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District Court 6 June 2024

R v McFarlane (aka Potts)

[2024] NSWDC 341

Assault & violenceTheft & property

Citation: R v McFarlane (aka Potts) [2024] NSWDC 341
Court: District Court of New South Wales
Date: 6 June 2024
Judge: Haesler SC DCJ

Background

Following a short trial at Bega District Court in March 2024, the offender was convicted of specially aggravated entry into a dwelling with intent to commit intimidation, knowing a person was present, and intentionally wounding the complainant (Crimes Act 1900 (NSW), s 113(3)). The underlying judgment (R v McFarlane [2024] NSWDC 193) sets out the trial findings in full. The offender was acquitted of a separate fraud-related charge and was entitled to the full benefit of that acquittal.

The offence occurred in October 2022 in Moruya. The offender entered a friend's house at night, produced a knife from his trousers, confronted the complainant (whom he called a "snitch" for reporting a matter to police), pursued him to a dead end in the laundry, and stabbed him during a struggle. The complainant suffered a deep laceration to his upper hand, with the extensor tendon severed and requiring surgery in Canberra.

At the sentencing hearing, the offender gave evidence disputing certain facts found at trial, including that he did not know the complainant was present and that he had been provoked. Haesler SC DCJ rejected those assertions, finding they went behind the trial findings and were unsupported by any evidence beyond the offender's own claims.

  • What was the objective seriousness of the offence, and how did the offender's untreated mental illness (schizophrenia) bear on that assessment?
  • What weight should be given to the offender's extensive criminal history, breach of parole, and breach of bail as aggravating factors?
  • How should a range of significant mitigating subjective factors be weighed, including the offender's Aboriginal background, deprived childhood, youth, drug addiction, severe mental illness, sexual assault in custody, and risk of institutionalisation?
  • How should the principles of totality and the avoidance of double-counting apply when fixing the commencement date and length of sentence?
  • What reduction, if any, was warranted for the offender's cooperation with the course of justice at trial (in the absence of a guilty plea)?

Decision

Objective seriousness. The District Court found the offending was seriously objectively grave. The entry was pre-planned to a limited extent, the offender carried a weapon deliberately, used it after the victim had fled, and did so when the victim was cornered and trying to defend himself. The victim's injury required surgery. A sentence of imprisonment was the only appropriate response. However, the court accepted that the offender's untreated schizophrenia contributed to the commission of the offence, and this was taken into account in assessing objective circumstances, following Paterson v R [2021] NSWCCA 273 and Tepania v R [2018] NSWCCA 247.

Aggravating factors. The offender had a lengthy criminal record beginning at age 13, including offences involving violence and weapons. He had spent time in juvenile detention and adult gaol, and had been in the community for only one year and nine months across the preceding six years. He was on both parole and bail at the time of the offence, having been released to parole just weeks earlier on 24 September 2022. The court found this history demonstrated a continuing disobedience towards the law, not an uncharacteristic aberration, justifying greater weight on retribution, deterrence, and community protection.

Subjective factors. The court engaged extensively with the offender's background under the principles in R v Fernando (1992) and Bugmy v The Queen [2013] HCA 37. The offender was a young Aboriginal man raised in deprived circumstances, with severe untreated schizophrenia, a history of drug addiction, a sexual assault experienced in custody, and a significant risk of institutionalisation. His letter to the court and his evidence at the sentencing hearing were noted, and the court found some indication of growing maturity, though it applied what it described as "healthy judicial cynicism" given repeated past failures when tested in the community.

Sentence. Applying the instinctive synthesis approach, the court imposed a four-year term of imprisonment, commencing 15 April 2023, with a non-parole period of two years. The sentence reflected a modest reduction for the offender's cooperation in ensuring a swift trial, pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The commencement date and structure of the sentence incorporated some punishment for the parole breach and the Local Court matters, while the court was careful to avoid double-counting and to apply the totality principle.

Orders Made

  • Sentence of four years' imprisonment, commencing 15 April 2023, expiring 14 April 2027.
  • Non-parole period of two years, dating from 15 April 2023; the offender is eligible for consideration for release to parole on 14 April 2025 (subject to a determination by the State Parole Authority).
  • Parole period of two years, commencing 15 April 2025.
  • Dr Sidu's psychological report to be forwarded to Community Corrections.
  • Charges laid pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) certificate withdrawn and dismissed.

Key Takeaways

  • Untreated mental illness, including schizophrenia, can bear on the assessment of objective seriousness and must be taken into account when fixing sentence, even for seriously grave offending, following Paterson v R and Tepania v R.
  • A conviction for specially aggravated entry into a dwelling under s 113(3) of the Crimes Act 1900 (NSW) carries a maximum penalty of 20 years' imprisonment; that maximum remains an important guide in calibrating sentencing discretion even where significant mitigating factors exist.
  • The District Court confirmed that a reduction in sentence is available under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) where an offender has cooperated with the course of justice and enabled a swift trial, even without a guilty plea.
  • Where an offender's prior record demonstrates continuing disobedience rather than isolated aberration, the court may place additional emphasis on retribution, deterrence, and community protection, provided the sentence remains proportionate to the gravity of the offence: Veen v The Queen (No 2) [1988] HCA 14.
  • The principles from R v Fernando and Bugmy v The Queen, which require courts to consider the impact of an Aboriginal offender's deprived background, severe mental illness, and systemic disadvantage, apply even where significant aggravating factors are present and do not automatically reduce the need for a custodial term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 113(3), 192E(1)(b)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Courtney v R [2007] NSWCCA 195; 172 A Crim R 371
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Engert v R (1995) 84 A Crim R 67
- Hoskins v R [2021] NSWCCA 169
- Nasrallah v R [2021] NSWCCA 207
- Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
- Paterson v R [2021] NSWCCA 273
- R v Fernando (1992) 76 A Crim R 58
- R v Hookey [2018] NSWCA 147
- R v McFarlane [2024] NSWDC 193
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen (No 2) [1988] HCA 14; (1988