State of New South Wales v Potger [2024] NSWSC 46

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Potger [2024] NSWSC 46 Hearing dates: 1 February 2024 Date of orders: 1 February 2024 Decision date: 01 February 2024 Jurisdiction: Common Law Before: Fagan J Decision: Extended supervision order with conditions made in respect of the defendant, to commence on 27 February 2024 and continue for 2 years Catchwords: HIGH RISK OFFENDER – final hearing – extended supervision orders – conditions Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Category: Principal judgment Parties: State of New South Wales (plaintiff) Noel Potger (defendant) Representation: Counsel: S Love (plaintiff) Self-represented (defendant)

Solicitors: Crown Solicitors Office (plaintiff) Self-represented (defendant) File Number(s): 2023/275993

JUDGMENT 1. Before the Court for final hearing is the plaintiff's summons claiming an extended supervision order (ESO) of two years duration in respect of the defendant, Noel Potger. The order is claimed pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). 2. On 21 November 2023 Garling J conducted a preliminary hearing and made an interim supervision order, which commenced on 22 November 2023 (State of New South Wales v Potger [2022] NSWSC 1422). The interim supervision order has since been extended and it remains in force. His Honour also made orders under s 7 of the Act, requiring that the defendant attend for examination by a court appointed psychiatrist and a Court appointed psychologist. The defendant was released from prison on 22 November 2023 at the conclusion of the head sentence that he was serving for offences of robbery while armed and aggravated assault, that he had committed on 23 April 2017. 3. After his release Mr Potger attended the required examinations by the Court appointed experts and reports have been duly furnished to the Court from Dr Dayalan, forensic psychiatrist, dated 8 January 2024, and from Dr Youssef, forensic psychologist, dated 7 January 2024. For the final hearing the plaintiff has been represented by Ms Love of counsel and Mr Potger has appeared without representation. He was represented by a Legal Aid solicitor and counsel at the preliminary hearing and he has been advised by those legal representatives since he discharged them about two weeks before the final hearing, Mr Potger appeared before the Court today by audio visual link from Parklea Correctional Centre unrepresented. 4. Mr Potger is presently in custody on remand, having been charged with breaches of the interim supervision order that Garling J made on 21 November 2023. The charges for those infringements have been listed for hearing in the Local Court on 27 February 2024. Mr Potger will remain in custody on remand until that date and may continue in custody referable to his breaches of the interim supervision order after 27 February 2024 if the Local Court imposes a custodial sentence of greater length than the time already served. The extended supervision order applied for by the plaintiff is sought to commence from 27 February 2024. Its operation will be suspended during any period after that date during which the defendant may be returned to custody for any other reason. 5. The plaintiff's summons was filed on 30 August 2023. Mr Potger was a supervised offender within the meaning of s 5I of the Act at that date because he was then serving a sentence that was consecutive upon an earlier sentence for a serious offence of recklessly causing grievous bodily harm, contrary to s 35(1) of the Crimes Act 1900 (NSW). That earlier offence was committed on 28 January 2017 and it is treated by the plaintiff on this application as the index offence. 6. In the circumstances related thus far, all the threshold statutory requisites for making an ESO are satisfied, and the question to be determined is whether the Court is "satisfied to a high degree of probability that [Mr Potger] poses an unacceptable risk of committing another serious offence if not kept under supervision under the order". See s 5B(d) of the Act. 7. At the commencement of the hearing Mr Potger was given an explanation of the nature of the order that is sought by the plaintiff. He was informed that conditions would attach to any extended supervision order that might be made, and that under its operation he would be subject to the supervision and direction of Community Corrections Officers. I was satisfied that Mr Potger understood the nature of the application, and the consequences of an ESO being made. 8. He was informed of the nature of the evidence relied upon by the plaintiff, much of which was tendered at the preliminary hearing when he was represented. A copy of all the plaintiff's material was sent by the Crown solicitor to Mr Potger at Parklea but it did not reach him until about half an hour before the commencement of the hearing today. Mr Potger did not bring the material with him from his cell to the AVL suite and he declined an opportunity to have it placed before him as the hearing proceeded. 9. Mr Potger is an indigenous man, now 28 years old, whose family circumstances in early formative years were chaotic and dysfunctional. His upbringing was adversely affected by poverty and by his parents' drug abuse. He lacked parental support during childhood and subsequently missed most of his schooling. As a result of his lack of education Mr Potger would have found it very difficult to review the documentary evidence that has been tendered in the case, even if he had been in possession of it for a longer period before the hearing, or if he had had it before him in the AVL suite as the hearing proceeded. 10. Mr Potger stated that he did not wish to question any of the deponents to the plaintiff's affidavits, nor Dr Dayalan or Dr Youssef. He said he wished the hearing to proceed and to have the Court's decision without further ado. Mr Potger availed himself of the opportunity to respond during the hearing to matters raised by the plaintiff's counsel and he was able to express sensibly and reasonably his concerns and points of disagreement with the plaintiff's contentions. 11. The central issue of the risk that the defendant poses of committing further serious offences can largely be resolved by consideration of his criminal record and custodial history. The plaintiff has tendered a useful risk assessment report by Jonathan Mystakidis, a senior psychologist in an assessment unit of Corrective Services, and an equally helpful risk management report of Antonios Kolkas, a Community Corrections Officer. I have also had regard to the reports of Dr Dayalan and Dr Youssef, both of whom used recognised statistical tools to measure the relevant risk, based upon features of Mr Potger's past conduct and current presentation. The reports of each of the Court appointed experts confirm the impression of significant risk that emerges from review of the criminal and custodial records. 12. Mr Potger committed many offences between the ages of eleven years and eighteen years, all of which were dealt with in the Children's Court. Making due allowance for his very adverse start in life and noting that he is now twenty‑eight years of age, I do not treat his childhood offending as a significant indicator of future conduct. 13. Dr Youssef's report contains a chronological summary of Mr Potger's relevant offending from the age of 18 years onwards. This has been taken from the bail report in respect of the defendant, from statements of fact and sentencing remarks in relation to the prosecution of him for the various offences, and from the records of his incarceration and management in prison. It would not be helpful to dwell upon the detail of the past offending in these reasons. A relatively brief outline will be sufficient to justify the Court's perception of the high risk of future offending. 14. In mid‑2014 Mr Potger was in a relationship with Ms Hey, and they had a five‑month old baby. At that time, at the age of eighteen years, the defendant assaulted Ms Hey by throwing her repeatedly across a piece of furniture. He was sentenced for that offence, together with offences of assault and stalk and intimidate concerning his sister and stepfather, in March 2014. Other offences dealt with at the same time were an instance of stealing from a person in October 2014; a second assault upon Mr Potger's stepfather, occasioning actual bodily harm, in November 2014 and driving a conveyance taken without consent and a police pursuit, in November 2014. The sentence for all of these matters was 1 year and 6 months commencing 18 November 2014, with a non‑parole period of 6 months. After release on statutory parole in May 2015, that parole was revoked after eight months and Mr Potger was returned to custody on 28 February 2016, where he remained until 29 May 2016. 15. From the latter date Mr Potger was at liberty for seven months, until his arrest on 24 January 2017 on charges of assault and assault occasioning actual bodily harm, committed on 2 December 2016. On those charges the defendant was briefly remanded in custody at Parklea Correctional Centre, from 24 to 31 January 2017. During that remand, on 28 January 2017 he committed the index offence relevant to the present proceedings, namely, recklessly inflicting grievous bodily harm in company, contrary to s 35(1) of the Crimes Act. At that time Mr Potger was twenty‑one years old. The offence was committed in company with two other inmates. Between them they set upon a fourth inmate, knocked him to the ground, kicked him in the head and body and stomped on him. The sentencing judge, who dealt with the matter nearly two years later in December 2018, described the attack as ferocious and vicious. It left the victim with serious injuries to his facial bones, his eyes, and with a fracture of the lower right arm. 16. Following the brief period of remand during which the prison assault had taken place, Mr Potger was released to bail without having been charged for the assault. He then committed a series of further offences during April and May 2017. 17. On 23 April 2017 he committed a robbery while armed and an aggravated assault occasioning actual bodily harm with intent to take a motor vehicle. Mr Potger himself refers to this as a carjacking episode. Other offences committed in April and May 2017 included stalking and intimidating in a domestic relationship, and contravening an apprehended violence order. Mr Potger was arrested on 11 May 2017 after the last of the domestic violence offences and thereafter he remained in custody until 21 October 2021. 18. The sentences that he served or partly served between 11 May 2017 and 21 October 2021 included, first, a total of about 6 and a half months for the various domestic violence assaults and intimidation. Then, whilst in custody, he was charged with the prison assault of 28 January 2017, and for that he was sentenced to a term of 2 years and 9 months, with a non‑parole period of 1 year and 11 months. The sentence was ordered to commence from 24 November 2017, at the completion of the shorter sentences for the domestic violence and sundry offences. 19. The defendant was also sentenced for the carjacking episode of 23 April 2017. The sentence for that was a term of 4 years and 6 months, with a non‑parole period of 2 years and 3 months. The sentence was made partly cumulative and partly concurrent with other sentences. It commenced from 23 May 2019. The head sentence expired on 22 November 2023. Mr Potger was released to parole in respect of the longest of his sentences on 21 October 2021 and was at liberty for four months. 20. He was then arrested on 18 February 2022 for a further assault occasioning actual bodily harm, committed on his partner, Ms Hey. That occurred in the context of a heated domestic dispute. Upon his arrest for that matter, on 18 February 2022, he was also charged with a more serious offence that had been committed on 2 February 2022. That involved him stabbing a Mr Stonham in the leg and taking his motor vehicle. Mr Potger alleged that Mr Stonham was having an affair with Ms Hey. 21. The offences of stabbing and of taking the motor vehicle without authority resulted in revocation of the defendant's parole, and further sentences of 1 year and 6 months with 6 months non‑parole for the domestic violence and 2 years and 6 months with a non‑parole period of 1 year and 3 months for the offences committed against Mr Stonham. The latter head sentence will expire on 27 January 2025. The defendant was released to parole with respect to that offence on 22 November 2023, at the expiration of the head sentence for the carjacking offences of 23 April 2017. 22. This summary illustrates the repetitive and persistent character of Mr Potger's violent offending during his 20s. Of the 9 years from November 2014 to November 2023, during which Mr Potger was aged between nineteen years and twenty‑eight years, he has spent about 7 years in custody, mostly for offences of significant violence. 23. Both Dr Dayalan and Dr Youssef have identified, from their examinations of the defendant and from their review of custodial records, that he has an entrenched hostility to authority. That is corroborated by the very poor record of his disciplinary charges in custody. However, it is not his resistance to authority that has led to his prosecution for the significant offences referred to and that has resulted in the substantial total of his terms of incarceration. His offences of violence have been perpetrated against his partner, against family members, and against other persons with whom he has had some personal connection or from whom he has stolen property. The record of persistent offending of that nature demonstrates a high risk of commission of further offences by Mr Potger upon his release back into the community. High scores on the experts' statistical tests support the assessment of high and, in my view, unacceptable risk. 24. Dr Dayalan and Dr Youssef have assessed that Mr Potger has personality traits of quick temper, and that his tendency to abuse substances, including methylamphetamine and to a lesser extent alcohol, have exacerbated his inclination to flare up and become violent for little cause. In that respect, the experts' observations are borne out in the statements of facts that relate to Mr Potger's prior offences. It is a notable feature of those past crimes that minor domestic confrontations have readily flared into violence on his part. 25. From all the considerations to which I have referred, I am satisfied to a high degree of probability that Mr Potger poses an unacceptable risk of committing another serious offence if not kept under supervision pursuant to an extended supervision order. I will make such an order for the duration sought by the plaintiff of two years. The plaintiff has sought numerous conditions. They will be attached to the order pursuant to s 11 of the Act. 26. It is not necessary to provide detailed reasons as to why each of those conditions is considered appropriate. They largely speak for themselves. I have taken into account Dr Dayalan's concern that over‑stringent conditions may deprive the defendant of agency over his own conduct and may be counterproductive to him taking responsibility for himself, and rehabilitating himself. That is a valid consideration. However, the predominant consideration for the Court, by force of the statute, is the safety of the community. Rehabilitation of the defendant and protection of the community are not inconsistent goals. A set of conditions that will provide supervision, direction and structure for Mr Potger and that will assist his rehabilitation will also help reduce the risk of him committing further violence. 27. In my view, the conditions that are proposed are capable of securing the safety of the community against further offending, by assisting Mr Potger to achieve order in his life once he is released into the community. The conditions are suitably framed to direct him towards prosocial activities and to restricting the opportunities and catalysts for further offending. I am satisfied that the conditions sought do not create such tight restriction as would limit the defendant's own agency in the way that Dr Dayalan is concerned about. In particular, the conditions that are most restrictive, such as the requirement for submission of schedules of movements and compliance with those schedules, and curfew conditions, are all framed in terms that will enable the Departmental Supervising Officer to reduce the constraints over time and to allow modification of them on an ad hoc basis – subject to the cooperation of the defendant in notifying proposed departures from schedules, for example, and subject to him seeking approval of his DSO for reduction of supervision over time and for exceptions to the conditions on a reasonably flexible basis. 28. The defendant questioned the effect of restrictions upon him under the conditions relating to schedules of his movements and circumstances in which he would be able to depart from the schedules without infringing the order. I have taken into account his concerns in that regard but provided that the defendant cooperates with his DSO, it will be reasonably feasible, and useful to the defendant himself, for schedules to be prepared, and for him to adhere to them, with reasonable provision for progressively reducing the requirement as he develops structure in his life and with reasonable provision for departure from schedules as necessary to accommodate circumstances. 29. The defendant was also concerned about the imposition of a curfew but it appeared to me, after hearing his submissions about the point, that a requirement for Mr Potger to be at home between 9pm and 6am was reasonable, bearing in mind the qualification to that condition, as proposed by the plaintiff, that he could depart from the cut‑off time of 9pm subject to contacting his DSO and making arrangements in that regard. 30. Mr Potger is aware from the fact that he has been prosecuted for breaches of the interim supervision order that, under a regime of this nature, he is vulnerable to being charged with an offence that carries in each instance a maximum penalty of five years and that the existence of the order places him at risk, if he breaches it, of being returned to custody from time to time. It does not appear to me that the conditions proposed by the plaintiff in relation to this particular defendant give rise to any unreasonable measure of constraint such as would be likely to make him unfairly vulnerable to repeated terms of incarceration. Put another way, I do not consider that the conditions are so prescriptive or difficult to comply with that they would constitute trip wires that might see him repeatedly and counterproductively imprisoned. 31. For those reasons I will make an order in accordance with the summons at paragraph 3 as appears at page 3 of the court book. It will be amended so that, instead of being a period two years from the date of the order, it will be a period two years from 27 February 2024. 32. The summons proposed that the conditions be as set out in the schedule to the summons. They will be as set out in the third column of the plaintiff's written submissions, signed by Ms Love and dated 15 January 2024.