R v Borell - [2018] NZHC 3281

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2016-009-12679 [2018] NZHC 3281

THE QUEEN

v

FRANCHESCA KORORIA BORELL

Hearing: 12 December 2018

Appearances:

B Hawes and C J Boshier for Crown
P J Shamy, K Cook and O Jarvis for Defendant

Judgment:

12 December 2018

SENTENCING REMARKS OF MANDER J

[1] Ms Borell, I will ask you to stand at the end of my sentencing remarks. Franchesca Borell, you are for sentence this afternoon for the murder of Hardeep Singh.

Three strikes warning

[2] Before I proceed to impose sentence, I am required under the Sentencing Act to give you what is described as the “three strikes warning”.

[3] Because of your conviction on the charge of murder, you are now subject to the three strikes law. I am required to give you a warning of the consequences of being convicted for another serious violent offence. You will also be provided with a written
notice which contains a list of these serious violent offences.

R v BORELL [2018] NZHC 3281 [12 December 2018]

[4] The warning is this. If you are convicted of any one or more serious violent offence other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment. I turn now to the sentence.

Sentencing

[5] It is necessary that I record the basis upon which I sentence you for Mr Singh’s murder. The circumstances are of relatively narrow compass.

[6] You and Mr Singh had been in a relationship for some months and were living together at an address in Cashmere that he was housesitting for an associate. On Christmas morning 2016, you and Mr Singh had an argument which resulted in you leaving the house and going for a drive. When you returned, Mr Singh was no longer there. You rang him and arranged to meet him at a car park near the summit of the Port Hills. While there, a friend of Mr Singh’s arrived. A proposal that the friend come back to the Cashmere address was the source of further friction between yourself and Mr Singh. The friend left and both you and Mr Singh returned to the house.

[7] At the address, you continued to argue with Mr Singh. You told him that you were going to leave him. It is clear that emotions were high between the two of you, and when Mr Singh prevented you from leaving by blocking your path you became very angry. You went to the kitchen and uplifted a large kitchen knife. You told the police that you threw the knife at Mr Singh, but I consider that…

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 Borell

Details

AGLC: R v Borell [2018] NZHC 3281
Case: [2018] NZHC 3281
Decision Date: 12 December 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Mander J sentenced Franchesca Borell for the murder of Hardeep Singh. Borell and Singh had been in a relationship and were living together at an address in Cashmere. On Christmas morning 2016, the pair had an argument which resulted in Borell leaving the house and going for a drive. When she returned, Singh was no longer there, and she rang him and arranged to meet him at a car park near the summit of the Port Hills. While there, Singh’s friend arrived, which caused further friction between Borell and Singh. After returning to the house, Borell stabbed Singh with a knife, causing him to die two days later.

The court considered the legal issues of the appropriate sentence for murder, taking into account the three strikes warning, the impact on the victim’s family, and Borell’s personal circumstances. The court determined that the minimum term of imprisonment should be 10 years, which is the shortest permissible term for a life sentence. The court acknowledged that Borell had no prior convictions and presented as a first offender, but her history of abusing alcohol and resorting to violence were taken into account. The court also noted Borell’s offer to engage in restorative justice, although it was unlikely to be practical. The court emphasised the importance of Borell addressing her alcohol and drug issues and managing the issues that lie behind her anger and violence. Ultimately, the court sentenced Borell to life imprisonment for murder, with a minimum term of imprisonment of 10 years.

Orders