R v Garth (No 2) - [2017] NSWDC 471

District Court

New South Wales

Medium Neutral Citation: R v Garth (No 2) [2017] NSWDC 471
Hearing dates: 27 October 2017, 8 December 2017
Decision date: 08 December 2017
Jurisdiction: Criminal
Before: Townsden DCJ
Decision:
In respect of the previous offences of common assault and contravene a domestic violence order, where s 9 bonds were originally imposed, both bonds are revoked. In respect of each offence, the offender is sentenced to a term of imprisonment of 7 months. Those sentences are both to commence on 3 May 2014.

In respect of the offence of common assault, the offender is convicted and sentenced to 6 months’ imprisonment. In respect of the affray, the offender is convicted and is sentenced to 9 months’ imprisonment. Both sentences are to be partially accumulated on the first sentences and are to commence on 3 August 2014.

In respect of the offence of assault occasioning the death of Raynor Manalad, the offender is convicted and sentenced to a non-parole period of 8 years’ imprisonment. The balance of the term is 2 years’ imprisonment. The total term of imprisonment for this offence is therefore 10 years’ imprisonment. That sentence is also to commence on 3 August 2014. The non-parole period will expire on 2 August 2022.
The total period of imprisonment is therefore 10 years and 3 months. The total non-parole period is 8 years and 3 months.
Catchwords: CRIME — Public order offences — Affray
CRIME — Violent offences — Assault causing death when intoxicated
CRIME — Violent offences — Common assault
SENTENCING — Aggravating factors — Breach of conditional liberty
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Non-parole period — Standard non-parole period
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality
SENTENCING — Revocation — Failure to comply with sentence
SENTENCING — Sentencing procedure — Findings of fact
SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited: Crimes Act 1900 (NSW), ss 25A, 25B
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases Cited: Garth v R [2017] NSWDC 469
Magaming v R (2013) 252 CLR 381; [2013] HCA 40
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Musgrove v R (2007) 167 A Crim R 424; [2007] NSWCCA 21
Pattalis v R [2013] NSWCCA 171
R v Halloun [2014] NSWSC 1705
R v Isaacs (1997) 41 NSWLR 375
Category: Sentence
Parties: Regina (Crown)
Hugh Bacalla Garth (Offender)
Representation:
Counsel:
C Everson (Crown)
R Wilson (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2014/32541; 2014/133531

SENTENCE

HIS HONOUR: The offender, Hugh Bacalla Garth, was found guilty by a jury on 24 May 2017 at Parramatta District Court in respect of the offence of assault occasioning death while intoxicated, pursuant to s 25A(2) of the Crimes Act 1900 (NSW). The maximum penalty is 25 years’ imprisonment; the minimum penalty is 8 years’ imprisonment. The minimum non-parole period is also 8…

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 R v Garth (No 2)

Details

AGLC: R v Garth (No 2) [2017] NSWDC 471
Case: [2017] NSWDC 471
Decision Date: 08 December 2017

CaseChat Overview and Summary

The case of R v Garth (No 2) involved the defendant, Garth, facing charges related to multiple serious offences. The court had to determine the appropriate sentences for these offences, which included common assault, affray, and assault causing death while intoxicated. The case was heard and decided by a court in Australia, with the specifics of the jurisdiction not provided in the text. The primary legal issues revolved around the sentencing of Garth for these offences, considering various factors such as the breach of conditional liberty, the plea of guilty, and the standard non-parole period.

The court began by addressing the principle of totality, which requires the cumulative effect of sentences to be considered to avoid excessive punishment. The court noted the defendant's early guilty plea, which was seen as a mitigating factor, but also took into account the aggravating factor of breaching a conditional liberty sentence. The court further assessed the severity of the offences, particularly the assault causing death, and determined that a substantial sentence was warranted. The non-parole period for this offence was set at eight years, reflecting the gravity of the crime.

In reaching its decision, the court meticulously examined each offence individually before considering how they would accumulate and overlap in the overall sentence. The final sentence for the defendant was set at a total of ten years and three months, with an eight-year and three-month non-parole period. This decision was based on the court's findings of fact and the specific circumstances of each offence, ensuring that the sentence was proportionate and just.

Orders

Orders of the court

In respect of the previous offences of common assault and contravene a domestic violence order, where s 9 bonds were originally imposed, both bonds are revoked. In respect of each offence, the offender is sentenced to a term of imprisonment of 7 months. Those sentences are both to commence on 3 May 2014.

In respect of the offence of common assault, the offender is convicted and sentenced to 6 months’ imprisonment. In respect of the affray, the offender is convicted and is sentenced to 9 months’ imprisonment. Both sentences are to be partially accumulated on the first sentences and are to commence on 3 August 2014.

In respect of the offence of assault occasioning the death of Raynor Manalad, the offender is convicted and sentenced to a non-parole period of 8 years’ imprisonment. The balance of the term is 2 years’ imprisonment. The total term of imprisonment for this offence is therefore 10 years’ imprisonment. That sentence is also to commence on 3 August 2014. The non-parole period will expire on 2 August 2022.

The total period of imprisonment is therefore 10 years and 3 months. The total non-parole period is 8 years and 3 months.

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.

Medium Neutral Citation:	R v Garth (No 2) [2017] NSWDC 471
Hearing dates:	27 October 2017, 8 December 2017
Decision date:	08 December 2017
Jurisdiction:	Criminal
Before:	Townsden DCJ
Decision:	In respect of the previous offences of common assault and contravene a domestic violence order, where s 9 bonds were originally imposed, both bonds are revoked. In respect of each offence, the offender is sentenced to a term of imprisonment of 7 months. Those sentences are both to commence on 3 May 2014. In respect of the offence of common assault, the offender is convicted and sentenced to 6 months’ imprisonment. In respect of the affray, the offender is convicted and is sentenced to 9 months’ imprisonment. Both sentences are to be partially accumulated on the first sentences and are to commence on 3 August 2014. In respect of the offence of assault occasioning the death of Raynor Manalad, the offender is convicted and sentenced to a non-parole period of 8 years’ imprisonment. The balance of the term is 2 years’ imprisonment. The total term of imprisonment for this offence is therefore 10 years’ imprisonment. That sentence is also to commence on 3 August 2014. The non-parole period will expire on 2 August 2022. The total period of imprisonment is therefore 10 years and 3 months. The total non-parole period is 8 years and 3 months.
Catchwords:	CRIME — Public order offences — Affray CRIME — Violent offences — Assault causing death when intoxicated CRIME — Violent offences — Common assault SENTENCING — Aggravating factors — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality SENTENCING — Revocation — Failure to comply with sentence SENTENCING — Sentencing procedure — Findings of fact SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW), ss 25A, 25B Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases Cited:	Garth v R [2017] NSWDC 469 Magaming v R (2013) 252 CLR 381; [2013] HCA 40 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Musgrove v R (2007) 167 A Crim R 424; [2007] NSWCCA 21 Pattalis v R [2013] NSWCCA 171 R v Halloun [2014] NSWSC 1705 R v Isaacs (1997) 41 NSWLR 375
Category:	Sentence
Parties:	Regina (Crown) Hugh Bacalla Garth (Offender)
Representation:	Counsel: C Everson (Crown) R Wilson (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2014/32541; 2014/133531