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 police to drop the knives. The unit was then searched. The police found the dead body of Emma King concealed under a bed. She was naked. She had died of stab wounds to the back.

5 Malcolm Potts was then charged with the murder of Emma King. He pleaded not guilty. He later acknowledged that he had stabbed Emma King, but said he had done so in self defence. Alternatively, it was suggested that the stabbing occurred at a time when he was substantially impaired by reason of an abnormality of mind. On 22 March 2010, after a jury trial, Malcolm Potts was convicted of the murder of Emma King.

6 It remains for me to pass sentence. In order to do so, I must first determine the facts relevant to the sentencing discretion in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Potts, it is enough that they should be proved on the balance of probabilities.

Paranoid Schizophrenia.

7 Malcolm Potts was born in October 1967. At the age of 18 years he was diagnosed with paranoid schizophrenia. It is a disease which is more disabling at some times than at others. However, during the last ten years, his symptoms were described by his doctor as “fairly chronic” (T 268). He was under the care of the Croydon Community Health Centre, which he attended every two weeks. He was given an injection of anti-psychotic medication. He had such an injection on 9 April 2008, that is, about a week before the incident.

8 Against that background, let me describe the circumstances in which Emma King died.

The incident.

9 At about 10.00 pm on Saturday 13 September 2008, Malcolm Potts caught a train from Ashfield to Central Station. He then walked to Kings Cross. During the early hours of the following morning, Sunday 14 September 2008, he approached Emma King, who was then working as a sex worker in Kings Cross. The first time he did so, she told him to come back in approximately an hour. He returned at about 4.00 am. He explained that he lived at Ashfield. They agreed upon a price and then caught a taxi to his unit at Ashfield.

10 Mr Potts gave evidence during the trial. He said that they spoke during the taxi ride and he asked Emma King whether she used drugs. She said she did not. He then asked her whether she had any medical problems. According to his evidence, she responded saying that she had HIV.

11 I should deal with that evidence at this point. It was an important aspect of Mr Potts’ explanation for what went wrong in his dealings with Emma King that morning. I am satisfied that, at least so far as the aspect concerning HIV is concerned, no such conversation took place. I have reached that view for a number of reasons. First, the account given by Mr Potts is inherently improbable. It involves a denial by a drug user of drug use, and yet an acknowledgment of HIV. It would, perhaps, not be surprising were a sex worker to admit to a drug problem since, notoriously, many pursue that vocation by reason of a drug addiction. However, it is inherently unlikely that someone in Ms King’s situation would deny being a drug addict, and yet acknowledge HIV, when she was about to engage in sexual intercourse with a potential customer. Secondly, Ms King’s partner gave evidence of Ms King’s practice when dealing with clients. She was familiar with that practice. She asserted, and I accept, that Emma King never told clients that she had HIV. She would, however, insist upon safe sex. If she believed that someone wanted unprotected sex, she would refuse to do business with them (T 89).

12 Thirdly, in cross examination, Mr Potts acknowledged that he had been served with the Crown papers, which he had read (T 381). They included the autopsy report relating to Emma King. The report referred to the fact that the deceased was HIV positive. That, I believe, was the source of Mr Potts’ knowledge, not a conversation with Ms King.

13 There is a further reason for rejecting Mr Potts’ account. It is clear that, after death, Malcolm Potts had unprotected sexual intercourse with Emma King, as I will shortly describe. I do not believe he would have done so had he known that she was HIV positive.

14 Having arrived at the flat, Mr Potts said that Emma King wanted to sort out the money in advance. They had agreed upon a price which he said was $100 (T 370). However, he acknowledged in cross examination that it may have been $200, as he had told certain doctors (T 379). When the flat was searched after his arrest, he had slightly over $100 (T 499).

15 Returning to Mr Potts’ evidence, he said that he left her presence to go to the kitchen. He may then have realised that he did not have enough money. But, whether that be right or wrong, he said that, once in the kitchen, he heard a voice. The voice said: “Be careful of her” (T 372). The Crown challenged that evidence upon a number of bases. First, Malcolm Potts gave different versions as to what the voice had said to him. Secondly, when interviewed by a number of psychiatrists between the time of his arrest and the trial, he had not disclosed hearing a voice. The suggestion first came shortly before the trial, after the psychiatrists had rejected a defence of substantial impairment by reason of mental illness.

16 In the course of his evidence, however, Mr Potts gave a plausible explanation for having previously withheld that information. He feared that, were he to disclose having heard a voice, he would be classified as a forensic patient without the possibility of a release date. I accept as probable that Mr Potts did hear a voice warning him to be careful of Ms King.

17 Mr Potts said that, when he returned from the kitchen having heard the voice, he said to Ms King that he did not wish to proceed. She then became very angry and abusive. She continually spoke with friends on her mobile phone. She said: (T 372)

“No-one fucks me around. My friends are coming. You either produce the money or we’re taking your stuff.”

18 During the trial there was a record of the telephone calls and, in some cases, the text messages between Emma King and her friend. At 4.26 am, she sent a text message to her friend in these terms: (Ex J[16])

“Im at ashfield. Unit 5 24 margaret st. Come to pick me up leave now and ill ring you. Love jess”

19 That was the message with the incorrect address. Mr Potts acknowledged that he had provided the incorrect address to Ms King. He said he did so to confuse her friends, who were making their way to pick her up.

20 The consequence of that confusion was to prolong the time Mr Potts and Ms King remained together. Mr Potts said that he offered her $20 and asked her to leave. At 4.31 am, according to the telephone records, Emma King sent the following text message to her friend: (Ex J[17])

“hes just fucken given me 20 and told me that he doesn’t please come now”

21 The incomplete sentence was presumably that he “told me that he doesn’t (have more)”. At 4.32 am Emma King again telephoned her friend. She spoke to him for more than two minutes. According to her friend’s evidence, she said that the journey had been a total waste of time and that he, Potts, had no money (T 102). She was plainly disappointed. She sent a further text message at 4.42 am asking where he was. Two further phone calls followed, seeking further directions, the last at 4.49 am.

22 Mr Potts gave evidence that, as they waited, she continued to abuse him. He felt that he and his possessions would be in danger once her friends arrived. On his account, having spoken to her friends, she put her phone away and walked to the bookcase. There were, on the bookcase, crossed knives. She picked up a knife (T 373). She then said words which, on the account given by Mr Potts, marked the beginning of their fight. According to his evidence, she said this: (T 373)

"Fuck you, you fat cunt, come here man I'll fucking stab ya".

23 Mr Potts, when cross examined, gave a slightly different version, and the difference may be important. He said this: (T 403/4)

“Fuck you, you fat prick, come near me I’ll fucken stab ya.”

24 The second version of Ms King’s words, and perhaps even the first, appears to be unmistakably defensive, as though Ms King felt threatened and was endeavouring to hold Mr Potts at bay. Mr Potts was much larger than Emma King. He was 187 cm tall. She was 162 cm. He weighed 118 kg. She was less than half that weight at 55.5 kg. In that context, I accept as probable that Emma King picked up a knife. The apartment of Malcolm Potts was full of weapons. There were tomahawks, swords, knives, sticks which had been wrapped with insulation tape and stacked in the corner and other things besides. Mr Potts said that he had such weapons for his own protection (T 388/9).

25 Returning to Mr Potts’ account, he said that he asked Ms King to drop the knife. When she refused, he tackled her, knocking the knife from her hand (T 373). As the knife lay on the floor, she on her stomach, she again reached for the knife. Mr Potts said that he dived on top of her. He took the knife from her. She was face down and pinned to the ground by his body weight. He then used the knife to stab her twice in the back. One wound penetrated for the length of the knife blade, which was 12 inches or 33 cm. It was hardly surprising that the jury should have rejected his assertion that he was acting in self defence.

26 At the time of the stabbing, Ms King was fully clothed (T 398). Mr Potts then dragged her body into a bedroom where he placed her upon a bed. He removed her clothing. The Crown asserted, and Mr Potts denied, that he then had sexual intercourse with the deceased.

27 A forensic pathologist attended the crime scene. A swab of the vulva was taken. It did not reveal the presence of semen. The deceased’s body was then removed and taken to the morgue. The post mortem examination was performed by the same forensic pathologist the following day. A further swab of the vulva was taken. It revealed a significant quantity of semen. The semen was tested to obtain a DNA profile. The profile was compared to that of Malcolm Potts. The two profiles were the same, suggesting to a very high degree of certainty (T 329), that the semen on the deceased’s vulva was that of Malcolm Potts. Moreover, the swab revealed a single profile, not the mixture of several males. What, then, was the explanation for the difference between the two swabs? Did the fact that there was no semen on the swab taken at the scene cast doubt upon the suggestion that Mr Potts had intercourse with the deceased after death? A scientist gave evidence that, following intercourse and the movement of the body, it could be expected that there would be drainage from the vagina. That, she believed, was the explanation for the significant semen on the external vulva the following day.

28 What can be said against the conclusion that Mr Potts had intercourse after death? First, in sworn evidence, Mr Potts denied intercourse. Secondly, various possible sources of contamination, whether at the scene or on post mortem, were explored. However, I am satisfied there was no contamination. Thirdly, since the deceased had HIV and I infer that Mr Potts does not, does that undermine the suggestion that he had intercourse? The Crown tendered a report from Professor Andrew Carr, the Head of the HIV, Immunology and Infectious Diseases Unit at St Vincents Hospital. Professor Carr is a Professor of Medicine at the University of New South Wales. His report makes it clear that unprotected sex with a person who is HIV positive does not necessarily transmit the disease. There is a risk, but not the certainty. Whether there is infection is dependent upon many factors. In the circumstances, I am satisfied beyond reasonable doubt that Malcolm Potts did have sexual intercourse with Emma King after her death. Clearly that is a matter of significant aggravation.

29 After her death and later the same morning, Mr Potts gathered Ms King’s clothing and possessions. He placed them in plastic bags. Cleverly, he did not deposit those bags in the garbage bins of his own block of units. Rather, he carried them to a block which was physically adjacent, but in another street. The bags were later recovered by the police and tested.

How should the offence be characterised?

30 The crime of murder carries a maximum penalty of life imprisonment. Further, under the Crimes (Sentencing Procedure) Act 1999, a standard non parole period of 20 years has been fixed for the offence of murder. The standard represents “an offence in the middle of the range of objective seriousness” (s 54A(2) of the Act); R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93). The Crown submitted that, whilst it could not be disputed that Mr Potts had a long history of mental illness, the mental illness was not the cause of his attack upon Ms King. It was his aggression, which was the product of his personality. According to the Crown, there were no mitigating features. It was a heinous crime that warranted a life sentence (R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported).

31 Mr Bonnici of counsel, for Mr Potts, responded that mental illness was relevant to the offence. It was appropriate to characterise the offence as just below or at the mid range.

32 Before characterising the offence, let me summarise the psychiatric and social history of Mr Potts and then refer to the opinions provided by various forensic psychiatrists, who gave evidence at the trial.

The psychiatric history of Mr Potts.

33 Mr Potts was born in October 1967. He was almost 41 years old at the time of the incident. He first experienced symptoms of mental illness when he was about 13 years old. By 1986 or thereabouts, he had been diagnosed as suffering from schizophrenia. In the years that followed, he was admitted to psychiatric hospitals on six or seven occasions and detained.

34 At the same time, Mr Potts accumulated a number of criminal convictions, mostly minor. Many related to drugs, especially cannabis. On a number of occasions he was also convicted of assault. Relatively minor penalties were imposed. In 1997, however, Mr Potts was convicted of robbery whilst armed. He was sentenced to imprisonment with a minimum term of a little over 9 months with an additional term of 2 years.

35 In the year 2000, Mr Potts was the designated carer of his father, with whom he lived. They had an argument and, as a result of conduct which was said to have been provocative on the part of the father, Malcolm Potts stabbed him about 30 times in what was described by the trial Judge, Hidden J, as “a frenzied attack” (R v Potts [2001] NSWSC 753 at [4]). Mr Potts was charged with the murder of his father. The jury ultimately returned a verdict of not guilty of murder, but guilty of manslaughter. He was sentenced by Hidden J upon the basis that, at the time of the killing, he had been substantially impaired by an abnormality of mind (R v Potts supra at [2]). Hidden J, in his remarks, summarised his family history in these words:

“[3] ... 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.”

36 Mr Potts was sentenced to imprisonment for 7 years to date from the time he entered custody with non parole period of 3 years and 9 months. He was eligible for release on parole in February 2004, and was released at that time.

37 Mr Potts was arrested again in October 2004 on an offence of intimidation. He had written a letter to a child, which included a used condom, a photograph and money. His parole was immediately revoked. He was required to serve the balance of his term. He was ultimately released from prison on 4 May 2007.

38 After his release, Mr Potts came under the care of Dr Kavanagh, psychiatrist of the Croydon Community Health Centre. She saw him every two weeks, adjusting his medication according to her assessment of his needs.

39 In August 2007, Dr Kavanagh was concerned as to Mr Potts’ mental state. He had made threats against his ex wife. Dr Kavanagh ultimately scheduled him and he was taken to the Rozelle Psychiatric Hospital. The hospital reported a number of difficulties in his management. They included that he left the hospital without authority. On one such occasion, he committed offences of shoplifting women’s underwear and assaulting the shopkeeper. He later surrendered himself. He was returned to the hospital by the police. He was eventually discharged in January 2008 on a Community Treatment Order.

40 In April 2008, Mr Potts was again scheduled because he had made threats against his ex wife. He remained in hospital until the end of April and was then released. He continued to see Dr Kavanagh at the community health centre during the four or so months before the incident. On 4 September 2008, Dr Kavanagh again saw Mr Potts. She thought his mental health was “pretty good” (T 275). He was injected with the antipsychotic medication approximately one week before the incident. However, a blood test taken shortly after his arrest revealed that he had less than 0.2 mg per 100 ml of blood of that medication. That was less than a therapeutic dose (Ex N, p 4 ).

41 Against that background, let me turn to the evidence concerning Mr Potts’ state of mind at the time of the incident. As mentioned, Mr Potts gave evidence. However, one of the difficulties with his evidence was that he lacked insight. In his own words, he “cannot tell when he is sick”, that is suffering from schizophrenia (T 377). However, Mr Potts did say this concerning his medication: (T 365)

“Q. What about the needle that you get; what is that?
A. Every fortnight.

Q. Have you been told what that is supposed to do to you?
A. Tranquilise me.

Q. Does it always do that?
A. Yes, it does.

Q. When you say tranquilise, what do you mean?
A. Sedate me.

Q. Why do you think you need sedation?
A. Because I am big and aggressive.”
(emphasis added)

42 The essential issue is the extent to which the stabbing was the product of mental illness, rather than Mr Potts’ aggressive nature. Dr Westmore, psychiatrist qualified by the Crown, said that unquestionably Mr Potts suffered from schizophrenia. A feature of that illness is that the patient periodically suffers delusions. However, in Dr Westmore’s view, the explanation given by Mr Potts for what he had done was straightforward and rational. The victim had picked up a knife. He had felt threatened and had therefore tackled her and stabbed her. There was no delusion inciting him to action. In Dr Westmore’s view, his mental illness was not relevant. Dr Allnutt initially took the same view. However, having sat in court and watched Mr Potts give evidence, and accepting that he had heard a voice in the kitchen saying, “Be careful of her”, Dr Allnutt believed that he was suffering from a delusion. His interpretation of the events of that day as they unfolded was through the prism of his mental illness. To that extent he was impaired.

43 I have already determined, as a matter of probability, that shortly before the incident Mr Potts did hear a voice saying: “Be careful of her”. It will also be remembered that his antipsychotic medication was at a level below the therapeutic dose. That being the context, I prefer the evidence of Dr Allnutt to that of Dr Westmore. I believe that Mr Potts’ mental illness was relevant to his understanding of events. Although the jury rejected that he was substantially impaired by an abnormality of mind, I believe, as a matter of probability, that he was significantly impaired.

44 That impairment was especially important in the lead up to the fight and his perception of whether he was under threat from Ms King and her friends. His response to that perception, however, owed as much to his aggressive personality as his impairment.

45 Returning to the issue of the characterisation of the offence. The objective circumstances were extremely grave. Mr Potts overpowered and disarmed his much smaller victim. While she was face down, and pinned to the floor by his considerable body weight, he stabbed her twice in the back. One wound penetrated 33 cm, passing through vital organs. One would infer an intention to kill. She having died, he then undressed her and had sexual intercourse with her.

46 What, then, can be said in mitigation? The crime was certainly unplanned. It evolved out of their interaction in his flat. I accept that Mr Potts’ actions were impulsive and the result of decisions made when things were happening fast. But, it was a brutal crime. Nonetheless, the presence of circumstances of mitigation and especially the impairment of Mr Potts, take the matter out of the worst class of case (cf R v Garforth (supra)). A mandatory life sentence is therefore not appropriate.

Other sentencing considerations.

47 The Crown, in submissions, drew attention to the purposes of sentencing. They are identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the Act”). Quite apart from deterrence and denunciation of the crime, they include the protection of the community.

48 Mr Potts has now been found responsible for the death of two people, the manslaughter of his father and the murder of Emma King. Attention was drawn to the words of the High Court, where it considered the issue of dangerousness, and the relevance of past criminal conduct. In Veen v The Queen [No 2] ([1987-1988] 164 CLR 465), the majority of the Court said this: (at 477/8)

“There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell ([1970] AC 642 at 650). The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.”

49 In R v Garforth (supra), Gleeson CJ, McInerney and Mathews JJ made the following statement:

“We return to the concepts of dangerousness and rehabilitation. It is now well settled that the protection of society – and hence the potential dangerousness of the offender – is a relevant matter on sentence ( Veen v The Queen (No 2) (1988) 164 CLR 465). This factor cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. But it can be used to offset a potentially mitigating feature of the case, such as the offender’s mental condition, which might otherwise have led to a reduction of penalty.”

50 The issue was authoritatively dealt with in the Court of Criminal Appeal in R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566, where Spigelman CJ (with whom other members of the Court agreed) referred to the common law principle of proportionality. That principle required that “a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances” (at 572). The Chief Justice added: (at 574)

“[26] ... Nevertheless, as Howie J stated in R v Wickham , the majority judgment in Veen v The Queen (No 2) recognised that prior convictions are pertinent to where, within the boundary set by the objective circumstances, a sentence should lie. I refer specifically to the reference to an ‘attitude of disobedience of the law’ and to the increased weight to be given to ‘retribution’, ‘deterrence’ (relevantly personal deterrence) and ‘the protection of society’.”

51 A number of psychiatrists have considered the prospects of rehabilitation of Mr Potts and the risk of reoffending. Indeed, a Risk Management Report was prepared in 2006 before Mr Potts was released from gaol in respect of the manslaughter offence. Dr Allnutt was involved in that assessment. Mr Potts’ history of violence and his limited problem solving skills made him, according to the assessment, a “high risk” for future offending. That forecast, regrettably, proved to be accurate.

52 More recently, Dr Westmore, Professor Greenberg and Dr Allnutt have examined Mr Potts and considered the issue of risk. Each is a distinguished and experienced forensic psychiatrist. It was common ground that Mr Potts had chronic treatment resistant paranoid schizophrenia. He had a history of impaired judgment and poor impulse control. He will likely require lifelong psychiatric support and supervision. In terms of risk, Dr Westmore’s conclusion was expressed in these words: (report 29.4.09, p 3)

“As you are aware, predicting future dangerousness is a difficult task, but in view of his history of having now killed two people, one in the context of his mental illness and one not in the context of his mental illness, his general level of risk must be considered extremely high.”

53 The view of Professor Greenberg was no different. He said this: (report 20.5.10, p 20)

“Given his significant history of violence, his mental illness, drug usage and his history of two separate homicides, his risk for further acts of violence should be regarded as extremely high at this time.”

54 Dr Allnutt, after an extensive review of the medical files, likewise expressed the view that Mr Potts represented a high risk of further violent crimes.

55 I accept this evidence. There is no question that Mr Potts represents a high risk of further violent crime. I emphasise that this is not a circumstance of aggravation (cf s 21A(2) of the Act). The sentence imposed must reflect the objective circumstances of the offence itself. Having been sentenced, Mr Potts will be assessed. Almost certainly he will be made a forensic patient, where he will receive appropriate treatment.

Sentence.

56 That brings me to the question of the appropriate sentence. Murder has always been regarded as the most serious crime. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including deterrence, denunciation and the protection of society.

57 The Crown tendered two Victim Impact Statements. One was from the sister of Emma King and the other from her partner. Both poignantly describe the shattering effect of Emma King’s death upon them and family members. Her death has caused enormous anguish from which family members and her partner are still endeavouring to recover. Her partner read her statement in Court. She expressed her love for Emma. It was plain that the wound was still raw. The Court extends its sympathy to the partner of Emma King and to the family. I must, of course, deal with that material in a manner consistent with R v Previtera (1997) 94 A Crim R 76 at 85.

58 Malcolm Robert POTTS, I sentence you to a minimum 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. The earliest date on which you will be eligible for release on parole will be 13 September 2029.

59 In summary, I have imposed a total term of 28 years, with a non parole period of 21 years.

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