R v Potts [2001] NSWSC 753

New South Wales Supreme Court

CITATION : R v Potts [2001] NSWSC 753 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70077/00 HEARING DATE(S) : 18/06/01-28/06/01 JUDGMENT DATE : 31 August 2001

PARTIES : Regina Malcolm Robert Potts JUDGMENT OF : Hidden J at 1

COUNSEL : T Thorpe (Crown) A Haesler (Potts) SOLICITORS : Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Potts) CATCHWORDS : CRIMINAL LAW - Sentence - manslaughter - substantial impairment LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Oinonen [1999] NSWCCA 310 DECISION : See para 12

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J Friday 31 August 2001 70077/00 Regina v Malcolm Robert Potts Remarks on Sentence

1 HIS HONOUR: In the nature of things, all those involved in the administration of criminal justice in this Court see more than enough of human misery. Nevertheless, the present case is as sad as I have ever encountered, either as a judge or a practitioner. 2 The offender, Malcolm Robert Potts, was tried before me for the murder of his father on the night of 4 May 2000 at the home unit where they lived at Beverly Hills. The jury found him not guilty of murder but guilty of manslaughter. The alternative verdict had been left to the jury on more than one basis but the central issue in the case was substantial impairment under s23A of the Crimes Act. It is common ground that that is the basis upon which he should be sentenced. 3 He was thirty three years old at the time of the offence and is now thirty four. He has suffered from schizophrenia since his late teens. His parents and his two older siblings, a sister and a brother, also suffered from mental illness of one kind or another. His mother died of natural causes in 1992. His brother died of a drug overdose in the previous year. In 1986 his sister suicided by shooting herself. He was deeply affected by these tragedies, particularly the deaths of his mother and his sister. Indeed, it was after his sister's suicide that he first exhibited the symptoms of his own mental illness. As a result of the crime which brings him before this Court, he is now the only surviving member of the family. 4 It is unnecessary to recite the details of the killing or of the deteriorating mental state of the offender in the days leading up to it. These matters were fully ventilated during the trial. Although the deceased had been his primary carer, the offender's relationship with him had been ambivalent and marred by conflict. On the night in question he stabbed his father to death with a knife in what appears to have been a frenzied attack. On his account to police and to several forensic psychiatrists, there was a measure of provocative conduct on the part of the deceased, but it was not such as would give rise to such a violent reaction in a man who was in command of his mental faculties. 5 In evidence at the trial, Dr Olav Nielssen, psychiatrist, expressed the opinion that the offender's behaviour was attributable to an abnormal state of mind because he was in the early phase of a relapse into his mental illness. He was on a regime of anti-psychotic medication at the time but the dosage was relatively low. In addition, he was using cannabis and there was evidence that it could reduce the effect of the medication. It appears from his psychiatric history that he had engaged in irrational and aggressive behaviour during previous exacerbations of his illness. Some of that behaviour had also been directed to his father. 6 The offender was educated to Higher School Certificate standard. His employment thereafter was inconsistent because of the onset of his schizophrenia, together with his drug and alcohol abuse. He was married but he and his wife were divorced in the early 1990s. There is a son of that relationship, now aged about nine. His former wife and son have visited him in custody, but he has had little contact with them since the divorce and I think it unlikely that he will have any meaningful relationship with either of them in the future. 7 The offender has a criminal record comprising entries for street offences, minor drug offences, some minor offences of violence, and in 1997 an armed robbery for which he was sentenced to a term of imprisonment. I have been supplied with an earlier report of Dr Nielssen, from which it appears that that offence also was committed during an exacerbation of his mental illness. 8 I do not think that the offender is a continuing danger to society. Certainly, the crime for which he stands for sentence arose from his relationship with his father and I think it unlikely that he would re-offend in such a violent manner. Nevertheless, it is necessary that he comply with an appropriate regime of treatment and avoid drug abuse. Dr Nielssen expressed his view in this way: Mr Potts' future risk to the community is dependent on the management of his psychiatric disorder, as relapses of illness have been associated with aggressive behaviour. If he continues to receive adequate treatment, and abstains from using cannabis and other drugs known to produce exacerbations of mental illness, his risk should be relatively low. 9 For this reason, it is common ground that there are special circumstances calling for a departure from the usual proportion between head sentence and non-parole period. It is essential that the offender have the opportunity of an extended period at liberty, subject to supervision and the sanction of parole. In the trial I was much impressed by the evidence of Ms Pamela Turner, a psychiatric nurse who had been monitoring his treatment upon referral from a regional Mental Health Team. No doubt, services of that nature would be available to him upon his release. 10 I have regard to what Dr Nielssen referred to in his reports as "the disadvantage experienced by the chronically mentally ill in prison". I suspect that his period of incarceration will be a solitary existence. Indeed, I doubt that that situation will improve significantly upon his release. Fortunately, he has a measure of financial security because of an inheritance from his mother's estate, which is being managed by a trustee. 11 I was informed from the Bar table that, before the trial, the offender had conveyed to the Crown through his legal representatives his preparedness to plead guilty to manslaughter in satisfaction of the indictment. In fact, the offer was made after the legal representatives had received Dr Nielssen's report, which supported the defence of substantial impairment. At the trial there was no issue that the offender had caused the death of the deceased, and evidence and addresses were directed primarily to the question of substantial impairment, although also to provocation. While he did not plead guilty to manslaughter when arraigned at the outset of the trial, he is entitled to the benefit of his offer of that plea in accordance with the observations of Grove J (with whom Spigelman CJ and Sully J agreed) in R v Oinonen [1999] NSWCCA 310 at paras 11-18. But for that offer, I would have considered a sentence of nine years in prison appropriate. I shall reduce that by roughly twenty per cent to seven years. 12 Malcolm Robert Potts, you are sentenced to imprisonment for seven years to date from 5 May 2000, the date you were taken into custody, with a non-parole period of three years and nine months. You will be eligible for release on parole on 5 February 2004. **********