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District Court 8 May 2025

R v Popovic

[2025] NSWDC 231

Assault & violenceTheft & property

Citation: R v Popovic [2025] NSWDC 231
Court: District Court of New South Wales
Date: 8 May 2025
Judge: Haesler SC DCJ

Background

The offender, a man with a lengthy criminal history, pleaded guilty in the Local Court to aggravated break and enter and commission of a serious indictable offence, namely assault occasioning actual bodily harm, knowing that people were present at the premises. The charge was brought under s 112(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years.

The offending occurred in the early hours of 20 May 2023 at a residential property in the southern Illawarra. The offender and two other men forced entry into the house. One co-offender struck the first victim on the back of the head with an axe, conduct for which the offender bore joint criminal enterprise responsibility. The offender himself punched the second victim in the face with a closed fist, causing that victim to fall backwards. The second victim sustained cuts to his fingers and thigh from the axe, and redness to his face, and was treated at Wollongong Hospital.

At sentencing, the offender asked the court to take into account a further offence of assault occasioning actual bodily harm under s 59(1) of the Crimes Act on a Form 1 basis. The court proceeded on agreed facts.

  • Whether the objective seriousness of the offence placed it at the middle of the range for its type, or just below the middle, and what sentence that assessment warranted
  • How to weigh the statutory 25% discount for an early guilty plea entered in the Local Court
  • The proper treatment of the Form 1 offence in setting the final sentence
  • How the offender's significant personal history, including serious childhood trauma, drug addiction, diagnosed mental health conditions, and the impact of extended prior custody, bore on moral culpability and the weight to be given to mitigating factors
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio

Decision

Haesler SC DCJ assessed the offending as a serious example of its type. The break-in occurred at a residential premises in the early hours of the morning, was carried out in company, and involved a weapon. His Honour accepted the Crown's submission that the offending fell within the middle of the range, preferring that characterisation over the defence's submission that it sat just below the middle. The offender did not wield the axe himself, and that distinction carried some weight in the overall assessment, but he was fully aware a weapon had been used and participated in the assault on the second victim directly.

On the Form 1 matter, the court applied the established principle that while no sentence is imposed for that offence, its existence warrants greater weight being given to personal deterrence and retribution in fixing the sentence for the principal charge. The court applied the mandatory 25% reduction for the utilitarian value of the guilty plea, also noting that the plea demonstrated acceptance of responsibility and spared the victims from having to give evidence.

The court gave careful consideration to the offender's personal circumstances. His Honour drew on Bugmy v The Queen to acknowledge that the offender's history of childhood trauma and deprivation had impaired the formation of his moral compass and continued to reduce his moral culpability, and that such effects do not diminish over time. His drug use at the time of the offending was noted as an explanation for his conduct, though not an excuse, and was regarded as having made him more unpredictable and dangerous rather than as a straightforward mitigating factor. The court also took into account the impact of approximately eight years spent in custody before an eventual acquittal on a murder charge.

Special circumstances were found to exist, warranting a departure from the standard non-parole period ratio. The court structured the sentence on a 60/40 ratio to give the offender a meaningful opportunity to demonstrate his rehabilitation first to the State Parole Authority and, thereafter, more broadly.

Orders Made

  • A sentence of 3 years and 9 months imprisonment was imposed for the principal offence (reflecting a pre-discount sentence of 5 years, reduced by 25% for the early guilty plea)
  • Non-parole period of 2 years and 3 months, commencing 4 March 2024 (accounting for time already served)
  • Earliest eligibility for release to parole: 3 June 2026
  • Balance of term of 1 year and 6 months to commence 4 June 2026
  • Total sentence to expire 3 December 2027
  • A copy of the psychologist's report to accompany the warrant

Key Takeaways

  • Under s 112(2) of the Crimes Act 1900 (NSW), a participant in a joint criminal enterprise involving a home invasion bears responsibility for the acts of all participants, even where that individual did not personally wield the weapon used.
  • A Form 1 offence does not attract a separate sentence, but its presence requires greater weight to be given to personal deterrence and retribution when fixing the sentence for the principal charge, consistent with Attorney General's Application No 1 of 2002.
  • The District Court applied Bugmy v The Queen to reduce the offender's moral culpability, recognising that the lasting effects of childhood trauma and deprivation on a person's capacity to form sound judgment do not diminish with the passage of time.
  • Methamphetamine intoxication at the time of offending was treated as contextual explanation rather than mitigation, and was characterised as having heightened rather than reduced the danger posed by the offender.
  • Special circumstances permitting a 60/40 non-parole to balance-of-term ratio were found, reflecting the court's view that a structured transition via the parole system was appropriate given the offender's rehabilitation prospects.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33(2)(b), 37

Cases:
- 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