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Local Court 19 July 2019

Police v Garry Hay

[2019] NSWLC 9

Public order & justice offences
SENTENCING INTIMIDATION STALKING ANONYMOUS THREATENING LETTERS CONDUCT OVER PROTRACTED PERIOD OF TIME ESCALATING NATURE OF THREATS

Citation: Police v Garry Hay [2019] NSWLC 9
Court: NSW Local Court (Parkes)
Date: 19 July 2019
Judge(s): P D Stewart LCM

Background

The offender was a public housing tenant in Forbes, NSW. The victim was a Housing NSW officer responsible for managing public housing in the area, including enforcing tenancy rules and regulations. In carrying out those duties, she sometimes dealt with dissatisfied tenants.

Between January 2017 and July 2018, the victim received five anonymous threatening letters at her workplace and one threatening Facebook message sent to her husband. The letters contained escalating physical and sexual threats, referenced her home address and movements, and caused the victim ongoing anxiety. The offender denied involvement when first interviewed by police, but DNA analysis ultimately linked him to three of the five letters. A false Facebook profile was traced to him in relation to the message.

The offender pleaded not guilty and the hearing commenced on 18 June 2019. On the second day of the resumed hearing, with a strong prosecution case substantially before the court, he entered pleas of guilty to all six counts of intimidation under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

  • What weight should be given to a late guilty plea entered near the completion of hearing, for the purpose of any utilitarian discount on sentence?
  • Whether the Local Court's jurisdictional maximum (two years per count) should be reserved for the worst category of offences of that kind.
  • Whether the purposes of sentencing, particularly general and specific deterrence and denunciation, required full-time imprisonment rather than an Intensive Corrections Order (ICO).
  • Whether special circumstances existed warranting a variation of the statutory ratio between the non-parole period and the balance of term.

Decision

The court accepted the facts as tendered by consent. The offending was characterised by its protracted duration, its escalating nature, the calculated anonymity of the letters, and the serious harm inflicted on the victim. The letters progressed from physical threats to explicit sexual threats, referenced the victim's home and movements, and the campaign continued over approximately 18 months.

On the question of the late guilty plea, the court applied the principle from R v Borkowski that a utilitarian discount does not take into account the strength of the prosecution case, but noted that the pleas were entered very close to the conclusion of hearing. The discount afforded was correspondingly limited. The court also confirmed, following R v Doan, that the Local Court's jurisdictional sentencing ceiling is not reserved exclusively for worst-case offending.

The court declined to impose an Intensive Corrections Order. It found that the offending was cowardly, premeditated, and planned, and that the victim remained traumatised more than two and a half years after the first letter and approximately 12 months after the last. The court held that an ICO would be manifestly inadequate and would fail to give proper weight to general deterrence, specific deterrence, denunciation, and accountability. Full-time imprisonment was imposed.

The court made a finding of special circumstances based on the offender's anxiety condition, permitting a minimal variation to the statutory ratio between the non-parole period and the parole term. The offender's age and the fact he had not previously served a custodial sentence were noted, as was an absence of remorse.

Orders Made

  • The offender was sentenced to a total term of imprisonment of 2 years and 6 months.
  • Non-parole period of 20 months, commencing 19 July 2019 and expiring 18 March 2021.
  • Balance of term (parole) of 10 months, commencing 19 March 2021 and expiring 18 January 2022.
  • A finding of special circumstances was made.

Note: On appeal, the NSW District Court reduced the non-parole period to 18 months. A further appeal to the NSW Supreme Court on a question of law was unsuccessful.

Key Takeaways

  • A late guilty plea entered near the completion of hearing attracts only a limited utilitarian discount; the strength of the prosecution case is not itself a relevant factor, but the timing relative to the completion of proceedings is.
  • The Local Court's jurisdictional sentencing ceiling of two years is not reserved for the worst category of offending, consistent with the principle affirmed in R v Doan and Zreika v R.
  • Where offending involves prolonged, anonymous, and escalating intimidation causing ongoing trauma to the victim, the sentencing court may find that full-time imprisonment is required to satisfy the purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999, even where the offender has no prior custodial history.
  • An Intensive Corrections Order will not be appropriate where the need for general and specific deterrence and denunciation is significant and the offender has demonstrated no remorse.
  • Special circumstances justifying a variation of the statutory non-parole ratio may be found where a first-time prisoner has a pre-existing mental health condition, though the variation need not be substantial.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 53A, 66

Cases
- Butters v R [2010] NSWCCA 1
- Cahyadi v R [2007] NSWCCA 1
- R v Borkowski [2009] NSWCCA 102
- R v Doan (2000) 50 NSWLR 115
- R v Zamagias [2002] NSWCCA 17
- Sutton v R [2004] NSWCCA 225
- Zreika v R [2012] NSWCCA 44