Director of Public Prosecutions v Borg
[2015] VCC 508
•30 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02077
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM BORG |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2014 | |
DATE OF SENTENCE: | 30 April 2015 | |
CASE MAY BE CITED AS: | DPP v Borg | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 508 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - sentence
Catchwords: Pleas of guilty to one charge of intentionally causing injury and one charge of recklessly causing injury – accused struck two victims multiple times with garden stake – escalation of street fight between parties known to each other – dysfunctional childhood characterised by parental abandonment –offending from an early age – prison from age 19 – institutionalised – possible mild intellectual disability – functionally illiterate and requires help with daily living – ineligible for justice plan -
Sentence: TES: 2 years, with CCO of 3 years to commence upon release. S. 6AAA 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr J. Livitsanos | OPP |
| of Public Prosecutions | ||
| Robert Stary Lawyers | ||
| For the Accused | Ms J. Smith |
HER HONOUR:
1 Adam Troy Borg, you have pleaded guilty to one charge of intentionally causing injury and one charge of recklessly causing injury.
2 You are the ex-partner of Jacinta Hodgers, who was an associate of Rose Stolevska, one of the victims of your attack. Ms Stolevska was the partner of Adem Bulut, the other victim. Ms Stolevska and Ms Hodgers were not on good terms.
3 On Saturday 27 April 2013, at about 7 pm, Ms Stolevska and Mr Bulut were returning from the supermarket, approaching their home in a Ministry of Housing estate. You were with Ms Hodgers and a number of unidentified men. Ms Hodgers confronted Ms Stolevska about an alleged theft. They started fighting and wrestling.
4 Mr Bulut tried to break up the fighting but you pulled a wooden stake from a garden and chased him with it. You hit him over the head with it, causing him to fall to the ground. You then continued to hit him on the head three or four times while he lay motionless on the ground. He remained there in an unconscious state. This incident forms Charge 1, intentionally causing injury.
5 You then walked to where the two women were fighting and you struck Ms Stolevska with the end of the stake in her face and upper body multiple times. This is Charge 2, recklessly causing injury.
6 You and Ms Hodgers then left.
7 Both victims were taken to hospital by ambulance and Mr Bulut was admitted in a life-threatening state, suffering a subdural haematoma. He had several operations to treat blood clotting on his brain and remained in hospital for five days. Ms Stolevska had serious cuts, abrasions, and bruises on her face, arms and chest and was discharged the next day.
8 Ms Stolevska provided a victim impact statement in which she described the way her life has been ruined since you attacked her. As the attack occurred outside her home, she was too frightened to return and must now wait for a public housing transfer which could take years. She must attend multiple appointments to aid her recovery and she still feels fearful and anxious nearly all the time.
9 You were arrested on 7 May 2013 and when interviewed you denied all the allegations. You denied being at the scene and said you had nothing to do with the assault. You were remanded in custody. On the date of the committal hearing, 30 October 2013, there was no application for bail and you were remanded in custody to appear at a final directions hearing on 26 August 2014.
10 On 6 March 2014 you were granted bail to appear on 26 August that year but were not released until 12 March pending a surety. By that time you had been in custody for 310 days.
11 You failed to appear on 26 August 2014 and a warrant was issued and executed on 3 September 2014. You were remanded in custody and the trial was then listed for 27 October last year.
12 On 16 October the trial date was vacated and the proceeding was re-fixed for a plea to be heard on 5 December. The hearing of the plea commenced on that date and was adjourned part-heard until today for reports to be obtained.
13 In November 2013, having been in custody for 93 days at that point, you were sentenced by a magistrate to 30 days' imprisonment, which you had already served, and the remaining 63 days from that period of custody is therefore to be taken into account as time already served for this matter.
14 Since 5 December last year you have remained in custody so the pre-sentence detention is now agreed to be 518 days.
15 These are serious charges aggravated by the unprovoked nature of the attack in a public street with the use of a wooden stake as a weapon. The attack on Mr Bulut continued after he had fallen to the ground and it is fortunate that more serious injuries were not inflicted.
16 Intentionally causing injury is punishable by a maximum sentence of 10 years' imprisonment and recklessly causing injury by five years' imprisonment. The sentence I impose must take into account the need to deter others from acting in this way and it also must punish you and deter you from offending again.
17 There are a number of mitigating factors to be taken into account. The first is that you pleaded guilty to the charges, although it was at a late stage, not long before the trial was due to commence. However by doing so, the trial was avoided and importantly the victims and a number of civilian witnesses were spared having to come to court and give evidence.
18 For many months the victims had to face the prospect of the trial but nonetheless you facilitated the progress of the case and for that you are entitled to a discount on your sentence. Your plea is also an indication of remorse which I accept.
19 You are now aged 38. Your childhood was dysfunctional, characterised by parental abandonment. You never knew your father, who left when you were an infant, and your mother re-partnered, with two children being born of that relationship. At the age of about 11 you were taken into care with your siblings, relinquished by your mother and you have not seen her since.
20 After some years your stepfather gained custody of all three children and you have remained in close contact with him and have a good relationship with him.
21 You were unhappy at school and the subject of bullying and did not learn to read and write until you taught yourself in prison with the help of other prisoners.
22 Some years ago your stepfather told you your mother had sedated you regularly as a child to cope with your behaviour but you were never formally diagnosed or treated for what may have been an attention deficit disorder.
23 It is not clear when but you spent time in Baltara and later in Turana after Children's Court appearances which began when you were 13. Your first prison sentence appears to have been when you were 19 following the breach of a community based order for reckless conduct endangering life and also assault with a weapon and other charges. Further prison sentences followed with regularity for various offences, including robbery in 2000 and again in 2009. There are convictions for violent offending, dishonesty, driving, and drug offences, your last appearance before these matters having been on 8 November 2013.
24 On 18 December 2014 you were assessed by Mr Martin Jackson, a neuropsychologist, who provided a report on 23 January this year. This report was requested because of indications that you may be suffering a head injury resulting in an intellectual disability. It was noted that you had attended a special school for a year, indicating a suspected intellectual disability or serious learning disorder. As I have said, there was a history of regular sedation with drugs as an infant and a head injury as a child. There was a history of excessive substance abuse from a very young age, before what is generally accepted to be the age when brain development is completed. You reported a head injury from a car accident resulting in loss of consciousness five years ago. During your adult years you have lived with family members and required extensive support from them and have had longstanding social difficulties.
25 Mr Jackson noted that any brain injury sustained by the means noted above would not fully account for your cognitive difficulties because some of the cognitive functions tested are resistant to brain injury. He considered that given your cognitive deficits, particularly your very limited ability to learn new material, you are very likely to require significant support in order to comply with any community based disposition. He added that your adjustment to life outside prison is going to be difficult because of what he regards as being your institutionalisation.
26 However, you were assessed by the Department of Health and Human Services as not meeting the criteria for an intellectual disability and therefore you do not qualify for a justice plan. The writer of the letter informing me of this suggested several possible sources of assistance for post release support.
27 You have now been assessed as suitable for a community corrections order, which could commence after your release from prison. You are considered to be at high risk of re-offending and so a number of treatment programs are recommended and I shall return to that shortly.
28 As I said before, Mr Borg, the offences you committed were very serious and they are deserving of punishment by means of quite considerable prison sentences. The attacks on the victims were unprovoked and vicious. Mr Bulut particularly was badly injured, as I have already described.
29 However, there are very persuasive mitigating circumstances because of your background which require more lenient sentences than would otherwise be the case.
30 It is important that you begin to take part in community based rehabilitative programs as soon as possible and to enable that, I shall sentence you as follows. Would you stand now, please, Mr Borg?
31 For Charge 1, intentionally causing injury, 22 months' imprisonment; Charge 2, recklessly causing injury, 15 months' imprisonment, two months of which are to be served in cumulation upon the sentence for Charge 1. That results in a total effective sentence of 24 months. This means that once you have served approximately a further five months you will be released to commence the community corrections order.
32 The details of that order are as follows: it will commence on the date of your release and will last for three years. You will be under supervision and you must perform 100 hours of unpaid community work over six months. You must submit to testing and treatment for drug and alcohol abuse, for monitoring of your mental health, and you must take part in programs designed to reduce re-offending. Within two days of being released from prison you must attend the Corrections Office at 10 Foundry Road, Sunshine.
33 If you had pleaded not guilty to these charges, I would have sentenced you to a total effective sentence of 3 years.
34 I declare as already served the period of pre-sentence detention of 518 days and I shall cause that to be noted on the court record.
35 Now, the community corrections order is ready for signature. I will ask my associate to pass that down. While that is being done, there was a disposal order sought by the prosecution.
36 MR LIVITSANOS: There was, Your Honour. There is just one matter.
37 HER HONOUR: I have to ask Ms Smith whether there is consent to that because that had not been raised earlier. Is there consent to the disposal order, Ms Smith?
38 MS SMITH: Yes, Your Honour.
39 HER HONOUR: All right. Thank you. What was the further matter you wanted to raise?
40 MR LIVITSANOS: It is only this, Your Honour, and it stems from a remark that Your Honour has already made in relation to Your Honour's sentence now and certainly put on the plea earlier, Your Honour. The complainants are, as Your Honour has already noted, fearful and continue to be fearful of the accused man. This was raised just during the break now, Your Honour, and in fact raised that there is no intervention order in place at the moment. Whether or not a CCO can take into account not approaching or coming near either of the complainants and of course the answer to that is as a matter of law it can now of course. In my submission, it should also include a non-association clause in relation to the two complainants, Your Honour.
41 HER HONOUR: Yes.
42 MS SMITH: Your Honour, may I approach the dock briefly?
43 HER HONOUR: Yes.
44 MR LIVITSANOS: My apologies, Your Honour. It is a matter that perhaps I should have picked up earlier but it was raised by the victim himself in terms of the ongoing fear that they feel, Your Honour. Of course, s.48F of the Sentencing Act does allow for non-association conditions, Your Honour. Whilst of course if there are obviously any approaches that are made that carry with it other consequences, Your Honour, they would either be further charges or intervention order proceedings again but to alleviate that, as a specific condition of this order upon which if there is an association or a coming near or approaching the complainants, Your Honour, there would be ostensibly a breach of Your Honour's order in this case in particular. I do submit that a 48F condition is appropriate.
45 HER HONOUR: All right. Thank you. Ms Smith?
46 MS SMITH: I have sought some instructions. There is no opposition to that, Your Honour.
47 HER HONOUR: In that case, I agree that would be a step that should be taken. So the community correction order will be adjusted to take that into account there. It will mean it will have to be reprinted and re-signed. It will take a little bit longer.
48 Mr Borg, what I am going to do now is add another condition to the community corrections order which will be that you not associate with either of the victims in this matter. If you were to do that, it would be a breach. I am sure that will be explained to you when you go to the Corrections Office upon your release. All right. I will leave them in my associate's hands to reprint that. I need not come back into court. As soon as it is completed, it can be signed by Mr Borg and by myself.
49 MR LIVITSANOS: As Your Honour pleases. Thank you, Your Honour.
50 MS SMITH: As Your Honour pleases.
51 ORDER SIGNED
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