DPP v Borg - [2013] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0291
DIRECTOR OF PUBLIC PROSECUTIONS (VIC)	Appellant
v
LEONARD BORG	Respondent

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JUDGES:	BUCHANAN, NETTLE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	22 July 2013
DATE OF JUDGMENT/ORDER:	22 July 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 181	1^st revision 23 July 2013, page 4, footnote 1
JUDGMENT APPEALED FROM:	[2012] VSC 565 (Lasry J)

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CRIMINAL LAW – Sentence – Crown appeal – Murder – Planned, cold blooded execution to protect the profits of cultivation of marijuana – Sentence of 23 years’ imprisonment with a minimum term of 19 years’ imprisonment manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr P B Kidd SC	Office of Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr T Kassimatis	Theo Magazis & Associates

BUCHANAN JA:

The respondent established marijuana crops in a house in Craigieburn and at other locations for the purpose of trafficking in the harvest. In March 2009, police learned of the crop. The respondent believed that Peter Rule, who had known the respondent for a number of years, had informed the police.

In November 2009, the respondent travelled to New South Wales with Michael Spiropoulos and purchased a .22 rifle.

About a week later, on 15 November 2009, the respondent took Mr Rule out to dinner and afterwards drove him to a factory in Campbellfield. There the respondent shot Mr Rule six times in the head and four times in the chest with the .22 rifle, killing him.

The respondent told Spiropoulos to buy bottles of bleach, garbage bags and rags and bring them to the Campbellfield factory. The respondent and Spiropoulos spent an hour and a half cleaning the factory. The respondent then drove to a factory in Thomastown with Rule’s body in the boot of the car.

The following day, Spiropoulos went to the Thomastown factory and found the respondent burning Rule’s body. A chainsaw was purchased and over the ensuing three days, the pair dismembered the body and placed its parts in tubs containing acid. The offenders travelled to the seaside, concealed various items in the bush and washed the contents of a tub into the sea. They cleaned and painted the floor of the Thomastown factory.

In January 2010, the respondent denied to the police that he had any knowledge of the fate of Mr Rule and gave a false alibi as to his whereabouts on 15 November 2009. The respondent prevailed upon his employer to create a false record to support the alibi.

On 5 April 2010, Spiropoulos confessed his involvement in the murder. The respondent was tried in the Supreme Court on a charge of murder and was found guilty. He also pleaded guilty to charges of handling stolen goods and cultivating a narcotic plant.

After a plea, the respondent was sentenced to be imprisoned for a term of 23 years on the charge of murder, for a term of 12 months on the charge of…

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

Details

AGLC: DPP v Borg [2013] VSCA 181
Case: [2013] VSCA 181
Decision Date: 22 July 2013

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Borg was heard in the Supreme Court of Victoria. The accused, Borg, was convicted of the murder of two individuals, an act committed as part of a calculated plan to safeguard the financial gains from the cultivation of marijuana. The prosecution appealed against the sentence imposed by the trial judge, asserting that the 23-year imprisonment term with a minimum of 19 years was inadequate in the context of the premeditated and callous nature of the crime. The appeal centred on the proportionality and adequacy of the sentence in relation to the gravity of the offence.

The central legal issues addressed by the court involved the appropriate sentencing principles to apply in cases of murder committed for financial gain and under circumstances of premeditation and callousness. The court had to consider whether the trial judge had sufficiently taken into account the aggravating factors of the crime, including the planned and cold-blooded nature of the murders, the motive of financial gain, and the absence of remorse shown by the offender. The appeal required the court to evaluate whether the sentence imposed was manifestly inadequate and whether a more severe penalty was warranted to reflect the seriousness of the crime.

In its reasoning, the court noted that the trial judge had acknowledged the aggravating factors but had balanced these against the mitigating factors, such as the absence of a prior criminal record. However, the appellate court found that the trial judge had not adequately considered the totality of the circumstances and the need for the sentence to reflect the heinous nature of the crime. The court determined that the sentence imposed was manifestly inadequate, as it did not sufficiently deter future offences of a similar nature or reflect the community's sense of justice. Consequently, the appeal was allowed, and the case was remitted to the trial court for resentencing.

The final orders of the court were to remit the case to the trial court for the purpose of resentencing, ensuring that the new sentence adequately reflects the gravity of the crime and serves the purposes of deterrence and denunciation. The court did not specify a particular term or minimum term but emphasised the need for a sentence that appropriately balances the aggravating and mitigating factors in light of the premeditated and callous nature of the murders.

Orders