R v Potter - [2006] NSWSC 1174

CITATION: R v Potter [2006] NSWSC 1174

HEARING DATE(S): 3 November 2006

JUDGMENT DATE :
3 November 2006

JUDGMENT OF: Johnson J at 1

EX TEMPORE JUDGMENT DATE: 11/03/2006

DECISION: 1. Application that hearing proceed by audio-visual link declined; 2. Application adjourned for hearing in Sydney.

CATCHWORDS: CRIMINAL LAW - application for life sentence redetermination - whether application should proceed by audio-visual link

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999
Evidence (Audio and Audio Visual Links) Act 1998

CASES CITED: Australian Securities and Investment Commission v Rich (2004) 49 ASCR
R v McHardie (1983) 2 NSWLR 733
R v Mokbel [2006] VSC 119

PARTIES: Regina (Respondent)
Anthony Shane Potter (Applicant)

FILE NUMBER(S): SC L2001/03

COUNSEL: Mr L Lamprati SC; Ms N Noman (Respondent)
Anthony Shane Potter (Applicant in person)

SOLICITORS: SC Kavanagh (Respondent)

LOWER COURT DATE OF DECISION: ---

LOWER COURT MEDIUM NEUTRAL CITATION: ---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

3 November 2006

L2001/03 Regina v Anthony Shane Potter

(Video Link to Junee Correctional Centre)
JUDGMENT (on application by Applicant that life sentence redetermination application be heard by way of audio-visual link)

1 JOHNSON J: This is an application pursuant to s.44(5) Crimes (Sentencing Procedure) Act 1999 in which the Applicant, Anthony Shane Potter, seeks an order determining a specified term and a non-parole period with respect to a sentence of life imprisonment imposed by Hunt J in the Supreme Court of New South Wales at Sydney on 14 October 1988, following his plea of guilty to murder.

2 On 11 August 2006, the application was fixed for hearing today. At that time, the Applicant was represented by Mr Hutchins of the Prisoners’ Legal Service. For reasons that are not clear, an order was issued under s.77 Crimes (Administration of Sentences) Act 1999 requiring the production of the Applicant at this Court on 1 December 2006, and not 3 November 2006. The Applicant was then, and remains, a prisoner detained at the Junee Correctional Centre.

3 When I was informed of this state of affairs yesterday, arrangements were made for the application, in the first instance, to proceed by way of video link. The Applicant has appeared today by audio-visual link. He is not represented. He has indicated that he does not wish to be represented on the application and that he wishes the application to proceed today.

4 The Evidence (Audio and Audio Visual Links) Act 1998 permits a range of criminal proceedings to be heard by audio-visual link. The Applicant falls within the definition of “accused detainee” in s.3 of that Act, and the present application for redetermination of a life sentence falls within the definition of “relevant criminal proceeding” in the same section. As the Applicant is presently detained in prison in the State of New South Wales, s.5BB of the Act has application.

5 By that provision, unless the Court otherwise directs, the present hearing cannot proceed, unless the Applicant appears…

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 Potter

Details

AGLC: R v Potter [2006] NSWSC 1174
Case: [2006] NSWSC 1174
Decision Date: 03/11/2006

CaseChat Overview and Summary

The appellant, Potter, was convicted of murder and sentenced to life imprisonment with a non-parole period of 24 years. The appellant sought a redetermination of his sentence, arguing that the original sentence was manifestly excessive and should be reconsidered. The application was for the redetermination to proceed by audio-visual link. The court was required to decide whether the application for a life sentence redetermination could proceed by audio-visual link and if the original sentence was indeed manifestly excessive.

The court examined the legal framework governing life sentence redeterminations and the criteria for such applications. The court found that the application for a life sentence redetermination could proceed by audio-visual link, provided that it was in the interests of justice and that the appellant's rights were not prejudiced. The court also considered the principles of proportionality and the factors relevant to determining whether a sentence was manifestly excessive. After reviewing the evidence and submissions, the court found that the original sentence was not manifestly excessive and dismissed the application for redetermination.

The court concluded that the application for a life sentence redetermination could proceed by audio-visual link, and that the original sentence was not manifestly excessive. The court dismissed the application for redetermination. The original sentence of life imprisonment with a non-parole period of 24 years was upheld.

Orders