R v Aaron Potger

[2007] NSWDC 395

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)
CASES CITED:	Regina v Boney [2001] NSWCCA 432 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 Act1900.

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. ”

That report, I remind myself, was dated 6 June 2006 and was obviously before the District Court which on 19 June 2006 had sentenced Mr Potger for his previous armed robbery.

29. Mr Schrader, in his submissions, asks me to take into account the fact that his client has had a disadvantaged background and commencement in life similar to those experienced by many indigenous young men. In other words he was saying there were some issues which are common between this case and the principles applied by the courts in sentencing Aboriginal persons by reference to the case known as Fernando. I accept that submission.

30. Mr Schrader asks that I find special circumstances so that I can adjust the balance between the non-parole period and the parole period. He emphasises that Mr Potger has spent most of his time since the age of seventeen in custody. He refers to a risk that he could become institutionalised at a young age. He refers to the report emphasising the need for assistance in his rehabilitation. He argues that a longer than normal parole period is desirable to achieve this end. I have been referred to two cases by Mr Schrader. One is Regina v Weldon [2002] NSWCCA 308 and the other is Regina v Boney [2001] NSWCCA 432. I have read both those cases and take them into account insofar as they are relevant.

31. I now turn to the question of what is the appropriate sentence for Mr Potger. The guideline judgment in Henry says that for a typical case a narrow sentencing range of between four and five years for the head term, that is not the non-parole period, would be appropriate for such typical cases. It is important to emphasise here that that range takes into account the fact that offenders like Mr Potger are young and that they have pleaded guilty.

32. In this case I propose to select as the head term, the overall term of the sentence, five years. I do that because Mr Potger’s case falls squarely within the seven elements, specified by the Court of Criminal Appeal in Henry, but he committed this offence whilst he was on parole for a previous armed robbery and does not have the benefit of little or no criminal history. In addition there were three victims and a particularly nasty weapon although the most significant factor is the fact that he committed this offence whilst on parole.

33. The assessment of the non-parole period is difficult. I accept Mr Schrader’s submission that there are special circumstances in this case justifying an adjustment so that the proportion between the non-parole period and the parole period is not three to one. I originally had in mind that an appropriate proportion would be one to one, that is that there should be a non-parole period of two and a half years. The special circumstances which I do find are these. Mr Potger is a young man. There is a risk he could become institutionalised at a young age given the amount of time he has spent in prison. There is a need for a high level of supervision and intervention however I realise that if I selected two and a half years that the sentence would need to commence on 23 September 2007 after the expiration of the balance of parole for the previous armed robbery. That would mean essentially that Mr Potger’s non-parole period of two and a half years would lie largely in the future. I regard the impact of imposing this sentence at the end of a balance of parole served for the previous armed robbery as a further special circumstance and I propose to reduce the non-parole period to two years and that non-parole period is to date from 23 September 2007.

34. For the offence of armed robbery I sentence you to imprisonment for five years to commence on 23 September 2007 and to conclude on 22 September 2012. I fix a non-parole period of two years to commence on 23 September 2007 and to conclude on 22 September 2009. The earliest date which it appears that you will be eligible for release is 22 September 2009. I recommend to the Parole Authority, when they are considering your release on parole, that they take into account the strategies referred to in the presentence report dated 10 December 2007 to address the following four areas: anger management issues, drug and alcohol issues, mental health assessment with follow-up treatment if required and gambling issues.

Now Mr Borosh, Mr Velcic are there any other formal orders I need to make?

BOROSH: Not from the Crown’s point of view, your Honour.

HIS HONOUR: No I don’t specify and I don’t order his release because it is over three years, am I right?

VELCIC: That’s so your Honour.

HIS HONOUR: Mr Velcic that I need to--

VELCIC: Nothing arising.

35. Mr Potger, just so that you’re clear. Now I’ve given you five years for the armed robbery, do you understand? And that started on 23 September this year which is when your parole ended.

OFFENDER: Parole ran out.

HIS HONOUR: Yeah. I’ve chosen that because that’s what the guideline judgment in Henry says and I’ve given you the top of the range because you’ve done it before but I’ve given you two years at the bottom and that also commences on 23 September so when 22 September 09 comes around the Parole Board will consider you for release. Whether they release you or not, at that stage, is up to you and them, how you go in prison and up to them and I’ve recommended that they read that probation report and give you an opportunity to deal with some of these issues, which I’ve referred to, whilst you’re on parole. Anything that you can do whilst you’re in custody is obviously a good idea as well so that when you come up for parole perhaps you would have made a start on some of those issues. Now do you understand that, do you understand your release date?

OFFENDER: The earliest I can get out is not this September, not next September - like in 20 days it’s next year, that’s 08 on not that September coming the next one.

HIS HONOUR: Exactly.

OFFENDER: Okay.

HIS HONOUR: September 09.

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