R v Bertram

FACTS

3. The facts of the offences are agreed and in essence are as follows. The victim of the demand property with menaces offence and the larceny offence was essentially Mr Dylan Potterat. The Statement of Facts notes that, in relation to the offences of demand property with menaces in company and larceny, the offender acted as part of a joint criminal enterprise with unknown persons so as to demand property and steal property from Mr Dylan Potterat.

4. On the evening of 22 or 23 September 2023, Mr Potterat and his brother spent the night out having some drinks and then were walking around the Kingswood area with the intention of meeting up with a friend. At some point, they came to be sitting at a bus stop in front of Kingswood railway station. At around 3.50am, while the Potterat brothers were seated at the bus stop, a Toyota RAV4 stopped in front of them. A female was driving and there were three males in the rear, one of whom was this offender. The males began yelling out to the victim and his brother, asking if they wanted to buy some drugs, which offer was declined. The males in the back of the vehicle then asked if either of the two men had $20 to spare but were told that they had nothing and so the car, shortly after, drove away.

5. However, a few minutes later, the Toyota returned to the bus stop where the two Potterat brothers were still sitting, and at about the same time, their friend, Aaron, joined them. Once the Toyota had stopped, two males got out initially, followed by the third male. At that point, fearing that they were about to be robbed, Aaron and the victim’s brother ran towards the railway station with the victim, who was not wearing shoes, running behind them. One of the three males from the vehicle grabbed the victim’s brother and told Aaron to “piss off”.

6. Shortly after this, two of the men were seen walking the victim and his brother back to the bus stop. The victim described one of these males as being “mixed race like Aboriginal” and the other as being “Caucasian”. When the group got close to the Toyota, one of the three males from the Toyota began to pat down the victim, and the “Caucasian male”, who, it is agreed, was this offender, took hold of the victim’s mobile phone and told the victim to provide his passcode. The victim then entered the passcode on the phone, upon which one of the males told the victim to access his banking app. An attempt was made to enter the banking passcode but this was not successful.

7. Another of the males, described as the “Aboriginal male” then told the victim to hand over his rings, and two rings were then taken from the victim’s hand. The female in the car then yelled out, telling the males to leave the victim and his brother alone and saying she wanted to leave, and the three males then got into the Toyota and it drove away. Those are the facts for the sequence 3 and 4 offences.

8. The facts for the sequence 2 offence of disposing of stolen property are as follows. The victim was a Ms Sarita Majhi. Shortly after midday on 23 September 2023, Ms Majhi saw an advertisement for a Samsung phone on Facebook Marketplace with an asking price of $780. The advertisement was in the name of this offender, Shane Bertram. Ms Majhi sent a message in response asking if the item was still available. Shortly after this, however, she noted that the asking price had been increased to $990. The offender, after this, engaged in a series of text messages with Ms Majhi about the phone and an agreement was reached for them to meet at a 7‑Eleven store at Mount Pritchard.

9. When the victim attended the 7‑Eleven store and examined the phone, she found that it was an S22 model and not an S23, as advertised. The offender then said he had got the phone from a friend and did not know that it was not an S23, and agreed to drop the price to $720. When the victim noted that the phone had some scratches and no screen protector, the offender began to beg her to buy the phone, saying he had come a long way. She eventually agreed and paid $720 in cash.

10. The victim later inserted a SIM card into the phone and used it until it stopped working about five days later on 28 September 2023. As a result, she contacted Samsung, who said they could not assist without proof of purchase. The victim subsequently found out that the phone’s IMEI number had been blocked by Telstra. On 6 October 2023, she attended Liverpool Police Station to report the matter.

11. On 28 June 2024, police attended the registered address of the owner of the Toyota RAV4, to which I have earlier made reference. That person turned out to be the offender’s sister. Upon being issued with a form of demand, she nominated the offender as being the person who had borrowed her car. The offender was arrested on 14 September 2024, when he was seen at Parramatta railway station. He was initially refused bail.

OBJECTIVE SERIOUSNESS

12. Turning then to the objective seriousness of the various offences before the Court, and I will commence with the sequence 3 demand property with menaces with intent to steal in company offence, given that that was the first offence in time. This is clearly an offence that has to be treated seriously, especially given the maximum penalty. This particular example of the offence involved the offender being in company with two other males. While being “in company” is an element of the offence, it is relevant that the offender was in the company of two males rather than just one, because the presence of greater numbers would have increased the fear that would have been felt by the victim and the potential menacing threat. I note however that “menaces” is also an element of the offence and so I do not double count this aspect. The offence occurred during the night in a relatively isolated and unpopulated area which increased, in my view, the sense of helplessness THAT the victim and his companion would have experienced.

13. The property being demanded, pursuant to the joint criminal enterprise, was the victim’s phone and his rings. It is also relevant that the more valuable item, being the phone, was the subject of demand by this offender directly. The value of the property that was the subject of the demand was about $1,000 or slightly more, which is not insubstantial.

14. On the other hand, the offence did not involve any direct violence or specific threat of violence, although there was an implicit menacing threat associated with the circumstances. Also, I am satisfied, on the other hand, that the offence did not involve any significant planning or sophistication. I assess the offence as being below the mid range and towards but not in the lower range of objective seriousness.

15. Turning then to the sequence 4 stealing offence. This offence of larceny relates to the same property that was the subject of the demand with menaces offence. As already noted, the property’s value was not insignificant. This aspect is perhaps of more significance with respect to the mobile phone, given the type of information, such as photographs, that is usually stored on such devices. The theft occurred in circumstances involving an implicit threat of violence. I accept however that the offence did not involve planning, and was not sophisticated. I assess this also as being an offence below the mid range and towards the lower range of objective seriousness.

16. The sequence 2 offence of disposing of property knowing that it was stolen relates to the sale of the phone to Ms Majhi in circumstances where this offender knew it was stolen because he had stolen it. The offence involved Ms Majhi effectively being conned by the offender into handing over $720 in cash, which was a considerable amount. The offence was not one involving any significant planning, and was amateurish, given that the offender used his own ID to advertise the phone. I regard this as an offence that is towards the low range of objective seriousness.

17. The Crown made reference in written submissions to a number of potentially aggravating matters but conceded that most of these are either not relevant or would involve double counting. The Crown did submit that there was some degree of planning in each of the offences but, in my view, and as I have already set out, this was very limited. The Crown did maintain the submission that each offence is aggravated because they were committed for financial gain. While I accept that this is so, this does not, in my view, increase the seriousness of any of the offences, because financial gain is essentially a built‑in attribute of these sorts of offences.

18. I do however accept that the offences before the Court were committed while the offender was subject to conditional liberty, that being in the form of his being on a Community Correction Order and on parole. This is not an aspect that increases the seriousness of any offence, but it is an overall aggravating aspect in the sentencing exercise, and it is also relevant to future risk and prospects of rehabilitation.

SUBJECTIVE MATTERS

19. Turning then to matters relating to the offender himself. He is now aged 37. His criminal history, leaving aside Children’s Court matters, is extensive. It includes many offences of violence as well as offences of robbery and demand property with menaces as well as offences involving dishonesty. It disentitles him to the leniency that might have been shown if he had no record or at least a shorter record.

20. The offender’s background and other relevant information is set out in the psychological report of Dr Sidhu. The offender also gave evidence in the sentencing hearing today. The offender was born in Penrith and he and his siblings were raised by their parents. His father was a bricklayer and his mother managed the home and the children. The offender is of Australian Aboriginal heritage from his mother’s side, although he has had little connection with his culture other than by his exposure to others in custody. The family experienced some financial difficulties and resided in public housing.

21. The offender told the psychologist that his childhood and upbringing were “okay but I could’ve done with more support”. The offender also said, however, that both his parents abused alcohol and that domestic violence occurred very frequently between them when drunk. He denied that any of this violence was visited upon himself or his siblings but nonetheless he said that it was very scary, and that they would sometimes hide or go to the neighbour’s, with whom he had a good relationship. The offender apparently believed that his father may have had some sort of mental condition which made him erratic and violent at times, and he would engage also in self‑harm.

22. The offender attended school until Year 8 but his performance and behaviour at school deteriorated, especially in high school, which the offender put down to his erratic home life. The offender however can read and write adequately.

23. He has a history of abusing alcohol from a young age and later progressed to using methylamphetamine and mostly, according to him, heroin. He has previously engaged in the Drug Court program and described positively his experience of this, and also of a period of rehabilitation that he undertook at Dooralong. He is currently on opioid replacement therapy in the form of the drug Buvidal. He told the psychologist, and he told the Court today, that he would like to remain drug‑free in the future. The offender cited his desire to regain the care of his six‑year‑old son, who was in foster care, as a major motivator for his wish to stay off drugs and stay away from offending.

24. The offender reported to the psychologist that he was sexually abused on a single occasion when placed into juvenile detention for a couple of days when he was aged 16. He says that he only disclosed this history for the first time about three years ago, although the psychological report does not specify the circumstances of this alleged disclosure or the person to whom it was disclosed. While there is no evidence to corroborate the offender’s claim of child sexual abuse, in the absence of challenge from the Crown, I will accept it as part of his history.

25. The psychologist does not diagnose the offender with any specific mental health conditions. She does, however, express the view that the offender’s dysfunctional family background, poor academic experience, combined with the sexual abuse experienced at age 16, had the effect of “derailing” his development. The psychologist also makes reference to the offender stating that he had been diagnosed with schizophrenia. While there is no formal diagnosis of this, this is consistent with information provided by Justice Health to the author of the Sentencing Assessment Report. It is also consistent, to some degree, with the offender’s evidence today that he is currently taking olanzapine.

MENTAL HEALTH

26. On balance, I accept that the offender has longstanding mental health problems and I accept the submission made on his behalf that this means that this is a case where the importance of general deterrence is reduced as a result. In this regard, I note the principles set out in DPP (Cth) v De La Rosa [2010] NSWCCA 194 and in particular the second of the summarised five principles which McClellan CJ at CL set out at para 177 of that decision.

27. The psychologist notes in her report that the offender’s background operated so as to impact on his self‑confidence and self‑image, and made some contribution to his resorting to and becoming reliant on illegal drugs as a coping strategy. The psychologist says that the offender is currently off drugs in custody and expresses the wish to remain so and gain employment. The psychologist notes that he has accommodation and family support available to him, which are positive factors. However, the psychologist also says, realistically in my view, that the offender is at risk of reverting to old coping mechanisms such as drug use and crime once he is exposed to stressors in the community.

REMORSE

28. Turning to questions of remorse. I note that the offender has expressed remorse to the psychologist and also in his evidence to the Court today. The Sentencing Assessment Report author also notes that the offender expressed remorse and insight, observing how the victim might have felt. While it is tempting, given the offender’s history of reoffending in a similar manner, to think that the offender might just be expressing remorse so as to assist him on sentence, I will give him the benefit of any doubt and I will accept that his remorse is genuine.

RISK AND REHABILITATION

29. I have also considered his future risk and prospects of rehabilitation. The Sentencing Assessment Report notes that the offender is a high risk according to the LSI‑R assessment tool. This is consistent, it seems to me, with his criminal history.

30. The offender said in his evidence today that he has had enough of gaol and is motivated to stay away from drugs and crime for the sake of his son. However, whether he can achieve this once he is exposed to the temptations and stressors in the community is another question. In my view, the offender remains a material risk of serious reoffending. I am not able to form a positive view as to his prospects of rehabilitation. They will remain relatively poor until he takes responsibility for himself and engages in long‑term treatment and avoids illicit drugs.

31. I accept that the offender’s disrupted childhood, combined with the sexual abuse as a teenager, are such as to engage the principles, to some degree, discussed in Bugmy v The Queen (2013) 294 CLR 571. This reduces the offender’s moral culpability to some degree. It also goes to provide some explanation for his reliance on drugs from a young age and his continued reliance on them as an adult.

32. The offender’s mental health issues are also, I accept, a matter which operates so as to reduce his moral culpability to some degree. I furthermore accept the submission made on his behalf that this reduces the importance of general deterrence in his case.

33. However, and as also discussed both in Bugmy and in De La Rosa, it is necessary for the Court to take into account the potential risk to the community which might arise from a person who is affected by considerations such as those discussed in the Bugmy and the De Le Rosa decisions.

34. In my view, the offender, as I have said, remains a real and material risk of reoffending and this is in part by reason of his background and his compromised mental health. These are matters that mean that considerable weight must be given to community protection, which, of course, is a matter which points towards a heavier sentence.

DETERMINATION

35. Turning to my ultimate determination. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. It seems to me that all of those, which I do not intend to recite, are of relevance, subject however to what I have said about the importance of general deterrence being reduced to some degree by reason of matters that I have earlier referred to.

36. Furthermore, and as I have also said, the aspect of protecting the community is of course also a matter of significance. However, as I have said, each of the other purposes are also of importance in this case, subject to my comments about general deterrence.

37. I am satisfied that the threshold in s 5 of that same Act has been crossed. In other words, that no sentence other than imprisonment is appropriate for each of the offences.

38. I intend to impose and aggregate sentence and I will, in moments, set out the indicative terms for each of the three offences. Before I do that, however, I will set out my reasoning in connection with the commencement date for the sentence that I will impose.

COMMENCEMENT DATE

39. The offender went into custody on 14 September 2024 in relation to the matters before the Court, but was granted bail on 22 September 2024. However, he re‑entered custody on 10 April 2025 and he has remained in custody since. I am informed that this is a total period of 192 days - in other words, the period for which he has been bail refused on the offences before the Court.

40. However, this period is not due solely to the offences before the Court because the offender’s detention has in part been due to sentences of imprisonment for numerous other offences. These include a sentence imposed by the Drug Court which commenced on 19 December 2024, the non‑parole period of which expired on 18 June 2024 and the head sentence of which does not expire until 18 December 2025. It would therefore not be appropriate to backdate the current sentence to 14 September 2024, when the offender was arrested on the current matters. Exercising my discretion and having regard to totality principles, I intend to order that the sentence commence on 10 April 2025, when the offender was bail refused for a second time on these offences.

41. I have made a finding of special circumstances for adjusting, to some extent, the ratio between head sentence and non‑parole period. I have done that on the basis of the risk of the offender becoming institutionalised and, secondly, the need for him to be monitored for a reasonable period of time once he is released to parole, especially given his mental health issues.

42. The indicative terms for each of the individual sentences are as follows. These are all after application of a 25% discount.

43. For sequence 2, which is the dispose of stolen property offence, 15 months’ imprisonment. For sequence 3, the demand property with menaces in company, two years, six months’ imprisonment. For the sequence 4 larceny offence, 12 months’ imprisonment.

44. I will announce the ultimate sentence in just a moment. However, it is necessary, as I have done, to give consideration to whether there should be any notional accumulation amongst those sentences and to what degree they should be served concurrently. In my view, there should be very limited notional accumulation as between the sequence 3 and sequence 4 offences, given that they essentially relate to the same incident and share a great deal of common aspects. There should however be a moderate degree of accumulation in relation to the dispose of stolen property, the sequence 2 offence, given that this relates to separate criminality and a separate victim.

45. I impose an aggregate head sentence of three years’ imprisonment.

46. It has been urged upon me that I should give consideration to that sentence being served by an Intensive Correction Order in the community. I am not, however, of the view that community safety would be better served by imposing an Intensive Correction Order. That is because it is, in my view, likely that the offender is unlikely to be able to comply with conditions and that he is likely to reoffend. In this regard, I have taken into account his criminal history generally as well as the fact that he has continued to commit offences after those that are now before the Court, the most recent being in April 2025 which involved assaulting a law officer at a time when the offender was in custody. It is for these same reasons that I do not intend to apply s 11 of the Crimes (Sentencing Procedure) Act 1999.

47. I impose a head sentence of three years’ imprisonment. I impose a non‑parole period of two years, one month. They will date from 10 April 2025. The head sentence will expire on 9 April 2028 and the non‑parole period on 9 May 2027.

48. BROWN: Please the Court.

49. HIS HONOUR: Ms Crown, Mr Brown, anything that needs to be raised?

50. PESIC: No, your Honour.

51. HIS HONOUR: All right. Thank you. So Mr Brown, you’ll speak to your client about that and--

52. BROWN: I will, your Honour.

53. HIS HONOUR: --make sure he understands all that. Thank you. Court will adjourn.

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