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

1. 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.

2. 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

3. 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 provoked. He had also questioned the extent of the injuries inflicted in comments to his psychologist. Although he was tested on those assertions, I cannot accept them. They go behind my trial findings about the seriousness of the injury, and the entry with intent; an element of the offence. And there is no evidence at all beyond his assertions. The victim’s injuries were well documented. There was no provocation that would excuse his behaviour or even mitigate it. The fact that someone has gone to the police to complain about someone is not provocation in the eyes of the law.

4. At trial, and in sentence today, I have accepted what the complainant told me in evidence. While another witness gave a slightly different account of aspects of that evening, I found that what he said did not undermine the victim’s account. That account was consistent with a complaint the victim made to his mother very soon after the event and consistent with the wound he suffered.

5. In brief summary: Potts and the victim knew each other. They are a similar age and grew up in the same town. They did not get on. In October 2021 someone took the victim’s phone. Between the 14 and 19 October 2022 someone used it to access the victim’s bank account. One of the victim’s relatives later obtained the phone from Potts.

6. When the victim realised his account had been accessed, he went to police. Potts’ then partner saw him enter him the police station. She took a video recording of him. That person was captured on CCTV making a withdrawal from an ATM at the same time as a withdrawal was made from the victim’s bank account.

7. On 21 October 2022, the victim was at a friend’s house in Moruya smoking ‘yarndi’, a common local term for marijuana. He heard a noise. He saw Potts enter the home. Potts’ uncle was also present. Potts called him a “snitch”. He removed a knife from his trousers. Words were exchanged. The victim fled but came to a dead end in the home’s laundry. There was a struggle. Potts was on top of him. The victim tried to use his hand to stop being stabbed. Potts and his uncle left. The victim then checked himself and noticed a wound on his hand, it was so deep he said he couldn’t feel it.

8. A neighbour called the police. They arrived promptly but by then Potts and his uncle had fled. The victim did not cooperate initially, he did however, complain to his mother. After he returned from Canberra where he had been sent for surgery, he made a police statement. He had suffered a deep laceration to his upper hand. The extensor tendon was cut and needed repair. A photograph of the injury is before the Court.

Objective seriousness

9. There was no justification for Potts’ action. The victim was not bound by any code requiring him to stay silent. A perceived slight or fear that someone has reported a crime is no reason to disturb both a home and a neighbourhood at night.

10. The events had to be thought through to some limited extent. Potts had a weapon with him, and he used that weapon after the victim had fled. He used that weapon when the victim was cornered and trying to defend himself. As I found at trial, Potts intended to use it. The victim suffered an injury of some seriousness which was thankfully repaired during surgery.

11. The evidence before me, both from the offender himself, the Sentence Assessment Report, and the psychologist’s report, now establishes that at the relevant time Potts was suffering from the effects of an untreated mental illness. Considering all the relevant circumstances in evidence now before me, this underlying illness did, in my view, contribute to the commission of the offence: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325] (Brennan J). It must be taken into account when assessing objective circumstances.

12. That said, the facts, particularly the entry into the house with intent to intimidate and the use of the knife with intent, speak to the seriousness of the crime. So serious was the offending that only a sentence of imprisonment could do justice to the purposes of sentencing that require proper recognition of the facts of the crime, and the harm done to the victim and community.

Maximum penalty

13. The offence carries a maximum penalty of 20 years’ imprisonment. That maximum is one important guide to the exercise of my sentencing discretion.

14. If a person enters a guilty plea to a charge such as this, their sentence can be reduced but they are not punished for going to trial. Here, although he went to trial, Potts cooperated with the course of justice and the trial was completed very quickly. His sentence will be reduced accordingly: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A.

Aggravating features

15. Although he was born in 1999, Potts already has a lengthy criminal record, including matters involving violence and weapons. He had come before the Children’s Court aged 13. He spent time in juvenile detention. He was subject to Control Orders. He went to an adult gaol when he was 18. He has only been in the community for one year and nine months during the last six years.

16. He was on parole at the time of the offence. It appears he was also on bail at the time of the offence. He was only released to parole on 24 September 2022. He served his balance of parole, after his arrest for this matter, until 17 August 2023. His parole was breached because of the commission of this offence and matters for which he was on bail which were dealt with in the Local Court. He had not complied with his reporting, and later his bail conditions.

17. A breach report before me notes that he had a number of risk factors when he was released including mental health instability, drug abuse, antisocial attitudes, and associates. He was also sentenced in the Local Court, the facts of which are before me, and that sentence ran concurrently with his balance of parole which continued until 12 November 2023.

18. The offender’s criminal history is relevant to determining a proper sentence. The balance of parole and Local Court sentence are relevant to the commencement date of this sentence. His criminal history indicates that this offence was not an uncharacteristic aberration, it demonstrates a continuing disobedience towards the law. A prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offence. Here, a more serious penalty is warranted with additional focus on retribution, deterrence and the protection of the community: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477].

19. His history must be taken into account in fixing the commencement date. There must be some punishment for the parole breach, and he should serve some time for the Local Court offences.

20. Principles of totality and the need to avoid double counting of matters that are taken into account in aggravation of sentence, such as breach of parole and criminal record, must be considered and synthesised when I come to fixing the sentence. As with many sentencing principles they do not all point in the same direction.

Subjective case

21. Potts gave evidence today. He appeared to be frank. He was trying to do his best. While I cannot accept everything he said, that conclusion does not mean I discount everything he said. He affirmed what he had told the author of the Sentence Assessment Report and his psychologist, Dr Sidu. The history set in those reports was prepared by well qualified professionals. It is supported by all the material before me. I can accept their professional opinions and recommendations.

22. Potts briefly addressed the circumstances of the offending. I have dealt with that issue. He also wrote me a letter asking for empathy when considering his background and his position; particularly his position as a father.

23. He tells me that for the first time since he has been in custody, and that includes juvenile detention, he is making such efforts as he can as a remand prisoner to improve his situation. He is doing the intensive language course. He has discussed with Community Corrections entering into the Intensive Drug and Alcohol Program, IDAP. He can only enter that program after sentence.

24. He has discussed with Indigenous mentors the possibility of work doing bush regeneration. He is aware that he requires a Certificate III to do that work. He is presently medicated, and he is on the Buvidal program. This time, he says, he will utilise his time in custody well. I accept those assurances.

25. His family are here to support him. He says that he wants to be a father to his two children, and he is in regular contact with them. They are presently with kin on the South Coast.

26. He says that he wishes to cut ties with his old associates. He has a plan to re-establish himself interstate away from old associates. Under cross examination by the Crown Prosecutor, he accepted that those plans may have some inconsistencies in them, as moving to Queensland and establishing himself in Queensland may make maintaining a relationship with his children difficult. But he says he is determined to be a father to his children and break a cycle of deprivation, crime and drug use, that plagued his life and that of his parents.

27. His mother, in her letter to me, notes his plan to move from the area and his commitment to his children. She notes he has applied for NDIS assessment.

28. Most of that evidence, apart from the assertions as to objective seriousness or facts of the matter for sentence, are uncontroversial. Dr Sidu at par [25] notes an “attitude shift” in him.

29. Potts has a strong Indigenous heritage with a solid connection to the South Coast of New South Wales. He says that he has access to elders and will accept their guidance. But from birth he was exposed to violence, domestic violence, and alcohol and other drugs. The police were a regular presence in his family’s life. It appears that violence and general antisocial activity became normalised in his life as was violence towards him.

30. At times his early life was so dysfunctional that only his older sister was able to care for him. He recalls visiting his father in gaol. It appears that family members have made some progress since then. His father’s new partner tried to straighten him out, but he was young and patterns had already been formed.

31. He started the use of drug and alcohol since he was very young and he has regularly used cannabis, heroin and methylamphetamine or ‘ice’. ‘Ice’ is his drug of choice, and it appears he was using at the time of his offending. Another reason to question his memory or version of events. It is notorious that methylamphetamine distorts a person’s thinking and memory.

32. He has the idea of entering a rehabilitation program. He will benefit from a Buvidal program; which helps manage his addiction.

33. He has never held a job. To date, he has never engaged in any vocational training, but he is open to the idea.

34. He told his parole officer and Dr Sidu that he was not ready for release in 2022. He was not medicated and what plans there were, he did not adhere to; as revealed by the breach report.

35. Potts was diagnosed with schizophrenia at 14. He spent time in mental health hospitals at 15. He has prescribed antipsychotics and subject to a Community Treatment Order. He tells me that he still experiences auditory hallucinations but while medicated and stable he is able to deal with them. He has been treated and reportedly has had, and will have on release, a good relationship with the Aboriginal Medical Service.

36. He reported a traumatic event, a child sexual assault while in custody, but no details were provided to me, and his psychologist says he is not ready psychologically, to explore those aspects of his life.

37. The evidence supports the conclusion he is at risk of, or has been, institutionalised.

38. Dr Sidu notes at par [30] that:

“His complex developmental trauma and dysfunctional early experiences moulded his negative views of himself and the world. Further, the complex trauma underpinned the difficulties that are present for Mr McFarlane currently, including interpersonal fractures, poor self-worth, limited self-identify, distrust of authority and normalising of violence and drug use, all of which further impact his mental health and psychological well-being.”

39. Dr Sidu is of the view that his upbringing has meant that since very young his community norms and peer associations encouraged an antisocial outlook. From very young these things helped him survive in a world he felt was unfair. He has never had an opportunity to lead a normal life in the community.

40. The impact of protracted drug use has been significant. Dr Sidu notes at par [44] of her report it might have impacted on his brain development; meaning that he has “difficulties managing higher order processes such as judgement, planning, and consequential thinking”. He has difficulty understanding what she describes as “a frightening psychiatric illness, underpinned by his social disadvantage, psychological vulnerabilities, poor educational attainment and lack of health social supports”. She believes these have further isolated him and disrupted his transition to adulthood.

41. She notes some protective factors at par [46], in particular a motivation to change and the fact that he has young children and wants to live as a father in real life.

42. The Sentence Assessment Report notes that a plan can be put in place post release. There is a stark change from his prior attitudes. The Sentence Assessment Report notes he cooperated and has shown insight.

43. He will benefit by regular review by a custodial mental health team and programs such as those run in the community by the various drug and alcohol treatment programs. He will need to maintain his medication. He will need individualised psychological help. He will need to engage with programs such as RUSH and EQUIPS and IDAP; if he can. An indigenous community mentoring program would be beneficial upon his release.

44. It is essential, all the experts agree, that when he is released into the community, he has a capacity to think clearly and formulate alternative trajectories for his life. Accordingly, long-term supervision and monitoring will be required. First, so he can establish the skills to live in the community, and second, to encourage his present motivation, and not discourage that motivation. His engagement with those matters is imperative to his success.

Moral culpability

45. Potts’ moral culpability, his moral blameworthiness for the offence, can be and must be, reduced because of his background. Relevant paths to a reduction of moral culpability include:

1. The effects of childhood depravation: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571;

2. Childhood trauma such as being a victim of sexual assault: Nasrallah v R [2021] NSWCCA 207; and

3. Mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

46. Often, they are interrelated; here, inextricably so.

47. His background of profound disadvantage has inhibited the development of values and the acquisition of a moral compass. It has impacted on his “capacity to mature and learn from experience”. Those matters do not diminish over time as the High Court made clear in Bugmy at [43].

48. How these multiple problems may be treated can lead to a consequent reduction in the need to denounce the crime and make the offender less appropriate a vehicle for general deterrence. Here, those principles can, and should, be applied. Sometimes they can also make spending time in gaol harder than for the notional “ordinary” prisoner who does not have those disadvantages, but Potts is well attuned to gaol life. And this sentencing consideration does not mean that there is no need for a deterrent sentence. Others in the community have to understand that to do what Potts did will not be tolerated.

49. There needs to be some specific deterrence. Potts has to understand that if he continues to behave the way he has been going he will end up in gaol again And, he will certainly end up in gaol if he hurts someone again.

Remorse

50. No remorse was detected by the authors of the Sentence Assessment Report. Dr Sidu’s report indicates Potts has no real idea about the impact of his crime, particularly the consequences of the wounding.

51. In his letter he says, “I am truly sorry for the pain and suffering that I caused .... I understand my apology wouldn’t be enough to rectify my mistake but I’m willing to try”. This shows some remorse and there was also some practical remorse in this cooperation with the course of justice at trial.

52. Most importantly it would appear that this present incarceration has been a catalyst for change. As Dr Sidu notes, he has shown “a good understanding of his areas of treatment need and factors required to build stability in his life.”

50. He has shown some motivation, motivation that was not previously shown. But Dr Sidu notes at par [40] that before he can take his place in the community, he “requires stable accommodation, employment, and support to access a Disability Support Pension”. He needs a job; if possible. He says he “wants to do better now” and is motivated, but as Mr Crown submits, “you can talk the talk, but you have to walk the walk?”

Submissions

54. I am indebted to Mr Todd, the Crown Prosecutor, and Mr Williams of Counsel who both also appeared at trial. They have provided comprehensive written and oral submissions. I hope this judgment does justice to them. I have considered those submissions and sought to address them in coming to my determination. There are some matters in the defence submissions which rely on the absence of aggravating features. They do not necessarily mitigate. The Crown notes the maximum penalty and that is, of course, one important guide to the exercise of my sentencing discretion.

55. Mr Williams stressed that the material before me demonstrates significant change by the offender; who has shown insight into his past and his future. He is now older and more mature. He can see the correlation between his past, his criminal behaviour, and his future prospects. Mr Williams submits that hopefully he has reached a point in his life where he can make choices that will govern his life for the future. That, he says, is a significant matter that needs to be taken into account.

56. Mr Crown while acknowledging matters in Potts’ history and the principles set out in Bugmy, makes a point that the Court should not ignore his past history. That history and the offence for sentence indicates that he has been a “bully” who has acted in a violent way against many members of the community. He submits that given that history, I must have a degree of cynicism in my assessment of promises for future change. He submits that Potts should be removed from the community because when he is in gaol he cannot offend against the community. He asks my emphasis be on appropriate punishment for a serious crime committed against another citizen.

57. At the same time, the Crown acknowledges that I must take into account all relevant matters and that the sentence cannot be disproportionate to the seriousness of the offence. As Potts must be released, and as community safety should be paramount in any sentencing exercise, support and rehabilitation programs are critically important .

Synthesis

58. Sentencing offenders who commit serious crimes but also suffer a combination of trauma and mental health related problems, as Potts does, raises difficult questions of judgment and assessment. They have been described as “interactable”: Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [1] (Basten JA). They require “sensitive discretionary decisions”: Engert v R (1995) 84 A Crim R 67. This was a serious offence using a weapon with intent after entry to a house with intent to intimidate. I must consider all relevant factors and synthesise from them a just sentence.

59. There is some evidence of Pott’s receptiveness to change here. The severity of the sentence should not operate to destroy his motivation and prospects for rehabilitation and reform. Too long a sentence can induce a feeling of hopelessness and destroy any expectation of useful life after release.

60. The sentence has to enable sufficient time for the offender to be stabilised on his medication, to engage and complete the IDAP and other programs, and at the same time not be discouraged and lose motivation, as he will be removed from his family and his children.

61. I will be making a finding of special circumstances. That finding is to enable him to be supervised and monitored for as long as is possible in the community. It is also required because there will be some accumulation of this sentence on the balance of parole and the Local Court sentence.

62. The minimum term must be the very least the purposes of sentencing require be spent in custody. But in making that substantial finding, I say this to the offender and the community. Release to parole will be subject to an order of the State Parole Authority. They will only release Potts to parole if community safety issues can be addressed: Crimes (Administration of Sentences) Act 1999 (NSW), s 136. And, as presently informed, it appears things will get better not worse if some assistance is provided to him. He will need help with; accommodation, perhaps full-time drug rehabilitation, a mental health care plan, and a proposal for work in the community. They all need to be put in place before release. Care needs to be taken so that he has appropriate access to children and family. He has to learn not to associate with those who might provide drugs or encourage him to return to his past ways.

63. The offender is aware of the fact that his background and his incarceration is not good for his children. The experience of generations of lawyers and judges is that the answer to this intractable problem of intergenerational violence, crime, and custody, is not longer periods of incarceration. As the Court of Criminal Appeal said in R v Hookey [2018] NSWCA 147 at [61], “it lies in actions designed to neutralise or reverse the effects of social exclusion, disempowerment, discrimination of a violent environment”: See also Bugmy; and R v Fernando (1992) 76 A Crim R 58. But this does not mean that I ignore or fail to give proper weight to all relevant factors and the purposes of sentencing.

64. The principles to which I have just referred do not all favour mitigation. There are countervailing factors. They include protection of the community by Pott’s removal from the community, victim vindication and the need to structure a sentence which provides both incentive, but also has some restraints. If parole is granted, a breach can mean return to custody.

65. If at all possible, sentences should be tailored in a culturally appropriate way and to meet the many purposes of sentencing in a proportionate manner. If this sentence can enable Potts the time to work toward change and for an effort to be made to target the cause of his criminal behaviour, then realistic outcomes, might be achievable. But the offender has to own the outcome: 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.

66. In other words, he must accept responsibility for his actions and accept responsibility for what he has to do in the future. By entering pleas of not guilty and not accepting responsibility he has lost the opportunity for a sentence reduction for a guilty plea. But now, at least given the material before me today, there is an indication of some greater maturity.

67. The material now before me, gives me some small confidence that I can err on the side of leniency: Hoskins v R [2021] NSWCCA 169 at [4]. But I do so with healthy judicial cynicism. Potts has been tested in the community in the past and he has failed repeatedly. Only if he gets necessary resources and uses the balance of his term in custody well, will he be released to parole, but then he will be tested in the community. The danger is, of course, that if he commits further offences, he could hurt someone else in the community. The Court’s job is to try to prevent that occurring.

Orders

68. I take into account the breach of parole and the Local Court sentence for which there must be some punishment. I note that Potts went into custody on 14 November 2022. I intend to commence this sentence on 15 April 2023.

69. The sentence will be 4 years imprisonment. To reflect the matters I set out, the non-parole period will be 2 years, it will date from 15 April 2023. He will be eligible for consideration for release to parole on 14 April 2025. There will be a parole period of 2 years, that will commence on 15 April 2025. The total sentence will expire on 14 April 2027.

70. I hope that will give him enough time to enter and complete the IDAT program, an appropriate provision made for his release. If it is not, obviously he will spend longer in custody.

71. Although he is eligible for release to parole on 14 April 2025 the determination as to whether he is released will be subject to an order of the State Parole Authority.

72. I will ask that Dr Sidu’s report be forwarded to Community Corrections.

73. The charges laid pursuant to s 166 Criminal Procedure Act 1986 (NSW) certificate are withdrawn and dismissed.

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Decision last updated: 12 August 2024