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Borg v R; Gray v R

Borg v R; Gray v R

Case [2020] NSWCCA 67 9 April 2020

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Borg v R; Gray v R [2020] NSWCCA 67
Hearing dates: 3 April 2020
Decision date: 09 April 2020
Before: McCallum JA at [1];
Johnson J at [10];
Adamson J at [11]
Decision:
2016/90677
(1)   Grant leave to appeal.
(2)   Dismiss the appeal.
2016/204881
(1)   Grant leave to appeal.
(2)   Dismiss the appeal.
Catchwords:
SENTENCING — Appeal against sentence — Severity — Alleged sentence manifestly excessive — Appeal dismissed
SENTENCING — Appeal against sentence — Offenders engaged in the same criminal enterprise — Alleged disparity between sentences — Distinction in prospects of rehabilitation — Appeal dismissed
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Douar v R [2005] NSWCCA 445; (2005) 159 A Crim R 154
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Imbornone v R [2017] NSWCCA 144
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Pham v R [2009] NSWCCA 25; (2009) 193 A Crim R 190
Pham v R [2010] NSWCCA 208
R v Baker [2000] NSWCCA 85
Rakielbakhour v DPP [2020] NSWSC 323
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category: Principal judgment
Parties:
2016/90677
Renee Borg (Applicant)
Regina
2016/204881
Kylie Jane Gray (Applicant)
Regina
Representation:
2016/90677
Counsel:
S Kluss (Applicant)
M Millward (Crown)

Solicitors:
AC Law Group (Applicant)
Director of Public Prosecutions (NSW) (Crown)

2016/204881
Counsel:
M Fernando (Applicant)
M Millward (Crown)
Solicitors:
Ryan & Payten Criminal Law Specialists (Applicant)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2016/90677; 2016/204881
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

8 March 2019

Before:

Norton SC DCJ

File Number(s):

2016/90677; 2016/204881

Judgment

McCALLUM JA: I agree with Adamson J that both appeals must be dismissed. In my respectful opinion, the sentences imposed were relatively stern having regard to the hardships both offenders endured during childhood and the relevance of those considerations to the assessment of moral culpability.
In the case of Ms Gray, the sentencing judge expressly accepted that the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were engaged, saying “this moderates the weight which would otherwise be given to both specific and general deterrence”. In the case of Ms Borg (sentenced immediately after Ms Gray), her Honour did not expressly refer to the decision…

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; Gray v R

Details

AGLC: Borg v The Queen; Gray v The Queen [2020] NSWCCA 67
Case: [2020] NSWCCA 67
Decision Date: 09 April 2020

CaseChat Overview and Summary

The appeals before the court involved two individuals, Borg and Gray, who had been convicted of participating in the same criminal enterprise. Both appellants sought to challenge the severity of their respective sentences, with Borg arguing that his sentence was manifestly excessive and Gray contending that there was a disparity between their sentences. The High Court of Australia was tasked with reviewing the appeals and determining whether the sentences imposed were just and appropriate.

The primary legal issues before the court were whether the sentences imposed on Borg and Gray were manifestly excessive and whether there was an unjustifiable disparity between the sentences. In considering these issues, the court examined the nature and extent of the appellants' involvement in the criminal enterprise, their respective roles, and the sentencing principles applicable to each case. The court also considered the prospects of rehabilitation for each offender and whether these prospects justified any differences in the sentences imposed.

In dismissing the appeals, the court found that the sentences imposed on Borg and Gray were not manifestly excessive and did not constitute an unjustifiable disparity. The court emphasised that the sentencing judge had carefully considered the appellants' respective roles in the criminal enterprise, their personal circumstances, and their prospects of rehabilitation when determining the sentences. The court held that the sentencing judge had exercised their discretion appropriately and that the sentences reflected the gravity of the offences committed. The appeals were therefore dismissed, and the original sentences were upheld.

No additional orders were made by the court beyond the dismissal of the appeals. The court's decision confirmed the importance of judicial discretion in sentencing and the need for courts to carefully consider the individual circumstances of each offender when imposing a sentence. The judgment serves as a reminder that appeals against sentence are not lightly granted and that the court will intervene only in cases where there is a clear error in the sentencing process.

Orders