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
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
PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179
R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Valentine v R [2020] NSWCCA 116
Woodward v R (2014) 68 MVR 376; [2014] NSWCCA 205
Category: Principal judgment Parties: Mark Annsley Borri (Applicant)
The Crown (Respondent)Representation: Counsel:
Solicitors:
J S Stratton SC with K Ng (Applicant)
M Millward (Respondent)
Andrew Scali Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2019/197730;
2019/197761Publication restriction: Publication of names and any information or material…
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- AGLC
- Borri v The King [2023] NSWCCA 166
- Case
- [2023] NSWCCA 166
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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