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
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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
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
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.
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Details
AGLC
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