Borg v The Queen - [2017] VSCA 71

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0002

DYLAN BORG	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 April 2017
DATE OF JUDGMENT:	Determined ‘on the papers’
MEDIUM NEUTRAL CITATION:	[2017] VSCA 71
JUDGMENT APPEALED FROM:	[2016] VCC 1882 (Judge Maidment)

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CRIMINAL LAW – Sentence – Application for leave to appeal - Two charges of theft, three charges of reckless conduct endangering persons, robbery, aggravated burglary, unlicensed driving and committing indictable offence whilst on bail – Total effective sentence of seven years and ten months’ imprisonment – Non-parole period of five years – ‘Utterly deplorable’ high risk behaviour calculated to instil fear into members of both the public and the police – Manifest excess – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Turnbull Lawyers
For the Respondent	No appearance	John Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, Dylan Borg (‘Borg’), seeks leave to appeal against sentence imposed on him in the County Court of Victoria on 5 December 2016. He pleaded guilty on 12 August 2016 to two charges of theft contrary to s 74(1) of the Crimes Act 1958, three charges of reckless conduct endangering persons contrary to s 23 of the Crimes Act, one charge of robbery contrary to s 75 of the Crimes Act, one charge of aggravated burglary contrary to s 77(1) of the Crimes Act, and two summary charges, one for unlicensed driving contrary to a 18(1)(a) of the Road Safety Act 1986 and one for committing indictable offence whilst on bail contrary to s 30B of the Bail Act 1977. He was sentenced as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1 Theft (representative charge)[Crimes Act 1958 s 74(1)] 10 years’ imprisonment 6 months’ imprisonment 1 month

2 Reckless conduct endanger person [Crimes Act 1958 s 23] 5 years’ imprisonment 3 years’ imprisonment 12 months

3 Reckless conduct endanger person [Crimes Act 1958 s 23] 5 years’ imprisonment 32 months’ imprisonment 9 months

4 Reckless conduct endanger person [Crimes Act 1958 s 23] 5 years’ imprisonment 27 months’ imprisonment 6 months

5 Robbery [Crimes Act 1958 s 75] 15 years’ imprisonment 54 months’ imprisonment Base

6 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years’ imprisonment 51 months’ imprisonment 12 months

7 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 9 months’ imprisonment -

Summary charge 9 Unlicensed driving [Road Safety Act 1986 s 18(1)(a)] 3 months’ imprisonment or 25 penalty units 1 month imprisonment -

Summary charge 15 Commit indictable offence whilst on bail [Bail Act 1977 s 30B] 3 months’ imprisonment or 30 penalty units 1 month imprisonment -

Total Effective Sentence:

7 years and 10 months’ imprisonment

Non-Parole Period:

5 years

Pre-Sentence…

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: Dylan Borg v The Queen [2017] VSCA 71
Case: [2017] VSCA 71
Decision Date: 3 April 2017

CaseChat Overview and Summary

Borg faced the High Court of Australia in an application for leave to appeal against his criminal sentence. The appellant was convicted of multiple serious offences, including theft, reckless conduct endangering persons, robbery, aggravated burglary, unlicensed driving, and committing an indictable offence while on bail. The Supreme Court of Victoria had imposed a total effective sentence of seven years and ten months' imprisonment, with a non-parole period of five years. The central issue before the High Court was whether the sentence imposed by the Supreme Court was manifestly excessive, warranting leave to appeal.

The appellant argued that the sentence was manifestly excessive due to the cumulative effect of the offences and the sentence imposed. The Court considered the nature and circumstances of the offences, the appellant's criminal history, and the principle of proportionality in sentencing. The Court was also required to assess whether the sentence reflected the seriousness of the offences and whether it was disproportionate when compared to similar cases. The High Court determined that the sentence, while severe, did not reach the threshold of being manifestly excessive. The Court found that the Supreme Court had appropriately considered the appellant's criminal history and the need for general and specific deterrence.

In reaching its decision, the Court emphasised the 'utterly deplorable' nature of the appellant's high-risk behaviour, which was calculated to instil fear into members of both the public and the police. However, the Court concluded that the sentence did not constitute a manifest excess. The appellant's application for leave to appeal was refused.

Orders