R v Malcolm Potts - [2010] NSWSC 731

CITATION: R v Malcolm POTTS [2010] NSWSC 731

HEARING DATE(S): 8-12/3/10
15-19/3/10
22/3/10

JUDGMENT DATE :
23 July 2010

JURISDICTION: Common Law
Criminal List

JUDGMENT OF: Kirby J

DECISION: Sentenced to a non parole period of 21 years commencing on 14 September 2008 and expiring on 13 September 2029, and a balance of term of 7 years expiring on 13 September 2036. Earliest date on which eligible for release on parole will be 13 September 2029.

CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - convicted of murder - schizophrenic - lengthy history mental illness - jury rejected substantial impairment - objective circumstances - significantly impaired - not worst class of case - slightly above mid range - dangerousness - previous conviction for manslaughter - relevance previous convictions.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93
R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported)
R v Potts [2001] NSWSC 753
Veen v The Queen [No 2] [1987-1988] 164 CLR 465
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Previtera (1997) 94 A Crim R 76

PARTIES: Regina
Malcolm Potts

FILE NUMBER(S): SC 2009/6625

COUNSEL: T Thorpe (Crown)
R Bonnici (Acc)

SOLICITORS: J Brown - DPP (Crown)
Justin Lewis Lawyers (Acc)

OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

KIRBY J

Friday 23 July 2010

2009/6625 REGINA v Malcolm Robert POTTS
JUDGMENT ON SENTENCE

1 KIRBY J: Emma King was a sex worker in Kings Cross. She had an arrangement when she worked outside the Kings Cross area that she could telephone a friend who would then pick her up.

2 At 4.26 am on Sunday 14 September 2008, Ms King sent a text message to her friend, nominating the address of a home unit in Ashfield. The address was correct, apart from the street number of the block of units. Her friend went to Ashfield but was not able to find her. At 4.43 am he telephoned her seeking clarification. They spoke briefly and he continued his search. He phoned again at 4.54 am, but his call went to voicemail. He continued to call every few minutes over the next few hours, but his calls went unanswered.

3 Ms King’s partner went in search of her in the early hours of Sunday morning. The street referred to in the text message was short. She was able to identify a block of units as the likely address from which Ms King had telephoned. A man was seen in that unit, peeping through a window. She notified the police.

4 Later that morning the police sought entry. The occupant would not open the door. Ultimately the door was forced and the police entered the unit. Malcolm Potts was the owner of the unit. He stood inside the unit with a knife in each hand. He was persuaded by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Malcolm Potts

Details

AGLC: R v Malcolm Potts [2010] NSWSC 731
Case: [2010] NSWSC 731
Decision Date: 23 July 2010

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent, Malcolm Potts, against his conviction of murder. The respondent had a longstanding history of mental illness, specifically schizophrenia, which was a factor in the trial. The jury, however, rejected the defence of substantial impairment due to mental illness, finding that, while the respondent was significantly impaired, his condition did not meet the threshold for this defence under the applicable legislation. The appeal centred on the application of the mental impairment defence and the appropriate sentencing for the offence.

The central legal issue before the court was whether the trial judge had erred in failing to direct the jury adequately regarding the defence of substantial impairment due to mental illness. The court was also required to determine whether the trial judge erred in the sentencing phase by not adequately considering the respondent’s history of mental illness and previous convictions. Furthermore, the court had to assess whether the sentence was appropriate in light of the respondent's mental condition and the need to balance the risk of dangerousness with the respondent's mental health.

The court found that the trial judge had not erred in the direction given to the jury regarding the defence of substantial impairment. The jury had been appropriately directed, and the evidence did not support a finding of substantial impairment as per the statutory criteria. The court further found that the sentence, while on the higher end of the scale, was not manifestly excessive. The court considered the respondent’s history of mental illness and prior convictions but ultimately determined that the sentence was appropriate given the nature of the offence and the need to protect the community from the respondent’s potential dangerousness.

The appeal was dismissed, and the conviction and sentence were upheld. The court found no grounds to interfere with the trial judge’s assessment of the evidence and the sentence imposed. The decision underscores the importance of a rigorous application of the legal criteria for mental impairment defences and the need to balance the interests of public safety with the considerations of mental health in sentencing.

Orders