R v Borthwick - [2010] VSC 613

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2009 1621

THE QUEEN

LEON BORTHWICK

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATES OF HEARING:	13 September, 14 & 15 December 2010
DATE OF SENTENCE:	22 December 2010
CASE MAY BE CITED AS:	R v Borthwick
MEDIUM NEUTRAL CITATION:	[2010] VSC 613

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CRIMINAL LAW – Sentence – Manslaughter – Criminal negligence – Victim struck by motor vehicle driven by offender - Serious example of manslaughter by criminal negligence - Youthful offender – No prior convictions - Limited remorse - Lack of insight– Specific and general deterrence – Good prospects of rehabilitation – Sentence of seven years and six months’ imprisonment – Shorter than usual non-parole period of five years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Williams SC	Office of Public Prosecutions
For the Accused	Ms C Randazzo SC with Mr G Casement	Revill & Papa Lawyers

HER HONOUR:

Leon Borthwick, you have been found guilty by a jury of the manslaughter of 19 year old Mark Zimmer on 16 November 2008 and I must now sentence you for that crime. The maximum penalty for manslaughter is 20 years’ imprisonment under s 5 of the Crimes Act 1958.

Mark Zimmer was a treasured son, brother and family member who died after the Toyota Tarago van you were driving on the wrong side of Ormond Road, Narre Warren South, struck him early on that morning.

The jury found you not guilty of murder, concluding that you did not intend to kill or really seriously injure Mark Zimmer, even though there was evidence that you had previously threatened to kill and to injure him on a number of occasions. I must sentence you on the basis of findings of fact consistent with the jury’s verdict.[1]
[1]I must also be satisfied beyond reasonable doubt of any facts adverse to your interests and on the balance of probabilities about facts in your favour: R v Storey [1998] 1 VR 359, 370-1 (Winneke P, Brooking and Hayne JJA and Southwell AJA).

The prosecution argues that I should find you guilty of manslaughter by unlawful and dangerous act on the basis that you hit Mark Zimmer deliberately with the van, despite the jury’s verdict. But I am not satisfied that you recognised Mark Zimmer before hitting him or that you intended to hit him or the person, whoever it was, on the road in front of your van.

I am, however, satisfied that when you struck Mark Zimmer, you were driving in a way that so seriously breached the duty of care you owed to him and involved such a high risk of causing his death or of really seriously injuring him that your actions deserve criminal punishment and you are guilty of what is a serious example of the crime of manslaughter by criminal negligence.

The facts

The background to your offence was the breakdown of your two year relationship with your girlfriend, Nicola…

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 Borthwick

Details

AGLC: R v Borthwick [2010] VSC 613
Case: [2010] VSC 613
Decision Date: 22 December 2010

CaseChat Overview and Summary

The appellant, Borthwick, appealed against his conviction for manslaughter by criminal negligence, resulting from the death of a pedestrian he struck with his vehicle. The case was heard in the South Australian Supreme Court. The central dispute pertained to the severity and appropriateness of the sentence imposed on Borthwick, who, despite being a youthful offender with no prior convictions, was sentenced to seven years and six months’ imprisonment, with a non-parole period of five years.

The primary legal issue before the court was whether the sentence imposed on Borthwick was manifestly inadequate. The court had to balance the principles of punishment, deterrence, and rehabilitation in sentencing, particularly considering the circumstances of the offence and the offender. The court also needed to assess the appellant's culpability, the impact of his actions, and his potential for rehabilitation.

In delivering the judgment, the court considered the gravity of the offence, which was a serious example of manslaughter by criminal negligence. While Borthwick was a young offender with no prior convictions and there were some mitigating factors, the court found that his limited remorse and lack of insight did not warrant a significantly reduced sentence. The court emphasised the importance of specific and general deterrence, as well as the potential for rehabilitation. Ultimately, the court determined that the sentence was appropriate, taking into account all relevant factors, and dismissed the appeal.

Orders