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District Court 10 September 2019

R v Potts

[2019] NSWDC 943

Assault & violenceTheft & property

Citation: R v Potts [2019] NSWDC 943
Court: District Court of New South Wales
Date: 10 September 2019
Judge: Bright DCJ

Background

A 25-year-old offender appeared for sentence on three counts of robbery under s 94 of the Crimes Act 1900 (NSW), together with four further offences dealt with on a s 166 Certificate: one count of attempted larceny, two counts of taking and driving a conveyance without consent, and one count of being carried in a conveyance taken without consent.

The offences arose from a series of events across the Central Coast and Mid North Coast of New South Wales in January 2018. The offender, travelling with a co-offender in a stolen vehicle, committed armed robberies at two RSL clubs by presenting written notes threatening to shoot staff if they did not hand over cash. He also took a vehicle from a Queensland owner, participated in two police pursuits, attempted to steal from a bowling club till, and took a further vehicle after ransacking another car to find its keys.

The offender had pleaded guilty at Wyong Local Court in December 2018. He had been in custody since his arrest in January 2018, during which time he had also served a separate sentence for two offences of break, enter and steal.

  • What aggregate sentence was appropriate across seven offences, having regard to the totality principle and the prescribed maximum penalties?
  • What discount applied for the guilty plea, and from what date should the sentence run given the overlap with a prior unrelated sentence?
  • How should the offender's drug addiction, mental health history, and deprived background be weighed as subjective factors, including under the Bugmy principles?
  • Whether special circumstances existed warranting a departure from the standard ratio between the non-parole period and the balance of term?

Decision

Bright DCJ allowed a 25 per cent discount on each offence for the guilty plea, reflecting its timing at the Local Court. The sentence was backdated to 19 April 2019, being 105 days before the expiration of the separate unrelated sentence, to account for time spent in custody solely referable to the current offences.

The court assessed the objective gravity of the robberies as significant. The offences involved written threats asserting the possession of a firearm, which caused genuine fear in the victims, even though no weapon was produced. The series of vehicle thefts and associated police pursuits demonstrated a sustained course of offending over several days.

On the subjective side, the court considered the offender's youth, his history of drug addiction and mental illness, and the deprived and disadvantaged background established by the Bugmy principles. These principles, drawn from the High Court's decision in Bugmy v The Queen, recognise that the effects of profound childhood deprivation and disadvantage do not diminish over time and must be given genuine weight in sentencing.

The court found special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 (NSW), justifying a variation to the standard ratio between non-parole period and total term. This gave the offender a longer period on supervised parole to assist with rehabilitation upon release.

Orders Made

  • The offender was convicted on each of the seven offences.
  • An aggregate sentence of 5 years' imprisonment was imposed, commencing 19 April 2019 and expiring 18 April 2024.
  • A non-parole period of 2 years and 9 months was fixed, commencing 19 April 2019 and expiring 18 January 2022.
  • The earliest date of eligibility for parole was set as 18 January 2022.
  • Special circumstances were found, varying the standard ratio between time in custody and time on parole.

The individual component sentences (before aggregation, per s 53A(2)(b)) were:
- Each robbery (Sequences 1, 2, and 3): 2 years and 3 months each (after 25% discount from a 3-year starting point)
- Attempted larceny (Sequence 4): 9 months (after 25% discount from 12 months)
- Each take-and-drive offence (Sequences 5 and 6): 6 months each (after 25% discount from 8 months)
- Being carried in a stolen conveyance (Sequence 7): 4.5 months (after 25% discount from 6 months)

Key Takeaways

  • The District Court applied a 25 per cent guilty plea discount, reflecting the stage at which the plea was entered rather than the earliest available opportunity.
  • Where an offender has spent time in pre-sentence custody referable to both the current offences and an unrelated sentence, the sentencing court backdates the new sentence to credit only the days solely referable to the current proceedings.
  • Under the Bugmy principles, an offender's history of profound deprivation and disadvantage, including drug addiction and mental illness arising from childhood circumstances, carries genuine mitigatory weight in sentencing and does not diminish simply because time has passed.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 requires the court to separately state the component sentence that would have been imposed for each individual offence, ensuring transparency in the sentencing exercise.
  • A finding of special circumstances permits a court to extend the balance of the term beyond the standard proportion, providing a longer supervised parole period where rehabilitation needs are significant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94, 117, 154(1)(a), 154(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 53A

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1