing.

41. I was told that the offender had employment waiting for her upon release to work as an administration clerk. No document was tendered in support of that assertion.

42. This morning, (5 February 2021) a facsimile was received at the Registry attaching what purports to be a letter from Chris Theo, managing director of Premium Equipment Supplies P/L dated 3 February 2021 referring to an available position as office manager for Ms Dacich and that if she can be released in the next 6 to 10 weeks the position can be held. Failing that, the position would be ‘re-advertised’. Ms Dacich gave no indication whatsoever of any job offer, opportunity, inquiry or interest in a job at that company when she gave evidence.

43. It was conceded that the section 5 threshold had been crossed and that the objective seriousness fell within the mid-range, noting her actions were premeditated, ie. a degree of planning, and noting the further aggravating factor of the defendant being on conditional liberty at the time of each of the offences.

44. The pleas of guilty were said to be pleas of convenience and that the offender chose not to pursue a factual dispute as to the amounts of money involved in the offending conduct.

Psychological Report (dated 8 September 2019)

45. A psychological report dated 8 September 2019 was tendered. The report cover document indicates that it was relied upon in the sentencing proceedings before Colefax SC DCJ. No current document was tendered.

46. I note under the heading Education and Employment History it is said that Ms Dacich was (then) currently employed at Ally Fashion. That information conflicts with the facts regarding sequence 2, where it appears that the offender’s employment ceased on 6 September 2019, some 2 days prior to the offender’s self-reporting to the psychologist on 8 September that she was still employed.

47. Under the heading Psychological Profile, I note the following:

“Her behaviour on the day of the offences should be viewed in the context of her post trauma symptoms which caused impairment to her capacity for reasoned evaluation of options open to her and of her automatic response which was disproportionate to the situation posed to her…Ms Dacich stated that she obtained finances in order to purchase household items. She stated, “I wanted to show we have a pretty house.” Ms Dacich indicated that she wanted to prove that she was able to care for Ian’s child in hopes that it would assist her to gain custody of her children.”

48. I am unable to see in the present offending that there is any evidence of impairment of the offender’s capacity for reasoned evaluation of options open to her.

49. Ms Dacich was apparently gainfully employed leading up to her return to prison – hence the submission that her mother and grandmother now find it difficult to pay the rent. The financial reasons attributed to the offender’s conduct for the previous offending have little if any application to the current offending. Similarly, there can be no reliance presently on wanting to prove she was able to care for Ian’s child, in circumstances where the child was residing with her at the time of the offending.

50. The majority of, if not all of the tests administered by the psychologist rely upon self-reporting by the offender which is then assessed by the psychologist. I note a diagnosis of Post-Traumatic Stress disorder.

Evidence from the offender

51. Although it was initially indicated that the offender would not give evidence in these proceedings, she was ultimately called to do so.

52. Evidence given by the offender related to the previous assertion that she was eligible for home detention release from 12 March 2021. The offender said that she was eligible for home detention but then informed the court that all court matters must be finalized before any application can be made to the State Parole Authority.

53. She was then asked when the parole hearing was listed and she replied that no such hearing was listed, and could not be listed prior to the completion of all court matters.

54. In relation to the purported offer of employment, the offender said that she had been offered employment in a private investigation firm at Randwick that had been organized through a friend. She said that that friend was Leigh Johnson, solicitor.

55. The offender said absolutely nothing about a job at Premium Equipment Supplies P/L.

General Remarks

56. The concession that the section 5 threshold had been crossed is entirely appropriate in circumstances where the offender has continued to commit offences of dishonesty.

57. Not only were further offences of dishonesty committed, they were committed whilst the offender was on conditional liberty pending appeal against a sentence of 2 years imprisonment for multiple offences of dishonesty.

Submissions concerning Early Release

58. I have already referred to submissions made by Ms Shah that the earliest release date for Ms Dacich was March 2021; that her client had been deemed suitable by Probation and Parole for early release subject to a Home Detention Intervention Order which had already been authorised by a person at Dillwynia Women’s Correctional Centre where the offender was housed; and that “for the offender to be found eligible, it was almost an impossible task.”

59. Ms Shah submitted that the sentence for these matters should be backdated to when the offender was returned to custody to recommence serving the sentence imposed by Colefax SC DCJ. Further, it was submitted that by backdating the sentence, time served would be appropriate – effectively so that Ms Dacich could be released, presumably on or by March 2021.

60. Positive submissions were made as though the basis of them was factual. The making of such submissions was undoubtedly intended to persuade me to backdate and impose a short sentence.

61. There appears to be no basis for submissions made in the way that they were. Ms Dacich conceded in evidence that there had been no meeting of the State Parole Authority. It is entirely inappropriate to make a submission that the offender’s earliest date for release is 12 March 2021. It is factually incorrect and misleading.

62. I find that the submission as initially put to the Court is simply untrue. The watered down version given by the offender in evidence is that no application has been made for a further State Parole Authority hearing, and one cannot be made until these proceedings have been finalised. There is nothing in place to support a submission that Ms Dacich is to be released on 12 March 2021.

63. The purported job offer arranged by a criminal law solicitor of many years standing is not supported by any written documentation, whether by Ms Johnson or any member of the place where it is said that she would be working.

64. It seems to me that any discussion, genuine or otherwise, concerning a Home Detention Intervention program ignores the fact that the offender is still to be sentenced for the current offences. I am not aware of such an Order being able to be made in any event.

Partial Accumulation

65. I note the principles relating to partial accumulation and concurrency in decisions such as Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Howie J. said at [27], Nguyen v R [2007] NSWCCA 14 at [12] and R vMerrin (2007) 174 A Crim R 100; [2007] NSWCCA 255 where Howie J. said at [36]:

“This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances.”

66. The offender could have no reasonable expectation that upon being sentenced for these matters that a non-parole period would expire by 12 March 2021. Time in custody solely referable to these matters is 1 day – being 11 November 2021 where the offender appeared at Court in custody and was granted further conditional bail. Guilty pleas were not entered until 2 February 2021. The offences each carry a maximum penalty of 10 years. The defence submit that objective seriousness is in the mid-range and that the section 5 threshold is crossed.

67. I note that the very recent email to this court indicating a guilty plea requested the matters be removed from this Court and sent to the Downing Centre for urgent guilty pleas. No valid reason was given for that request and accordingly it was quite properly refused. As to the claimed urgency, if the genesis of that is based upon some hope that the offender would be released on 12 March 2021, then is was grossly misguided in circumstances where there was no legal or factual basis to support that ‘hope’.

Hardship to third party - unsubstantiated

68. Whilst it is suggested that the offender’s mother and grandmother have difficulty paying rent without the offender’s assistance, there is no evidence of how they support themselves or their financial circumstances. In any event, there is no evidence of hardship that might meet the ‘truly, wholly or highly exceptional’ standard referred to in Hopley v R [2008] NSWCCA 105 at [39]-[41]. At [39] Johnson J. (Beazley JA, McCallum J. agreeing) said:

“The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. Justice will not have been seen to be administered even-handedly if exceptions are made (on this account) in cases which are not truly, wholly or highly exceptional: R v Edwards at 516; R v Day at 277; R v Gip; R v Ly at 179 [29]”.

No causal connection between offending and any psychological condition

69. I do not find that there is any causal connection between Ms Dacich’s current offending and the opinion of the psychologist expressed in relation to prior offences of dishonesty. I have already commented that the reasons suggested by the psychologist linking the past offending conduct and a diagnosis of PTSD have little or nothing to do with the offending conduct for which the offender is now to be sentenced.

70. I further note that the dated psychological report relies heavily upon self-reporting from the offender. The report was based upon a single interview days prior to the sentencing in the District Court. I have already expressed concern regarding assertions made on behalf of the offender, based on the offender’s instructions regarding early release and job prospects, and her subsequent evidence.

71. The offender’s criminal history involves many instances of dishonesty and deception.

72. I note the observations in Imbornone v R [2017] NSWCCA 144 at [57] where Wilson J. with Hoeben CJ at CL and RA Hulme J agreeing referred to the need for Courts to exercise very considerable caution in relying upon statements made to third parties, and that such material should be treated with considerable circumspection.

73. Those comments relate to a situation where an offender does not give evidence, however they remain apposite to this matter. The evidence given by the offender did nothing to increase the little, if any, weight this Court could place on much of what was put forward on behalf of her in terms of the psychological report, purported release on 12 March 2021, job prospects, and hardship to third parties.

74. The letter from Premium Equipment Supplies P/L is electronically signed, and suggests that the position that is said to be available for the offender will be ‘readvertised’ if the defendant is not released in the next 6 to 10 weeks. This suggests that the job was previously advertised. The purported author of that letter suggests that he is aware of the offender’s job skills. The offender made no mention of such a job opportunity when she gave short evidence. I am greatly concerned about the veracity and authenticity of that document.

Objective seriousness

75. In relation to objective seriousness, I do not agree with the submission that the offences lie within the mid-range. I find them each to be in the lower range, but certainly not at the lowest end. In addition to the objective seriousness, there are the aggravating factors previously identified.

76. The first offence occurred in circumstances where the offender was aware that the victim was not willing to withdraw money from his superannuation fund, yet she made application purporting to be Mr Perry directing payment into her own account. The amount withdrawn, whilst small, represented the entirety of funds held by Mr Perry in that superannuation account.

77. The second and third offences involved the offender receiving money from online purchasers on the Gumtree site having advertised goods for sale. The goods were never delivered. Contextual material in the facts sheet reveals that this is not isolated conduct.

78. I accept the defence concession that there was a degree of planning involved in each offence.

Section 3A Crimes (Sentencing Procedure) Act – Purposes of Sentencing

79. In relation to the purposes of sentencing pursuant to section 3A Crimes (Sentencing Procedure) Act, I find that online systems of trading are brought into disrepute by unscrupulous vendors who act in a way such as this offender did. The impact of such crimes upon the community must be taken into account.

80. There needs to be general deterrence in the sentencing of this offender to send a clear message and deter other would-be and like-minded offenders.

81. There is a need for specific deterrence for this offender given her history of dishonest and deceptive criminality.

82. I agree with the submission that the section 5 threshold, as contemplated by section 5 Crimes (Sentencing Procedure) Act, is crossed in relation to each offence.

83. I am unable to find that the offender has good prospects of rehabilitation. Nor am I able to find that this offender is unlikely to re-offend.

Plea of Convenience

84. It was said that the offender’s guilty pleas were pleas of convenience, and that the offender chose not to defend the matters as she had spent 76 days in custody upon her appeal being dismissed. I note the offender is legally represented, and has entered guilty pleas with no challenge made to the facts for which she is to be sentenced.

85. In Meissner v The Queen (1995) 184 CLR 132 at [157], Dawson J. said:

“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons; for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence…….”

86. I accept the offender’s guilty pleas and will deal with those pleas as constituting an admission of all the elements of each offence.

Aggregate sentence

87. I will deal with the offender by way of aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act.

88. There will be partial accumulation. I have already referred to the principles relating to partial accumulation and concurrency.

Offence	Indicative Sentence
Dishonestly Obtain Financial Advantage By Deception (seq.1)	9 months
Dishonestly Obtain Financial Advantage By Deception (seq.2)	8 months
Dishonestly Obtain Financial Advantage By Deception (seq.3)	9 months

89. The overall sentence is 18 months.

Totality

90. I do not make a finding of special circumstances as such, though I must take into account the principle of totality by considering the sentence that the offender is currently serving, and determining an overall sentence that is appropriate in all the circumstances. That will inevitably lead to a reduction in the statutory non-parole period on the sentence for which I am to sentence the offender.

91. I note that the offender has not spent any time in custody solely referable to these offences other than the day in custody on 11 November 2020 when she was arrested and released by the court to bail.

92. I note that the pleas were entered on 2 February 2021 and I will backdate the sentence to that date. I have a discretion to backdate a sentence beyond that date, however I decline to do so. By commencing the sentence from 2 February 2021, I will have regard to totality and the overall effective sentence including that which she is currently serving.

93. In relation to the existing sentence, I note the offender’s release date is said to be 12 September 2021, and therefore the adjusted commencement date following the unsuccessful appeal to the Court of Appeal, is 13 September 2020 to expire on 12 September 2022.

ORDERS

94. The offender Clare Dacich is convicted on each count. I sentence the offender by way of aggregate sentence to 18 months imprisonment from 2 February 2021 to 1 August 2022.

95. The non-parole period is 10 Months from 2 February 2021 to 1 December 2021.

96. The effective overall sentence remains from 13 September 2020 to 12 September 2022 now with a non-parole period of approximately 14 ½ months, reflecting the principle of totality as having been taken into account.

97. I make an Order that compensation be payable to Laura White in the sum of $440; Laura Farano in the sum of $600 and Ian Perry’s Superannuation Account with Australian Super in the sum of $3,997.70.

98. I direct that a transcript of these proceedings be prepared, upon which I shall give proper consideration as to whether they should be forwarded to the Legal Services Commissioner, The Director of Public Prosecutions, or both.

**********

Decision last updated: 31 January 2023