R v Borg

Case [2023] NSWDC 369 8 September 2023

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District Court

New South Wales

Medium Neutral Citation: R v Borg [2023] NSWDC 369
Hearing dates: 18 July 2023, 1 September 2023
Date of orders: 8 September 2023
Decision date: 08 September 2023
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
1.   The conviction appeal is dismissed.
2.   The order of the learned Magistrate made on 22 March 2023, dismissing the appellant’s application, is confirmed.
3.   The severity appeal is allowed in part.
4.   The aggregate sentence of imprisonment of 10 months is confirmed.
5.   The order that the term of imprisonment be served by way of intensive corrections order is confirmed.
6.   The conditions of the intensive corrections order are varied as follows:
a.   The condition that the appellant perform 100 hours of community service is set aside and in lieu thereof the appellant is to perform 20 hours of community service.
7.   The remaining conditions of the community service order are confirmed.
8.   The order of the Magistrate that the term of imprisonment is to commence on 12 May 2023 and expire on 11 March 2024 is confirmed.

Catchwords:
CRIME – conviction and severity appeal – unprovoked assaults on indigenous juvenile by police officer whilst in police custody – assault captured on optical surveillance device - mental health impairment - Mental Health and Cognitive Impairment Forensic Provisions Act 2020 - general deterrence – specific deterrence – general denunciation of police violence of persons in custody

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), ss 11 and 18, 19
Crimes Act 1900, s 61
Crimes (Sentencing Procedure) Act 1999, s 66
Mental Health and Cognitive Impairment Forensic Provisions Act 2020, ss 4, 12(1), 14, 15

Cases Cited:
Alkanaan v Regina [2017] NSWCCA 56
Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39
DC v R [2023] NSWCCA 82
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
DPP v El Mawas (2006) 66 NSWLR 93
McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298
Muldrock v R (2011) 244 CLR 120
R v Henry (1999) 46 NSWLR
R v Israil [2002] NSWCCA 255

Category: Principal judgment
Parties: Rex (Crown)
Christopher Borg (Appellant)
Representation:
Counsel:
Mr J Brook (Appellant)
Solicitors:
Officer of the Director of Public Prosecutions (NSW) (Crown)
Anderson Boemi Lawyers (Appellant)

File Number(s): 2022/301930
Publication restriction: Unrestricted

JUDGMENT

Background

The appellant appeals (by leave granted on 18 July 2023) from his conviction at Sydney Downing Centre Local Court on 21 November 2022 of two offences of common assault contrary to s 61 of the Crimes Act 1900. The appellant was sentenced to an aggregate sentence of 10 months imprisonment to be served by way of an intensive corrections order (ICO) which imposed conditions including community service and complying with a relevant treatment plan.
The assaults, committed on an indigenous juvenile, occurred whilst the appellant was performing duties as a New South Wales police officer. The first assault was particularly violent involving an unprovoked kick to the victim’s face whilst in…

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 [2023] NSWDC 369
Case: [2023] NSWDC 369
Decision Date: 08 September 2023

CaseChat Overview and Summary

The case of R v Borg involves a police officer who was convicted of assaulting a juvenile while the juvenile was in police custody. The assault, which was unprovoked, was recorded on an optical surveillance device. The appellant, Borg, appealed both the conviction and the severity of the sentence. The appeal was heard in the relevant appellate court, where several key legal issues were addressed.

The central legal issues the court had to decide included the validity of the conviction given the evidence of the assault, the appropriate sentence severity considering the nature of the crime and the appellant's mental health status, and the impact of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 on the sentencing. Additionally, the court considered the principles of general deterrence, specific deterrence, and the general denunciation of police violence against persons in custody.

In its reasoning, the court found that the evidence was sufficient to uphold the conviction. The appellant's appeal against the conviction was dismissed, and the original order of the magistrate was confirmed. However, the court did find merit in the severity appeal. The aggregate sentence of imprisonment was confirmed, but the conditions of the intensive corrections order were varied. Specifically, the requirement for the appellant to perform 100 hours of community service was reduced to 20 hours. The remaining conditions of the community service order were left unchanged, and the commencement and expiry dates of the imprisonment term were also confirmed.

The final orders of the court included the dismissal of the conviction appeal, confirmation of the magistrate’s order, partial allowance of the severity appeal, and modifications to the intensive corrections order conditions. The aggregate sentence and the commencement and expiry dates of the imprisonment term were upheld as originally ordered by the magistrate.

Orders

Orders of the court

1. The conviction appeal is dismissed.

2. The order of the learned Magistrate made on 22 March 2023, dismissing the appellant’s application, is confirmed.

3. The severity appeal is allowed in part.

4. The aggregate sentence of imprisonment of 10 months is confirmed.

5. The order that the term of imprisonment be served by way of intensive corrections order is confirmed.

6. The conditions of the intensive corrections order are varied as follows:

a. The condition that the appellant perform 100 hours of community service is set aside and in lieu thereof the appellant is to perform 20 hours of community service.

7. The remaining conditions of the community service order are confirmed.

8. The order of the Magistrate that the term of imprisonment is to commence on 12 May 2023 and expire on 11 March 2024 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Borg [2023] NSWDC 369

Cases Citing This Decision

No citing cases yet.

Cases Cited

DC v R [2023] NSWCCA 82
Citation 1 (Para 51)

…As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:…
McNab v Director of Public Prosecutions [2021] NSWCA 298
Citation 2 (Para 9)

…These principles were subsequently affirmed in McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298.…
Luque v R [2017] NSWCCA 226
Citation 3 (Para 114)

…me significance in his offending. 75. The sentencing task should not be approached in “an unduly technical or restrictive way”: see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in…
Ryan v Regina [2017] NSWCCA 209
Citation 4 (Para 15)

…be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).” (Emphasis added).…
Alkanaan v R [2017] NSWCCA 56
Citation 5 (Para 52)

…that in “most cases" mental impairment or disability will substantially lessen the offender’s moral culpability for the offence. In Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) observed at [108]: –…
Muldrock v The Queen [2011] HCA 39
Citation 6 (Para 40)

…ucing the appellant’s moral culpability and that matters such as general deterrence, retribution and denunciation carried less weight: Muldrock v R (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 to 254. This was particularly relevant when the mental condition contribut…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 7 (Para 40)

…is was particularly relevant when the mental condition contributed to the commission of the offence in a material way citing DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]. It was contended that the factor of the appellant suffering a mental illness at the time of the offence significantly mitigated the seriousne…
Charara v R [2006] NSWCCA 244
Citation 8 (Para 8)

…In Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39, Mason P said the following:…
DPP v El Mawas [2006] NSWCA 154
Citation 9 (Para 39)

…unity expectations of a police officer performing his duties. Despite this, the appellant relied upon the judgment of the McColl JA in DPP v El Mawas (2006) 66 NSWLR 93 where the exercise of the discretion did not rest entirely upon the seriousness of the offending. Rather it required the exercise of a subjective or…
Fox v Percy [2003] HCA 22
Citation 10

…trate who saw and heard the witnesses called in the lower court ( Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118). ….. [22] The appellate role of the District Court in the present context is further reinforced by the references to “appeal” in ss18 and…
R v Israil [2002] NSWCCA 255
Citation 11 (Para 40)

…and that matters such as general deterrence, retribution and denunciation carried less weight: Muldrock v R (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 to 254. This was particularly relevant when the mental condition contributed to the commission of the offence in…
R v Henry [1999] NSWCA 111
Citation 12 (Para 40)

…errence, retribution and denunciation carried less weight: Muldrock v R (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 to 254. This was particularly relevant when the mental condition contributed to the commission of the offence in a material way citing DPP (Cth) v De L…
Paterson v Paterson [1953] HCA 74
Citation 13

…njoyed by the Magistrate who saw and heard the witnesses called in the lower court ( Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118). ….. [22] The appellate role of the District Court in the present context is further reinforced by the references to “…
Bell v Stewart [1920] HCA 68
Citation 14

…able to do so, i.e. recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court ( Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118). ….. [22] The appellate role of the District Court in the present cont…

Legislation Cited

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) 12(1), 14, 15, 4
5 mentions (from Para 3)
Crimes (Appeal and Review) Act 2001 (NSW) 11, 18, 19
4 mentions (from Para 5)
Crimes (Sentencing Procedure) Act 1999 (NSW) 66
2 mentions (from Para 66)
Crimes Act 1900 (ACT) 61
2 mentions (from Para 1)
Mental Health (Forensic Provisions) Act 1990 (NSW)
1 mention

Medium Neutral Citation:	R v Borg [2023] NSWDC 369
Hearing dates:	18 July 2023, 1 September 2023
Date of orders:	8 September 2023
Decision date:	08 September 2023
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	1. The conviction appeal is dismissed. 2. The order of the learned Magistrate made on 22 March 2023, dismissing the appellant’s application, is confirmed. 3. The severity appeal is allowed in part. 4. The aggregate sentence of imprisonment of 10 months is confirmed. 5. The order that the term of imprisonment be served by way of intensive corrections order is confirmed. 6. The conditions of the intensive corrections order are varied as follows: a. The condition that the appellant perform 100 hours of community service is set aside and in lieu thereof the appellant is to perform 20 hours of community service. 7. The remaining conditions of the community service order are confirmed. 8. The order of the Magistrate that the term of imprisonment is to commence on 12 May 2023 and expire on 11 March 2024 is confirmed.
Catchwords:	CRIME – conviction and severity appeal – unprovoked assaults on indigenous juvenile by police officer whilst in police custody – assault captured on optical surveillance device - mental health impairment - Mental Health and Cognitive Impairment Forensic Provisions Act 2020 - general deterrence – specific deterrence – general denunciation of police violence of persons in custody
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), ss 11 and 18, 19 Crimes Act 1900, s 61 Crimes (Sentencing Procedure) Act 1999, s 66 Mental Health and Cognitive Impairment Forensic Provisions Act 2020, ss 4, 12(1), 14, 15
Cases Cited:	Alkanaan v Regina [2017] NSWCCA 56 Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 DC v R [2023] NSWCCA 82 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 DPP v El Mawas (2006) 66 NSWLR 93 McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 Muldrock v R (2011) 244 CLR 120 R v Henry (1999) 46 NSWLR R v Israil [2002] NSWCCA 255
Category:	Principal judgment
Parties:	Rex (Crown) Christopher Borg (Appellant)
Representation:	Counsel: Mr J Brook (Appellant) Solicitors: Officer of the Director of Public Prosecutions (NSW) (Crown) Anderson Boemi Lawyers (Appellant)
File Number(s):	2022/301930
Publication restriction:	Unrestricted