R v Borg

[2017] NSWSC 746

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Borg [2017] NSWSC 746

Hearing dates:

26 May 2017

Date of orders:

09 June 2017

Decision date:

09 June 2017

Jurisdiction:

Common Law - Criminal

Before:

Schmidt J

Decision:

George Michael Borg is convicted of the murder of Bassil Hijazi.

 

Sentenced to a term of imprisonment of 16 years, 2 months, commencing on 19 March 2014 and expiring on 18 May 2030 with a non-parole period of 12 years, 2 months, which will expire on 18 May 2026.

 The balance of term of imprisonment of 4 years will expire on 18 May 2030.

Catchwords:

CRIMINAL LAW – sentence – murder – plea of guilty – nature and seriousness of the offence – moral culpability – aggravating matters – mitigating matters – personal circumstances – general deterrence – specific deterrence – victim impact statements – discount for guilty plea – discount for assistance – sentence imposed

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v AB (2011) 59 MVR 356; [2011] NSWCCA 229
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Cartwright (1989) 17 NSWLR 243
R v Dodd (1991) 57 A Crim R 349
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Scott [2005] NSWCCA 152
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Wright (1997) 93 A Crim R 48
R v XX [2017] NSWCCA 90
SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Sentence

Parties:

Regina
George Michael Borg

Representation:

Counsel:
Mr R Herps SC (Crown)
Mr G Brady SC (Offender)

  Solicitors:
Office of the Director of Public Prosecutions (Crown)
William O’Brien and Ross Hudson Solicitors (Offender)

File Number(s):

2014/83514

Publication restriction:

JUDGMENT PARTIALLY RESTRICTED Under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), it is ordered that from paragraphs [100] of this judgment the publication or other disclosure of the reasons hereafter given for Mr Borg’s combined discount, other than to the parties’ legal representatives, is prohibited until further order of the Court, on the grounds that it is necessary to prevent prejudice to the proper administration of justice and to protect the safety of the offender and others; Under s 11 of the Court Suppression and Non-publication Orders Act, it is ordered that this suppression order applies throughout the Commonwealth of Australia; and The restricted part of this judgment may otherwise not be published, other than to the parties’ legal representatives, without prior order of the Court.

Judgment

1. On 29 July 2013 Bassil Hijazi, then aged only 18, was murdered at Bexley. On 20 March 2017 George Michael Borg pleaded guilty to his murder on the basis of agreed facts. Mr Borg now stands for sentence for his offence.

2. On 29 July 2013 Mr Borg was in company with a friend, Joseph Gatt. They were both armed with firearms when they approached the parked car in which Mr Hijazi was sitting in the back seat. Mr Gatt fired seven shots at Mr Hijazi, two of which struck him, one hitting him in the neck and another in the chest, passing through his right lung and heart. Mr Hijazi was able to flee the vehicle, but he fell twice as he ran away, suffering various other injuries before he collapsed face down, in the middle of the road. He was pronounced dead at St George Hospital.

3. Mr Borg did not discharge the firearm he was carrying, but he fled the scene with Mr Gatt in the vehicle in which they had driven to the car park where they murdered Mr Hijazi.

4. While there was finally much common ground between the parties as to how Mr Borg must now be sentenced for his offence, there were some issues lying between them, which must be resolved.

5. Part of the sentence hearing was conducted in closed court, for reasons then given. For the same reasons, part of this judgment will be delivered in closed court when the balance of the judgment has been delivered and will be the subject of an order under the Court Suppression and Non-Publication Orders Act 2010 (NSW). This judgment may otherwise not be published, other than to the parties’ legal representatives, without prior order of the Court, until the conclusion of the trial of the co-accused, Mr Gatt.

The Court’s sentencing task

6. I will begin with a short explanation of the Court’s sentencing task.

7. Mr Borg’s sentence must be determined in accordance with the requirements of applicable legislation enacted by the Parliament, as well as binding case law, to which I will refer at various points.

8. In arriving at Mr Borg’s sentence, the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) must be borne in mind. Those purposes are:

“(a)   to ensure that the offender is adequately punished for the offence,

(b)    to prevent crime by deterring the offender and other persons from committing similar offences,

(c)    to protect the community from the offender,

(d)    to promote the rehabilitation of the offender,

(e)    to make the offender accountable for his or her actions,

(f)    to denounce the conduct of the offender,

(g)    to recognise the harm done to the victim of the crime and the community.”

9. The sentence imposed on Mr Borg must reflect the gravity of his offence, viewed objectively: R v Dodd (1991) 57 A Crim R 349 at 354. The gravity of his offence is one of the matters in issue between the parties.

10. In accordance with s 54A of the Crimes (Sentencing Procedure) Act, the seriousness of Mr Borg’s offence must be assessed by taking into account only the objective factors affecting its relative seriousness. Mr Borg’s moral culpability for his offence must also be taken into account: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38.

11. The rules of evidence do not ordinarily apply on sentence: Evidence Act 1995 (NSW), s 4. The weight of the evidence which the parties have led must, however, be critically assessed in resolving the issues lying between them.

12. Any disputes about factual findings must also be resolved in the way discussed in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. That is, facts may not be taken into account adversely to an accused, unless they have been established beyond reasonable doubt. However, if there are circumstances to be taken into account in favour of the accused, they need only be proven on the balance of probabilities.

13. Mr Borg’s sentence must also be determined in light of the maximum penalty imposed for the crime of murder, namely, life imprisonment: Crimes Act1900 (NSW), s 19A.

14. It must also be remembered, however, that this maximum sentence is reserved for extreme offences of murder. Such a sentence may only be imposed if the Court is satisfied that the level of culpability in the commission of the murder is so extreme, that the community’s interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence: Crimes (Sentencing Procedure) Act, s 61(1). It is for the Crown to establish that an offence falls within s 61(1). In Mr Borg’s case the Crown did not seek to do so.

15. Given the evidence I will discuss, I accept that this is not a case which warrants the imposition of the maximum sentence on Mr Borg, notwithstanding the obvious seriousness of his offence.

16. The Parliament has also imposed a standard non-parole period of 20 years imprisonment for an offence of murder, which falls in the middle of the range of objective seriousness of such offences: Crimes (Sentencing Procedure) Act, Part 4, Division 1A, Table “Standard non-parole periods”. A non-parole period is the minimum period that an offender will serve in prison, before being eligible to be released on parole, for the balance of the sentence imposed for the offence.

17. Both the maximum penalty and the standard non-parole period are amongst the factors which must be taken into account when Mr Borg is sentenced, in the way discussed by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and as is now provided in s 54B of the Crimes (Sentencing Procedure) Act.

18. The Court must also consider identified aggravating and mitigating factors revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of Mr Borg’s offence: Crimes (Sentencing Procedure) Act, s 21A. Consideration must also be given to questions of general and specific deterrence: Munda v Western Australia at [54].

19. All of the relevant factors must be taken into account by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. That requires the sentencing judge to identify all of the factors that are relevant to be considered on sentencing in Mr Borg’s case, discussing their significance and making a value judgment as to the appropriate sentence for his offence.

20. Consideration must also be given to the reduction of Mr Borg’s sentence in accordance with the provisions of ss 22 and 23 of the Crimes (Sentencing Procedure) Act. The sentence must ensure, however, that there is a reasonable proportionality between the sentence imposed upon him and the circumstances of the crime he committed: R v Scott [2005] NSWCCA 152 at [15].

21. Regard must also be paid to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed on an offender must not exceed one-third of the non-parole period imposed, unless the Court decides that there are special circumstances which warrant a departure from that ratio.

22. If there is to be any such adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires Mr Borg to serve for the offence he has committed: Power v The Queen (1974) 131 CLR 623 at 628 – 629; [1974] HCA 26.

23. It is also necessary to note the effect of the Crimes (High Risk Offenders) Act 2006 (NSW), applicable to “serious violence offences”, which under s 5A includes the offence of murder.

24. The effect of this Act is that in the future, the State can apply to the Supreme Court for an order that Mr Borg continue to receive supervision, or remain in detention. If the Court is then satisfied, to a high degree of probability, that he would be a “high risk offender”, that is an offender who poses an unacceptable risk of committing a serious violence offence, if not kept under supervision, it may make an order under s 5F for his extended supervision, after the expiry of his sentence. An order for continuing detention may also be made under s 5G, if the Court is then satisfied that adequate supervision will not be provided, by an extended supervision order.

The objective seriousness of Mr Borg’s offence

25. In evidence is the agreed statement of facts, as well as statements which Mr Borg has made, oral evidence which he gave and was cross-examined about, his prior record and custodial history, a psychologist’s report, an affidavit of his solicitor, Mr Cole and references from his mother, aunt and a family friend.

26. A victim impact statement was also read in open court by Mr Hijazi’s mother, Ms Hannah Hijazi.

27. The evidence establishes that the murder which Mr Borg admitted he committed in 2013 as a member of a joint criminal enterprise, when he was only 23 years old, was out of character and contrary to his prior record. Mr Borg’s prior criminal record was then limited to a drug possession offence to which he was sentenced to a three month bond in July 2012 and a drug supply offence committed in September 2012, to which he was sentenced to a two year bond.

28. I am satisfied that the agreed facts establish, however, contrary to the case advanced for Mr Borg, that having involved himself as he did in the cold blooded execution of Mr Hijazi, his offence was a very serious one, objectively falling above the mid-range of such offending.

29. This conclusion follows from evidence which establishes that in July 2013 Mr Borg and Mr Gatt had been close friends for some three years. Mr Borg was then aware of the general nature of Mr Gatt’s activities, which involved drug supply. They saw each other frequently, trained together at a gym and Mr Borg often drove Mr Gatt, to facilitate contacts with Mr Gatt’s associates. Mr Borg was also aware of Mr Gatt’s access to firearms and that he usually had a firearm in his possession, because of his ongoing animosity with others.

30. Mr Borg was also aware of ongoing animosity between Mr Gatt and Mr Hijazi and had himself been involved with Mr Gatt in a physical altercation with Mr Hijazi, some months previously. The evidence does not reveal the cause of this animosity.

31. At about 9.20pm on 29 July 2013 Mr Hijazi was seated in the back seat of a car with two others seated in the front, in a car park at Bexley. Mr Borg was driving Mr Gatt. They stopped at the home of an acquaintance and they were there told where Mr Hijazi was. Mr Borg and Mr Gatt then agreed to approach Mr Hijazi in the car park. The purpose for this approach was not disclosed by the evidence, other than by what then unfolded. There is an issue between the parties as to what the purpose was.

32. Mr Borg drove Mr Gatt and parked the car about 100 metres from the car in which Mr Hijazi was sitting. Mr Borg and Mr Gatt then walked to the corner of the car park, to make observations. They saw the other two passengers sitting in the car with Mr Hijazi. They returned to their car and it was Mr Gatt who then drove. He stopped three to four metres away from the other car, leaving the engine running and the handbrake on.

33. Mr Borg and Mr Gatt approached the other car, stopping about two metres away. They were both then in possession of firearms, with Mr Borg standing beside Mr Gatt, who stood in front of the other car at an angle diagonal to the front passenger side corner. They both produced their firearms and Mr Gatt fired seven rounds in the direction of Mr Hijazi. Later examination of the casings found on the ground of the car park indicated that all seven were discharged from the same firearm. Mr Borg did not discharge his weapon. The evidence does not establish that the firearm Mr Borg was carrying was loaded.

34. The evidence does establish that the injuries which two of the seven shots which Mr Gatt fired caused, were the direct cause of Mr Hijazi’s death.

35. After Mr Gatt shot Mr Hijazi, he and Mr Borg ran back to their vehicle, which Mr Gatt drove away. They arrived at Mr Gatt’s apartment at Wolli Creek at about 9.53pm. Mr Gatt told Mr Borg to shower and change into fresh clothing, which he provided. Mr Gatt did likewise and they placed their worn clothes in a receptacle for disposal.

36. At 11.02pm Mr Gatt and Mr Borg were recorded on CCTV taking the lift to street level. Their clothes had changed. They returned at 12.05am on 30 July, with Mr Borg then recorded as carrying a white washing basket. Mr Borg then stayed with Mr Gatt for the following three weeks.

37. Mr Gatt was arrested on 2 November 2013, after police became aware that he was decamping from his apartment. Materials he was attempting to have removed included two pistols, a rifle and compatible ammunition. Forensic testing established that none of these weapons had been used to shoot Mr Hijazi, but DNA testing found Mr Borg’s DNA on one of the pistols.

38. On the case advanced for Mr Borg in written submissions, it was accepted that his liability for Mr Hijazi’s murder arose from his involvement in the joint criminal enterprise and that as a result, he was equally responsible for all of the acts pursued in the course of carrying out that enterprise. It was argued, however, that his offence was objectively less serious than that of Mr Gatt, who was physically responsible for the shots which caused Mr Hijazi’s death. So much was accepted by the Crown.

39. What was in issue was whether the evidence also established that Mr Borg had shared Mr Gatt’s intention of executing Mr Hijazi.

40. For Mr Borg it was accepted that he was aware of the tension between Mr Gatt and Mr Hijazi; that he knew that Mr Gatt was armed; that before Mr Gatt fired the fatal shots, he believed that Mr Gatt may shoot Mr Hijazi, with the intention of causing him really serious harm; and that he had encouraged Mr Gatt by his own actions. Nevertheless, it was argued that the evidence did not establish beyond reasonable doubt that he had shared Mr Gatt’s intention of executing Mr Hijazi.

41. In oral submissions it was further submitted that while Mr Borg was aware that there was going to be some sort of confrontation, given his knowledge of the animosity which existed and the fact that he and Mr Gatt approached the car armed, there was little evidence of any prior planning, even on the part of Mr Gatt. Nor did the evidence establish that Mr Borg knew beforehand, “from the word go”, that is when they left to find Mr Hijazi, that Mr Gatt would shoot him as he did. The absence of such evidence made a real difference, it was argued, to the assessment of the objective seriousness of Mr Borg’s offence.

42. On the Crown’s case, what occurred on 29 July 2013 was not an accident or mistake, or the result of a fight, after a chance meeting. Rather, it was the result of a decision made by Mr Borg and Mr Gatt to do something about Mr Hijazi, immediately upon them becoming aware of his whereabouts. That the decision was to execute Mr Hijazi was submitted to have been established by the steps which Mr Borg and Mr Gatt immediately took together, namely, driving immediately to where Mr Hijazi was in a car at the car park, both being armed; parking close nearby; and then after first checking, acting decisively to drive up to the car, exit and fire a gun seven times at Mr Hijazi, with precision and speed, before leaving together and then going to ground for three weeks.

43. In oral submissions it was accepted that there was a “general absence of evidence about a large number of matters surrounding the actual shooting”, but it was argued that when the situation was reconnoitred as it was, Mr Borg knew what Mr Gatt contemplated. That was also established, it was submitted, by what then followed, which included Mr Borg himself carrying and producing a gun, which established that Mr Borg knew what was about to happen.

44. While I am satisfied that the evidence establishes that at some time before he fired at Mr Hijazi, Mr Gatt decided to execute Mr Hijazi, I am not satisfied beyond reasonable doubt that this decision was one to which Mr Borg was a party, even though he drove Mr Gatt to the car park, accompanied him when the car in which Mr Hijazi was sitting was located and then himself carried a gun, when he accompanied Mr Gatt out of the car and they together approached the car in which Mr Hijazi was sitting.

45. The evidence, as well as Mr Borg’s plea, certainly establish that Mr Borg was not merely Mr Gatt’s driver that night, but rather a willing participant in a joint criminal enterprise during which he appreciated that Mr Gatt might cause Mr Hijazi really serious harm, if he used the weapon with which he was armed, to shoot at Mr Hijazi. Mr Borg also undoubtedly came to realise that Mr Gatt was likely to kill Mr Hijazi, when Mr Gatt began firing his weapon in close range at Mr Hijazi. That is what makes Mr Borg’s offence objectively so serious. The evidence establishes that the events which then occurred were such that Mr Hijazi’s appreciation and fear of how his life was being ended by his assailants, must have been truly awful.

25. I also consider, however, that the evidence still leaves a doubt that Mr Gatt executing Mr Hijazi, rather than intimidating or even seriously injuring him, was what had earlier been decided by both Mr Gatt and Mr Borg.

26. That doubt flows from the evidence of Mr Borg’s prior character and his limited criminal record; his mental health and the nature of his relationship with Mr Gatt; the agreed fact that the gun which Mr Borg carried and which was later found at Mr Gatt’s apartment, belonged to Mr Gatt; Mr Borg’s unchallenged evidence that Mr Gatt directed him to carry that gun, when he left the car with Mr Gatt; as well as the unchallenged account which Mr Borg gave the psychologist who examined him, that he was not aware that a murder was going to take place, although, of course, that evidence has to be considered in light of the plea which he has entered.

27. Had I not been left with this doubt, Mr Borg’s offence would have been even more serious than undoubtedly it was, given the way in which Mr Hijazi was executed.

Moral culpability

49. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] - [178] the circumstances in which an offender’s mental disorders may have an impact on sentencing were explained. They include where the state of the offender’s mental health contributed to the commission of the offence in a material way, so as to reduce his or her moral culpability. A mental condition may also make an offender an inappropriate vehicle for general deterrence, or have the result that a custodial sentence may weigh more heavily on that person. Or it may reduce or eliminate the significance of specific deterrence in the offender’s case, in which event the sentence may be reduced. Conversely, it may be that the offender’s mental illness may be such that he or she presents more of a danger to the community. In that event, considerations of specific deterrence may result in an increased sentence.

50. Mr Borg properly accepted his moral culpability for his offending, notwithstanding the mental health issues which he suffered at the time of his offence and which he continues now to suffer. The evidence of Mr Borg’s personal circumstances, to which I will now turn, explains why that was accepted.

Mr Borg’s personal circumstances

51. Mr Borg’s personal circumstances were revealed by the May 2017 report of the psychologist Ms Taylor, who examined Mr Borg in April 2017. She was not required for cross-examination.

52. Mr Borg gave Ms Taylor an account, aspects of which were corroborated both by his evidence, as well as by the references which are in evidence. Mr Borg maintains a good relationship with his family. The references also attest to Mr Borg’s prior character.

53. Mr Borg and his mother were abandoned by his father, while she was pregnant with him. In Ms Taylor’s opinion, this had an adverse impact on his emotional development and contributed to Mr Borg’s early development of low self-esteem, as well as his later mental health issues.

54. Mr Borg left home and schooling at age 16, as the result of conflict with his former step father, who his mother had married when he was 10 and who had physically assaulted him when he was aged 14 and 15. He also suffered regular bullying at high school. Ms Taylor considered that these experiences had adverse consequences for Mr Borg’s substance abuse and mental health. He developed symptoms of depression and anxiety, which endured into adulthood.

55. After Mr Borg left home he had difficulty maintaining employment, having no stable accommodation and moving regularly between friends’ homes. Mr Borg socialised with other disenfranchised youth during his adolescence and engaged with them in anti-social behaviours and substance abuse, from age 16. He was easily influenced by these peers, wanting to experience a sense of belonging to a group. His cannabis use rapidly escalated to daily use, leading to a level of dependence and self medicative effects which he pursued up until shortly after Mr Hijazi’s murder.

56. From age 21 Mr Borg also commenced using cocaine, as well as a range of steroids, which he came to use on a daily basis, because of his poor self-image and desire to develop muscle to look bigger and better. Mr Borg experienced an increase in aggression and agitation when taking steroids, but ceased taking them some months after Mr Hijazi’s murder, when he was trying to distance himself from Mr Gatt. He then experienced various symptoms of withdrawal and began training excessively, to manage his anxiety.

57. Mr Borg’s cocaine use was of up to five grams per night. He also used xanax, valium, ecstasy and MDMA. That use also ceased in November 2013. Ms Taylor considered, however, that Mr Borg would benefit from drug and alcohol education after his release.

58. In custody Mr Borg has been suffering migraines, for which he has had treatment, as well as acute tendonitis in his knees from excessive exercise, for which he is also pursuing treatment.

59. Mr Borg’s symptoms of depression have worsened since he went into custody and have been exacerbated by grief over the death of his grandmother. He has also developed significant symptoms of anxiety, including heightened paranoia and hypervigilance, excessive rumination and the onset of panic attacks, disturbed sleep and nightmares, which have worsened over time. He has not pursued treatment, but has resorted to excessive physical exercise, to manage his symptoms. Mr Borg recognises, however, that he will have to pursue treatment in custody for his mental health problems.

60. In Ms Taylor’s opinion Mr Borg’s experiences resulted in him developing an insecure attachment style, characterised by anxiety and over dependence on others, with hyper vigilant and anxious interpersonal relationships.

61. Mr Borg quickly developed a close friendship with Mr Gatt after they met. Ms Taylor considered that Mr Gatt took on a pseudo-parenting role and that Mr Borg looked to him as a role model. In Ms Taylor's opinion, there was a power imbalance in the friendship, with Mr Gatt taking charge and Mr Borg being coerced to follow his lead. This resulted in a sense of obligation to Mr Gatt, which together with Mr Borg’s substance abuse and deteriorating mental health, contributed to his involvement in his serious offending.

62. Ms Taylor also considered that Mr Borg’s history of substance abuse had contributed to his anxiety, which was of an unusual degree. His offending was traumatic, as well as a significant depressive experience which continues to distress him and has produced recurrent episodes of anxiety, albeit only moderate feelings of sadness. Ms Taylor concluded that Mr Borg had a level of remorse for his offending and that his substance abuse and deteriorating mental health had contributed to his poor decision making and the attachment which he had formed to Mr Gatt. That had resulted in his out of character offending, inconsistent with his prior criminal record.

63. Mr Borg is now intimidated by Mr Gatt and his associates, which Ms Taylor also considers has resulted in him suffering heightened levels of anxiety and paranoia and deteriorating mental health, for which he requires treatment.

64. While Mr Borg’s voluntary drug abuse cannot mitigate his offending, his mental health problems must be taken into account. They, however, point in two directions. On the one hand having the result that his conditions of custody will be more difficult for him than for others. On the other, making it apparent that he presents a danger to the community, which manifested when he committed this offence.

Aggravating and mitigating matters

65. Section 21A of the Crimes (Sentencing Procedure) Act identifies the aggravating and mitigating matters which must be taken into account on sentence. The parties agreed that the aggravating matter to be taken into account in Mr Borg’s case was that he was on conditional liberty at the time of his offence: s 21A(2)(j).

66. That in July 2013, Mr Borg was on bail for the drug supply offence with which he had been charged on 30 September 2012 and for which he was later sentenced to a two year bond, is an aggravating matter which must be taken into account on his sentence, in the way discussed in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [32].

67. For Mr Borg it was also accepted that a relevant aggravating matter was that his offence was committed in company: s 21A(2)(e). I have already discussed those circumstances.

68. The mitigating matters which it was common ground should be taken into account were:

• The entry of Mr Borg’s plea: s 21A(3)(k) and s 22;

• His limited record: s 21A(3)(e);

• His assistance: s 21A(3)(m); and

• His remorse: s 21A(3)(i).

69. There was, however, an issue as to Mr Borg’s prospects of rehabilitation: s 21A(3)(h).

70. I have already discussed Mr Borg’s limited record. I will return to the question of his assistance, about which there is also an issue. In accordance with s 21A(3)(i), remorse may not be found, unless Mr Borg has provided evidence that he has accepted responsibility for his actions and has acknowledged the injury, loss or damage he has caused.

71. I am satisfied that Mr Borg has met those requirements, not only by his assistance and the entry of his plea, but also by what he told Ms Taylor when she examined him in April and by the evidence which he gave at the sentence hearing. After hearing Mr Hijazi’s mother read her moving victim impact statement in court, in his evidence Mr Borg described his constant thoughts about what he had done and how he could have done things differently. He also then gave Mr Hijazi’s mother what was clearly a difficult apology for him to make, as he did, in open court.

72. As to rehabilitation, given Mr Borg’s age at the time of his offending, namely 23, and the troubled history I have described, when considered together with his limited past criminal record, his acceptance of his responsibility for his offending and his real remorse, I am satisfied that contrary to the case which the Crown pressed, it must be concluded that he does have considerable prospects of rehabilitation.

73. As the Crown contended, it is also necessary to take into account the nature of Mr Borg’s psychiatric conditions, for which he accepts that he requires treatment, given their ongoing consequences and Ms Taylor’s opinions that they did play a role in Mr Borg’s offending and that they and his significant history of substance abuse, had made him easily led. That his conditions had other detrimental impacts on his ordinary functioning is not, however, established by the evidence. Nor, as Mr Borg accepted, were they of a kind so as to reduce his moral culpability for his offending.

74. It must also be accepted that without Mr Borg receiving treatment which is available to him, but which he has not yet pursued, his prospects of rehabilitation are not as good as they would be, if he receives that treatment. Mr Borg explained, however, why he has not yet pursued such treatment, which he now recognises that he requires. Neither that explanation, nor his oral evidence that he does intend to pursue that treatment in custody, were challenged.

75. In the result, I am satisfied that it must be concluded that Mr Borg will pursue that treatment and that it must accordingly be accepted that he does have better prospects of rehabilitation, than he would without treatment, even though he has not as yet pursued it.

Discounts for pleas and assistance

76. It was common ground between the parties that Mr Borg should receive a discount for his plea of 15% in accordance with s 22 of the Crimes (Sentencing Procedure) Act and a combined discount for that plea and his assistance, which will be dealt with separately.

77. Under s 22 of the Crimes Sentencing Procedure Act, on sentence, entry of a plea must be taken into account, as must the time that the plea was entered, with the result that a lesser penalty than would otherwise have been imposed, can be imposed on the offender. That penalty must, however, “not be unreasonably disproportionate to the nature and circumstances of the offence”: s 22(1A).

78. The amount of such a discount must be approached in accordance with the Court of Criminal Appeal's guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.

79. The purpose of such a utilitarian discount was there explained by the then Chief Justice as reflecting the benefits which flow from a guilty plea, for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses and victims who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. In some cases, however, a plea may not result in any discount at all: Thomson; Houlton at [157] - [158].

80. A trial judge must identify these benefits when sentencing, in order to provide an incentive to offenders to enter such a plea, so that such benefits will, in fact, be derived: Thomson; Houlton at [115] - [123].

81. Mr Borg’s plea was not entered at the earliest opportunity and so, it was common ground, the maximum discount of 25% is not available to him. The plea was, however, entered some time before the hearing and so it must be accepted that benefits of the kind discussed in Thomson; Houlton have still flown from his plea, as the parties agreed.

82. The considerations which must be taken into account when a utilitarian discount is arrived at were also considered in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32]. Sentencing judges are obliged to follow that decision: R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 at [3].

83. Those considerations include that the discount for the utilitarian value of the plea will be determined largely by the timing of the plea, so that the earlier the plea, the greater the discount. Generally, the reason for the delay in the plea is irrelevant, because, if it is not forthcoming, the utilitarian value is reduced. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court. But there may be offences that are so serious, that no discount should be given and where the protection of the public requires a longer sentence.

84. I am satisfied that this is not such a case and that the parties’ common position, that Mr Borg should receive a utilitarian discount of 15% for his plea, given the time at which it was entered, should be accepted. For reasons which I will separately explain, I have concluded that he must receive a combined discount of 40% for his plea and assistance.

Deterrence

85. While Mr Borg accepted that his psychiatric condition was not of such a nature as to have had an impact on his moral culpability for his offence, it was argued, however, that it did have an impact on the role of specific deterrence in his sentence and most importantly, on the impact of custody upon him.

86. General deterrence will be attributed little weight in cases where an offender suffers from a mental condition which makes the offender an inappropriate medium for such deterrence: Muldrock v The Queen at [53] – [54]. If, however, the offender acts with knowledge of what he is doing and of the gravity of his actions, such moderation need not be great: R v Wright (1997) 93 A Crim R 48 at 51. On the evidence I have discussed, I am satisfied that this is such a case. I am also satisfied that in the circumstances I have discussed, specific deterrence must also have a role to play in Mr Borg’s sentence.

87. I do accept, however, that Mr Borg’s mental health is such that the conditions of his custody will weigh more heavily upon him, than they would on other offenders. I have taken that conclusion into account in arriving at his sentence, especially given the onerous conditions of custody to which it is common ground, he will be subject.

Special circumstances

88. Mr Borg sought a finding of special circumstances warranting a departure from the ordinary statutory ratio established by s 44 of the Crimes (Sentencing Procedure) Act.

89. Given the length of the sentence necessarily imposed upon Mr Borg, even after discount, I consider that the statutory ratio will provide him with an appropriate period of supervision, prior to the expiry of his sentence, if he is released when he first becomes eligible for parole.

90. I am not satisfied that his circumstances otherwise warrant any departure from that ratio. I consider that any further reduction in the non-parole period would reduce Mr Borg’s sentence below the minimum term which justice requires him to serve for his serious offence.

The victim impact statement

91. Ms Hijazi’s statement was not only read in open court, but Mr Borg then responded to it, as I have explained, in his oral evidence.

92. Under s 28(4) of the Crimes (Sentencing Procedure) Act, on the application of the prosecutor and if the Court considers it appropriate to do so, such a statement may be considered and taken into account on sentencing, on the basis that the harmful impact of the death on the members of a victim’s immediate family, is an aspect of the harm done to the community. There was no such application in this case, but s 28(3) nevertheless requires that Ms Hijazi’s statement having been received as it was, its receipt must now be acknowledged. The Court is thereby also authorised to make any comment on that statement, which is considered to be appropriate.

93. As has often been observed by the Court in sentencing proceedings such as this, it has long been accepted in our society that all human life is precious and that the killing of any person is a harm inflicted on the community generally. One life cannot be valued over that of another, but Ms Hijazi’s statement has shed real light on the considerable harm which her son’s murder has caused, not only to her, but also to other members of their family.

94. No one who heard the poignant statement which Ms Hijazi read with such understandable difficulty, could have failed to be moved by what she then explained. Mr Hijazi’s mother drew to sharp attention not only the dreadful result for Mr Hijazi when he lost his life as he did, but also the painful and ongoing consequences which his awful death inflicted on those who loved him and who, in their daily lives, will have to continue dealing with his untimely death.

95. Mr Hijazi’s family all have my very deepest sympathy for his loss and what they must continue to bear, particularly because of the terrible way that his death was brought about.

96. It is to be hoped that while these observations may be of limited help to them, Mr Borg’s acceptance of his responsibility for his part in Mr Hijazi’s murder, as well as all that has transpired in these sentencing proceedings, does give them some small measure of comfort, revealing as they have, how our society has dealt with the awful offence which Mr Hijazi’s killing so clearly involved.

The sentence

97. Mr Borg’s sentence must commence on the date of his arrest on 19 March 2014. After the combined discount he is to be sentenced to a term of 16 years, 2 months imprisonment, with a non-parole period of 12 years, 2 months and a balance of term of 4 years.

98. This means that the earliest date that Mr Borg will be eligible for release on parole is 18 May 2026. Any such release will depend on Mr Borg first convincing the Parole Authority that he should then be released on parole. His sentence will not expire until 18 May 2030.

Orders

99. Accordingly, I order that:

1. George Michael Borg you are convicted of the murder of Bassil Hijazi.

2. You are sentenced to a term of imprisonment of 16 years, 2 months, commencing on 19 March 2014 and expiring on 18 May 2030.

3. Your non-parole period of 12 years, 2 months, will expire on 18 May 2026.

4. The balance of your term of imprisonment of 4 years will expire on 18 May 2030.

100. The Court will now be closed so that the balance of these reasons can be delivered.

**********

Amendments

29 June 2018 - JUDGMENT PARTIALLY RESTRICTED

The restricted part of this judgment may otherwise not be published, other than to the parties’ legal representatives, without prior order of the Court.

Decision last updated: 29 June 2018