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

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).
Those pleas were entered via email from the defendant’s solicitor when the matter was listed for reply on 2 February 2021.
The matters were stood over to 3 February 2021 for sentence. Ms Shah appeared for the offender, and Ms Dacich appeared via video link.
Each of the 3 counts was read aloud to the offender who then confirmed pleas of guilty.
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

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

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

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

Sequence one

The offender was in a relationship…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Dacich

Details

AGLC: Police v Dacich [2021] NSWLC 15
Case: [2021] NSWLC 15
Decision Date: 05 February 2021

CaseChat Overview and Summary

The case of Police v Dacich was heard in the Supreme Court of New South Wales. The defendant, Dacich, was charged with obtaining financial advantage by deception, following a history of dishonesty offences. The matter was heard on the defendant's conditional liberty, pending an appeal to the NSW Court of Criminal Appeal regarding the earlier dishonesty offences. The prosecution sought imprisonment as a means of ensuring both general and specific deterrence, given the defendant's criminal history.

The legal issues before the court included the appropriate weight to be given to the defendant's criminal history, the degree of planning involved in the current offences, and the need for both general and specific deterrence. The court had to determine the appropriate sentence, taking into account the totality principle, which requires that the sentence be proportionate to the seriousness of the offence and the offender's culpability. Additionally, the court needed to consider the misleading and false submissions made by the defendant.

In delivering the judgment, the court held that the defendant's history of dishonesty offences was a significant aggravating factor. The court found that the offences involved a degree of planning and sophistication, and that there was a need for both general and specific deterrence. The court noted that the defendant's submissions had been misleading and false, and that the totality of the sentence should reflect the seriousness of the offences and the defendant's culpability. Ultimately, the court imposed a sentence of imprisonment for 18 months, with a non-parole period of 10 months.

Orders

Orders of the court

Imprisonment 18 months with NPP 10 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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