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 circumstancesLegislation Cited: Crimes Act 1900 (NSW), ss 25A, 25B
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44Cases 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 375Category: Sentence Parties: Regina (Crown)
Hugh Bacalla Garth (Offender)Representation: Counsel:
Solicitors:
C Everson (Crown)
R Wilson (Offender)
Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)
File Number(s): 2014/32541; 2014/133531
SENTENCE
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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…
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- AGLC
- R v Garth (No 2) [2017] NSWDC 471
- Case
- [2017] NSWDC 471
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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