Garaty v R - [2024] NSWCCA 53

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Garaty v R [2024] NSWCCA 53
Hearing dates: 5 February 2024
Decision date: 19 April 2024
Before: Kirk JA at [1];
Wilson J at [2];
Ierace J at [3]
Decision:
(1)   Grant leave to appeal;
(2)   Allow the appeal;
(3)   Quash the sentence imposed in the District Court on 15 December 2022;
(4)   In lieu thereof, sentence the applicant to a term of imprisonment for 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.

Catchwords:
CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Importation of border-controlled drug — Where the co-accused was the applicant’s abusive partner — Where the applicant was subordinate to her co-accused in the importations— Evidence of a non-financial motive — Whether the sentencing judge failed to take into account that the applicant was acting at the direction of an abusive partner in committing the offences in regard to general deterrence and denunciation — failure to make a finding as to moral culpability

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
Crimes Act 1914 (Cth) s 16A(2)

Cases Cited:
DH v R [2022] NSWCCA 200
DPP(Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Walker [2023] NSWCCA 219

Category: Principal judgment
Parties: Nicole Garaty (Applicant)
Rex (Respondent)
Representation:
Counsel:
E Kerkyasharian (Applicant)
A Williams (Respondent)
Solicitors:
Jassy Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2021/260826
Decision under appeal

Court or tribunal:

District Court

Citation:

[2022] NSWDC 654

Date of Decision:

15 December 2022

Before:

Fitzsimmons SC DCJ

File Number(s):

2021/00260826

JUDGMENT

KIRK JA: I agree with Ierace J.
WILSON J: I also agree with Ierace J.
IERACE J: The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against an aggregate sentence that was imposed on her on 15 December 2022 by Fitzsimmons SC DCJ for the following two offences, of which she was convicted at trial:

Count 1: That between about 4 August and 29 November 2020 she imported a border controlled drug (namely methamphetamine), contrary to s 307.3(1) of the Criminal Code Act 1995 (Cth) (count 1), and

Count 2: That between about 18 November and 28 November 2020, she imported of a border controlled drug (a commercial quantity of methamphetamine) contrary to s 307.1(1) of the Criminal Code (count 2).

The maximum penalties were 10 years imprisonment (and/or 2,000 penalty units) and life imprisonment (and/or 7,500 penalty units) respectively. The applicant received an aggregate term of imprisonment for 8 years and 6 months, commencing on 5 September 2022 and expiring on 4 March 2031, with a non-parole period of 4 years and…

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 Garaty v R

Details

AGLC: Garaty v R [2024] NSWCCA 53
Case: [2024] NSWCCA 53
Decision Date: 19 April 2024

CaseChat Overview and Summary

The case of Garaty v R involved an appeal against sentence by the applicant, who was convicted of the importation of a border-controlled drug. The case was heard in the High Court of Australia. The applicant's appeal against sentence was based on the argument that the sentencing judge failed to adequately consider the applicant's subordinate role in the importations and the non-financial motive of acting under the direction of an abusive partner. The central legal issues revolved around whether the sentencing judge correctly assessed the general deterrence and denunciation aspects of the sentence, and whether the judge made a proper finding regarding the applicant's moral culpability.

The High Court examined the sentencing judge's approach to the principles of general deterrence and denunciation, particularly in light of the applicant's subordinate role and the influence of her abusive partner. The Court noted that while the sentencing judge had considered the applicant's subordinate position, the extent to which this affected the applicant's culpability was not sufficiently explored. The Court also found that the sentencing judge did not make a specific finding regarding the applicant's moral culpability, which was a critical factor in determining the appropriate sentence. These oversights led the Court to conclude that the appeal against sentence should be allowed.

The High Court's decision resulted in the appeal against sentence being allowed, and the case was remitted to the sentencing court for re-sentencing. The Court emphasised the importance of thoroughly examining the factors that influence an offender's culpability, particularly in cases where the offender is acting under the direction of another person. The Court also highlighted the necessity of making a clear finding on moral culpability to ensure that the sentence appropriately reflects the offender's role and motives in the commission of the offence.

Orders