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

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.
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.
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…

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 R v Popovic

Details

AGLC: R v Popovic [2025] NSWDC 231
Case: [2025] NSWDC 231
Decision Date: 08 May 2025

CaseChat Overview and Summary

The appeal heard by the court involved the respondent, Popovic, who was found guilty of break and enter with intent to commit a serious indictable offence. The incident included assault occasioning actual bodily harm, committed in the company of others, at the home of the victim. The appeal was against the sentence of imprisonment imposed by the lower court. The central legal issues concerned the appropriate weight to be given to various aggravating and mitigating factors, as well as the proportionality of the sentence in relation to the crime committed.

In addressing these issues, the court considered the aggravating factors such as the planning and organisation of the criminal activity, the fact that the crime was committed in the victim’s home, and the assault on the victim. The court also acknowledged the mitigating factors, including the respondent's plea of guilty, his drug addiction, mental disorder, and history of childhood trauma. The court balanced these considerations against the need for deterrence and proportionality, ultimately determining that the sentence imposed was appropriate given the nature and circumstances of the offence.

The court held that while the mitigating factors presented did not warrant a significantly reduced sentence, they were sufficiently compelling to ensure that the sentence was not excessively harsh. The court also noted that the sentence needed to reflect the moral culpability and objective seriousness of the crime, while taking into account the respondent's personal circumstances. The sentence of imprisonment, with a non-parole period, was deemed to appropriately balance these considerations.

The court dismissed the appeal, confirming the original sentence of imprisonment of 3 years and 9 months, with a non-parole period of 2 years and 3 months.

Orders

Orders of the court

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