Dacich v Director of Public Prosecutions (NSW) [2021] NSWCA 275

Dacich v Director of Public Prosecutions (NSW) [2021] NSWCA 275

There was no jurisdictional error in the District Court's dismissal of the sentencing appeal or refusal to reopen the sentence; the judge properly exercised powers under ss 5 and 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and considered relevant alternatives and submissions. Notice of discontinuance was not sufficient ground for leave post-hearing, and the proceedings should be dismissed; costs awarded to the Director.

Parties
Applicant: Clare Margaret Dacich; First Respondent: Director of Public Prosecutions (NSW); Second Respondent: District Court of New South Wales
Jurisdiction
Australia
Judgment Date
12 November 2021
Procedural Posture
Appeal and Review (supervisory Jurisdiction) / Judgment Post Hearing; Application for Leave to Discontinue After Hearing
Outcome
Proceedings dismissed; extension of time granted; costs ordered against applicant.
Legal Topics
Supervisory Jurisdiction, Review of District Court Judgment, Jurisdictional Error, Sentencing Procedure, Notice of Discontinuance, Extension of Time, Costs
Criminal Law Civil Procedure Supervisory Jurisdiction Review of District Court Judgment Jurisdictional Error Sentencing Procedure Notice of Discontinuance Extension of Time +1 more

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Parties

Clare Margaret Dacich

Applicant

Director of Public Prosecutions (NSW)

First Respondent

District Court of New South Wales

Second Respondent

Procedural Posture

Appeal and Review (supervisory Jurisdiction) / Judgment Post Hearing; Application for Leave to Discontinue After Hearing

Legal Issues

  1. 1 Whether the District Court fell into jurisdictional error in dismissing the appeal by failing to consider alternates to full-time imprisonment as required by s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  2. 2 Whether the District Court exceeded its jurisdiction in refusing the application brought under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to reopen sentencing
  3. 3 Whether the District Court had power to vary indicative terms of sentences after dismissing appeal

Ratio Decidendi

There was no jurisdictional error in the District Court's dismissal of the sentencing appeal or refusal to reopen the sentence; the judge properly exercised powers under ss 5 and 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and considered relevant alternatives and submissions. Notice of discontinuance was not sufficient ground for leave post-hearing, and the proceedings should be dismissed; costs awarded to the Director.

Court Disposition

Proceedings dismissed; extension of time granted; costs ordered against applicant.

Orders

  • Extend the time for commencing proceedings to review the sentencing judgment of 5 March 2021 until the date of the hearing.
  • Dismiss the proceedings with respect to the judgments given and orders made in the District Court on 5 March and 18 August 2021.