Police v Garry Hay

Criminal Record

1. The offender has matters of dishonesty on his record some 30 years ago with the most recent entry being in 2003 for Resist Police. There are no matters of similar nature to those for which he is to be sentenced. Accordingly he receives some minor consideration for his lack of record.

Plea in Mitigation

1. Mr Hay is 55 years old. He lives with his long term partner of 29 years in Housing Commission accommodation at Forbes. He has lived in Forbes for his entire life. He worked doing farm labour in his younger days but developed back problems and was placed on a Disability Support Pension.
2. On 18 June 2019 in the late afternoon of the first day of hearing, Mr Hay became unwell due to anxiety. Ambulance attended. He has recently been medicated for anxiety.
3. It is submitted that from his plea of guilty there is an acceptance of the facts. He acknowledges that the conduct would have been distressing for the victim. The offences occurred in the context of his frustration concerning his neighbour causing problems that were not being dealt with appropriately, in his view.
4. His partner has the tenancy of the Housing Commission property in her name, and an offer has recently been made for her to purchase the property. This will result in the offender having no reason to contact the Department of Housing.
5. It was submitted that a Community Corrections Order would be an appropriate disposition of the matters, or alternatively, an Intensive Corrections Order. For reasons that will become apparent, that submission must be firmly rejected, as both, in my opinion, are inadequate to take into account the overall criminality.

General Remarks

1. The offending conduct occurred over an 18 month period: from 4 January 2017 to 24 July 2018. There were a total of five letters and one Facebook message sent.
2. The nature of threats escalated over time, as can be seen from the following: (nature of threats in chronological order) 1. Personal abuse; naming the victim; watch your back; you (sic) get yours 2. Personal abuse, I will become your stalker, what (watch) yourself I will follow you and bash you 3. Personal abuse; just watch your back; especially when you go home; we be around when you least expect it 4. Personal abuse sent to the victim's partner via Facebook 5. Personal abuse; if I could get to you my cock up your ass would be good, eyes open when you leave work and shopping, punch straight away; I'll be watching you, even at home 6. Personal abuse; I'm still around; your time is coming; soon leaving work, eyes open because you don't know where I be
3. The offence of intimidation can be carried out in various ways. Often it involves a single act either face to face, or in close proximity to the victim, or by some communication device. Although not necessarily knowing the offender's name, the manner in which an offence occurs frequently allows a victim to know who is acting that way towards them. In such circumstances, a threat is more likely to be over and done with quickly, though the effect may continue upon the victim for some time.
4. In this case the victim had no idea who was intimidating her. The offender used the veil of anonymity, using unsigned handwritten notes for 5 of the 6 counts. The repeated acts of intimidation together with the increased threats making reference to work, to home, to anywhere; from watching your back to physical intimidation and eventually sexual intimidation places the overall conduct into a higher level of seriousness.
5. The offender did not identify with any specificity what was angering him. Therefore the situation could not be resolved by the victim taking some action to rectify or appease the offender's anger.

Intimidation - Crimes (Domestic and Personal Violence) Act

1. Relevantly, section 7 of the Crimes (Domestic and Personal Violence) Act provides: 7 Meaning of "intimidation" (1) For the purposes of this Act, "intimidation" of a person means: (a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or Note : An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email. (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.
2. There can be no doubt that the actions of the offender satisfy the definition of intimidation.
3. The offender denied any wrong doing initially, and continued that front until the second day of hearing. I do not accept, on balance, that his acknowledgement that the conduct would have been distressing for the victim is a sign of remorse. I take it to be an understanding by the offender that his vile, threatening, degrading and frightening conduct, from which he intended to suggest an ever-present threat of harm to the targeted, hapless victim, had the desired effect. He has not offered the word "sorry" at this point in time. His plea came in the face of insurmountable evidence against him. I am unable to find that there is any remorse shown: see Butters v R [2010] NSWCCA 1 at [17] per Fullerton J.
4. The purposes of sentencing are set out in section 3A of the Crimes (Sentencing Procedure) Act 1999: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

Objective Seriousness

1. The objective seriousness of the offending conduct must be considered individually, though the cumulative effect of the anonymous letters and increasing threats progressively adds to the seriousness of each count.
2. The objective seriousness of the first offence is below mid-level. The next two letters are more objectively serious as they build upon the threats made in the first letter. The message via Facebook is less threatening, but delivered by using a Facebook account in a false name. It was initially read by the victim's partner. Resorting to a different medium to intimidate could only add to the intention of creating an impression of omnipresent threat. This makes it equally objectively serious.
3. The fifth letter introduces the threat of sexual harm and is above mid-range. The final letter is not as threatening as the prior letter, but again, the cumulative effect of the conduct puts this matter into a level above sequences 1 to 4. All of the offences involved a degree of planning to disguise the identity of the offender and to achieve the intended intimidation by the nature of threats made.
4. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The threshold as provided for in section 5 of the Crimes (Sentencing Procedure) Act has been crossed in relation to each offence.
5. I will deal with the offender by way of an aggregate sentence per section 53A of the Crimes (Sentencing Procedure) Act. In doing so, I take into account the aggravating and mitigating factors, the facts, objective seriousness, and principle of totality. Offence- H7061955 sequences 1 to 6 Indicative Sentence Intimidation (seq.1) 7 months Intimidation (seq.2) 9 months Intimidation (seq.3) 12 months Intimidation (seq.4) 13 months Intimidation (seq.5) 15 months Intimidation (seq.6) 14 months

1. The protracted nature of the offending conduct leads comfortably to the conclusion that there should be a degree of partial accumulation: see Cahyadi v R [2007] NSWCCA 1 at [27] per Howie J.
2. The appropriate sentence is one of 2 years 6 months imprisonment. I have turned my mind to section 66 of the Crimes (Sentencing Procedure) Act as to whether to impose an alternative sentence by way of an Intensive Corrections Order: see EF v R [2015] NSWCCA 36 at [42]. I have also considered R v Zamagias [2002] NSWCCA 17 at [28] as to whether an appropriate alternative is available other than full-time custody.
3. It may be that the offender will no longer be a threat to Ms Cronin, or the community. I would have to assess his prospects of rehabilitation as being reasonable. However, section 66(3) provides the following: (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of Sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
4. The offences committed are often difficult to detect. But for the thorough police investigation, this prosecution might never have come to light. The effect upon the victim is set out in the agreed facts. It has been ongoing, escalating, with suggestion of sexual and physical assault leaving work, or in her own home. The victim remains traumatized more than 2 ½ years after the stalking and intimidation commenced, and approaching 12 months after the last anonymous letter was sent.
5. The offences call for a significant measure of general deterrence and specific deterrence. The cowardly, premeditated and planned conduct of the offender is to be denounced and he will be held accountable for his actions. An Intensive Corrections Order would not fulfill the purposes of sentencing and would be mercifully and manifestly too lenient, failing to have proper regard to those purposes.
6. The offender's need for rehabilitation has not been identified or articulated. Even if it had been, it would be subordinate to the other purposes of sentencing that I have referred to. The sentence will be by way of full-time imprisonment.
7. I note that the offender suffers from anxiety and has a pre-existing back problem. I note his age and that he has not previously been to prison. I am prepared to make a finding of special circumstances regarding his anxiety, though the variation of the statutory ratio will be minimal.

ORDERS

1. Garry Hay is sentenced to a term of imprisonment of 2 years 6 months.
2. The non-parole period is 20 months to date from 19 July 2019 and expire on 18 March 2021. The balance of term on parole is 10 months commencing 19 March 2021 and expires 18 January 2022.
3. A finding is made of special circumstances as indicated above. Magistrate P Stewart Parkes Local Court 19 July 2019 NOTE: The non-parole period was reduced to 18 months on appeal by the NSW District Court. A further appeal to the NSW Supreme Court on a question of law was unsuccessful.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2021