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.
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…
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.
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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.