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Borg v The Queen

Borg v The Queen

Case [2020] VSCA 191 27 July 2020

Appeal

Criminal Liability

Sentencing

Misconduct in Public Office

Unauthorised Use of Computer

Making and Using a False Document

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0138

SARA BORG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2020
DATE OF JUDGMENT:	27 July 2020
DATE OF REASONS:	30 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 191
JUDGMENT APPEALED FROM:	DPP v Borg [2020] VCC 1029 (Judge Dalziel)

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CRIMINAL LAW — Appeal — Sentence — Misconduct in public office, unauthorised use of computer and making and using a false document — Registrar of Magistrates’ Court fabricated an interim intervention order for use in friend’s custody dispute — Sentenced to two years and one month’s imprisonment with 13 months non-parole — Whether exceptional family hardship — Whether sentence manifestly excessive — Appeal allowed — Resentenced to two year community correction order.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Hallowes QC with Ms S Lacy	Lethbridges
For the Respondent	Mr R Gibson QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
NIALL JA:

Charges, sentences and grounds of appeal

On 29 May 2020, the applicant pleaded guilty before a judge in the County Court to two charges of misconduct in public office[1] (charges 1 and 2), making a false document[2] (charge 3), using a false document[3] (charge 4), and two charges of causing an unauthorised computer function with intent to commit a serious offence.[4]
[1]An offence at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 10 years’ imprisonment,
[2]Crimes Act 1958, s 83A(1). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 83A(2). The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 247B(1). The maximum penalty is the same as applies to the relevant ‘serious offence’ — in this case making a false document — so that the maximum penalty was 10 years’ imprisonment.

Following a plea in mitigation conducted over two days, on 16 July 2020 the judge sentenced the applicant to a total effective sentence of two years and one month’s imprisonment, with a non-parole period of 13 months, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Misconduct in public office 2 months 1 month

2 Misconduct in public office 2 years (aggregate sentence) Base

3 Making a false document

4 Using a false document

5 Causing unauthorised access to computer function with intent

6 Causing unauthorised access to computer function with intent

Total effective sentence 2 years and 1 month’s imprisonment

Non-parole period 13 months

Section 6AAA declaration 4 years and 6 months’ imprisonment with 2 years and 6 months non-parole

The applicant sought leave to appeal against the sentence on the following grounds:

1. That the sentencing judge erred in failing to take into account the exceptional family hardship caused by [the applicant’s] imprisonment.
2. That in all of the circumstances of the offending and the offender, the sentence is manifestly excessive.
Particulars
a. The…

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 The Queen

Details

AGLC: Borg v The Queen [2020] VSCA 191
Case: [2020] VSCA 191
Decision Date: 27 July 2020

CaseChat Overview and Summary

Borg was convicted of several offences, including misconduct in public office, unauthorised use of a computer, and making and using a false document. The offences arose when the appellant, a Registrar of the Magistrates’ Court, fabricated an interim intervention order for use in a friend’s custody dispute. Borg was sentenced to two years and one month’s imprisonment with 13 months non-parole. Borg appealed the sentence on the grounds of exceptional family hardship and that the sentence was manifestly excessive.

The appeal raised questions about whether the sentence imposed was manifestly excessive or whether there were exceptional circumstances, such as family hardship, that warranted a reduction in sentence. The court had to determine whether the original sentence was appropriate given the nature of the offences and the appellant’s role as a public official, and whether there were exceptional circumstances that warranted a lesser penalty. The court also had to consider the impact of the sentence on the appellant’s family, particularly the impact on minor children.

The court found that the sentence was manifestly excessive and that the appellant’s family situation constituted exceptional circumstances. The court found that the appellant’s role as a public official did not justify the severity of the original sentence and that the impact on the appellant’s family, particularly the impact on minor children, was significant. The court also found that the appellant had shown genuine remorse and had made significant efforts to address the impact of her offending on her family. The appeal was allowed, and the appellant was resentenced to a two-year community correction order.

The final orders of the court included the allowance of the appeal and the resentencing of the appellant to a two-year community correction order. The court also ordered that the appellant’s conviction be recorded as spent after five years. The court found that the original sentence was manifestly excessive and that the appellant’s family situation constituted exceptional circumstances that warranted a lesser penalty. The court emphasised the importance of considering the impact of a sentence on the offender’s family and the need for a sentence that is proportionate to the offence committed.

Orders