Citation: R v Potger [2018] NSWDC 453
Court: District Court of New South Wales
Date: 13 December 2018
Judge: M L Williams SC DCJ
Background
The offender, a 23-year-old Aboriginal man, was found guilty by a jury of two offences arising from a single incident on 23 April 2017 at a residential address in Seven Hills. The first charge was robbery while armed with a dangerous weapon under s 97(2) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years imprisonment. The second was aggravated assault with intent to take a motor vehicle under s 154(c) of the same Act, carrying a maximum of 14 years imprisonment and a five-year standard non-parole period.
The offender had an ongoing feud with the victim, and on the evening in question he entered the victim's home armed with a shortened .22 bolt-action rifle. He demanded jewellery at gunpoint, forced the victim to accompany him to a carport, and attempted to steal a Kawasaki motorcycle. When the victim gave chase and disarmed him, the offender struck him on the head with the butt of the rifle, causing a laceration, before ultimately riding the motorcycle away. Neighbours witnessed much of the incident and one recognised the offender.
The offender had an extensive criminal history for his age, including juvenile and adult offences. He had been in custody since his arrest on 11 May 2017 and, in the same week the jury returned its verdicts, had also been sentenced by another judge for an assault on a fellow inmate at Parklea Correctional Facility.
Legal Issues
- What aggregate sentence was appropriate for two serious violent offences arising from a single episode?
- What weight should be given to the offender's profoundly deprived Aboriginal background, including removal from his parents as a child, exposure to domestic violence, and long-term drug use, in mitigation of moral culpability?
- Whether special circumstances existed warranting a non-parole period shorter than the statutory default, given the offender's rehabilitation needs and the risk of institutionalisation.
- How to structure the sentence so as to account for totality and avoid a crushing outcome, given the other sentences already being served.
Decision
His Honour applied the principles in Bugmy v The Queen, holding that the profound deprivation of the offender's childhood (removal by DOCS at age eight, exposure to racism and domestic violence, and entrenched drug use) did not diminish as a mitigating factor simply because of his repeated offending. Consistent with Simpson J's reasoning in R v Millwood, the court accepted that the offender bore reduced moral culpability compared with a person raised with ordinary emotional resources, and that his moral compass had been significantly impaired by his background.
However, the court balanced those Bugmy considerations against the need for both general and specific deterrence. The offender's history of disregarding court orders meant deterrence carried particular weight. No discount applied for any guilty plea or expression of remorse, as the offender maintained his innocence throughout and had exercised his right to a jury trial.
The court found special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999, given the offender's extensive rehabilitation needs, the risk of institutionalisation, and the necessity of adequate supervision on release. An aggregate sentence was imposed, with the indicative sentences for each count slightly accumulated rather than run entirely concurrently, reflecting that the two offences, while part of one episode, were nonetheless distinct criminal acts. Questions of totality were carefully weighed to ensure the overall sentence was not crushing.
Orders Made
- The offender was convicted of each offence.
- An aggregate sentence of imprisonment of four years and six months was imposed, commencing 23 May 2019 and expiring 22 November 2023.
- A non-parole period of two years and three months was set, expiring 22 August 2021.
- Indicative sentence for Count 1 (armed robbery): four years.
- Indicative sentence for Count 2 (aggravated assault with intent to take motor vehicle): two years and three months, with a non-parole period of 16 months.
- Special circumstances were found.
Key Takeaways
- Under Bugmy v The Queen, the mitigating effect of profound childhood deprivation does not diminish with the passage of time or the accumulation of prior convictions; a sentencing court must give it full weight at every sentencing occasion, including for an offender with a lengthy record.
- Reduced moral culpability arising from a deprived background does not operate to exclude other sentencing considerations. The District Court here gave significant weight to both general and specific deterrence, particularly where the offender had demonstrated a pattern of non-compliance with court orders.
- Where an offender maintains their innocence after a jury trial and does not plead guilty, no discount on the term of imprisonment is available.
- Special circumstances can be established where an offender has extensive, unaddressed rehabilitation needs and faces a real risk of institutionalisation, justifying a non-parole period shorter than the statutory standard.
- An aggregate sentence is appropriate where two offences form part of a single episode of criminality, but the court must still attend to questions of totality, accumulation, and concurrency to ensure the overall sentence is not disproportionate.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(2), 154(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- R v Henry (1999) 46 NSWLR 346
- R v Millwood [2012] NSWCCA 2
- R v Readman (1990) 47 A Crim R 181
- Veen v The Queen (No 2) (1988) 164 CLR 465