R v Boroviak - [2018] VSC 793

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0225

THE QUEEN

NICOLE BOROVIAK

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2018
DATE OF SENTENCE:	14 December 2018
CASE MAY BE CITED AS:	R v Boroviak
MEDIUM NEUTRAL CITATION:	[2018] VSC 793

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CRIMINAL LAW – Sentence – Manslaughter – Mid-range example of offence – Guilty plea – Strangulation or suffocation of victim – Body scrubbed with bleach – Body dumped and concealed – Accused enlisted son to assist dump the body – Protracted police investigation – Body found two years later – Whether assault against accused constituted ‘payback’ – Diagnoses of post-traumatic stress disorder and personality disorder – General deterrence – Denunciation – Specific deterrence – Community protection – Rehabilitation – Crimes Act 1958 – Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson SC with Mr A. McKenry	Office of Public Prosecutions
For the Accused	Mr H. Rattray with Ms A. Hancock	Slades & Parsons

HIS HONOUR:

Introduction

Nicole Boroviak, on 31 July 2018, you pleaded guilty to the manslaughter of Joanne Martell. The maximum penalty for the offence of manslaughter is 20 years’ imprisonment.[1]
[1]Crimes Act 1958 (Vic) s 5.

On 18 January 2015, you killed Ms Martell by strangling or suffocating her at a property in Rosalie Avenue, Dromana on the Mornington Peninsula.

The remains of her body were located in thick scrub, approximately three to four metres off a walking track near Diamond Bay on 13 January 2017.

At the time of her death, Ms Martell was 43 years old. She had two children, a son born in 1991 and a daughter in 2002. In 2012, following a broken relationship, Ms Martell lost custody of her children and began moving from house to house on the Mornington Peninsula. During this time, she developed addictions to methylamphetamine and cannabis. In early 2015, Ms Martell moved in with a friend at Rosalie Avenue, where she slept on a mattress on the floor of a rear bedroom. She was known as a friendly person, who lived a nomadic and chaotic lifestyle.

You first moved into the house at Rosalie Avenue in late 2014. Across 2015, you were only staying there periodically.

Circumstances of the offending

On 18 January 2015, you and another occupant of the Rosalie Avenue house went to Rye, where you obtained and used a quantity of methamphetamine. You then returned to the house, at which point you were affected by the drug. When you arrived, Ms Martell was sitting on a lounge, waiting for you and the other person to supply her with cannabis.

Later that evening, Ms Martell was in her bedroom, sitting on a mattress on the floor. Another occupant of the house, Renee Desmond, went into her bedroom, shut the door and sat down, and they both smoked cannabis. While they sat there, the door flew open and you stood in the doorway. You…

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 Boroviak

Details

AGLC: R v Boroviak [2018] VSC 793
Case: [2018] VSC 793
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of R v Boroviak involved a defendant who was charged with manslaughter following the death of a victim, who had been strangled or suffocated, and whose body was scrubbed with bleach and subsequently dumped and concealed. The deceased's body was discovered two years later, following an extensive police investigation. The accused had enlisted the assistance of his son in disposing of the body. The case was heard in a higher court, where the central issue was to determine the appropriate sentence for the accused, considering the nature of the offence and various mitigating and aggravating factors.

The court was required to decide the appropriate sentence for the accused, weighing the severity of the crime against various mitigating factors. These included the accused's guilty plea, the protracted nature of the police investigation, the accused's enlistment of his son to help dispose of the body, and the diagnoses of post-traumatic stress disorder and personality disorder. The court also considered whether the assault against the accused constituted 'payback', the need for general deterrence, denunciation, specific deterrence, community protection, and rehabilitation.

The court ultimately concluded that the case represented a mid-range example of the offence of manslaughter. It acknowledged the mitigating factors, including the guilty plea and the accused's mental health issues. However, it also emphasised the need for general deterrence, denunciation, and specific deterrence. The court found that the accused's actions in concealing the body and enlisting his son's assistance in disposing of it were aggravating factors. It ultimately determined that the appropriate sentence would be one that balanced these considerations, resulting in a custodial sentence. The exact term and conditions of the sentence were not specified in the text provided.

Orders