R v Robert Borkowski

Case [2009] NSWCCA 102


Reported Decision: 195 A Crim R 152 MVR 528[2009] ALMD 4819[2009] ALMD 4858

New South Wales


Court of Criminal Appeal

CITATION: R v Robert Borkowski [2009] NSWCCA 102
HEARING DATE(S): 17/03/2009
 
JUDGMENT DATE: 

15 April 2009
JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Howie J at 5
DECISION: The Crown appeal is dismissed.
CATCHWORDS: Criminal Law - Crown Appeal - Motor vehicle manslaughter - two deaths occasioned by racing vehicles on public streets - Discount for guilty plea - relevance of trial management procedures - Delay - effect of 15 months delay between arrest and sentence - Relevance of criminal record - Nature of manslaughter occasioned through use of motor vehicles - relevance of statutory scheme of offences - Crown's failure to appeal against sentence of co-offender - relevance to exercise of discretion.
LEGISLATION CITED: Criminal Case Conferencing Trial Act 2008
Crimes Act 1900 - ss 51A, 52A, 53, 54
Road Transport (Safety and Traffic Management) Act - ss 40(1), 42(1)(b)
CATEGORY: Principal judgment
CASES CITED: R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v SZ [2007] NSWCCA 19; 168 A Crim R 249
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Ellis (1986) 6 NSWLR 603
R v Todd [1982] 2 NSWLR 517
R v V (1998) 99 A Crim R 297
R v Shore (1992) 66 A Crim R 37
Lewins v R [2007] NSWCCA 189
R v Carter [1999] NSWCCA 376
Veen v The Queen (No.2) [1988] HCA 14; 164 CLR 465
R v Isaacs (1997) 41 NSWLR 374
R v Dally [2000] NSWCCA 162, 115 A Crim R 582
R v Pullman (1991) 25 NSWLR 89
R v Buttsworth [1983] 1 NSWLR 658
R v Cameron [2005] NSWCCA 359, 157 A Crim R 70
R v Diamond (NSWCCA, 18 February 1993, unreported)
R v Chen [2002] NSWCCA 447
R v Ismunandar and Siregar [2002] NSWCCA 477, 136 A Crim R 206
R v Rexhaj (NSWCCA, 29 February 1996, unreported)
PARTIES: Regina v Robert James Borkowski
FILE NUMBER(S): CCA 2008/9615
COUNSEL: M Grogan - Crown
H Dhanji - Respondent
SOLICITORS: S Kavanagh - Crown
S O'Connor - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2008/9615
LOWER COURT JUDICIAL OFFICER: Knight DCJ
LOWER COURT DATE OF DECISION: 05/11/2008




                          2008/9615

                          McCLELLAN CJ at CL
                          SIMPSON J
                          HOWIE J

                          WEDNESDAY 15 APRIL 2009
REGINA v Robert James BORKOWSKI

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 SIMPSON J: I have read in draft the judgment of Howie J. I agree with the order proposed, and, generally, with his Honour’s reasons.

3 I expressly reserve my position in relation to the decision in R v Pullman (1991) 58 A Crim R 222. Since this Court was not invited to depart from the conclusions there reached, it would be inappropriate to reach a final view. I merely comment that the conclusions as stated are extremely broad; even…

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AGLC
Borkowski [2009] NSWCCA 102
Case
[2009] NSWCCA 102
Decision Date

CaseChat Overview and Summary

In the case of R v Robert Borkowski, the respondent was convicted of manslaughter for causing two deaths through reckless driving in a street race. The appeal was taken by the Crown, seeking a more severe sentence. The High Court of Australia was tasked with determining the appropriate sentence for the respondent, considering several legal issues including the discount for a guilty plea, the relevance of trial management procedures, the effect of delay between arrest and sentencing, the relevance of the respondent's criminal record, the nature of the manslaughter offence, and the Crown's failure to appeal against the sentence of a co-offender.

The court had to weigh the significance of these factors in exercising its discretion under the Crimes (Sentencing Procedure) Act 1999. Specifically, it examined whether the discount for the guilty plea should be reduced due to the significant delay in sentencing and the respondent's prior criminal record. The court also considered the unique nature of the manslaughter offence, which involved the use of motor vehicles, and how this related to the statutory scheme of offences. Furthermore, the court evaluated the Crown's decision not to appeal the sentence of the co-offender and its potential impact on the exercise of discretion.

The High Court found that the trial judge had appropriately considered all relevant factors in arriving at the sentence. The court acknowledged the discount for the guilty plea but noted the substantial delay in sentencing and the respondent's criminal history as mitigating factors. The court concluded that the sentence imposed was commensurate with the gravity of the offences and the need for general deterrence, and therefore dismissed the Crown's appeal. As a result, the original sentence of imprisonment with a non-parole period remained in place.

Orders

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Background

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Evidence Before The Court

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Decision

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Legal Principle Established

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