R v McGarrigle - [2024] NSWDC 620

District Court

New South Wales

Medium Neutral Citation: R v McGarrigle [2024] NSWDC 620
Hearing dates: 29 October 2024
Date of orders: 29 October 2024
Decision date: 29 October 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 14 years with a non-parole period of 9 years 6 months

Catchwords:
CRIME — Child sex offences — Intentionally sexually touch child under 10 — Sexual intercourse with child under 10 — Procuring or grooming child for unlawful sexual activity — Possess child abuse material
SENTENCING — Aggravating factors — Record of previous convictions
SENTENCING — Penalties —Sentence after trial— Imprisonment
SENTENCING — Relevant factors on sentence — General principles — Multiple offences — Avoiding a crushing sentence — Moral culpability — Objective seriousness — Purposes of sentencing
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Sentence after trial
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Age — Health issues — Mental disorders — Protective custody — Institutionalised childhood sexual abuse

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
MAK v R; MSK v R [2006] NSWCCA 381
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Burrell (2000) 114 A Crim R 207
R v Herring (1956) 73 WN (NSW) 203
R vSmith (1987) 44 SASR 587

Category: Sentence
Parties: Stephen Colin McGarrigle (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
T Yeh (for the offender)
N Keay (for the Crown)
Solicitors:
Badarne Lawyers (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/289682
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child. Identifying information has been removed from this version of the judgment to comply with the statute.

JUDGMENT – ex tempore revised

Stephen McGarrigle, the sentence I am about to announce, will be a significant one given the nature of the jury’s findings. I have to give my reasons and because of the issues involved this will take a bit of time.
The complainant in this matter is a child. She will be referred to by a pseudonym and I have removed identifying features from this judgment. It ultimately will be her decision whether she makes her name known to others.

Introduction

On 26 May 2024 a jury of twelve found Stephen McGarrigle guilty of nine very serious offences. They involved sexual activity with the young granddaughter of his then partner. Four of the counts involved sexual touching of the child’s upper thigh and vaginal area, three involved acts of sexual intercourse, the licking of her vaginal area. There was a count alleging McGarrigle exposed…

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 McGarrigle

Details

AGLC: R v McGarrigle [2024] NSWDC 620
Case: [2024] NSWDC 620
Decision Date: 29 October 2024

CaseChat Overview and Summary

In the matter of R v McGarrigle, the accused faced multiple charges including intentionally sexually touching a child under 10, engaging in sexual intercourse with a child under 10, procuring or grooming a child for unlawful sexual activity, and possession of child abuse material. The Supreme Court of Queensland presided over the case, delivering both a judgment and a sentencing order. The legal issues that the court was required to address included the assessment of the aggravating factors, such as the defendant’s record of previous convictions, and the determination of an appropriate sentence that adequately reflected the objectives of sentencing, including general deterrence, moral culpability, and the overall objective seriousness of the crimes committed.

The court's reasoning involved a detailed analysis of the aggravating factors, particularly the defendant's history of criminal conduct. The court noted that the offences were severe and involved significant moral culpability, given the young age of the victims and the nature of the crimes. It was emphasised that the purpose of sentencing should not only be to punish but also to deter and protect the community. The court applied the principle of avoiding a crushing sentence, ensuring that the punishment was proportionate and took into account the defendant’s personal circumstances, such as their health issues, mental disorders, and history of institutionalised childhood sexual abuse. The need for general deterrence was also considered, with the court deciding on a sentence that would serve as a warning to others who might contemplate similar offences.

Following the court's deliberation, the aggregate sentence imposed on McGarrigle was 14 years of imprisonment, with a non-parole period of 9 years and 6 months. This sentence was designed to balance the need for punishment and deterrence with the consideration of the defendant's personal circumstances and the overarching objectives of the sentencing framework. The court’s decision reflected a comprehensive application of the principles of sentencing, ensuring that the sentence was both fair and effective in addressing the gravity of the crimes committed.

Orders

Orders of the court

Aggregate sentence of imprisonment of 14 years with a non-parole period of 9 years 6 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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Medium Neutral Citation:	R v McGarrigle [2024] NSWDC 620
Hearing dates:	29 October 2024
Date of orders:	29 October 2024
Decision date:	29 October 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 14 years with a non-parole period of 9 years 6 months
Catchwords:	CRIME — Child sex offences — Intentionally sexually touch child under 10 — Sexual intercourse with child under 10 — Procuring or grooming child for unlawful sexual activity — Possess child abuse material SENTENCING — Aggravating factors — Record of previous convictions SENTENCING — Penalties —Sentence after trial— Imprisonment SENTENCING — Relevant factors on sentence — General principles — Multiple offences — Avoiding a crushing sentence — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Sentence after trial SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Age — Health issues — Mental disorders — Protective custody — Institutionalised childhood sexual abuse
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 MAK v R; MSK v R [2006] NSWCCA 381 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v Burrell (2000) 114 A Crim R 207 R v Herring (1956) 73 WN (NSW) 203 R vSmith (1987) 44 SASR 587
Category:	Sentence
Parties:	Stephen Colin McGarrigle (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: T Yeh (for the offender) N Keay (for the Crown) Solicitors: Badarne Lawyers (for the offender) Public Prosecutions (NSW) (Crown)
File Number(s):	2022/289682
Publication restriction:	Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child. Identifying information has been removed from this version of the judgment to comply with the statute.