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Borri v The King

Borri v The King

Case [2023] NSWCCA 166 30 June 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Borri v R [2023] NSWCCA 166
Hearing dates: 5 April 2023
Date of orders: 30 June 2023
Decision date: 30 June 2023
Before: Simpson AJA at [1];
Button J at [2];
Hamill J at [3].
Decision:
(1) Extend time in which to lodge the notice of intention to appeal.
(2) Grant leave to appeal against sentence.
(3) Allow the appeal.
(4) Quash the aggregate sentence imposed in the District Court on 5 February 2021 and in lieu thereof impose an aggregate sentence of 14 years commencing 26 June 2019 and expiring on 25 June 2033 with a non-parole period of 10 years commencing 26 June 2019 and expiring on 25 June 2029.
(5) The applicant will be eligible for release to parole at the expiration of the non-parole period.
(6) Pursuant to s 25C of the Crimes (High Risk Offenders Act) 2006 (NSW), the applicant is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him.

Catchwords:
CRIME – sentence – appeal against sentence – statutory sentencing discount – whether applied to indicative sentences – where no reference to discount in judgment as published – amendment to judgment 21 months after sentence imposed and 27 days after appeal raises ground of appeal – hyperlink to JusticeLink entry added suggestion 25% discount applied – unusual course – amendment to judgment ignored – ground of appeal upheld – applicant sentenced afresh

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23(6), 25D, 25D(2)(a), 25F, 25F(7), 25F(7)(a), 25F(7)(b), s 25F(8), 44(2A)53, 53A, 53A(2)(b), 54A(2), 54B(4), 101A
Crimes Act 1900, ss 61M, 61N, 61O, 66C
District Court Rules 1973, Pt 53 r 12

Cases Cited:
Berryman v R [2017] NSWCCA 297
Convery v R [2014] NSWCCA 93
Cullen v R [2014] NSWCCA 162
Edwards v R [2017] NSWCCA 160
Hanna v R (2020) 102 NSWLR 244; [2020] NSWCCA 125
Lee, Matthew v R [2016] NSWCCA 146
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Panetta v R [2016] NSWCCA 85
PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179
R v Borri [2021] NSWDC 189
R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Tran v R [2020] NSWCCA 39
Valentine v R [2020] NSWCCA 116
Wei v R [2015] NSWCCA 66
Woodward v R (2014) 68 MVR 376; [2014] NSWCCA 205
Zhang v R [2018] NSWCCA 82

Category: Principal judgment
Parties: Mark Annsley Borri (Applicant)
The Crown (Respondent)
Representation:
Counsel:
J S Stratton SC with K Ng (Applicant)
M Millward (Respondent)
Solicitors:
Andrew Scali Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/197730;
2019/197761
Publication restriction: Publication of names and any information or material…

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 Borri v The King

Details

AGLC: Borri v The King [2023] NSWCCA 166
Case: [2023] NSWCCA 166
Decision Date: 30 June 2023

CaseChat Overview and Summary

The appeal in Borri v The King concerns the sentencing of the appellant, Borri, following his conviction for various criminal offences. The appellant sought to appeal against the sentence imposed by the court, specifically challenging the application of a statutory sentencing discount. The High Court of Australia was tasked with determining the appropriate legal framework for applying such discounts and whether the amendment to the judgment, made long after the original sentence and appeal, was valid.

The central legal issue was whether the statutory sentencing discount was properly applied to the indicative sentences and if the amendment to the judgment, which suggested the discount was applied, was a valid ground for appeal. The court needed to decide if the amendment, made 21 months after the sentence and 27 days after the appeal was lodged, could be considered as it was not referenced in the original judgment as published. Additionally, the court had to assess if the addition of a hyperlink to the JusticeLink entry, which suggested the discount was applied, constituted a valid amendment.

The court found that the amendment to the judgment was not a proper ground for appeal as it was made in an unusual manner and at a late stage. The court disregarded the amendment and held that the ground of appeal was valid. Consequently, the appellant was sentenced afresh. The court's decision emphasised the importance of adhering to proper legal procedures in amending judgments and highlighted that the amendment in this case did not meet the necessary standards. The court's ruling ensured that the appellant received a sentence that properly reflected the application of the statutory discount.

Orders