R v Popovic

[2025] NSWDC 231

District Court

New South Wales

Medium Neutral Citation:

R v Popovic [2025] NSWDC 231

Hearing dates:

8 May 2025

Date of orders:

8 May 2025

Decision date:

08 May 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence of imprisonment of 3 years 9 months with a non-parole period of 2 years 3 months

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation — Assault occasioning actual bodily harm knowing that people were there

SENTENCING — Aggravating factors — Home of victim — In company — Planned or organised criminal activity

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Care not to impose a crushing sentence — Deterrence — Form 1 offence — Moral culpability — Objective seriousness — Proportionality

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorder — Childhood trauma

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Koloamatangi v R; Popovic v R [2020] NSWCCA 52

Owen v R [2022] NSWCCA 214

Popovic v R [2017] NSWCCA 118

Popovic v R; Hristovski v R; Bubanja v R; Koloamatangi v R [2016] NSWCCA 202

R v Popovic [2003] NSWCCA 103

Tukuafu v R [2024] NSWCCA 84

Category:

Sentence

Parties:

Zlatan Popovic (the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
D Smith (for the offender)

Solicitors:
Toomey Defence Lawyers (for the offender)
J Loosley for Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2023/461144

JUDGMENT – ex tempore revised

Introduction

1. This morning Zlatan Popovic adhered to a guilty plea entered in the Local Court to committing the offence of aggravated break and enter and commit a serious indictable offence, being assault occasioning actual bodily harm knowing that people were there. That offence charged pursuant to s 112(2) Crimes Act 1900 (NSW) carries a maximum penalty of 20 years. There is a standard non-parole period of 5 years. Popovic also accepts his guilt and asks that when I sentence him for that offence, I take into account an offence of assault occasioning actual bodily harm: Crimes Act, s 59(1). I will do so.

2. It is sad that much of Popovic’s history and personal circumstances can be gleaned from the criminal reports. He has spent significant periods of his life in custody. He has a criminal record for many matters, including acts of violence. His life was blighted by the suicide of his partner while he was in custody.

3. In February 1999 he discharged a shotgun in Keira Street and shot and killed another man. Other people in the vicinity were wounded. After two trials he eventually pleaded guilty to manslaughter on the basis of provocation. He had been found guilty of maliciously wounding the bystanders. He was sentenced by Judge O’Keefe in December 2001 to 12 years imprisonment with an 8 year non-parole period. An appeal against that sentence was dismissed: R v Popovic [2003] NSWCCA 103. He was released to parole in February 2007. Parole was revoked in January 2009. He was released to parole again in January 2012.

4. In September 2007 a man was murdered by a masked gunman at a nightclub in Wollongong. It was alleged that Popovic had arranged that killing. He was arrested in September 2012 and spent a considerable amount of time in custody. A jury convicted him, but his conviction was set aside by the Court of Criminal Appeal: Popovic v R; Hristovski v R; Bubanja v R; Koloamatangi v R [2016] NSWCCA 202. A retrial was ordered, and bail was refused: Popovic v R [2017] NSWCCA 118. He was then convicted and sentenced to a lengthy term of imprisonment by Justice N Adams. The matter went to the Court of Criminal Appeal again and in 2020 his conviction was set aside: Koloamatangi v R; Popovic v R [2020] NSWCCA 52. He had however, committed offences while in custody for which he served sentences. He was ultimately released to parole on 22 April 2020.

5. Popovic must have the full benefit of that acquittal, and I do not, or try not to, underestimate the impact spending 8 years in custody before that acquittal, may have had on him.

Maximum penalty and a standard non-parole period

6. The current matter for sentence has a lengthy maximum penalty and a standard non-parole period. Both convey Parliament’s view of the relative seriousness of the offence. Content should be given to that non-parole period.

Form 1

7. When I sentence Popovic I will take into account the other matter on the Form 1 pursuant to s 33(2)(b) Crimes (Sentencing Procedure) Act1999 (NSW). In doing so I can, and will increase, the penalty for the matter for sentence. I do not sentence for the matter on the Form 1 but it requires greater weight be given to personal deterrence and retribution when I come to assess all the matters in the crime for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115 at [39]-[42].

Guilty plea

8. A guilty plea was entered in the Local Court. I am required to reduce the otherwise appropriate sentence by 25% to recognise the utilitarian value of that plea. There were other values in the plea as it showed an acceptance of responsibility. It also meant that the victim of the offence did not have to come to Court to give evidence.

Facts for sentence

9. There are Agreed Facts before the Court. On 20 May 2023, a number of men were at a house in the southern Illawarra. Three of them were about to leave when they saw a car pull up. They retreated into the premises. Three men left that car, they were Popovic, an identified man and another man whose trial is still pending in this court.

10. Popovic kicked in the rear door of the house; the three men then entered. They approached the first victim. He was forced to lay down on the ground. He was asked by Popovic, “Do you know who I am?” The man replied he did not. He was asked if he knew one of the other men and the first victim said he recognised him.

11. One of the invaders said to the first victim, “Give us all the stuff”. The first victim grabbed a small bag of methylamphetamine and handed it over to the unidentified home invader; who replied, “Is that it?”. The victim started looking through drawers to find something else. He was then struck to the back of the head by an axe wielded by the unidentified man and fell to the ground. He was told not to move. Thankfully the only injury suffered was a lump on his head. There was no bleeding.

12. Mr Popovic’s responsibility for this attack is as a participant in the joint criminal enterprise. It is the matter on the Form 1.

13. The three home invaders forced their way through a locked bedroom door. One of the occupants, the second victim, approached them. He recognised one of the co-offenders who said to him, “You owe me money”. The man who had wielded the axe swung the axe towards the second victim. He raised his arm to protect himself and was struck by the axe suffering cuts to two of his fingers. The axe was swung again and struck the second victim’s right thigh causing another cut.

14. At this point Popovic punched the second victim in the face with a closed fist causing him to fall backwards onto the bed. Another co-offender made threats and then said, “This is what happens when you fuck around.” The three men then left.

15. The second victim said that property had been taken. Importantly I note that Popovic was not charged with any robbery offences, and those matters cannot be taken into account when I sentence him.

16. The second victim received treatment at Wollongong Hospital. Redness to his face was noted as well as cuts to his fingers and leg.

17. A police investigation resulted in Popovic being arrested on 20 December 2023. He denied aspects of the offending. He put forward a reason for going to the home which invited a suggestion the men were involved in vigilante justice. I can give that explanation no weight, not that it would have mitigated in any event.

18. Later he told a psychologist that he was affected by methylamphetamine at the time and agreed to go along with the plan of the other offender and the unidentified man. His drug use may help explain why he did what he did, but it does not excuse what he did. Frankly, because he was impacted on by methylamphetamine this made him more unpredictable and dangerous.

Objective seriousness

19. Mr Smith, who appears for the offender, and Mr Loosely, who appears for the Director, provided comprehensive written submissions to which they spoke. In terms of matters of principle there is very little difference between them.

20. It is acknowledged that the offence was committed at residential premises in the early hours of the morning. The elements of the offence and the Agreed Facts indicate how serious it was. Additionally, the offences occurred in company and involved a high degree of intimidation. Thankfully, while a weapon was used, the injuries to the second victim were not significant.

21. The offender did not wield the axe, but he did participate in the offence against the second victim by striking him. He is jointly responsible for all of the acts of the other two men and himself. That he did not wield the weapon is, given his role, of some importance to an assessment of objective facts. He was, however, clearly aware that the axe had been wielded.

22. There does not appear to have been a significant degree of planning. I make no finding in relation to the motivation for the offence. I accept, as Mr Smith notes, it was unsophisticated and of relatively short duration.

23. Both counsel accept that this was a serious example of its type and calls for a custodial sentence of some length. Mr Loosley characterised it as within the middle of the range; Mr Smith just below the middle of the range. Having reviewed the matter independently, because I am obliged to resolve differences between the parties, I note that I accept Mr Loosley’s submission: see Owen v R [2022] NSWCCA 214 at [49].

24. However, making an assessment based on a notional range I prefer to focus on reviewing what was done, the matters that prove the elements of the offence and additional matters to which I have referred. I must then impose a sentence which has some proportionality to the objective seriousness of the offence. I do not find labels or fixing matters on some notional scale helpful at all.

25. There are also reasons here in, the background of the offender and all the material before me, for variation from the standard non-parole period, not the least being the plea of guilty and his tragic personal history.

26. There is no Victim Impact Statement before the Court. That does not give rise to an inference that the offence had little or no impact on the second victim: Crimes (Sentencing Procedure) Act, s 30E(5).

27. I do not sentence for the Form 1 matter that involved the assaults on the first victim. It was not a trivial offence. He was struck with a weapon. I have to take care, the Form 1 offence related to the actual injury and assault upon that victim, cannot be taken into account twice: Tukuafu v R [2024] NSWCCA 84.

28. Other aspects of the home invasion involved would have had an impact on, all of the people who were present in the home that morning. I can take them into account when assessing objective seriousness of the principal offence.

Criminal history

29. The offender has, as I have said, a criminal history. It involves matters of violence. A prior criminal history cannot result in a sentence which is disproportionate to the gravity of the current offence. But here additional focus must be placed on retribution, deterrence and community protection: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477].

30. Community protection can be achieved by removing a person from the community, but community protection can also be achieved by their supervised reintegration to the community.

Case for the offender

31. I have the benefit of a comprehensive Sentence Assessment Report. It notes that during his present time in custody Popovic has no institutional misconduct charges and his behaviour appears positive. It notes limited insight into his offending behaviour. It details his relapse into drug use prior to the commission of the offence but it also sets out a comprehensive and impressive possible supervision plan, which I am sure will be of great assistance to the State Parole Authority.

32. I also have the benefit of an affidavit from his mother who details the impact of his imprisonment on his family. She is an older woman who has care of his two teenagers. Although she manages, she finds it a strain. She would dearly like to have her son there with her as she says his children need a father, not just to provide for them but to give them positive guidance. I do not underestimate the impact of his imprisonment on his family. The offender says, through his psychologist and his mother, that they are a powerful motivation for him to, on release, deal with his drug problem and avoid future crime.

33. As I remarked during the proceedings however, he was providing for them and aware of the consequences of his drug use and crime on them when he committed this offence. His drug use was more important than family on those concerns.

34. Popovic has had over a year in custody to think about the consequences of his actions on his family. I accept that he has also reflected on returning to gaol as an older man who I am sure promised himself that he would never return.

35. Motivation is always important to the process of rehabilitation, and it should not be undermined, sometimes the word ‘crushed’ is used, by too heavy a sentence, if an alternative is available: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301. I will seek to impose a sentence that still allows him to work towards eventual release as soon as the sentence’s minimum term, which takes into account all relevant matters, is served.

Special circumstances

36. Popovic’s need for assistance on release, his need for help in dealing with his underlying drug problem and his need for help to adjust to community life on release, all provide a basis for a finding of special circumstances. I am, however, mindful that a requirement that the minimum period that he should be imprisoned should reflect the seriousness of his crimes and the purposes of sentencing.

Personal history

37. I am helped, as always, by Mr Borenstein’s report. It sets out Popovic’s personal history, which I will not recount. It is, as I said, detailed in the law reports before me. He has seen the prison psychologist, and he has raised matters in his background that may require further psychological intervention.

38. He grew up locally, living in a Housing Commission property. He also spent time in Europe; his family’s homeland. He has been able to work in the community and was working for periods on release.

39. Mr Borenstein postulates that Popovic may suffer Post-Traumatic Stress Disorder symptoms; which appear to relate to his lengthy time in custody. It would appear that his long gaol history has helped form the man for sentence today. Gaols are intrinsically violent places and sometimes prisoners resort to violence within the gaol context. The longer he serves in gaol the less his motivation to change might be and the less his chances for the future might be.

40. Given his history, I agree with Mr Loosley’s submission that Popovic’s prognosis is still guarded. I also accept Mr Borenstein’s conclusions that he appears motivated to ensure he does not return to prison. But this was also the case when he was released in 2020. He is older and he now has a greater appreciation of the extent and nature of the psychological burdens he has carried as a result of the childhood traumas, which are detailed in the reports.

41. It is clear that matters in his past impeded the formation of a moral compass. They did, and continue to have, an impact on his moral culpability, making him more vulnerable to the commission of crime. There are matters in his background which the High Court require, in reference to the decision of the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, because many of those matters, as the High Court acknowledged do not diminish over time.

Synthesis

42. I have to synthesise all of those matters. I take into account he is seeing the chaplain, and he is doing what he can while he is in custody. He has prosocial support in the community. He has a plan for his release. He has a capacity to work. Those mitigating factors will be taken into account, but they can go only so far.

43. When men armed with a makeshift weapon go to another persons’ house in the early hours of the morning, and where actual bodily harm was inflicted on the principal victim, the community rightly expects that judges treat matters such as this very seriously. Others in the community have to understand that if they do what Popovic did, retribution will fall upon them and they too risk spending periods of their life in custody away from their family.

44. At the same time Mr Popovic appears to, at present, have some understanding of his obligations to the community and his family, and by the structure of the sentence, I will give him a chance to prove himself first to the State Parole Authority, and then generally, if he is given parole.

45. The sentence takes into account a reduction of 25% for the utilitarian value of the plea and the matter on the Form 1, which I note again I do not sentence for. Had it not been for his early plea of guilty, a sentence of 5 years would have been imposed, requiring a sentence here of 3 years and 9 months. To give effect to my finding of special circumstances there will be a 60/40 ratio.

Orders

46. The sentence has a non-parole period of 2 years and 3 months. Taking into account time served, it should date from 4 March 2024 making Popovic eligible for consideration for release to parole on 3 June 2026. The balance of the term of 1 year and 6 months will commence on 4 June 2026. The total sentence will of 3 years 9 months will expire on 3 December 2027. Release date, subject to a grant of parole, 3 June 2026.

47. A copy of Mr Borenstein’s report will go with the warrant.

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Decision last updated: 24 June 2025