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District Court 25 July 2023

Markovic v R (No. 5)

[2023] NSWDC 278

Public order & justice offences

Citation: Markovic v R (No. 5) [2023] NSWDC 278
Court: District Court of New South Wales
Date: 25 July 2023
Judge: Bennett SC DCJ

Background

This decision is the fifth in a series of judgments arising from protracted proceedings involving an offender (referred to here as "the offender") who had been convicted in the Local Court of three offences, including intimidating a police officer in the execution of duty. Following earlier appeals to the District Court, the offender's appeals from conviction were dismissed and a Community Corrections Order (CCO) was imposed commencing 11 August 2022, with a condition of supervision through the St Leonards Community Corrections office.

The offender appeared before the court in breach proceedings after a Community Corrections Officer reported in April 2023 that he had failed to comply with the supervision conditions of the CCO. The alleged breaches included a failure to report on multiple occasions, an inability to be located, a refusal to engage with intervention services, and a failure to provide details of third-party contacts.

The proceedings were lengthy and difficult. The offender was unrepresented at points, his legal representatives withdrew on two separate occasions, and he was at times disruptive during hearings. By the time of the final hearing, the offender was in custody on other matters, having been bail refused from 8 May 2023.

  • Whether the offender had breached the conditions of the Community Corrections Order, specifically the supervision requirement
  • What sentence was appropriate upon a finding of breach, including whether to revoke the CCO
  • The sentencing range applicable to the underlying offence of intimidating a police officer (contrary to s 60(1) of the Crimes Act 1900), which had a maximum penalty of five years' imprisonment (subject to the Local Court's two-year jurisdictional limit)

Decision

Bennett SC DCJ was satisfied on the uncontroversial material in the tendered exhibit that the offender had breached the supervision conditions of his CCO. He had failed to report on five occasions, failed to engage with services, and refused to cooperate with monitoring requirements. The supervising officer had in fact recommended that the supervision component be removed, but the court declined to accept that recommendation.

On sentence for the breach, the court assessed the underlying offence as falling below the mid-range of seriousness, having regard to the circumstances of the intimidation of the police officer and the offender's antecedents at the time of that offence. Body worn camera footage had graphically captured the offender's aggression from the outset of his interaction with police, and the court found the intimidation established beyond doubt from those recordings.

The court revoked the CCO and imposed a fixed term of imprisonment of six months. The sentence was backdated to commence on 8 May 2023, which was the date the offender entered custody on other matters, and the court noted that any sentences arising from those separate pending prosecutions could be adapted to those dates.

Orders Made

  • The Community Corrections Order was revoked.
  • The offender was sentenced to a fixed term of imprisonment of six months, commencing 8 May 2023 and expiring 7 November 2023.
  • The court noted that any sentence following further pending prosecutions may be adapted to those dates.

Key Takeaways

  • The District Court confirmed that a failure to report as directed, failure to engage with supervision services, and refusal to cooperate with monitoring can each constitute a breach of a Community Corrections Order.
  • Where a CCO includes a supervision condition, persistent non-compliance with that condition may result in revocation of the order and the imposition of a term of imprisonment.
  • In determining the appropriate sentence upon revocation, the court assessed the seriousness of the underlying offence against its maximum penalty and the offender's antecedents, concluding the offence fell below the mid-range.
  • Backdating a custodial sentence to the commencement of an earlier period of custody on other matters is available to the court, and the judgment expressly preserved the capacity to adapt any subsequent sentences to align with that date.
  • Throughout the series of Markovic judgments, the District Court exercised its jurisdiction carefully in relation to different files, finding in some instances that no jurisdiction to deal with the matter existed, and in others remitting or dismissing proceedings on distinct procedural grounds.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60(1), 195(1)(a)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), s 12(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Road Rules 2014 (NSW), s 68(1)

Cases:
- Markovic v R (No. 1) [2022] NSWDC 353
- Markovic v R (No. 2) [2022] NSWDC 354
- Markovic v R (No. 3) [2022] NSWDC 675
- Markovic v R (No. 4) [2022] NSWDC 742
- Belan v Office of the Director of Public Prosecutions (NSW) [2021] NSWCA 96
- DPP (NSW) v Jones [2017] NSWCCA 164
- Parker v The Director of Public Prosecutions (1992) 28 NSWLR 282
- Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653