Police v Dacich

[2021] NSWLC 15

Local Court of NSW|2021-02-03|Before: Cavanagh J, Hoeben CJ, Hamill J

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At a glance

Source facts

Court

Local Court of NSW

Decision date

2021-02-03

Before

Cavanagh J, Hoeben CJ, Hamill J

Catchwords

195 A Crim 1 R v Dacich [2019] NSWSC 1517 Hopley v R [2008] NSWCCA 105 R v Merrin (2007) 174 A Crim R 100

Source

Original judgment source is linked above.

Catchwords

195 A Crim 1 R v Dacich [2019] NSWSC 1517 Hopley v R [2008] NSWCCA 105 R v Merrin (2007) 174 A Crim R 100

Judgment (23 paragraphs)

[1]

The Charges and the Pleas

The offender Clare Dacich pleaded guilty to 3 counts of Dishonestly Obtain Financial Advantage by Deception contrary to section 192E(1)(b) Crimes Act 1900 (NSW).
Those pleas were entered via email from the defendant's solicitor when the matter was listed for reply on 2 February 2021.
The matters were stood over to 3 February 2021 for sentence. Ms Shah appeared for the offender, and Ms Dacich appeared via video link.
Each of the 3 counts was read aloud to the offender who then confirmed pleas of guilty.
In accordance with the principles enunciated in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [32], I allow a discount of 20% for the utilitarian value of each plea.

[2]

Maximum penalties

The maximum penalty for each offence is 10 years imprisonment.
In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J. with Hoeben CJ at CL and Hamill J. agreeing, said: "[66]…the sentencing principles applicable to the process of sentencing remain the same in the local and district courts… The magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit."

[4]

Sequence one

The offender was in a relationship with the victim Ian Perry for about 5 years. It was described as an on and off relationship which resulted in the birth of 2 children. The eldest child was removed by Family and Community Services and placed into care with the offender's 2 other children from a previous marriage.
In November 2018, the victim and offender separated and Mr Perry had care of their son. Discussions took place regarding the payment of outstanding debts and how they could access money to pay off some of those debts. There had been previous attempts by them to access funds from the victim's superannuation account to assist with debt payments, however those attempts were unsuccessful.
The conversations took place between the pair on 4, 5 and 8 December 2018. During the latter phone call, the victim said, "I'm not using my super for a fucking bond on a house that I'm going to struggle to pay every week."
Further conversation took place on 15 December 2018 concerning their relationship and the prospect of them living together. The victim was noncommittal and the offender asked him if he had made a claim on his superannuation funds.
Further conversations took place between 15 and 21 December 2018 concerning the relationship and various debts. On 23 December 2018 Mr Perry allowed the offender to visit at the premises he had moved to. Ms Dacich placed their son in the car and drove away to premises where she was living with her mother and grandmother. Police were called by the victim but the child was not removed from the offender's premises as there were no Family Court custody orders.
On 27 December 2019 an online application was made to Australian Super seeking a hardship claim for the entire funds held in the superannuation account of Ian Perry. Mr Perry did not make that application. The account payment details on the application related to an account held by the offender.
On 2 January 2019, $3997.70 was deposited from Australian Super into the Westpac bank account held by the offender. The victim was notified via text message that is hardship claim was approved and the money had been deposited into his nominated account. Mr Perry contacted Australian Super to question the claim and was advised to contact the police. He spoke with the offender who admitted making the claim, and asked her to return the money to him, but she refused.

[9]

Plea in mitigation

The offender is 29 years old and I am told has the care and responsibility for her 3-year-old son. She has other children in foster care and claims to have filed for a dispute resolution conference with a view to the children living with her, her mother and grandmother. A copy of a Supreme Court Order dated 29 December 2018 was tendered granting, until further order, parental responsibility to Ms Dacich. No current documents were tendered. It was said that the child remains living with the offender's mother.
It was submitted that due to the offender's incarceration, it was difficult for her mother and grandmother to pay the rent.
Ms Shah submitted on behalf of the offender that the earliest release date for Ms Dacich was 12 March 2021.
She later submitted that her client had been 'deemed suitable by Probation and Parole for early release subject to a Home Detention Intervention Order' which had 'already been authorised by a person at Dillwynia' Women's Correctional Centre where the offender was housed. No documentation was forthcoming to confirm that submission.
Later, it was submitted that "for the offender to be found eligible, it was almost an impossible task." No document was tendered from the State Parole Authority supporting this assertion.
I note that the offender made no attempt to correct those submissions, and it was only upon the defendant giving short evidence that she disclosed that the State Parole Authority had not even met.
I enquired as to the outcome of appeal proceedings which I accept were held in the Court of Appeal. I am not aware why the criminal record refers to a reserve judgment of the Court of Criminal Appeal. I was informed that all other Court matters had been finalised. Ms Dacich informed me that the appeal was dismissed on 19 November 2020 and that one of the Orders was that she be returned to custody. Ms Shah was unable to tell me when the sentence imposed by Judge Colefax SC was now to date from. I calculated that the non-parole period of 12 months would expire on 12 September 2021, based upon the defendant saying that she had spent 68 days in custody prior to her 2 year sentence with 12 month non-parole recommencing.
I was told that the offender had employment waiting for her upon release to work as an administration clerk. No document was tendered in support of that assertion.
This morning, (5 February 2021) a facsimile was received at the Registry attaching what purports to be a letter from Chris Theo, managing director of Premium Equipment Supplies P/L dated 3 February 2021 referring to an available position as office manager for Ms Dacich and that if she can be released in the next 6 to 10 weeks the position can be held. Failing that, the position would be 're-advertised'. Ms Dacich gave no indication whatsoever of any job offer, opportunity, inquiry or interest in a job at that company when she gave evidence.
It was conceded that the section 5 threshold had been crossed and that the objective seriousness fell within the mid-range, noting her actions were premeditated, ie. a degree of planning, and noting the further aggravating factor of the defendant being on conditional liberty at the time of each of the offences.
The pleas of guilty were said to be pleas of convenience and that the offender chose not to pursue a factual dispute as to the amounts of money involved in the offending conduct.

[10]

Psychological Report (dated 8 September 2019)

A psychological report dated 8 September 2019 was tendered. The report cover document indicates that it was relied upon in the sentencing proceedings before Colefax SC DCJ. No current document was tendered.
I note under the heading Education and Employment History it is said that Ms Dacich was (then) currently employed at Ally Fashion. That information conflicts with the facts regarding sequence 2, where it appears that the offender's employment ceased on 6 September 2019, some 2 days prior to the offender's self-reporting to the psychologist on 8 September that she was still employed.
Under the heading Psychological Profile, I note the following: "Her behaviour on the day of the offences should be viewed in the context of her post trauma symptoms which caused impairment to her capacity for reasoned evaluation of options open to her and of her automatic response which was disproportionate to the situation posed to her…Ms Dacich stated that she obtained finances in order to purchase household items. She stated, "I wanted to show we have a pretty house." Ms Dacich indicated that she wanted to prove that she was able to care for Ian's child in hopes that it would assist her to gain custody of her children."
I am unable to see in the present offending that there is any evidence of impairment of the offender's capacity for reasoned evaluation of options open to her.
Ms Dacich was apparently gainfully employed leading up to her return to prison - hence the submission that her mother and grandmother now find it difficult to pay the rent. The financial reasons attributed to the offender's conduct for the previous offending have little if any application to the current offending. Similarly, there can be no reliance presently on wanting to prove she was able to care for Ian's child, in circumstances where the child was residing with her at the time of the offending.
The majority of, if not all of the tests administered by the psychologist rely upon self-reporting by the offender which is then assessed by the psychologist. I note a diagnosis of Post-Traumatic Stress disorder.

[13]

Submissions concerning Early Release

I have already referred to submissions made by Ms Shah that the earliest release date for Ms Dacich was March 2021; that her client had been deemed suitable by Probation and Parole for early release subject to a Home Detention Intervention Order which had already been authorised by a person at Dillwynia Women's Correctional Centre where the offender was housed; and that "for the offender to be found eligible, it was almost an impossible task."
Ms Shah submitted that the sentence for these matters should be backdated to when the offender was returned to custody to recommence serving the sentence imposed by Colefax SC DCJ. Further, it was submitted that by backdating the sentence, time served would be appropriate - effectively so that Ms Dacich could be released, presumably on or by March 2021.
Positive submissions were made as though the basis of them was factual. The making of such submissions was undoubtedly intended to persuade me to backdate and impose a short sentence.
There appears to be no basis for submissions made in the way that they were. Ms Dacich conceded in evidence that there had been no meeting of the State Parole Authority. It is entirely inappropriate to make a submission that the offender's earliest date for release is 12 March 2021. It is factually incorrect and misleading.
I find that the submission as initially put to the Court is simply untrue. The watered down version given by the offender in evidence is that no application has been made for a further State Parole Authority hearing, and one cannot be made until these proceedings have been finalised. There is nothing in place to support a submission that Ms Dacich is to be released on 12 March 2021.
The purported job offer arranged by a criminal law solicitor of many years standing is not supported by any written documentation, whether by Ms Johnson or any member of the place where it is said that she would be working.
It seems to me that any discussion, genuine or otherwise, concerning a Home Detention Intervention program ignores the fact that the offender is still to be sentenced for the current offences. I am not aware of such an Order being able to be made in any event.

[16]

No causal connection between offending and any psychological condition

I do not find that there is any causal connection between Ms Dacich's current offending and the opinion of the psychologist expressed in relation to prior offences of dishonesty. I have already commented that the reasons suggested by the psychologist linking the past offending conduct and a diagnosis of PTSD have little or nothing to do with the offending conduct for which the offender is now to be sentenced.
I further note that the dated psychological report relies heavily upon self-reporting from the offender. The report was based upon a single interview days prior to the sentencing in the District Court. I have already expressed concern regarding assertions made on behalf of the offender, based on the offender's instructions regarding early release and job prospects, and her subsequent evidence.
The offender's criminal history involves many instances of dishonesty and deception.
I note the observations in Imbornone v R [2017] NSWCCA 144 at [57] where Wilson J. with Hoeben CJ at CL and RA Hulme J agreeing referred to the need for Courts to exercise very considerable caution in relying upon statements made to third parties, and that such material should be treated with considerable circumspection.
Those comments relate to a situation where an offender does not give evidence, however they remain apposite to this matter. The evidence given by the offender did nothing to increase the little, if any, weight this Court could place on much of what was put forward on behalf of her in terms of the psychological report, purported release on 12 March 2021, job prospects, and hardship to third parties.
The letter from Premium Equipment Supplies P/L is electronically signed, and suggests that the position that is said to be available for the offender will be 'readvertised' if the defendant is not released in the next 6 to 10 weeks. This suggests that the job was previously advertised. The purported author of that letter suggests that he is aware of the offender's job skills. The offender made no mention of such a job opportunity when she gave short evidence. I am greatly concerned about the veracity and authenticity of that document.

Police v Dacich

At a glance

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Judgment (23 paragraphs)

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Legislation Cited (2)

Cases Cited (9)