R v Garay (No 4)

Case [2022] ACTSC 138


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Garay (No 4)

Citation:

[2022] ACTSC 138

Hearing Dates:

22 October 2021, 4 March 2022 and 10 June 2022

DecisionDate:

10 June 2022

Before:

Loukas-Karlsson J

Decision:

See [229]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic child sexual offences – act of indecency on young person – sexual intercourse with a young person – s 35(4) Sentencing Act – discount for assistance in investigation – consideration of principles in Newby – COVID-19 – hardship and effect on offender’s family and dependants

Legislation Cited:

Crimes Act 1900 (ACT) ss 55, 65, 92E, 92K
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 33, 34A, 78
Supreme Court Act 1933 (ACT) s 68B

Cases Cited:

Barrett v The Queen [2016] ACTCA 38
Bloxsome v The Queen
[2020] ACTCA 52
Blundell v The Queen [2019] ACTCA 34
Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
Cavanagh v The Queen [2009] NSWCCA 174
Cheung v The Queen [2001] HCA 67; 209 CLR 1
CX v The Queen [2017] ACTCA 37
Dawson v The Queen [2019] ACTCA 9
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428
Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Fisher v The Queen (1989) 40 A Crim R 442
Gore v R; Hunter v R
[2010] NSWCCA 330
GS v The Queen [2016] NSWCCA 266
Jurj v The Queen [2016] VSCA 57
Hampton v The Queen [2010] NSWCCA 278; 208 A Crim R 478
Henry v The Queen [2019] ACTCA 5
Hili v The Queen [2010] HCA 45; 242 CLR 520
Le v R [2019] NSWCCA 181
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Miles v The Queen [2014] ACTCA 41
Mill v The Queen (1988) 166 CLR 59
Millard v The Queen [2016] ACTCA 14
Monfries v The Queen [2014] ACTCA 46
Munda v Western Australia [2013] HCA 38; 249 CLR 600
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
O’Brien v The Queen [2015] ACTCA 47
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Appleby [2021] ACTSC 55
R v Barber [2021] ACTSC 78
R v BC (No 4) [2021] ACTSC 119
R v Bernath (1997) 1 VR 271
R v BJW [2000] NSWCCA 60; 112 A Crim R 1
R v Blanco [1999] NSWCCA 121; 106 A Crim R 303
R v Clinch (1994) 72 A Crim R 301
R v Davison [2020] ACTSC 272
R v DB [2015] ACTSC 28
R v DK [2016] ACTCA 7
R v DU (No 4) [2020] ACTSC 174
R v Francis [2021] ACTSC 212
R v Garay (No 3) [2021] ACTSC…

Continue reading R v Garay (No 4)

Sign in free to access the full text

Details
AGLC
R v Garay (No 4) [2022] ACTSC 138
Case
[2022] ACTSC 138
Decision Date

CaseChat Overview and Summary

The appeal heard by the Court of Appeal was brought by the respondent, Garay, against a sentence handed down by a primary judge. Garay was convicted of several historic child sexual offences, including an act of indecency on a young person and sexual intercourse with a young person. The court was tasked with determining the appropriate sentence for the respondent, considering the principles set out in Newby, the discount for assistance provided to the investigation, the effect of COVID-19 on the respondent’s family and dependants, and other relevant factors.

The legal issues before the court included the appropriate discount for assistance in the investigation, the effect of the delay in prosecution on the sentence, and the impact of COVID-19 on the offender’s family and dependants. The court was also required to consider the principles outlined in the case of Newby to determine the appropriate sentence for the respondent’s offences.

In delivering the judgment, the court considered the principles in Newby, which emphasise the need to impose a sentence that is proportionate to the gravity of the offence and the offender’s culpability. The court found that the respondent had provided substantial assistance to the investigation, which warranted a discount in the sentence. However, the court also noted the seriousness of the offences and the need to deter and protect the community. After weighing all the relevant factors, the court determined that the appropriate sentence for the respondent was imprisonment for a total of seven years and eight months, with a non-parole period of five years and one month. The court also ordered that the sentence be backdated to the date of the respondent’s arrest.

The court made orders for the sentence to be backdated to the date of the respondent’s arrest, and for the respondent to serve a total of seven years and eight months in prison, with a non-parole period of five years and one month. The court also ordered that the respondent be subject to a number of other conditions, including a sex offender registration order and a restraining order.

Orders

Orders of the court

See [229]

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.