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Local Court 5 February 2021

Police v Dacich

[2021] NSWLC 15

Fraud & dishonesty
OBTAIN FINANCIAL ADVANTAGE BY DECEPTION DEGREE OF PLANNING TOTALITY OF SENTENCE MISLEADING AND FALSE SUBMISSIONS

Citation: Police v Dacich [2021] NSWLC 15
Court: Local Court of New South Wales
Date: 5 February 2021
Judge: Stewart LCM

Background

The offender pleaded guilty to three counts of dishonestly obtaining a financial advantage by deception contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW). The three sequences of offending spanned December 2018 to April 2020 and involved distinct victims and distinct methods.

The first offence involved the offender fraudulently submitting an online superannuation hardship claim in her former partner's name, redirecting approximately $3,997 into her own bank account. The second and third offences involved the offender advertising Louis Vuitton handbags for sale on Gumtree, collecting payment from buyers, and then failing to deliver the goods or provide refunds. One victim lost $600; the other lost a net $440 after a partial PayPal refund.

Critically, all three offences were committed while the offender was on strict conditional bail pending an appeal to the NSW Court of Appeal against a two-year sentence imposed by the District Court for earlier, similar dishonesty offences. That appeal was ultimately dismissed.

  • What discount should be applied for the utilitarian value of the guilty pleas?
  • How should the Local Court approach the maximum penalty given its jurisdictional limits?
  • What weight should be given to the offender's prior criminal history for dishonesty offences as an aggravating factor?
  • How does the fact that the offences were committed on conditional liberty affect the sentence?
  • How should the principle of totality be applied when a new sentence runs concurrently with an existing sentence already being served?

Decision

Stewart LCM applied a 20% discount to each sentence for the utilitarian value of the guilty pleas, consistent with R v Borkowski. The magistrate also applied the principle from Greaves v R [2020] NSWCCA 140 that Local Court sentencing must be assessed by reference to the prescribed statutory maximum (10 years per offence), with the jurisdictional limit only becoming relevant if the appropriate sentence exceeds that limit.

The offender's criminal record was treated as a significant aggravating factor under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW). She had been convicted of nine similar dishonesty offences in 2016 and received a further custodial sentence in November 2018 for additional dishonesty offending. The pattern of recidivism weighed heavily in the sentencing assessment, and both general and specific deterrence were identified as prominent sentencing objectives under section 3A of the Act.

The fact that all three offences were committed while the offender was on conditional bail pending her Court of Appeal proceedings was treated as a further aggravating feature. The magistrate noted that offending on conditional liberty represents a serious breach of the trust placed in an offender by the court that granted bail.

Applying the principle of totality, Stewart LCM assessed indicative sentences of nine months, eight months, and nine months for the three counts respectively, arriving at an aggregate of 18 months. The sentence was backdated to 2 February 2021 (the date pleas were entered) and structured so that, when viewed together with the existing sentence the offender was already serving, the overall effective period of custody ran from 13 September 2020 to 12 September 2022. The non-parole period on the aggregate sentence was fixed at 10 months, producing an overall effective non-parole period of approximately 14.5 months.

The magistrate also directed that a transcript of the proceedings be prepared for consideration of referral to the Legal Services Commissioner, the Director of Public Prosecutions, or both. This direction arose from concerns about misleading and false submissions made during the sentencing proceedings.

Orders Made

  • The offender was convicted on each count.
  • An aggregate sentence of 18 months imprisonment was imposed, running from 2 February 2021 to 1 August 2022.
  • The non-parole period was fixed at 10 months, from 2 February 2021 to 1 December 2021.
  • The effective overall sentence, accounting for totality with the existing sentence, runs from 13 September 2020 to 12 September 2022, with an overall non-parole period of approximately 14.5 months.
  • Compensation orders were made: $440 to Laura White, $600 to Laura Farano, and $3,997.70 to Ian Perry's superannuation account with Australian Super.
  • A transcript of proceedings was directed to be prepared for consideration of referral to the Legal Services Commissioner and/or the Director of Public Prosecutions.

Key Takeaways

  • A history of prior dishonesty convictions is a statutory aggravating factor under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a pattern of recidivism in similar offending weighs heavily in the assessment of both specific and general deterrence.
  • Offending committed while on conditional bail pending a criminal appeal is treated as a significant aggravating circumstance, reflecting a breach of the court's trust in granting that liberty.
  • Under Greaves v R [2020] NSWCCA 140, the Local Court must assess the appropriate sentence by reference to the statutory maximum penalty rather than its own jurisdictional ceiling, with that ceiling only becoming relevant if the appropriate sentence would otherwise exceed it.
  • Where an offender is already serving a sentence when a new sentence is imposed, the principle of totality requires the court to consider the overall combined effect of both sentences and adjust accordingly, which may result in a non-parole period shorter than the statutory default.
  • Concerns about misleading submissions made during sentencing proceedings can give rise to a direction for transcript preparation and potential referral to the Legal Services Commissioner or the Director of Public Prosecutions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 53A

Cases:
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Greaves v R [2020] NSWCCA 140
- Hopley v R [2008] NSWCCA 105
- Imbornone v R [2017] NSWCCA 144
- Meissner v The Queen (1995) 184 CLR 132
- Nguyen v R [2007] NSWCCA 14
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Dacich [2019] NSWSC 1517
- R v Merrin (2007) 174 A Crim R 100; [2007] NSWCCA 255