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: DPP(Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Category: Principal judgment Parties: Nicole Garaty (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
E Kerkyasharian (Applicant)
A Williams (Respondent)
Jassy Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2021/260826 Decision under appeal
- Court or tribunal:
- District Court
- Citation:
- 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…
Continue reading Garaty v R
Sign in free to access the full text
- AGLC
- Garaty v R [2024] NSWCCA 53
- Case
- [2024] NSWCCA 53
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.