R v Bornstein

Case [2024] QSC 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bornstein [2024] QSC 270

PARTIES:

THE KING
v
BILLY LEE BORNSTEIN

(defendant)

FILE NO/S:

Indictment No 125 of 2024

DIVISION:

Trial Division

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2024

JUDGE:

Williams J

ORDER:

1.   Nine years’ imprisonment.

2.   Order that the defendant be eligible for parole on 21 November 2028.

3.   Order that the period of pre-sentence custody, from 21 November 2022 to 10 November 2024, a period of 721 days be declared as time served on the sentence.

4.   A conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENCE – GENERALLY – where a plan was developed and executed to put the deceased into a van and transport him to a property so that the co-accused could interrogate the deceased – where the defendant was provided with a van by a co-accused to collect the deceased – where the defendant arranged to meet with the deceased – where the defendant with the co-accused met with the deceased and transported the deceased to the property – where the defendant was aware that the co-accused inflicted violence on the deceased – where the defendant continued to message the deceased after knowing of the deceased’s death to minimise suspicion of involvement – where the defendant lied to the police – where the defendant plead guilty to manslaughter – what is the appropriate sentence

Criminal Code 1899 (Qld) s 7, s 8, s 291, s 300, s 302, s 303

Penalties and Sentence Act 1992 (Qld) s 9

Crump v New South Wales [2012] HCA 20; (2012) 247 CLR 1, cited
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, cited
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, applied
Pickering v The Queen [2017] HCA 17; (2017) 260 CLR 151, cited
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, cited
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, cited
R v Amituanai [1995] QCA 80; (1995) 78 A Crim R 588, cited
R v Carlisle [2017] QCA 258, cited
R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58; (2020) 4 QR 80, considered
R v Granz-Glenn [2023] QCA 157, considered
R v Jervis [1991] QSCCA; (1993) 1 Qd R 643, considered
R v Kirke [2020] QCA 53, considered
R v LZY & Porter [2024] QSC 237, considered
R v McDougall & Collas [2006] QCA 365; (2007) 2 Qd R 87, applied
R v Phan [2021] QCA 86, cited
R v Randall [2019] QCA 25, cited
R v Smith [2019] QCA 33, cited
R v Wales [2019] QCA 64, considered

R v Welham&Martin [2012] QCA 103, cited

COUNSEL:

CM Cook for the Crown

MF Bonasia…

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Details
AGLC
R v Bornstein [2024] QSC 270
Case
[2024] QSC 270
Decision Date

CaseChat Overview and Summary

The case of R v Bornstein involved the defendant pleading guilty to manslaughter. The defendant had engaged in a plan to transport a deceased individual to a property where he would be interrogated by a co-accused. The defendant provided a van for the purpose of collecting the deceased, and was aware that the co-accused inflicted violence on the deceased. Following the deceased’s death, the defendant continued to message the deceased to minimise suspicion of involvement and lied to the police. The court was required to determine the appropriate sentence for the defendant, taking into account the nature and circumstances of the offence, as well as the defendant's prior criminal history.

The legal issues before the court included the relevance of the defendant's prior criminal history, the nature and circumstances of the offence, and the defendant's consciousness of guilt. The court considered the defendant's extensive criminal history, which included convictions for violent offences and breaches of protection orders. The court also examined the circumstances of the offence, including the defendant's involvement in the planning and execution of the transportation of the deceased, as well as his awareness of the violence inflicted by the co-accused. Additionally, the court took into account the defendant's continued messaging of the deceased after his death and his lies to the police.

The court held that the appropriate sentence for the defendant was nine years' imprisonment, with eligibility for parole on 21 November 2028. The court declared the period of pre-sentence custody, from 21 November 2022 to 10 November 2024, a period of 721 days, as time served on the sentence. The court also recorded a conviction against the defendant.

The court's decision was based on a comprehensive consideration of the defendant's prior criminal history, the nature and circumstances of the offence, and the defendant's consciousness of guilt. The court held that the defendant's extensive criminal history, as well as the violent nature of the offence and the defendant's continued involvement after the deceased's death, warranted a significant sentence. However, the court also took into account the defendant's guilty plea and his cooperation with the police investigation. The court ultimately determined that a sentence of nine years' imprisonment, with eligibility for parole after six years and two months, was appropriate in the circumstances.

Orders

Orders of the court

1. Nine years’ imprisonment.

2. Order that the defendant be eligible for parole on 21 November 2028.

3. Order that the period of pre-sentence custody, from 21 November 2022 to 10 November 2024, a period of 721 days be declared as time served on the sentence.

4. A conviction is recorded.

Background

Background to the litigation

That is the basis upon which you are guilty of manslaughter and not murder, and you are to be sentenced on that basis.Agreed Statement of Facts The circumstances of the offending are set out in the detailed Agreed Statement of Facts. The facts set out in the Agreed Statement of Facts form the basis of the sentence to be imposed. I will not repeat the 11 pages but will provide a summary of the relevant facts. The facts in the Agreed Statement of Facts fall into three parts:(a)leading up to 17 January 2022;(b)on 16 and 17 January 2022; and(c)post-17 January 2022. Many of these facts come from the extensive police investigation, including CCTV footage from various sources and mobile telephone data. On 7 January 2022 G was released on parole. On 13 January 2022 G failed to report to the Wynnum Probation and Parole office on the basis that [D] had told him about things that had been done to her. G followed up with police and the hospital. On or about 14 January 2022, G disclosed to you, Tan and Matthew Bionda (Bionda), that [D] had disclosed being molested and he suspected that the perpetrator was Mr Griffiths. After that disclosure, you sent a message to an associate about bad news you had received about [D]. You concluded that “there is some putrid scum out there”. You volunteered that you knew Mr Griffiths from your time together in prison and that he sold drugs. You, Tan and Bionda consoled G and drove him home. The consolation included Bionda expressing a view that “grubs like that don’t deserve to live”. Tan agreed. G posed the hypothetical question of “who would miss a junkie”. It was at this stage, and at G’s behest, that you began contacting Mr Griffiths seeking to meet up and purchase dangerous drugs. Prior to 17 January 2022, you and Bionda arranged to meet with Mr Griffiths at the Transcontinental Hotel and Mr Griffiths supplied you with approximately a gram of heroin for $700. G was told of this successful interaction with Mr Griffiths. During the day on 16 January 2022, G began contacting Mr Griffiths via Facebook Messenger under the pretext of purchasing gamma-hydroxybutyrate. On 16 January 2022, G and [D] again spoke with police and attended a hospital after [D] disclosed being sexually abused. In the period leading up to 17 January 2022:(a)You were aware that G suspected that [D] had been molested by Mr Griffiths and you engaged with G in a common unlawful purpose of causing Mr Griffiths serious physical harm in order to elicit information.(b)At the request of G, on 14 January 2022 you made arrangements to purchase drugs from Mr Griffiths near where he was staying at the Meriton Suites on Herschel Street. (c)This transaction proceeded and demonstrated that Mr Griffiths responded to messages from you, and he would meet with you in relation to the supply of drugs.(d)The common unlawful purpose developed as a plan that you would take a van from premises linked to Tan, get Mr Griffiths into the van and transport him to 298 Musgrave Road, Coopers Plains so that Mr Griffiths could be interrogated with the use of force.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is an agreed fact that your lies about the movements on 16 and 17 January 2022 and the knowledge of the allegation that Mr Griffiths had molested [D], are evidence of your consciousness of guilt.Antecedents and other sentencing considerations You were 27 years of age at the time of the offending and are presently aged 30. You have a relevant and lengthy prior criminal history in Queensland and have previously spent time in custody. There are eight convictions that are particularly relevant to the sentence. You were dealt with by the Brisbane District Court on 25 May 2012, when you were sentenced by Judge Richards to probation and community service. You breached the probation order by reoffending but were not returned to the District Court. The offending on that occasion included you with another, breaking into a car at a railway station and stealing a knife and spray paint. You and the other offender entered the railway station and were abusive towards staff. The complainant asked you to leave and then you approached the complainant on the platform and asked if he had any money. After the complainant said he did not, you produced the stolen knife and asked him if he was sure he did not have any money. The complainant repeated that he did not have any money and walked backwards. You pointed the knife and walked towards the complainant. After a short period, you and the other offender ran away, and the complainant called the police. You were later dealt with by the Brisbane Magistrates Court on 5 February 2014 where you were sentenced to further probation. This offending occurred while you were on probation and included a breach of a Domestic Violence Protection Order on 14 September 2013. On that occasion, you punched the aggrieved in her face and caused her to fall to the ground and bleed from her mouth. The aggrieved suffered a split lower gum and two loose teeth. Further, you were dealt with by the Brisbane Magistrates Court on 2 July 2019 when the Magistrate sentenced you for 18 offences. This included seven breaches of a protection order, two charges of common assault and assault occasioning bodily harm.[7][7]This offending involved a different woman to that in the 2013 offending. The Magistrate imposed a head sentence of 18 months imprisonment and released you on parole after serving less than six months in custody. The sentence was due to expire in September 2020. In January 2020 your parole was suspended due to non-compliance, and you were unlawfully at large for about four months and were returned to custody on 27 May 2020. You were again dealt with by the Brisbane Magistrates Court on 17 November 2020 when you were sentenced for eight further offences. These offences were committed while you were unlawfully at large, and you also breached the community service order imposed in 2019. Ultimately the time that you had spent in custody due to your parole suspension was taken into account and the Magistrate wholly suspended terms of imprisonment of up to 12 months.