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District Court 6 September 2019

Dacich (No.1) v R

[2019] NSWDC 621

Fraud & dishonesty
CRIME SEVERITY APPEAL

Citation: Dacich (No.1) v R [2019] NSWDC 621
Court: District Court of New South Wales
Date: 6 September 2019
Judge: Colefax SC DCJ

Background

The appellant was first arrested in July 2015 on serious dishonesty offences. She was sentenced in the Local Court in March 2016 to 12 months imprisonment with a three-month non-parole period, and subsequently placed on suspended sentences under section 12 of the Crimes (Sentencing Procedure) Act after lodging a severity appeal.

While on those suspended sentences, the appellant reoffended. The bonds were called up and she was re-sentenced in the Local Court to an aggregate term of three years and six months imprisonment with a two-year non-parole period. She was admitted to appeal bail approximately three weeks later.

The severity appeal came before the District Court for its fifth listing on 6 September 2019. On each of the preceding four listings, the matter had been adjourned, in circumstances the court found to be increasingly unsatisfactory.

  • Whether the proceedings should be adjourned to allow an alleged appeal to the Legal Aid Review Committee to be processed, as contemplated by section 57 of the Legal Aid Commission Act 1979
  • Whether the appellant's conduct across five listings amounted to deliberate delay justifying the court proceeding to hear the appeal on a fixed date without further adjournment

Decision

The court examined whether section 57 of the Legal Aid Commission Act 1979 required an adjournment. That section obliges a court to adjourn proceedings where a party has lodged or intends to lodge a bona fide, non-frivolous, and non-vexatious appeal to a Legal Aid Review Committee, provided the appeal is competent and no special circumstances prevent adjournment.

The court was not satisfied on the balance of probabilities that the appellant had ever filed an appeal with the Legal Aid Review Committee. Inquiries made by both the Crown and counsel for the appellant revealed no record of any such appeal having been received by the Committee. The court found the claim of a pending Legal Aid appeal to be unproven.

Even if proof of a lodged appeal had been established, Colefax SC DCJ stated that he would not have been persuaded the appeal was bona fide. The court found it was not frivolous, but went further, characterising it as vexatious and intended to improperly hinder the proceedings. Taken together with the history of non-appearances, late applications, and unconvincing explanations offered across four prior listings, the court treated the Legal Aid issue as another step in a pattern of deliberate evasion.

The court declined to grant any further adjournment and fixed the substantive hearing for the following Monday at 10:00am. A warrant for the appellant's arrest was issued during the day but subsequently withdrawn. The court indicated the warrant would be reissued if there was no appearance on Monday, with or without legal representation.

Orders Made

  • The severity appeal was listed for hearing on Monday 9 September 2019 at 10:00am.
  • A warrant for the appellant's arrest was issued and then withdrawn on the same day, with the court indicating it would be reissued if the appellant failed to appear on Monday.
  • No further adjournment was granted.

Key Takeaways

  • Under section 57 of the Legal Aid Commission Act 1979, a court is only obliged to adjourn proceedings pending a Legal Aid Review Committee appeal where that appeal has been established as competent, bona fide, and not vexatious or intended to improperly delay proceedings.
  • The District Court found that an unverified claim of a pending Legal Aid appeal, unsupported by any record at the Committee, was insufficient to trigger the adjournment obligation in section 57.
  • A pattern of adjournment applications across multiple listings, combined with repeated non-appearances and unconvincing explanations, was treated by the court as deliberate conduct aimed at avoiding determination of a custodial sentence appeal.
  • Colefax SC DCJ made clear that a court retains the discretion to fix a firm hearing date and decline further indulgences where procedural conduct amounts to an improper attempt to hinder proceedings.
  • Pregnancy and illness were noted by the court as having been raised to justify non-appearance, but neither was accepted as an adequate explanation for failing to answer bail.

Legislation and Cases Referenced

Legislation:
- Legal Aid Commission Act 1979 (NSW), sections 56 and 57
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 12 (suspended sentences, now repealed)

Cases cited: None cited in the judgment.