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Court of Criminal Appeal 19 April 2024

Garaty v R

[2024] NSWCCA 53

Drugs
CONTROLLED DRUG — WHERE THE CO

Citation: Garaty v R [2024] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 19 April 2024
Judges: Kirk JA, Wilson J, Ierace J (all agreeing in the reasons of Ierace J)

Background

The applicant was convicted at trial of two Commonwealth drug importation offences involving methamphetamine. The first count related to the importation of an unknown quantity concealed within a car headlight. The second, more serious count involved a commercial quantity of methamphetamine secreted inside three car dashboards. Both importations occurred in 2020 and were directed from South Africa.

The applicant was in a romantic relationship with her co-accused, who was the dominant organiser of both importations. The Crown accepted, based on evidence including correspondence demonstrating emotional submissiveness, that the applicant was emotionally dependent on her co-accused and that he had directed her involvement. The co-accused received a total sentence of 13 years and 6 months imprisonment. The applicant received an aggregate sentence of 8 years and 6 months with a non-parole period of 4 years and 6 months.

On sentencing, evidence was placed before the District Court of the applicant's psychological conditions, including major depressive disorder and substance use disorder. Subsequent expert assessment also revealed a history of serious childhood abuse, which a psychiatrist found consistent with her psychological vulnerability and her dependency on her abusive partner. The applicant sought leave to appeal her sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge failed to account for the applicant's reduced capacity for rational thought and her position as a person acting under the direction of an abusive partner when assessing general deterrence and denunciation.
  • Whether the aggregate sentence of 8 years and 6 months was manifestly excessive in all the circumstances.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred by failing to make an express finding as to the applicant's moral culpability. The sentencing judge had acknowledged that the applicant was subordinate to her co-accused and had acted under his direction, but had not adequately addressed how the coercive and abusive nature of that relationship affected her culpability and, in turn, the weight to be given to general deterrence and denunciation.

The Court accepted the fresh psychiatric evidence, which confirmed that the applicant's history of childhood abuse and resulting psychological disorders explained her vulnerability to her co-accused's controlling behaviour. This evidence supported a finding that her moral culpability was reduced to a meaningful degree by the circumstances of that relationship.

Ierace J concluded that, while general deterrence ordinarily carries significant weight in drug importation matters, it was moderated in this case by the applicant's reduced moral culpability. Denunciation was similarly modified. The original sentence was found to be manifestly excessive given these factors, and the Court substituted a lesser sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 15 December 2022 quashed.
  • In substitution, the applicant sentenced to an aggregate term of imprisonment of 7 years, backdated to commence on 5 September 2022 and expiring on 4 September 2029, with a non-parole period of 3 years and 9 months, expiring on 4 June 2026.

Key Takeaways

  • A sentencing court must make an express finding as to moral culpability where the facts raise a significant issue about the degree of a defendant's blameworthiness. Failure to do so constitutes a sentencing error.
  • Where an offender's participation in serious drug offending is attributable in part to emotional dependence on a coercive and abusive partner, that dependence, arising from underlying psychological disorders, can reduce moral culpability.
  • General deterrence, while ordinarily a weighty consideration in Commonwealth drug importation sentencing, is capable of being moderated where the offender's moral culpability is meaningfully reduced by coercive circumstances.
  • Fresh psychological evidence, including a revised psychiatric history establishing childhood abuse, was accepted on appeal as material to the assessment of culpability, reinforcing that post-sentence expert reports can be relevant where they confirm or explain patterns identified at first instance.
  • The Court of Criminal Appeal reduced the aggregate sentence from 8 years and 6 months to 7 years, with the non-parole period reduced from 4 years and 6 months to 3 years and 9 months, reflecting the proper weight to be given to the applicant's reduced moral culpability.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Act 1995 (Cth), ss 307.1(1), 307.3(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Crimes Act 1914 (Cth), s 16A(2)

Cases
- DH v R [2022] NSWCCA 200
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Walker [2023] NSWCCA 219
- Parris v R [2013] NSWCCA 5
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Totaan v R (2022) 365 FLR 69; [2022] NSWCCA 75