R v Aaron POTGER [2007] NSWDC 395

New South Wales District Court

CITATION: R v Aaron POTGER [2007] NSWDC 395

JUDGMENT DATE: 12 December 2007

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Non-parole period of 2 years. Balance of the term of 3 years.

CATCHWORDS: CRIMINAL LAW - sentence - armed robbery - offence commited while on parole - weapon used a syringe - three victims - limited degree of planning - prior criminal history - guideline judgment (R v Henry) elements - psychological report - pre-sentence report - alcohol and drug issues

LEGISLATION CITED: Crimes Act 1900 s 97(1)

Regina v Boney [2001] NSWCCA 432 CASES CITED: Regina v Henry (1999) 46 NSWLR 346 Regina v Weldon [2002] NSWCCA 308

PARTIES: Regina Aaron Potger

FILE NUMBER(S): 07/21/1169

SOLICITORS: Mr Borosh for the ODPP Mr Velcic for Mr Potger

JUDGMENT

1. Aaron Potger is a young man who while on parole for a previous armed robbery held up three people with a syringe and stole property from them. He therefore faces court again for armed robbery. The question in this case is to what extent the guideline judgment, delivered by the Court of Criminal Appeal in Regina v Henry (1999) 46 NSWLR 346, applies to this case. 2. Briefly this is what Mr Potger did. It was a Saturday night. It was 3 February 2007. Just two months earlier, on 7 November 2006, Mr Potger was released on parole from a previous sentence for armed robbery. At 7.45 that night he got on a train at Seven Hills Railway Station. Three other people were already on the train. Mr Potger sat near them. He pulled the hood of his jacket over his head, then approached the three people and said "I've got Hep B, give me all your fucking money". 3. The agreed facts, which are part of exhibit A, say that at the time Mr Potger held two syringes in his left hand and a nailfile in his right hand. Mr Potger gave evidence yesterday that he held one syringe and a nailfile. In addition I note that the indictment listing the charge refers to one syringe. I find that Mr Potger held one, not two, syringes. 4. Getting back to what happened on the train, the three people handed over their property. It included a wallet, cash, mobile phones, bracelets, watches and cigarettes. It included personal papers and drivers licences. Mr Potger left the train saying "Don't follow me or tell the police or I'll kill you". 5. He was picked up by closed-circuit TV when he left the train and was arrested a few days later. He agreed that he was the person who was on the video footage but otherwise declined to answer any questions which, of course, was his entitlement. 6. I have taken evidence in this matter in the form of exhibit A, which was tendered by the Crown, which I have read, comprising various documents and Mr Potger's criminal history, exhibit B, which is a presentence report and exhibit 1 a report by a psychologist dated 6 June 2006 tendered to give me information about Mr Potger's background. 7. In addition Mr Potger himself gave evidence under oath before me yesterday. I do not propose to review that evidence but I make the following findings. 8. First, I need to make an assessment of how serious this offence was. A number of factors are relevant. The first is that this offence of armed robbery has attached to it, by Parliament, a maximum sentence of twenty years gaol. That is fixed by s97(1) of the Crimes Act 1900. 9. Secondly, Mr Potger's weapon was a syringe. He claimed at the time that a wound with a syringe would leave the wounded person with hepatitis B. To my mind that is, or must have been, a particularly terrifying experience for the victims. Mr Potger himself acknowledged as much. I regard the particular weapon in this case as an aggravating factor. 10. Next, there were three victims not one. 11. Perhaps the most significant aspect of the offence which makes it serious is the fact that it was committed whilst Mr Potger was on parole for a previous armed robbery. Parole is an opportunity given by the courts for an offender to be at liberty whilst they are serving their prison sentence so that they can undertake rehabilitation. The higher courts have made it clear that a person who abuses this liberty, whether it's in the form of parole or bail, must expect that to be a significantly aggravating factor in the next sentence. I regard that circumstance as a particularly aggravating factor in this case. 12. Next there was some planning but I regard the amount of planning as quite limited. 13. Next, although not an aggravating factor for this offence, Mr Potger's criminal record provides for him no opportunity for leniency. A good record, like good character, can act in a favourable way for an offender and incline a judge to reduce a sentence that the judge might otherwise have imposed. Mr Potger however has a record which includes assaults, illegal possession of knives, larceny, break and enter and of course a previous armed robbery. He can be given no additional leniency whatsoever because of that record. 14. It is convenient, at this stage, to refer to the guideline judgment delivered by the Court of Criminal Appeal in the case called Henry. The guideline judgment identified a typical armed robbery case by reference to seven elements. I will refer to those seven elements and link them to Mr Potger's case. 15. The first element is that the offender is a young offender with little or no criminal history. Mr Potger is a young offender and I take that into account. However he does not have little or no criminal history. 16. The next factor is that the offence was committed with a weapon, like a knife, capable of killing or inflicting serious injury. That applied in this case with the added aggravating feature of it appearing to be a weapon which could inflict a dangerous disease. 17. The third factor is a limited degree of planning. That applied in this case. 18. The fourth factor is limited, if any, actual violence but a real threat thereof. That applied in this case. 19. The fifth factor is the victim was in a vulnerable position such as a shopkeeper or taxi driver. That applied in this case because the victims were confined within a train carriage. 20. The next is the small amount taken. Although significant for the victims in this case the amounts taken were relatively small. 21. The last factor is a plea of guilty the significance of which is limited by a strong Crown case. Mr Potger has pleaded guilty in this case. He did not plead at the earliest opportunity, having been arrested on 7 February 2007. He was arraigned on 11 October 2007. He formally entered a plea on the hearing date of 27 October 2007 but Mr Borosh, for the Crown, very fairly indicates that he himself was made aware, at the arraignment on 11 October 2007, that the case would be a short matter. There was therefore, in this case, not a plea at the earliest opportunity but nevertheless a plea which was not made at the last opportunity. It is difficult to assess the strength of the Crown case but I note that property belonging to the victims was found either in Mr Potger's possession or at his premises and that he admitted that he was the person on the video. 22. I will return to the relevance of the guideline judgement shortly. 23. I now turn to considerations which are personal to Mr Potger and I make the following findings. He is presently aged twenty-two having been born on 5 February 1985. To his credit, on oath yesterday, he expressed remorse for his offence and some understanding of the impact which the offence had on his victims. He had been in a relationship some years ago and his partner in that relationship suffered a miscarriage which had a negative impact on him. That is recorded in the presentence report. He left school at year nine and has been mainly unemployed since then. 24. He had a troubled childhood. Exhibit 1, the report of the psychologist, Emma Collins, refers to Mr Potger in the following terms, which I adopt: " Mr Potger is a 21 year old Aboriginal male who has experienced significant maladjustment from childhood. This was marked by parental neglect and drug abuse in addition to what appears to be a charted onset of conduct disturbance and poor success in school. " Evidently, when he was growing up Mr Potger was exposed to drugs by both his parents, in particular his father. He was also the subject of violence from his father. His mother has since ceased drug taking and Mr Potger maintains a good relationship with his mother but none with his father. Much of his childhood upbringing was at the hands of his grandmother because of the instability of his own home. 25. Mr Potger has had an alcohol problem since he was about fourteen. He has been using illegal drugs since he was about seventeen in the form of heroin and amphetamines. He commenced on cannabis even earlier. He has been on methadone for the last twelve months but had not undertaken any significant drug and alcohol programs. In addition he has a gambling problem. 26. Since being in custody he has three instances of institutional misconduct and he is regarded as a person with an anger management issue. His custody, whilst I mention it, is something that I will refer to now. For his previous armed robbery, not the one I am sentencing him for, he was sentenced to twenty two and a half months imprisonment. That was to conclude on 22 September 2007. He was given a twelve month non-parole period commencing on 8 November 2005, which was also the commencement of the head sentence and concluding on 7 November 2006. As I have already said, after being released on parole he committed this offence several months later. As a result of committing this offence the parole authority revoked his parole by order made on 23 February 2007. Hence he served in custody the balance of the parole for his last armed robbery. The period of custody referable to that balance of parole finished on, I will find, 22 September 2007. That is relevant because I propose to commence the sentence which I impose on 23 September 2007. 27. Returning to the features personal to Mr Potger, the presentence report and the psychologist's report both emphasise the need for a high level of intervention or supervision. The presentence report concludes that he is suitable for a high level of intervention by the Probation and Parole Service with strategies to address particular identified needs relating to his criminal behaviour. I will return to those needs in specifying my sentence. 28. Emma Collins, the psychologist, says in paragraph 10: " Whilst Mr Potger told me that he wishes to achieve long-term drug abstinence, he has consistently relapsed once he has been released from gaol. I do not think he has the current resources to maintain a drug free state without considerable support, and he will require substantial resources and supports to be implemented if he has any chance of achieving this in the near future. "