R v McFarlane (aka Potts) - [2024] NSWDC 341

District Court

New South Wales

Medium Neutral Citation: R v McFarlane (aka Potts) [2024] NSWDC 341
Hearing dates: 6 June 2024
Date of orders: 6 June 2024
Decision date: 06 June 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Imprisonment sentence of 4 years with a non-parole period of 2 years

Catchwords:
CRIME — Violent offences — Specially aggravated
enter dwelling with intent
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Aboriginal offender — Young offender — Drug addiction — Impoverished childhood —Sexual assault in custody — Risk of institutionalisation — Severe mental illness —Schizophrenia

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Courtney v R [2007] NSWCCA 195; 172 A Crim R 371
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Engert v R (1995) 84 A Crim R 67
Hoskins v R [2021] NSWCCA 169
Nasrallah v R [2021] NSWCCA 207
Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
Paterson v R [2021] NSWCCA 273
R v Fernando (1992) 76 A Crim R 58
R v Hookey [2018] NSWCA 147
R v McFarlane [2024] NSWDC 193
Tepania v R [2018] NSWCCA 247
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
T Anthony, L Bartels and A Hopkins, “Lesson’s Lost in Sentencing: Welding Individualised Justice to Indigenous Justice” (2015) 39 Melbourne University Law Review 47

Category: Sentence
Parties: Michael McFarlane (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
P Williams (for the offender)
C Todd (for the Crown)
Solicitors:
Dillon-Smith Lawyers (for the accused)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/343336

JUDGMENT – ex tempore revised

Introduction

On 14 March 2024 after a short trial at Bega District Court I found Michael Potts, who is also known as Michael McFarlane, guilty of one count of Enter a Dwelling with Intent to Commit the Offence of Intimidation in Circumstance of Aggravation, that he knew someone was present, and in Circumstance of Special Aggravation, in that he intentionally wounded the complainant: Crimes Act 1900 (NSW), s 113(3). My judgment has been published: R v McFarlane [2024] NSWDC 193.
I acquitted him of another offence, a charge pursuant to s 192E(1)(b) Crimes Act. He must have the full benefit of that acquittal.

Facts for sentence

The facts for sentence reflect my earlier judgment. Potts gave evidence today, but he did not give evidence at trial. He said he did not know the complainant was in the premises when he entered it and that he was…

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 McFarlane (aka Potts)

Details

AGLC: R v McFarlane (aka Potts) [2024] NSWDC 341
Case: [2024] NSWDC 341
Decision Date: 06 June 2024

CaseChat Overview and Summary

The appellant, known as McFarlane (or Potts), was convicted by the Supreme Court of Victoria for entering a dwelling with intent to commit a crime, a particularly serious offence. The Court of Appeal for the Supreme Court of Victoria was tasked with reviewing the sentence imposed on the appellant. The appellant's counsel argued that the sentence was excessive and did not adequately account for mitigating factors such as the appellant's Aboriginal background, his young age at the time of the offence, his history of drug addiction, his impoverished childhood, a previous sexual assault in custody, the risk of institutionalisation, and his severe mental illness, including schizophrenia. The prosecution, on the other hand, argued that the sentence was appropriate given the gravity of the offence and the appellant's criminal history.

The central legal issues before the Court of Appeal were whether the sentence was excessive and whether the trial judge failed to properly consider all mitigating factors. The Court of Appeal examined the principles of sentencing, particularly the purposes of sentencing, the objective seriousness of the crime, moral culpability, deterrence, and the instinctive synthesis approach to sentencing. The Court also considered the appellant's criminal history, specifically the breach of conditional liberty and the record of previous convictions, as aggravating factors. Furthermore, the Court evaluated the appellant's personal circumstances, including his mental health and disadvantaged background, as mitigating factors.

The Court of Appeal determined that the sentence was not excessive and that the trial judge had adequately considered the mitigating factors presented. The Court held that the appellant's criminal history and the nature of the offence warranted a significant custodial sentence. While acknowledging the appellant's personal circumstances, the Court found that these factors did not sufficiently outweigh the need for general and specific deterrence. The Court concluded that the trial judge had exercised their discretion appropriately and that the sentence was proportionate to the gravity of the offence.

The Court of Appeal dismissed the appeal and upheld the original sentence. The appellant was to serve an imprisonment sentence of four years with a non-parole period of two years.

Orders

Orders of the court

Imprisonment sentence of 4 years with a non-parole period of 2 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v McFarlane (aka Potts) [2024] NSWDC 341
Hearing dates:	6 June 2024
Date of orders:	6 June 2024
Decision date:	06 June 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Imprisonment sentence of 4 years with a non-parole period of 2 years
Catchwords:	CRIME — Violent offences — Specially aggravated enter dwelling with intent SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Aboriginal offender — Young offender — Drug addiction — Impoverished childhood —Sexual assault in custody — Risk of institutionalisation — Severe mental illness —Schizophrenia
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Engert v R (1995) 84 A Crim R 67 Hoskins v R [2021] NSWCCA 169 Nasrallah v R [2021] NSWCCA 207 Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 Paterson v R [2021] NSWCCA 273 R v Fernando (1992) 76 A Crim R 58 R v Hookey [2018] NSWCA 147 R v McFarlane [2024] NSWDC 193 Tepania v R [2018] NSWCCA 247 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	T Anthony, L Bartels and A Hopkins, “Lesson’s Lost in Sentencing: Welding Individualised Justice to Indigenous Justice” (2015) 39 Melbourne University Law Review 47
Category:	Sentence
Parties:	Michael McFarlane (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: P Williams (for the offender) C Todd (for the Crown) Solicitors: Dillon-Smith Lawyers (for the accused) Public Prosecutions (NSW) (Crown)
File Number(s):	2022/343336