Borg v R

Case [2019] NSWCCA 129 21 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Borg v R [2019] NSWCCA 129
Hearing dates: 17 May 2019
Date of orders: 21 June 2019
Decision date: 21 June 2019
Before: Bathurst CJ at [1]; Hamill J at [108]; N Adams J at [109]
Decision:
(1)   Grant the applicant leave to appeal.
(2)   Appeal allowed.
(3)   Quash the sentence imposed on the applicant on 9 June 2017 and, in lieu thereof, sentence the applicant to a term of imprisonment of 15 years commencing on 19 March 2014 and expiring on 18 March 2029, consisting of a non-parole period of 11 years and 3 months expiring on 18 June 2025 with a balance of term of 3 years and 9 months.

Catchwords: SENTENCING – Relevant factors on sentence – Parity of sentencing - Co-offenders – Joint criminal enterprise – murder – disparity in sentences of co-offenders - whether justifiable sense of grievance by reference to the notional starting point of sentence of appellant and sentence of co-offender– co-offenders sentenced on different evidentiary basis – sentencing judge found co-offender’s offence more serious than applicant – applicant had strong subjective circumstances unlike co-offender.
Legislation Cited: Nil
Cases Cited: Afu v R [2017] NSWCCA 246
Buxton v R [2017] NSWCCA 169
Cameron v R [2017] NSWCCA 229
Daw v R [2017] NSWCCA 327
Dayment v R [2018] NSWCCA 132
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Gill v R [2010] NSWCCA 236
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Lee v R [2011] NSWCCA 169
Lloyd v R [2017] NSWCCA 303
Lowe v R (1984) 154 CLR 606; [1984] HCA 46
Miles v R [2017] NSWCCA 266
PG v R [2017] NSWCCA 179
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Gatt (No 11) [2018] NSWSC 991
R v Olbrich (1999) 199 CLR 270 at 281; [1999] HCA 54
TL v R [2017] NSWCCA 308
Tuivaga v R [2015] NSWCCA 145
TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146
Wan v R [2017] NSWCCA 261
Category: Principal judgment
Parties: George Borg (applicant)
The Crown (respondent)
Representation:
Counsel:
T Edwards (applicant)
G Newton (respondent)
Solicitors:
William O’Brien & Ross Hudson Solicitors (applicant)
Office of the Director of Public Prosecutions (respondent)

File Number(s): 2014/83514
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 746

Date of Decision:

9 June 2017

Before:

Schmidt J

File Number(s):

2014/83514

HEADNOTE

[This headnote is not to be read as part of the judgment]

George Borg (the applicant) pleaded guilty to the murder of Mr Bassil Hijazi (the deceased). The applicant was sentenced to a term of imprisonment of 16 years and 2 months with a non-parole period of 12 years and 2 months. The applicant’s co-offender, Mr Joseph Gatt was convicted of the same murder following a trial…

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 Borg v R

Details

AGLC: Borg v The Queen [2019] NSWCCA 129
Case: [2019] NSWCCA 129
Decision Date: 21 June 2019

CaseChat Overview and Summary

Borg was convicted of the murder of his former partner and sentenced to life imprisonment with a non-parole period of 20 years. His co-offender, who had pleaded guilty, was sentenced to life imprisonment with a non-parole period of 18 years. Borg appealed against the severity of his sentence. The appeal centred on the disparity between Borg's sentence and that of his co-offender. The appeal court considered whether the disparity was justified, taking into account the starting point of Borg's sentence, the subjective circumstances of both offenders, and the basis on which their sentences were determined. The court found that the sentencing judge had appropriately considered the differing circumstances and evidentiary basis of the co-offenders, and that Borg's sentence was commensurate with the seriousness of his offence and the principle of parity in sentencing.

The appeal court examined the principle of parity in sentencing, particularly in cases involving co-offenders in a joint criminal enterprise. The court noted that while disparity in sentences can be justified, the reasons must be clearly articulated and based on the specific circumstances of each offender. The sentencing judge had found that Borg's co-offender's offence was more serious, and had considered Borg's strong subjective circumstances, which were notably different from those of his co-offender. The court concluded that the sentencing judge had appropriately balanced the principle of parity with the unique circumstances of Borg's case. The appeal was dismissed, affirming the sentence imposed on Borg.

Orders