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Borthwick v The Queen

Borthwick v The Queen

Case [2012] VSCA 180 8 August 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2011 0013

LEON BORTHWICK	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG and BONGIORNO JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 July 2012
DATE OF JUDGMENT	8 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 180
JUDGMENT APPEALED FROM	DPP v Borthwick [2010] VSC 613 (Williams J)

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CRIMINAL LAW – Sentence – Manslaughter – 7 years 6 months’ imprisonment with a minimum non-parole period of 5 years – Whether sentencing judge failed to achieve her stated objective of “a shorter than usual” minimum non-parole period – Wallace v The Queen [2012] VSCA 114 – No manifest failure to give effect to objective – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Revill & Papa Lawyers
For the Crown	Ms M M Williams SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with T Forrest AJA.

BONGIORNO JA:

I also agree with T Forrest AJA.

T FORREST AJA:

Background

Early in the morning of 16 November 2008, the appellant was the driver of a van which struck and killed Mark Zimmer. This incident occurred in Ormond Road, Narre Warren. The appellant was then aged 18 years and Mr Zimmer was 19.

There had been a history of hostility between the two young men over a period of months. The applicant was presented for trial on a charge of murder, but after a 6 week trial was convicted of manslaughter as an alternative to murder.

Circumstances of the offence

The objective facts leading up to Mr Zimmer’s death can be stated shortly. They are found in more fulsome form in her Honour’s sentence[1] from paragraphs [7] to [21]. The hostility between the two stemmed from a perception held by the appellant that Mr Zimmer was intruding on his relationship with his girlfriend. On 15 November 2008, the appellant’s girlfriend advised him that their relationship was over. The appellant telephoned Mr Zimmer and threatened to come to his house and kill him. Threatening telephone calls were then exchanged over the course of the evening. Mr Zimmer rang the police. He gathered friends and weapons to defend himself. The appellant telephoned Mr Zimmer and said that he was not coming to Mr Zimmer’s house. Mr Zimmer and his friends then went to the appellant’s house.

[1]R v Borthwick [2010] VSC 613.

The appellant, who was not at home, was told that there were 20 to 30 young men armed with weapons outside his house. He drove his mother’s Tarago van to his house. Two friends were passengers in the van. The appellant’s older brother drove ahead of him with some friends in his car.

In fact, Mark Zimmer was accompanied by eight friends. He was standing near a parked car. Whilst travelling at about 45 kilometres per hour, the appellant swerved his van onto the incorrect side of the road and towards the parked car. His brother’s vehicle continued in…

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 Borthwick v The Queen

Details

AGLC: Borthwick v The Queen [2012] VSCA 180
Case: [2012] VSCA 180
Decision Date: 8 August 2012

CaseChat Overview and Summary

The appellant, Borthwick, appealed against his sentence for manslaughter, arguing that the sentencing judge had failed to achieve her stated objective of imposing a shorter than usual minimum non-parole period. The case was heard in the Court of Appeal, which had to determine whether the appeal against sentence was valid, focusing particularly on whether the sentencing judge had manifestly failed to give effect to her stated objective. The appeal hinged on the interpretation of the sentencing judge's remarks and the application of the principles set out in Wallace v The Queen.

The court needed to decide whether the sentencing judge's remarks indicated a manifest failure to give effect to her stated objective of a shorter than usual minimum non-parole period. This involved examining whether the sentencing judge's comments and the actual sentence imposed demonstrated a departure from the objective set out. The appeal court had to consider if the sentence was manifestly inadequate, excessive, or otherwise wrong in light of the objective outlined by the sentencing judge.

The Court of Appeal held that there was no manifest failure by the sentencing judge to achieve her stated objective of a shorter than usual minimum non-parole period. The court found that the sentencing judge had properly considered the circumstances of the case and had not overlooked or disregarded the objective. The remarks made by the sentencing judge, along with the sentence imposed, did not indicate a manifest failure to give effect to the objective. Consequently, the appeal was dismissed.

The Court of Appeal confirmed the original sentence of 7 years 6 months’ imprisonment with a minimum non-parole period of 5 years. The appeal was dismissed, and the original sentence was upheld.

Orders