Borg v The Queen
[2017] VSCA 71
•3 April 2017
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 detention declaration:
477 days
6AAA Statement: 9 years and 10 months’ imprisonment, non-parole period of 6 years and 9 months imprisonment
Other relevant orders: All Victorian licences and/or permits cancelled and applicant disqualified from obtaining such a licence or permit for 4 years from 5 December 2016. Forensic Sample Order pursuant to s 464ZF of the Crimes Act 1958.
Borg seeks leave to appeal on the ground that the individual sentences imposed on charges 2, 3, 4, 5 and 6, the orders for cumulation in relation to those charges, the total effective sentence and the non-parole period fixed are each manifestly excessive. He relies on the following particulars:
(a) The sentences imposed are manifestly too long.
(b) The sentencing judge gave manifestly insufficient weight to the applicant’s remorse, his pleas of guilty, his youth, his family support, his progress towards rehabilitation while on remand and the principles of totality and concurrency.
(c) The sentences imposed on charges 5 and 6 are not consistent with current sentencing practices, in the light of the absence of certain otherwise aggravating factors.
(d) The conclusion that charges 5 and 6 represented examples of ‘carjacking’[1] did not justify the imposition of sentences that are inconsistent with current sentencing practices.
(e) The sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed.
[1]The offending occurred before the enactment of the Crimes Amendment (Carjacking and Home Invasion) Act 2016.
For the reasons that follow, leave to appeal should be refused.
Circumstances of the offending
The charges faced by Borg arose from a spree, described by the judge as ‘utterly deplorable’,[2] involving serious examples of the offence of reckless conduct endangering persons and a ‘violent carjacking in dangerous and frightening circumstances’,[3] over the course of about two hours on the evening of Saturday 15 August 2015. At the time of the offending Borg was on bail.
[2]DPP v Borg [2016] VCC 1882 [27] (‘Sentencing reasons’).
[3]Ibid [29].
A police officer observed Borg driving a blue Mazda BT50 4WD utility with no registration plates along Morang Drive, Mill Park at about 9.55pm on 15 August 2015. A car of the same description had been stolen from a residence in Bundoora that morning following forced entry to the home. Borg was not licensed to drive a motor vehicle. The driving of this vehicle was the subject of charge 1 (theft) and summary charge 9 (unlicensed driving).
The police officer drove after Borg into the Sycamore Reserve carpark in order to intercept him. Borg reached a dead end, did a U-turn and accelerated heavily towards the police car, forcing the police officer to take evasive action to avoid a collision. The police officer activated lights and sirens while following Borg as he left the carpark. Borg ignored him and accelerated away, driving erratically through the streets of Mill Park. The police officer did not pursue further to avoid danger to the public. These actions constituted part of the rolled up charge 2 (reckless conduct endangering persons).
Borg continued to drive erratically and at high speed north along Plenty Road, Mernda. A random breath testing station had been set up at the intersection with Bridge Inn Road. Borg drove directly at a police member who was performing traffic duties, causing the police officer to jump out of the way to avoid being struck. This behaviour constituted charge 3 (reckless conduct endangering persons).
Borg continued to drive in an erratic manner, disobeying traffic signals and speed limits, through the suburbs of Mernda, Doreen, Mill Park and Bundoora. Although he was being monitored by the Police Air Wing, the police had made a decision not to pursue him on the ground. At one point, however, Borg drove at a stationary marked police vehicle that had its lights activated which was parked in the left hand slip lane of McDonalds Road, South Morang. He deliberately changed lanes and drove at the vehicle, which had two police officers inside, and only swerved at the last moment, narrowly missing them. He continued on at high speed and drove along the dedicated tram tracks of Plenty Road, Bundoora, before he veered to the wrong side of the road and continued northwards, driving directly at oncoming traffic at high speed, causing the other drivers to take evasive action to avoid collision. The police made an attempt to stop Borg in Grimshaw Street, Bundoora, by releasing stop-sticks, which resulted in the front and rear driver side tyres being deflated. But Borg did not stop, continuing to drive the stolen vehicle on the two flat tyres, until he reached the University Hill shopping complex off Plenty Road, Bundoora, where he was met at the rear by an unknown person in a white Holden sedan. As the police pulled up, Borg abandoned the Mazda vehicle and jumped into the rear passenger seat of the Holden, which then drove off. All of this behaviour formed part of the rolled up charge 2 (reckless conduct endangering persons).
The Police Air Wing then observed the white Holden sedan, which was driven erratically by the unknown driver on the Western Ring Road, the Tullamarine Freeway, and towards the eastern suburbs on the Monash Freeway. The police attempted to stop this vehicle, again using stop-sticks, near the intersection of Stud Road and the Monash Freeway, resulting in the deflation of a rear tyre of the car. On the basis that Borg was engaged in a joint criminal enterprise, these actions formed part of the rolled up charge 4 (reckless conduct endangering persons).
The white Holden then stopped in the middle of the Monash Freeway, forcing the driver behind to slow down, although that car did not stop and drove around the stationary Holden. The driver of the Holden then started driving again with the flat tyre and then tried to stop a white Jeep Grand Cherokee travelling in the far left hand lane by driving into the side of the Jeep twice. The Jeep spun across four lanes of the freeway before coming to a stop on the grass median strip. Fortunately, the Jeep driver was not injured. This conduct also forms part of the rolled up charge 4 (reckless conduct endangering persons).
The unknown driver of the white Holden then drove along the Monash Freeway to the Power Road exit. At the intersection of Power Road and Churchill Park Drive in Endeavour Hills, the unknown driver drove on the wrong side of the roundabout and headed directly at a Mitsubishi sedan, which was forced to stop. This behaviour too is part of the rolled up charge 4 (reckless conduct endangering persons).
Having positioned the white Holden to block the Mitsubishi, Borg and the unknown driver left their vehicle and approached the Mitsubishi. One of them in the presence of the other opened the Mitsubishi driver’s door, pulled the driver out, and then stole that car, leaving the driver standing in the roadway. Again, it is fortunate that the driver was not injured. This conduct comprised charge 5 (robbery).
The Mitsubishi was driven to Zircon Close, Narre Warren, where it was abandoned and the two offenders went their separate ways.
Shortly afterwards, at about 11.55pm, Borg entered the rear yard of residential premises in Zircon Close and used a chair to smash through a glass sliding door. This conduct forms the basis for charge 6 (aggravated burglary). As Borg was searching the house, he was confronted by the female occupant. He demanded the keys to her car, a silver Ford sedan parked in the driveway. Fearing for her own safety and that of her children, she handed the keys over. Borg then attempted to drive the car away. This conduct forms the basis of charge 7 (theft). However, as Borg was driving away the police entered Zircon Close and intercepted him. Borg tried to drive around the police vehicles by driving across the front lawn of the house and across a neighbouring property. The police tried to box him in but he drove at them and collided with them. Fortunately, no one was injured. This driving formed part of the rolled up charge 2 (reckless conduct endangering persons). After a short struggle, Borg was arrested and taken into custody. He was taken to Dandenong Hospital to treat some cuts and bruising and a dog bite sustained during his arrest, and then taken to a police station where he gave a ‘no comment’ interview.
The judge’s findings
The judge described Borg’s actions as high risk behaviour over a significant period of time and distance — he travelled some 127 km over about two hours — including very serious examples of the offences the subject of charges 2, 3, 5, 6 and 7. He found that Borg’s conduct was calculated to instil fear into members of both the public and the police. Despite many opportunities to stop, he ‘persisted defiantly’ until he was subdued by police. Such behaviour called for ‘the utmost denunciation and very severe punishment’.[4]
[4]Ibid.
Turning to Borg’s circumstances, the judge noted that Borg has had a methyl amphetamine habit since he was 19 (Borg was 23 at the time of the offending). However, that matter was relevant only as a matter of context, perhaps explaining Borg’s offending, but it could not be regarded as mitigatory. The judge acknowledged Borg’s engagement with rehabilitative programs, including a ‘semi-intensive’ drug and alcohol program, and that urine testing had shown that he was drug free in the lead up to that program in January and February 2016. Although the judge accepted that Borg had made serious efforts while on remand to address substance abuse issues and had expressed a genuine wish to turn his life around, he concluded that the long term prospects of rehabilitation ‘cannot yet be regarded as good’.[5] In making that finding the judge had regard to the concession made by counsel for Borg that Borg had not availed himself of opportunities given to him in the past to rehabilitate himself.
[5]Ibid [36].
Although Borg had pleaded guilty, those pleas were offered late, after protracted post committal negotiations following cross-examination of non-civilian witnesses to test identification evidence. The judge accepted that the guilty pleas had the utilitarian value of avoiding the cost of a trial and trauma for witnesses, and that they reflected Borg’s willingness to accept criminal responsibility for his conduct, albeit post committal. The pleas also supported, to some extent, his expressions of remorse, but the judge did not place any significant weight on the letters of apology addressed to two of the victims.
The question of Borg’s youth was also taken into account by the judge, although as his Honour noted, the serious nature of the offences demanded a substantial custodial sentence. The judge was also mindful of the principle of totality, and reflected that awareness in imposing a relatively shorter non-parole period, having rejected the submission made by counsel for Borg that a combination of custodial sentence with a community corrections order would be appropriate. The judge emphasised that there was a high degree of need for denunciation and just punishment with an appropriate measure of cumulation, given the nature of the offending, including placing members of the public in serious peril and forcing members of the police to place themselves in harm’s way. Specific deterrence was also important given Borg’s criminal record, which the judge noted had been admitted and which contained several offences relevant to sentencing in this case.
Analysis
Borg submits that the sentence fails to properly reflect his remorse and his youth (as noted, he was aged 23 at the time of offending and was 25 at the time of sentencing). His primary submission is that the sentence imposed in relation to the charges of robbery (charge 5) and aggravated burglary (charge 6) are inconsistent with current sentencing practices, particular in the context of the absence of other aggravating factors. In particular, Borg submits that the violence that informed charge 5 fell to be contrasted with more severe instances of violence attending other more serious cases of robbery. He also emphasises that the offending was not prolonged and did not involve a great deal of planning, yet the sentence imposed (four years and six months’ imprisonment) is at the very top end of the range of sentences when regard is had to the Sentencing Advisory Council’s report for June 2016. It is submitted that that report suggests that only three sentences of four years or more were imposed on an individual charge of robbery between 2010-11 and 2014-15, with the highest individual sentence being one instance in which five years’ imprisonment was imposed.[6]
[6]Sentencing Advisory Council, ‘Robbery’, Sentencing Snapshot No 185, June 2016.
Furthermore, Borg submits that it is important that there was an absence of aggravating features in relation to charge 6 (aggravated burglary). His intent was not to commit an assault, he was not carrying a weapon, which would otherwise markedly increase the objective gravity of the offending, and he was alone when he committed the offence. He contends that lower sentences have commonly been imposed for aggravated burglaries that were more grave than that committed by him.
He further submits that it is a significant consideration overall that the totality of the offending occurred within a short period of time, namely, over two hours. He queries whether the judge permitted his conclusion that the offending represented examples of ‘carjacking’, and the public concern that has been expressed with respect to this form of offending, to distort the process of sentencing.
The difficulty Borg faces is that the ground of manifest excess will only succeed if the appellate court considers that the sentence is ‘unreasonable or plainly unjust’.[7] Redlich and Priest JJA explained in McPhee v The Queen[8] that there are considerable problems in making out the ground:
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences … In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[9]
[7]R v Pham (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ).
[8][2014] VSCA 156 (‘McPhee’).
[9]Ibid [8] citing Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, Redlich JA agreeing).
The stringent threshold to establish manifest excess is not easily met, as Borg seeks to do, by pointing to considerations which would have made the offending more objectively grave.
Moreover, the individual circumstances of an offender, including such issues as prior convictions, render it difficult to make ready comparisons between offenders. As the judge noted, Borg has a relevant criminal record. His prior convictions include driving offences (for example, driving while authorisation was suspended and driving in a dangerous manner), property offences (including burglaries, theft of a motor vehicle, possessing housebreaking implements, retaining stolen goods, obtaining property by deception, and dealing with property suspected to be proceeds of crime) and escaping from police custody. He has breached community-based non-custodial orders and was on bail at the time of the subject offending. Moreover, it is significant that the nature of the offending here was directed at a desire to avoid apprehension which demonstrated a persistent disregard for the law.
Although the offending was in one sense not prolonged, in another sense it involved the commission of multiple serious offences in a lengthy and deliberately-pursued course of conduct with the aim of avoiding capture. Those offences placed innocent persons (including police officers) going about their ordinary business at serious risk of injury and it involved an intrusion into a private house causing fear to the vulnerable occupier, a mother and two children with special needs. The smashing of a glass door with a chair must have terrified the occupants. Many people were exposed to danger by reason of Borg’s deliberate and reprehensible conduct.
Borg’s complaint in relation to the judge’s reference to ‘carjacking’ is misplaced. The judge expressly rejected the proposition that there was a particular sentencing practice in Victoria targeted at ‘carjacking’. He noted that there had been a concession made before him by Borg’s counsel that there were current community concerns relating to ‘carjacking’. He said:
Detailed and helpful submissions were made by the prosecution as to the need for the court to consider community concerns regarding offending of the kind reflected in Charges 2 to 5 in particular, as well as Charges 6 and 7. It was submitted that the conduct reflected in Charges 2, the rolled up charge and 3, were particularly serious and that crimes in the nature of carjacking reflected in Charge 5 and Charge 6 are prevalent in Victoria and that they have recently excited heightened community concerns.
My attention was drawn to previous sentencing orders both at first instance and on appeal, including some cases decided in other states. Although of some help, they did not in my view, assist greatly in identifying a current sentencing practice in Victoria for offending of this nature.
It was conceded on your behalf by your counsel that there was a proper basis for my concluding that there are current community concerns arising from criminal conduct in the nature of carjacking.[10]
[10]Sentencing reasons [40]-[42].
Furthermore, as this Court recognised in Harrison v The Queen[11] the youth of an offender has limited relevance when one is considering risk-taking driving, especially where the driver is, as Borg is, an experienced offender in his mid-20’s who has persisted with criminal activity when given the opportunity for rehabilitation in the community. The remorse exhibited was, as the judge noted, of only limited extent, having ‘arisen later rather than sooner’.[12]
[11](2015) 74 MVR 58, 83 [115]-[118].
[12]Sentencing reasons [37].
In all the circumstances, it is my view that the sentence imposed was well within range. Leave to appeal should be refused.
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