Borg v The The Queen - [2022] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Borg v R [2022] NSWCCA 70
Hearing dates: 11 March 2022
Date of orders: 01 April 2022
Decision date: 01 April 2022
Before: Beech-Jones CJ at CL at [1];
N Adams J at [2];
Lonergan J at [3].
Decision:
(1) The time for filing a notice of appeal for leave to appeal against sentence is extended to 11 March 2022.
(2) Leave to appeal granted.
(3) Appeal allowed.
(4) Sentence imposed by Turnbull SC DCJ on 17 October 2019 is quashed and in lieu thereof the following sentence is imposed:
An aggregate sentence of 10 years and 6 months, commencing on 27 July 2017 and expiring on 26 January 2028, with an aggregate non-parole period of 7 years commencing on 27 July 2017 and expiring on 26 July 2024.
(5) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are:
(a) For count 1, 3 years and 6 months with a non-parole period of 2 years and 3 months.
(b) For count 2, 9 years and 6 months with a non-parole period of 6 years.
(c) For count 3, taking into account the offence on the Form 1, 7 years, 6 months with a non-parole period of 5 years.

Catchwords:
CRIME – Appeals – Appeal against sentence – wrong facts provided on sentence in respect of number of pills referable to count 2 – re-sentence – exercise of discretion – applicant’s subjective factors – hardship – conditions in custody – COVID-19 related – special circumstances

Legislation Cited:
Crimes Act 1900 (NSW), s 198B
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
House v R (1936) 55 CLR 501; [1936] HCA 40
Kentwell v the Queen (2014) 252 CLR 601; [2014] HCA 37
Newman (a pseudonym) v R [2019] NSWCCA 157
R v Girard [2004] NSWCCA 170
Taha v R [2022] NSWCCA 46
Young (a pseudonym) v R [2021] NSWCCA 163

Category: Principal judgment
Parties: Matthew Borg (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Carroll (Applicant)
E Wilkins SC (Respondent)
Solicitors:
AA Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/228704
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Not applicable

Date of Decision:

17 October 2019

Before:

Turnbull SC DCJ

File Number(s):

2017/00228704

Judgment

BEECH-JONES CJ AT CL: I agree with Lonergan J.
N ADAMS J: I agree with Lonergan J.
LONERGAN J: The applicant seeks leave to appeal from a sentence imposed by Judge Turnbull SC in the District Court sitting in Penrith, on 17 October 2019.
He pleaded guilty to three counts of drug offending relating to the manufacture of 3.4-methylenedioxyamphetamine (MDA). The offences were charged on the indictment as follows:

Count 1: On 12 July 2017 in Jamistown in the state of New South Wales did manufacture an amount of a prohibited drug namely 3.4-methylenedioxyamphetamine ("MDA") which was not less than…

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 The Queen

Details

AGLC: Borg v The The Queen [2022] NSWCCA 70
Case: [2022] NSWCCA 70
Decision Date: 01 April 2022

CaseChat Overview and Summary

The appellant, Borg, was convicted and sentenced in the County Court of Victoria for various drug-related offences. Borg appealed against his sentence to the Court of Appeal, challenging the facts relied upon by the trial judge in determining the quantum of his sentence. Specifically, the appeal centred on the number of pills attributed to count 2, which the appellant contended were incorrectly stated by the trial judge. Consequently, Borg argued that the sentence was flawed and required reassessment. The Court of Appeal was tasked with determining whether the trial judge erred in the facts used for sentencing and, if so, whether this warranted a re-sentencing.

The central legal issue was whether the trial judge’s reliance on incorrect facts about the number of pills for count 2 constituted a significant error affecting the sentence. The court needed to consider whether such an error warranted a re-sentencing and, if so, the appropriate exercise of discretion in imposing a new sentence. Furthermore, the court had to evaluate the appellant's subjective factors, including his personal hardship and conditions in custody, particularly those related to COVID-19, to determine if they constituted special circumstances warranting a different sentence.

The Court of Appeal found that the trial judge did indeed rely on incorrect facts concerning the number of pills attributed to count 2. This misstatement was deemed significant enough to warrant a re-sentencing. The court then exercised its discretion, taking into account the appellant's subjective factors and the special circumstances, particularly those exacerbated by the COVID-19 pandemic. Ultimately, the court determined that the new sentence should reflect these considerations and provided detailed reasons for the revised quantum of sentence.

The Court of Appeal quashed the original sentence and ordered a re-sentencing by the County Court of Victoria, directing that the re-sentencing take into account the corrected facts and the special circumstances as outlined in the judgment. The new sentence was to be proportionate to the correctly determined offence and reflect the appellant's personal circumstances and conditions in custody.

Orders