DPP v Borg (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2015)
---
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Dangerous driving causing death (two charges) – Dangerous driving causing serious injury (two charges) – Sentenced to five year Community Correction Order, with conditions requiring 500 hours of community work, supervision and treatment – Whether manifestly inadequate – Objective gravity of offending high – Devastating consequences – Moral culpability – Offender’s impaired cognitive function – Judge found ‘low level culpability’ – Finding not challenged – Delay – Originally charged with culpable driving – Plea to lesser charges belatedly accepted – Offender lost opportunity for Youth Justice Centre order – Sentence manifestly inadequate – Residual discretion – Special circumstances – Appeal dismissed.
CRIMINAL LAW – Trial – Evidence – Expert evidence – Dangerous driving causing death – Dangerous driving causing serious injury – Accused’s state of mind in issue – Expert evidence filed by prosecution and defence – County Court judge ordered experts to confer – Joint report prepared – Prosecutor accepted plea to lesser charges – Practice Direction No 2 of 2014 – Expert Evidence in Criminal Trials para 10.2.
---
APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr J R Champion QC with Ms A Hassan
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr J F Desmond with Mr R F Edney
Tyler, Tipping & Woods
MAXWELL P WEINBERG JA PRIEST JA:
The respondent, Stephen Borg (‘SB’),[1] now aged 22, pleaded guilty in the County Court to two charges of dangerous driving causing death, and two charges of dangerous driving causing serious injury. He was sentenced as follows:
[1]The abbreviation is used for ease of reference only.
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Dangerous Driving Causing Death [Crimes Act 1958 s 319(1)]
10 years
5 year Community Correction Order (‘CCO’)
N/A
2
Dangerous Driving Causing Death
10 years
5 year CCO
N/A
3
Dangerous Driving Causing Serious Injury [Crimes Act 1958 s 319(1A)]
5 years
5 year CCO
N/A
4
Dangerous Driving Causing Serious Injury
5 years
5 year CCO
N/A
Total Effective Sentence:
5 year Community Correction Order with conditions including: 500 hours of unpaid community work; supervision and treatment and rehabilitation conditions.
6AAA Statement
No statement made.
Other orders: Disqualified from obtaining a licence for two years from 30 September 2015.
Pursuant to s 287 of the Criminal Procedure Act 2009, the Director of Public Prosecutions (‘the Director’) now appeals against that sentence on the sole ground that it was manifestly inadequate. The particulars relied upon in support of that ground are that the sentencing judge:
(a) failed to have sufficient regard to…
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 DPP v Borg
Sign in free to access the full text
Details
AGLC
DPP v Borg [2016] VSCA 53
Case
[2016] VSCA 53
Decision Date
CaseChat Overview and Summary
The appellant, the Director of Public Prosecutions, appealed against the sentence imposed on the respondent, Borg, who was convicted on four charges: two counts of dangerous driving causing death, and two counts of dangerous driving causing serious injury. The County Court sentenced Borg to a five-year Community Correction Order, with conditions requiring 500 hours of community work, supervision, and treatment. The Crown argued that the sentence was manifestly inadequate due to the high objective gravity of the offending and its devastating consequences. The court had to determine whether the sentence was manifestly inadequate, taking into account the offender's impaired cognitive function and the judge's finding of low-level culpability.
The court examined the objective gravity of the offending, noting the devastating consequences for the victims and their families. It also considered the offender's impaired cognitive function and the judge's finding of low-level culpability, which was not challenged on appeal. The court recognised that Borg's state of mind was in issue, with expert evidence filed by both the prosecution and defence. The County Court judge ordered the experts to confer, and a joint report was prepared. The Crown accepted a plea to lesser charges, leading to Borg losing the opportunity for a Youth Justice Centre order. The court found that the sentence was manifestly inadequate, and exercised its residual discretion under section 10 of the Sentencing Act 1991 (Vic), taking into account the special circumstances of the case.
In light of the findings, the court dismissed the appeal. The original sentence was deemed manifestly inadequate, and the court exercised its residual discretion to confirm the sentence imposed by the County Court. The devastating consequences of Borg's actions, coupled with the objective gravity of the offending and the special circumstances, warranted a more severe sentence. The appeal was dismissed, and the original sentence was confirmed.