NSW District Court Judge Mistakenly Considers Standard Non-Parole Period

In the early afternoon of 20 June 2013, Jason Potts walked down an alley beside a house situated on Chancery Street, Canley Vale in Sydney. The 40-year-old was accompanied by his 18-year-old son. The pair, who were both wearing gloves, jumped the over fence and into the yard of the property.

Mr Potts senior walked over to the front door and tried to open it, while his son stood by, acting as a lookout. Mr Potts was unsuccessful in his attempt to force the door, so the men made their way into the backyard of the property, where they remained for nearly five minutes.

The intruders then made their way back to the front yard of the residence, and Mr Potts senior once again tried the front door. He couldn’t get it to open, so he and his son made their way over to the fence and jumped back over into the alleyway.

Arrested down the road

The men did little to conceal their attempt to break into the house. Witnesses reported observing what they doing and called the police. Officers promptly arrived to find Mr Potts and his son standing on the roadside about 15 metres from the alley.

Police approached the men and asked why they were wearing glasses. Mr Potts replied that they’d been riding a bike. On further questioning, he admitted the bike was actually at his house.

Officers found a Centrelink Healthcare Card in his son’s trousers. The address on the card was the same as the house the men had attempted to break in to. The card was suspected to have been stolen, which was believed to be the reason the Chancery Street property had been selected for the burglary.

The District Court proceedings

On 3 December 2014, Mr Potts appeared in Parramatta District Court on one count of attempted aggravated break, enter and steal, contrary section 112(2) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment.

Mr Potts’ offence was aggravated by being in the company of his son, as set out in section 105A(1)(b) of the Crimes Act.

Mr Potts pleaded guilty to the offence after the trial had begun. District Court Judge Andrew Colefax applied a 5 percent discount to Potts’ sentence, due to his guilty plea.

A repeat offender

The court heard that Mr Potts had a long list of offences to his name. These included eight break and enter convictions over the period 1990 to 2012, as well as a reckless wounding offence, and several drug possessions.

At the time of the present offence, Potts was serving a two-year suspended sentence for entering a building with intent to commit an indictable offence, as well as break, enter and commit a serious indictable offence.

Following his most recent arrest, Potts’ suspended sentence was revoked and he was sentenced to full-time custody. He was in prison at the time of sentencing.

The court heard that Potts had been using heroin for decades, and his dependency was an underlying cause of his offending. Potts had been in and out of prison since 2000, and a psychologist’s report opined that he was “very much institutionalised.”

A misjudgement

Judge Colefax sentenced Mr Potts to 4 years and 9 months imprisonment, with a non-parole period of 3 years and 6 months.

During the sentencing proceedings, His Honour remarked, “the maximum penalty for that offence is 20 years’ imprisonment, and there is a standard non-parole period (SNPP) of five years”.

An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole. However, Judge Colefax was mistaken, as there is no SNPP for the offence of attempted aggravated break, enter and steal.

Division 1A of the Crimes Sentencing Procedure Act 1999  provides a table of SNPPs. And while one is listed for the offence of aggravated break, enter and steal, one does not apply for attempting to commit the crime.

Erroneously applied

Mr Potts appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA), where the case was heard on 2 February this year.

Justice Richard Button found that the sentencing judge had made an error in stating there was an SNPP for the offence. His Honour was tasked with determining whether this had an effect on sentencing, and whether the offender would therefore need to be resentenced.

The justice ultimately found that the consideration of the SNPP had indeed affected the judge’s decision-making for a number of reasons.

The first reason was that even though the judge didn’t specifically mention the SNPP whilst he was evaluating the objective seriousness of the offence, it was apparent he was considering the guidepost in his formulation of the appropriate penalty.

Another reason was the sentence itself was “quite a stern one,” and it had been made wholly cumulative with the sentence Potts was already serving.

“In other cases, in which a sentencing judge has erroneously referred to a standard non-parole period that, in truth, did not apply,” Justice Button remarked, “this court has adopted a cautious approach by accepting that error has been established, and moving to resentence.”

Resentencing considerations

The NSWCCA took into account that Potts had previously sought help for his drug dependency, and thereby acknowledged and took steps to address the issue.

The court found that Potts was committed to changing his life and avoiding prison in the future. He’d stated during his trial that if he moved to another area and was able to gain employment, he would be able to turn his life around.

Justice Button also stressed the need to factor both general and personal deterrence into the determination of the new sentence, as to “reflect the seriousness of the offence of attempting to break into and steal from a home.”

Eligible to apply for parole

The NSWCCA quashed the sentence imposed by Judge Colefax and resentenced Mr Potts to 3 years and 4 months in prison, with a non-parole period of 2 years and 6 months.

The non-parole period expired on the 23 October last year, more than three months before the resentencing decision.

“The result of my proposed orders would be that the State Parole Authority should consider the applicant for parole as soon as reasonably practicable,” Justice Button recommended.