R v Potger [2018] NSWDC 453

District Court New South Wales

Medium Neutral Citation: R v Potger [2018] NSWDC 453 Hearing dates: 13 December 2018 Date of orders: 13 December 2018 Decision date: 13 December 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Aggregate term of imprisonment of 4 years, 6 months with a non-parole period of 2 years, 3 months: at [30]. Catchwords: SENTENCING – robbery armed with dangerous weapon – aggravated assault with intent to take motor vehicle – jury trial – guilty verdict – Bugmy considerations – special circumstances Legislation Cited: Crimes Act 1900 (NSW Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 R v Henry (1999) 46 NSWLR 346 R v Millwood [2012] NSWCCA 2 R v Readman (1990) 47 A Crim R 181 Veen v The Queen (No 2) (1988) 164 CLR 465 Texts Cited: None Category: Sentence Parties: Regina (Crown)

Noel Potger (Offender) Representation: Ms Heywood (Crown)

Mr Fokkes (Counsel for the offender) File Number(s): 2017/141484

Judgment 1. A young Aboriginal man of only 23 years has already spent some time in custody and is facing a further significant time in custody for these offences. He had a very disadvantaged childhood and as the High Court said in Bugmy v The Queen (2013) 249 CLR 571, the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, so it is right to speak of giving full weight to an offender's deprived background in every sentencing decision. 2. Further, as Simpson J said in R v Millwood [2012] NSWCCA 2, "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions." 1. As counsel for the offender correctly put, this young man has a moral compass which is significantly impaired, at least in part, as a result of his background. 2. He appears for sentence, having been found guilty by a jury of two charges. First a count under s 97(2) of the Crimes Act 1900 (NSW) of robbery while armed with a dangerous weapon, which carries a maximum penalty of 25 years imprisonment, with no standard non-parole period. Secondly, a charge under s 154(c) of the Crimes Act 1900, of aggravated assault with intent to take a motor vehicle, which carries a maximum penalty of 14 years imprisonment with a five year standard non-parole period. Those are important yard sticks in the sentencing process, which must be carried out having regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. I must not impose a term of imprisonment unless there is no other alternative, but it is conceded by counsel for the offender that the s 5 threshold has been well and truly crossed and there is no need to consider any alternatives. 4. The facts upon which the sentence is to proceed are agreed to be found in the Crown case statement, which is consistent with the findings of the jury. In short, the victim, Dennis Pulis, and the offender had an ongoing feud since 2010, which included a history of fighting and the offender breaking into the victim's house. In March 2017, the victim's mother, Karen Holroyd, bought a Kawasaki ZR1000 Ninja motor cycle for her son Dennis, for approximately $12,500. On 20 April 2017, Pulis was released from Parklea Gaol and he moved into his mother's house at 23 Cathy Way Seven Hills. There was some tension in the relationship as Pulis was hostile towards his mother's partner, who was also living in the house. A few days after that, Pulis threw the partner's clothes in the garage and his mother decided that she would go somewhere else, but she needed to come back to the house to pick some things up. She bumped into the offender and asked him to accompany her to the house in case something happened with Pulis. 5. At about 6pm on Sunday 23 April, Pulis was at home when his mother returned with the offender. The offender sat in the lounge room while the mother fetched some personal items. She then dropped the offender off in a nearby street. A little while later on that evening, Pulis was sitting in the lounge room when the offender, Mr Potger, walked into the house and said, "I've just come to chill". Pulis did not ask him to leave, because he did not want to start a fight. Potger then started looking agitated and acting strangely and he reached into his pants and removed a shortened .22 bolt action rifle, about 45 centimetres long. He pointed it at Pulis' face and said, "Stop fucking around. Stop being a dickhead". Potger told him to put his jewellery in the bag, and then he pointed the gun at his head and made him walk out to the carport, where the motorcycle was stored. Potger told him to get off the motorbike and start the bike and Potger then put on motorcycle gloves and a helmet and began to drive the bike down the driveway. Pulis was chasing him, saying, "What are you doing?" Potger stalled the motorcycle, so that Pulis managed to catch up with him and grab the bag off his neck, causing the property, including jewellery, to fall out. Potger then swung the gun at Pulis, hitting him on the side of the head with the butt of the gun and causing a small two centimetre cut, which immediately started bleeding. Pulis then wrestled with Potger for the gun, successfully disarming him and he pointed the weapon back at Potger. Potger then jumped off the bike, ran back and forth for a bit and then he picked up the bike off the ground and attempted to start it again. At this stage, having heard the victim's screams, a number of neighbours came out of nearby houses and witnessed the balance of the altercation. 6. The neighbours saw Potger wearing a motor bike helmet, sitting on the bike, unsuccessfully trying to start it. He was screaming and one neighbour heard him say, "He owes me money for drugs". Pulis was then seen to have blood on his neck and was screaming, "Someone please call the cops. I'm getting robbed. He's trying to steal my bike. It's Noely", referring to Potger. One of the neighbours dialled triple-0 and a number of people were recorded giving details of the altercation to the triple-0 operator. 7. Finally, Potger managed to start the bike and drove off on it, but not before at least one of the neighbours recognised the offender as "Noely", a person that she had gone to school with. Police came along shortly thereafter and found the motorbike helmet, which was lying in the middle of the road and the firearm was found to be unloaded. 8. The evidence in the trial included the material found on the phone of Brayden Carpenter, which contained a screen shot of an article on social media, apparently relating to the struggle and the taking of the motor cycle and also included a photograph of what appears to be the offender on the victim's motorcycle. 9. The offender was arrested on 11 May and declined to participate in an interview. He did not give evidence at the trial. 10. Having defended the matter at trial, as was his right, and asserting in evidence today that he maintains that he is not guilty; he is clearly not entitled to any discount on any term of imprisonment. 11. His custodial and criminal history is unfortunately lengthy for such a young man. It is summarised in a helpful chronology prepared by the Crown. There were juvenile offences of aggravated break, enter and commit serious indictable offence in company in August 2012, dealt with by a bond. There was a further s 9 bond for 18 months for common assault and stalking and intimidation in 2014 and another bond for unlicensed driving and stalk and intimidate in the same year. On 18 April 2015, he was sentenced to 18 months with a six months non-parole period to commence on 18 November 2014. The offending was on 8 June 2014 and he ultimately served another three months, being the balance of parole, in respect of that matter. 12. He has been in custody since his arrest on 11 May 2017 and has been serving a number of sentences during that time. There was a larceny offence, attracting a one month term of imprisonment; a contravene AVO, attracting a one month concurrent term of imprisonment; a drive while disqualified, also concurrent; a three month sentence for stalk and intimidate, dating from 11 May 2017; a sentence for common assault, starting on 11 May 2017 and expiring on 10 February 2018; together with assault occasioning actual bodily harm and destroy or damage property; and a sentence starting on 25 August 2017 for damage property and stalk and intimidate and contravene AVO, expiring on 24 February 2018. 13. On Tuesday this week, the day on which the jury returned its verdicts of guilty in the present trial, the offender was also sentenced by Herbert DCJ, to a term of imprisonment of two years and nine months, commencing 24 December 2017, with a non-parole period of one year and 11 months, expiring on 23 November 2019. It can be seen that her Honour backdated the commencement of that sentence by three months from the expiration date of the sentences which were expiring on 24 February 2018. 14. The Crown bundle contains the agreed facts in relation to that matter, which concerns an assault on an inmate at Parklea Correctional Facility, the charge being under s 35(1) of the Crimes Act 1900, of recklessly cause grievous bodily harm in company. As Mr Fokkes correctly concedes, his previous record, while not approaching Veen v The Queen (No 2) (1988) 164 CLR 465status, certainly does not entitle him to any leniency in this sentencing exercise. 15. The offender gave evidence today, which briefly confirmed the history provided to a psychologist, who prepared a report for the purposes of the sentencing hearing before Herbert DCJ this week. It was not challenged by the Crown Prosecutor. As counsel submitted, given that the offender maintains his innocence of the present charges, this report did not deal with his attitude towards the current offending. 16. The perception of the psychologist was that he had been an angry young man, demonstrating significant behavioural issues before he even reached high school. There was a significant substance abuse and gambling history, commencing at a very early age. He had attended an outpatient detoxification program in 2016 in an attempt to manage his cannabis abuse, but had not completed that course. 17. His criminal history was described as reflecting significant and diverse forms of violence throughout his life involving domestic violence, assaults on police, driving and dishonesty. He had never seen a psychologist or psychiatrist and had no existing mental health diagnoses. He expressed a willingness to participate in a residential rehabilitation program and to complete substance focussed intervention while in custody. 18. His background was accurately described as being one in which he experienced economic and social disadvantage, with an upbringing marked by changes in caregivers, parental substance abuse issues, exposure to anti-social role modelling, including violence and other forms of crime in his extended family and the community. He was likely to have experienced a sense of abandonment and rejection and a result of the constellation of those factors. He had taken on distrustful attitudes towards authorities and the instability created through moving homes and changing caregivers impacted on his ability to attach meaningfully to school and to maintain stable peer relationships. The animosity and resentment towards his parents, police and other forms of authority and the absence of warm, consistent and stable caregiving disadvantaged him from the outset. 19. He was ill-equipped to become a father at the young age of 20 and he struggled to maintain healthy relationship dynamics and has been violent in the domestic setting. It was recommended that he be referred to the Violent Offender Therapeutic Program to address his significant issues with violence and his anti-social peer association and I would endorse that recommendation by the psychologist, which also includes a recommendation of participating in weekly sessions of Crystal Methamphetamine Anonymous or Narcotics Anonymous. 20. Helpful written submissions prepared by counsel for the offender were not the subject of significant challenge by the Crown. They deal firstly with the objective gravity of robbery armed with a dangerous weapon and address the features set out in the R v Henry (1999) 46 NSWLR 346 guideline, noting that he is a young offender but he has a significant criminal history. A sawn-off .22 rifle was used. There was limited planning. The victim was not a vulnerable person. The shoes that were stolen were valued at approximately $260. 21. I note the reference to R v Readman (1990) 47 A Crim R 181 in which the escalating seriousness of offences commences with carrying a firearm, then loading the firearm, then discharging a loaded firearm and discharge firearm being deliberately aimed at a victim or important target. I accept the unchallenged submission that the offending of count 1 is below mid-range, but certainly not at the lowest end of the scale of objective gravity. As to count 2, while there was actual bodily harm, the injury was inflicted in the course of an altercation when Pulis was attempting to prevent the offender from taking away the motor bike and there was no separate deliberately intentional assault on Pulis, but rather a reaction to Pulis' actions. I also accept the submission there that the objective seriousness is below mid-range. 22. It is conceded that an aggravating factor is that violence was used in both offences though actual bodily harm was suffered it is acknowledged that that is an element of the offence in count 2. 23. There is a very limited degree of planning, on the evidence, given that the offender returned to the house after discovering that the victim had been recently released from gaol and then decided to return some short time later on the same evening. 24. The submissions summarise the subjective circumstances set out in the report of the psychologist, to which I have referred. He was the victim of racism and very poor parenting, while at school. He and his siblings were removed by DOCS when he was about eight years old and placed with relatives. Then he lived with his grandmother until he was 14. As I have said, drug use has been a significant part of his life, as has domestic violence. 25. Notwithstanding what has been said about giving full weight to his deprived background in accordance with Bugmy v The Queen (2013) 249 CLR 571, in assessing moral culpability, it is still important, as the Crown submits, to take account of general and specific deterrence, particularly given the evidence as to the offender's lack of complete regard for court orders in the past. 26. It is clear that a finding of special circumstances should be made, given the need for him to engage in extensive rehabilitation which has led to him offending and to prevent him from becoming institutionalised. Questions of totality and accumulation must be borne in mind, so as to avoid the possibility of a crushing sentence. There must be, as conceded by Mr Fokkes, a slight degree of accumulation or a very significant degree of concurrency, given that the two offences were part of the one episode of criminality within a very short timeframe. 27. Although neither counsel have relied upon any of the statistics, I have had brief reference to the statistics in relation to both offences, which are, as often referred to, a blunt tool in doing little more than indicating a very broad range of sentences which have been imposed without setting out details of the subjective or objective circumstances of the cases making up the statistics. 28. It is clear that the appropriate course is to impose an aggregate term of imprisonment and the orders that I will make are as follows: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of imprisonment of four years and six months to commence on 23 May 2019, expiring on 22 November 2023. 3. I impose a non-parole period of two years and three months, expiring on 22 August 2021. 4. The indicative sentences are: 1. Count 1: Four years; 2. Count 2: Two years and three months, with a non-parole period of 16 months. 1. I find special circumstances. Note – These ex-tempore remarks were revised without access to the court file