Police v Garry Hay

[2019] NSWLC 9

Local Court

New South Wales

Medium Neutral Citation:

Police v Garry Hay [2019] NSWLC 9

Hearing dates:

18 June and 18 July 2019

Date of orders:

19 July 2019

Decision date:

19 July 2019

Jurisdiction:

Criminal

Before:

P D Stewart LCM

Decision:

Imprisonment 2 years 6 months, non-parole period 20 months

Catchwords:

SENTENCING - Intimidation – Stalking – anonymous threatening letters – conduct over protracted period of time – escalating nature of threats – physical threats – sexual threats – recognition of harm done to the victim – need for specific and general deterrence – lack of remorse

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 ss 7, 13(1)

Crimes (Sentencing Procedure) Act1999 ss 3A, 5, 21A, 53A, 66

Cases Cited:

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

Category:

Sentence

Parties:

NSW Police Force (prosecution)
Garry Hay (defendant)

Representation:

Prosecutor: Sgt D Rayner

Solicitors: A Rolf, for the defendant

File Number(s):

2018/296119

Publication restriction:

Nil

Judgment

1. The offender Garry Hay is to be sentenced for six counts of intimidation contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. He pleaded not guilty to all counts on 8 November 2018. The hearing commenced on 18 June 2019 and was adjourned part-heard to 18 July 2019. On the resumption of hearing, Mr Hay pleaded guilty to all counts.

2. I will deal with the evidence in more detail shortly, however it is suffice to say that it was an overwhelming prosecution case. The offender’s DNA was found on 3 of 5 letters forwarded to the victim. He admitted using a Facebook profile in a false name, noting sequence 4 relates to an intimidating message sent from that user profile. Whilst a utilitarian discount does not take into account the strength of the prosecution case, this case was very much towards completion when the late plea of guilty was entered: see R v Borkowski [2009] NSWCCA 102 at [32]. See also Sutton v R [2004] NSWCCA 225 at [12] per Howie J.

3. The maximum penalty for each offence is 5 years imprisonment on indictment, 2 years in the Local Court. The principles enunciated in R v Doan (2000) 50 NSWLR 115 at [35] per Grove J apply, namely that “the jurisdiction limit of the Local Court is not reserved for worst case”. See also Zreika v R [2012] NSWCCA 44 at [99] per Johnson J.

Facts

4. On the first day of hearing, 17 documents were tendered as exhibits. They comprised of police statements, copies of the offending letters and message, expert statements regarding DNA and an ERISP interview with Mr Hay. After being cautioned and whilst still in police custody, the offender asked one officer, “What do you reckon I’ll get for this?” I found this to be an implied admission. Even if I were wrong in that finding, the remainder of the prosecution case was such that the case against the offender was particularly strong.

5. Upon the resumption of hearing, a further document was tendered summarising the DNA evidence against the offender, that being his DNA consistent with a high degree of mathematical probability was found on letters 2, 3 and 5. (Pleas of guilty were then entered and a facts sheet tendered by consent).

6. The offender Garry Hay resides in premises in Forbes that are managed by the Department of Housing NSW. The victim, Karen Cronin is employed by Housing NSW and is responsible for the management of public housing. As part of her duties she would sometimes enforce the rules and regulations of Housing NSW and this would sometimes lead to unhappy tenants.

7. Sequence 1: On Wednesday, 4 January 2017 the victim received a letter which was delivered directly to Family and Community Services in Parkes and left on the front counter. The letter was not in an envelope. The letter was not signed and had poor handwriting, spelling and grammar. The letter appeared to have been written in haste. It was of a threatening nature and read as follows: “Hey slut you cause the shit over at Forbes your not getting away No More Fuckin fat Slut dog watch your back From Now on you get yours. MOLE Karen.”

8. Although the victim felt threatened she did not report this letter to police believing that in her role as the public housing manager she would get the occasional threatening letter.

9. Sequence 2: On Friday, 9 September 2017 the victim was in the Parkes office when she opened a stamped envelope which was addressed to her. The letter was not signed and had poor handwriting, spelling and grammar. The letter was of a threatening nature, including: “hello fat dog if the First one bond scare you you have engourgt times to Fixed problems for people Not listing so yes I will become a stalker so u what yourself I will follow you and bash you Fuckin fat Truckie Slut.”

10. This letter refers to the first letter received by the victim and appears to be written by the same author. The letter contains similar words the first letter in that it has the words “Fuckin Fat’ spelt the same way and with capital F’s, the words dog and slut and also the author uses capital N’s where a capital is not required.

11. The victim was intimidated by the letter as it stated that she would be stalked, followed and bashed. She immediately reported the matter to police and the letter was seized for forensic examination.

12. Sequence 3: On Monday, 18 September 2017 the victim received another stamped envelope which was addressed to her. The writing on the envelope appeared to be the same as on the letter received on Friday 9 September. She did not open this letter and immediately contacted the police. The letter was seized for forensic examination. It was not signed and had poor handwriting, spelling and grammar. It was of a threatening nature, as follows: “listen here you Fuckin Fat jemmy cunt. Parkes trash you better watch your back we seek of you dog Not Fixed problems here there truckie slut we c u around Bong Bong c cunt Fixed or problems Now Just watch your back expesally when u go home. We be around when u least it pect it.”

13. The letter appeared to have been written by the same author.

14. When the victim was informed about the content of the letter, she felt intimidated, believing the words ‘Bong Bong’ were actually ‘bang bang’ and was a direct threat of violence with a gun. She also felt intimidated by the fact that the letter referred to watching her back when she went home. Due to her fees she informed her work supervisor who organized the security to patrol the (vicinity of) victim’s house throughout the night.

15. Sequence 4: On Wednesday, 30 May 2018 the victim’s husband opened and read a message on Facebook messenger from Facebook profile Doug Piper. He did not know the sender. The message read, “So ass wipe. When were over Forbes seeing Karen about housing project. pretty flexible with the boss. he had eyes on the big ass.. maybe on big box she has to. not the first time. door open so people eyes don’t play tricks.”

16. The message caused marital problems and mental anguish to the victim as her husband thought she was having an affair.

17. Sequence 5: On Friday, 29 June 2018 the victim received another stamped envelope which was addressed to her. The writing on the envelope appeared to be the same as the ones she received previously. Police were contacted and seized the letter for forensic examination. The letter was written in very similar style to the previous communications. It was of a threatening nature and read as follows: “So ass Fuckin dog slut day is coming For you dog mutt. we R sick at tied you procting assholes in Forbes, Parkes, proctecting Drugso, So Time to pay you back big hole. Mole. iF I. could get you my cock up your ass would e good, eyes open when you leave work and shopping punch straight away, I’ll be watching you. even at home, seek of you PRotect good people For once! So stop Fuckin Boss things might get done. Dog.”

18. The letter appears to have been written by the same author and uses some of the same suggestions set out in the previous Facebook message.

19. When the victim was informed of the content of that letter, she felt that the letters were getting out of control as they were referring to doing disgusting sexual acts to her. She felt that she could possibly be sexually assaulted and this caused her to become anxious.

20. Sequence 6: On Tuesday, 24 July 2018 the victim was informed that she had received another letter addressed to her at work. By this stage the victim had been moved to another area as she was feeling anxious about receiving further threatening letters. The letter was opened by another employee. It contained the following: “yeah ok mole Just letting you know I am still around. and Havin Forgoten your big ass mole, who protect Drug Dealers, lowlifes your Time is coming Boss fucker will c what happens Soon leaving work, eyes open because you don’t where I b. Sick off you treat everybody equal no you don’t. Ay slut.”

21. The letter was written in a similar style to previous communications and left the victim feeling intimidated and offended.

22. On Wednesday, 8 August 2018 detectives attended the offender’s home and spoke with him under caution. The defendant denied all allegations and declined to voluntarily provide his DNA for comparison.

23. An application was subsequently made and orders granted on 6 September 2018 at Forbes Local Court for the offender to provide a DNA sample, which he then did.

24. The offender’s DNA was compared to the unknown male DNA from two of the letters sent to the victim and matched that DNA from the letters received on 9 September 2017 and 29 June 2018. [Note: In evidence, DNA was matched ultimately to three of the five letters].

25. The offender was arrested on 27 September 2018. He took part in an electronically recorded interview (ERISP). During that interview he was shown a number of letters that he had previously written to the Department of Housing New South Wales. He acknowledged writing those earlier letters however denied writing any of the threatening letters.

26. The offender admitted to being the owner of Facebook profile ‘Doug Piper’ but denied writing the message to the victim’s husband. The offender was unable to explain why his DNA was on two of the threatening letters.

27. The impact of the letters on the victim was traumatic. She described feeling anxious, scared, emotional and worried that she may come to physical harm. She was afraid to go to work or be out in public. She fears for her safety, as well as that of her family. She is suffering from psychological and emotional distress. Her work has been affected and she has to work in another area where she has limited contact with clients as she fears that a client may have been the one making threats towards her.

28. The offender was subsequently charged.

Criminal Record

29. The offender has matters of dishonesty on his record some 30 years ago with the most recent entry being in 2003 for Resist Police. There are no matters of similar nature to those for which he is to be sentenced. Accordingly he receives some minor consideration for his lack of record.

Plea in Mitigation

30. Mr Hay is 55 years old. He lives with his long term partner of 29 years in Housing Commission accommodation at Forbes. He has lived in Forbes for his entire life. He worked doing farm labour in his younger days but developed back problems and was placed on a Disability Support Pension.

31. On 18 June 2019 in the late afternoon of the first day of hearing, Mr Hay became unwell due to anxiety. Ambulance attended. He has recently been medicated for anxiety.

32. It is submitted that from his plea of guilty there is an acceptance of the facts. He acknowledges that the conduct would have been distressing for the victim. The offences occurred in the context of his frustration concerning his neighbour causing problems that were not being dealt with appropriately, in his view.

33. His partner has the tenancy of the Housing Commission property in her name, and an offer has recently been made for her to purchase the property. This will result in the offender having no reason to contact the Department of Housing.

34. It was submitted that a Community Corrections Order would be an appropriate disposition of the matters, or alternatively, an Intensive Corrections Order. For reasons that will become apparent, that submission must be firmly rejected, as both, in my opinion, are inadequate to take into account the overall criminality.

General Remarks

35. The offending conduct occurred over an 18 month period: from 4 January 2017 to 24 July 2018. There were a total of five letters and one Facebook message sent.

36. The nature of threats escalated over time, as can be seen from the following:

(nature of threats in chronological order)

1. Personal abuse; naming the victim; watch your back; you (sic) get yours

2. Personal abuse, I will become your stalker, what (watch) yourself I will follow you and bash you

3. Personal abuse; just watch your back; especially when you go home; we be around when you least expect it

4. Personal abuse sent to the victim’s partner via Facebook

5. Personal abuse; if I could get to you my cock up your ass would be good, eyes open when you leave work and shopping, punch straight away; I’ll be watching you, even at home

6. Personal abuse; I’m still around; your time is coming; soon leaving work, eyes open because you don’t know where I be

37. The offence of intimidation can be carried out in various ways. Often it involves a single act either face to face, or in close proximity to the victim, or by some communication device. Although not necessarily knowing the offender’s name, the manner in which an offence occurs frequently allows a victim to know who is acting that way towards them. In such circumstances, a threat is more likely to be over and done with quickly, though the effect may continue upon the victim for some time.

38. In this case the victim had no idea who was intimidating her. The offender used the veil of anonymity, using unsigned handwritten notes for 5 of the 6 counts. The repeated acts of intimidation together with the increased threats making reference to work, to home, to anywhere; from watching your back to physical intimidation and eventually sexual intimidation places the overall conduct into a higher level of seriousness.

39. The offender did not identify with any specificity what was angering him. Therefore the situation could not be resolved by the victim taking some action to rectify or appease the offender’s anger.

Intimidation – Crimes (Domestic and Personal Violence) Act

40. Relevantly, section 7 of the Crimes (Domestic and Personal Violence) Act provides:

7 Meaning of "intimidation"

(1) For the purposes of this Act,

"intimidation" of a person means:

(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or

Note : An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

(2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.

41. There can be no doubt that the actions of the offender satisfy the definition of intimidation.

42. The offender denied any wrong doing initially, and continued that front until the second day of hearing. I do not accept, on balance, that his acknowledgement that the conduct would have been distressing for the victim is a sign of remorse. I take it to be an understanding by the offender that his vile, threatening, degrading and frightening conduct, from which he intended to suggest an ever-present threat of harm to the targeted, hapless victim, had the desired effect. He has not offered the word “sorry” at this point in time. His plea came in the face of insurmountable evidence against him. I am unable to find that there is any remorse shown: see Butters v R [2010] NSWCCA 1 at [17] per Fullerton J.

43. The purposes of sentencing are set out in section 3A of the Crimes (Sentencing Procedure) Act1999:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

Objective Seriousness

44. The objective seriousness of the offending conduct must be considered individually, though the cumulative effect of the anonymous letters and increasing threats progressively adds to the seriousness of each count.

45. The objective seriousness of the first offence is below mid-level. The next two letters are more objectively serious as they build upon the threats made in the first letter. The message via Facebook is less threatening, but delivered by using a Facebook account in a false name. It was initially read by the victim’s partner. Resorting to a different medium to intimidate could only add to the intention of creating an impression of omnipresent threat. This makes it equally objectively serious.

46. The fifth letter introduces the threat of sexual harm and is above mid-range. The final letter is not as threatening as the prior letter, but again, the cumulative effect of the conduct puts this matter into a level above sequences 1 to 4. All of the offences involved a degree of planning to disguise the identity of the offender and to achieve the intended intimidation by the nature of threats made.

47. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The threshold as provided for in section 5 of the Crimes (Sentencing Procedure) Act has been crossed in relation to each offence.

48. I will deal with the offender by way of an aggregate sentence per section 53A of the Crimes (Sentencing Procedure) Act. In doing so, I take into account the aggravating and mitigating factors, the facts, objective seriousness, and principle of totality.

Offence- H7061955 sequences 1 to 6	Indicative Sentence
Intimidation (seq.1)	7 months
Intimidation (seq.2)	9 months
Intimidation (seq.3)	12 months
Intimidation (seq.4)	13 months
Intimidation (seq.5)	15 months
Intimidation (seq.6)	14 months

49. The protracted nature of the offending conduct leads comfortably to the conclusion that there should be a degree of partial accumulation: see Cahyadi v R [2007] NSWCCA 1 at [27] per Howie J.

50. The appropriate sentence is one of 2 years 6 months imprisonment. I have turned my mind to section 66 of the Crimes (Sentencing Procedure) Act as to whether to impose an alternative sentence by way of an Intensive Corrections Order: see EF v R [2015] NSWCCA 36 at [42]. I have also considered R v Zamagias [2002] NSWCCA 17 at [28] as to whether an appropriate alternative is available other than full-time custody.

51. It may be that the offender will no longer be a threat to Ms Cronin, or the community. I would have to assess his prospects of rehabilitation as being reasonable. However, section 66(3) provides the following:

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of Sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.

52. The offences committed are often difficult to detect. But for the thorough police investigation, this prosecution might never have come to light. The effect upon the victim is set out in the agreed facts. It has been ongoing, escalating, with suggestion of sexual and physical assault leaving work, or in her own home. The victim remains traumatized more than 2 ½ years after the stalking and intimidation commenced, and approaching 12 months after the last anonymous letter was sent.

53. The offences call for a significant measure of general deterrence and specific deterrence. The cowardly, premeditated and planned conduct of the offender is to be denounced and he will be held accountable for his actions. An Intensive Corrections Order would not fulfill the purposes of sentencing and would be mercifully and manifestly too lenient, failing to have proper regard to those purposes.

54. The offender’s need for rehabilitation has not been identified or articulated. Even if it had been, it would be subordinate to the other purposes of sentencing that I have referred to. The sentence will be by way of full-time imprisonment.

55. I note that the offender suffers from anxiety and has a pre-existing back problem. I note his age and that he has not previously been to prison. I am prepared to make a finding of special circumstances regarding his anxiety, though the variation of the statutory ratio will be minimal.

ORDERS

56. Garry Hay is sentenced to a term of imprisonment of 2 years 6 months.

57. The non-parole period is 20 months to date from 19 July 2019 and expire on 18 March 2021. The balance of term on parole is 10 months commencing 19 March 2021 and expires 18 January 2022.

58. A finding is made of special circumstances as indicated above.

Magistrate P Stewart

Parkes Local Court

19 July 2019

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

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Decision last updated: 16 February 2021