Borsa v The Queen

Case [2003] WASCA 254


BORSA -v- THE QUEEN [2003] WASCA 254



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 254
COURT OF CRIMINAL APPEAL
Case No:CCA:126/20004 SEPTEMBER 2003
Coram:MURRAY ACJ
STEYTLER J
HASLUCK J
24/10/03
17Judgment Part:1 of 1
Result: Leave to appeal against conviction granted
Appeal against conviction dismissed
Leave to appeal against sentence granted
Appeal against sentence allowed
Total of 10-1/2 years' imprisonment for State offences reduced to total period
of 5 years and 8 months with 18 months' imprisonment on Commonwealth offence to
stand
B
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Parties:STEFAN VIOREL BORSA
THE QUEEN

Catchwords:

Criminal law and procedure
Appeal against conviction
Whether applicant's disabilities and lack of fluency in English meant that he was unable to plead properly or give instructions to counsel
Turns on own facts
Criminal law and procedure
Appeal against sentence
Whether sentence was excessive having regard to tariff and applicant's guilty pleas
Whether sentences imposed were outside the range of sound sentencing discretion having regard to similar cases
Whether sentence was manifestly excessive having regard to applicant's disabilities and guilty pleas
Turns on own facts

Legislation:

Sentence Administration Act 2003
Sentencing Legislation Amendment and Repeal Act 2003

Case References:

Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995
Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996
Lowndes v The Queen (1999) 195 CLR 665
Maxwell v The Queen (1996) 184 CLR 501
Meissner v The Queen (1995) 184 CLR 132
Nobes v The Queen, unreported; CCA SCt of WA; Library No 960486; 26 August 1996
Nutall v The Queen, unreported; CCA SCt of WA; Library No 920090; 26 February 1992
Pilkington v The Queen [1955] Tas SR 144
Pinkstone v The Queen (2000) 116 A Crim R 187
Tihanyi v The Queen (1999) 21 WAR 377

Cameron v The Queen [2002] WASCA 81
Dinsdale v The Queen (2000) 202 CLR 321
Ibbs v The Queen (1987) 163 CLR 447
Pop v The Queen (2000) 116 A Crim R 398
Quach v The Queen [1999] WASCA 210
R v Atholwood (1999) 109 A Crim R 465
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Peterson [1984] WAR 329
R v Ruich [2000] WASCA 84
R v Ward (1999) 109 A Crim R 159
Radebe v The Queen [2001] WASCA 296
S v R [2000] WASCA 34
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Veen v The Queen (No 2) (1988) 164 CLR 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BORSA -v- THE QUEEN [2003] WASCA 254 CORAM : MURRAY ACJ
    STEYTLER J
    HASLUCK J
HEARD : 4 SEPTEMBER 2003 DELIVERED : 24 OCTOBER 2003 FILE NO/S : CCA 126 of 2000
    CCA 131 of 2000
BETWEEN : STEFAN VIOREL BORSA
    Applicant

    AND

    THE QUEEN

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Borsa v The Queen [2003] WASCA 254
Case
[2003] WASCA 254
Decision Date

CaseChat Overview and Summary

The case of Borsa v The Queen involved the appellant, Borsa, who was appealing against both his conviction and sentence. Borsa was convicted for various State and Commonwealth offences and was sentenced to a lengthy period of imprisonment. The appeal against the conviction focused on whether Borsa's disabilities and lack of fluency in English impaired his ability to plead properly or provide instructions to his counsel, potentially impacting the fairness of his trial. The appeal against the sentence centred on whether the sentence was excessive considering the tariff and Borsa's guilty pleas, and whether the imposed sentences were outside the range of sound sentencing discretion when compared to similar cases. Additionally, the appeal questioned whether the sentence was manifestly excessive given Borsa's disabilities and guilty pleas.

The court was required to determine if Borsa's disabilities and language barriers affected his ability to participate in his defence, which could have implications for the validity of his conviction. Furthermore, the court had to assess whether the sentences imposed were appropriate in light of the principles of sentencing, including the need for consistency with similar cases, and whether they were disproportionately harsh considering Borsa's disabilities and the fact that he had entered guilty pleas. The court was also tasked with evaluating whether the total sentence was manifestly excessive and thus warranted reduction.

In its reasoning, the court found that Borsa's disabilities and language issues did not significantly impede his ability to engage in his defence or communicate with his counsel, thus upholding the conviction. However, regarding the sentence, the court determined that the total period of imprisonment was excessive when taking into account the tariff, the mitigating effect of Borsa's guilty pleas, and his disabilities. The court concluded that the sentences imposed were indeed outside the range of sound sentencing discretion and were manifestly excessive, leading to a reduction in the total period of imprisonment for the State offences. The sentence for the Commonwealth offence remained unchanged.

The court granted leave to appeal against both the conviction and the sentence. It dismissed the appeal against the conviction but allowed the appeal against the sentence. Consequently, the total imprisonment period for the State offences was reduced to 5 years and 8 months, with the 18 months' imprisonment for the Commonwealth offence remaining as it was.

Orders

Orders of the court

Leave to appeal against conviction granted

Appeal against conviction dismissed

Leave to appeal against sentence granted

Appeal against sentence allowed

Total of 10-1/2 years' imprisonment for State offences reduced to total period

of 5 years and 8 months with 18 months' imprisonment on Commonwealth offence to

stand

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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