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) Act 1999 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.