R v Borg

Case [2010] NSWSC 951 17 September 2010

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CITATION: R v Borg [2010] NSWSC 951

HEARING DATE(S): 12-16, 19-23, 26-30 July 2010; 2, 13, 20, 25 August 2010

JUDGMENT DATE :
17 September 2010

JUDGMENT OF: Studdert AJ

DECISION: Terence Michael Borg for the murder of Susan Wirth I sentence you to imprisonment with a non-parole period of 16 years commencing on 12 July 2008 and expiring on 11 July 2024, and to a balance of term thereafter of 5 years expiring on 11 July 2029. The earliest date upon which you will be eligible for release on parole will be 11 July 2024.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), Part IV Division 1A, ss 21A, 44(2), 54A, 54B, 54D
Crimes Act 1900 (NSW), s 23A

CATEGORY: Sentence

CASES CITED: Anderson [2006] NSWCCA 156
Berg [2004] NSWCCA 300
Bollen (1998) 99 ACrimR 510
Bugmy v The Queen (1990) 169 CLR 525, 47 ACrimR 433
Disano [2006] NSWCCA 125
Goebel-McGregor [2006] NSWCCA 390]
King [2004] NSWCCA 444
Maxwell v R [2007] NSWCCA 304
Mencarious [2008] NSWCCA 237
MLP v R (2006) 164 ACrimR 93
Mulato v R [2006] NSWCCA 282
O’Connor [2008] NSWSC 1297
Power v The Queen (1974) 131 CLR 623
Previtera (1997) 94 ACrimR 76
R v AJP (2004) 150 ACrimR 575
R v Bell (1985) 2 NSWLR 466
R v Cheatham [2002] NSWCCA 360.
R v Davies [2004] NSWCCA 319
R v George (2004) 149 ACrimR 38
R v Heffernan [2005] NSWSC 739
R v Isaacs (1997) 41 NSWLR 374
R v McGourty [2002] NSWCCA 335
R v Moffitt (1990) 20 NSWLR 114; 49 ACrimR 20
R v Trevenna (2004) 149 ACrimR 505
R v Way (2004) 60 NSWLR 168
Versluys [2008] NSWCCA 76
Whitmore [2010] NSWCCA 157
Yun [2008] NSWCCA 114

PARTIES: Regina
Terence Michael Borg

FILE NUMBER(S): SC 2008/198355

COUNSEL: Mr Crown – Mr Michael O’Brien
Offender - Mr Graham Turnbull SC and Ms Tania Evers

SOLICITORS: Crown - Mr Garry Kenneth Buggy
Offender - Renee McKenzie from Intercept Law

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT AJ

FRIDAY 17 SEPTEMBER 2010

2008/198355 REGINA V TERENCE MICHAEL BORG

REMARKS ON SENTENCE

1 HIS HONOUR: The offender Terence Michael Borg was found guilty by the Jury of the murder of Susan Wirth and is now before the Court for sentence for the commission of that crime.

2 The body of the deceased was found on 10 July 2008 in the tray section of a Holden utility parked in a car park adjacent to the Hawkesbury River Railway Station. The evidence established that the offender caused her death on the previous evening at factory premises at 81 Gavenlock Road Tuggerah. The offender surrendered himself at the Gosford Police Station at 3am on 12 July 2008. Shortly thereafter he participated in an ERISP in the course of which he told police that on 9 July 2008 he had been with the deceased in the office of the Gavenlock Road factory…

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 R v Borg

Details

AGLC: R v Borg [2010] NSWSC 951
Case: [2010] NSWSC 951
Decision Date: 17 September 2010

CaseChat Overview and Summary

Terence Michael Borg was convicted by a jury of the murder of Susan Wirth. The offender was sentenced by Studdert AJ in the Supreme Court of New South Wales. The court was required to decide the appropriate sentence for the offender in light of the statutory provisions and relevant case law. The court considered the offender's background, the nature of the crime, and the mitigating factors presented. Studdert AJ found that the offence, while serious, fell short of the middle of the range of objective seriousness for offences of murder due to factors such as lack of premeditation and some loss of self-control influenced by the offender's underlying personality disorder and anxiety condition. The court also considered the mitigating factors outlined in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. The sentence imposed was imprisonment with a non-parole period of 16 years, backdated to the date of the offender's surrender to the police, and a balance of term of 5 years. The earliest date for parole eligibility was set for 11 July 2024.

Orders