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229
Court of Criminal Appeal 15 April 2009

R v Robert Borkowski

[2009] NSWCCA 102

Also reported as (2009) 195 A Crim R 152
HomicideDrugsTraffic & driving
CRIMINAL LAW CROWN APPEAL MOTOR VEHICLE MANSLAUGHTER DISCOUNT FOR GUILTY PLEA DELAY RELEVANCE OF CRIMINAL RECORD

Citation: R v Robert Borkowski [2009] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 15 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Howie J

Background

On 29 July 2007, the respondent was racing two other vehicles along the Great Western Highway at St Mary's at speeds well in excess of the 60kph limit. His vehicle was travelling at approximately 120kph when it struck a car driven by a woman in her 70s who had begun to turn right at an intersection. Both she and her husband, who was the passenger, died as a result of the collision. The respondent had a blood alcohol reading estimated at 0.063 at the time of the impact, with residues of cannabis and methylamphetamine also detected.

The respondent pleaded guilty to two counts of manslaughter on arraignment in the Penrith District Court. One of his co-racers, McDonald, also pleaded guilty to two counts of manslaughter and was sentenced separately. The third driver, Johnson, died after the incident.

Knight DCJ sentenced the respondent to a total of 9 years imprisonment with an overall non-parole period of 6 years. The Crown appealed, contending the sentence was manifestly inadequate. Critically, the Crown did not appeal against McDonald's sentence of 8 years with a 5-year non-parole period.

  • Whether the sentencing judge erred in the discount allowed for the respondent's guilty plea, having regard to trial management procedures
  • Whether the judge gave excessive weight to the 15-month period the respondent spent in pre-sentence custody
  • Whether the judge erred in his treatment of the respondent's prior criminal record
  • Whether the sentences were manifestly inadequate given the nature and seriousness of motor vehicle manslaughter involving racing on public roads
  • Whether the Crown's failure to appeal against McDonald's sentence was a relevant factor in the exercise of the Court's discretion to allow or dismiss the Crown appeal

Decision

Howie J, with whom McClellan CJ at CL and Simpson J agreed, found that the sentencing judge had erred in several respects. The discount for the guilty plea was assessed as too generous in the circumstances. The judge also gave undue weight to the delay between arrest and sentence, and the pre-sentence custody period, and failed to give sufficient weight to the respondent's prior criminal record and the serious nature of the offending.

On the question of whether the offending constituted manslaughter by unlawful and dangerous act, the Court noted some complexity around what constitutes the "unlawful act" where the conduct involves a breach of traffic laws rather than a distinct criminal offence. Simpson J expressly reserved her position on the breadth of conclusions in R v Pullman, observing that a breach of traffic laws is not automatically incapable of founding the unlawfulness element, provided the act is also sufficiently dangerous to engage the criminal law.

Despite finding the sentences were manifestly inadequate, the Court declined to intervene. The central reason was the Crown's failure to appeal against McDonald's sentence. Allowing the Crown appeal against the respondent while McDonald's sentence stood unchallenged would have produced a disparity that could not be justified on the facts. The Court noted that McDonald's role in the race was not markedly less serious than the respondent's.

Howie J acknowledged that dismissing a Crown appeal despite identifying sentencing error is itself a legally recognised course, supported by the principle that the purpose of a Crown appeal extends beyond correcting a single individual's sentence. The Court emphasised that its findings about the inadequacy of the sentence, and the level of penalty that should apply to similar offending in future, would serve the broader purposes of consistency and general deterrence even without re-sentencing the respondent.

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that where the Crown has not appealed against a co-offender's sentence, that failure is a highly relevant factor in the exercise of discretion on a Crown appeal against a different participant in the same offending.
  • A finding that a sentence is manifestly inadequate does not compel the Court to allow a Crown appeal. The purposes of a Crown appeal, including consistency in sentencing and the articulation of sentencing principles, can be served by the Court's stated reasons even where the appeal is ultimately dismissed.
  • General deterrence is of the utmost importance in cases involving motor vehicle manslaughter arising from street racing, and the Court signalled that sentences more severe than those imposed here would be appropriate for comparable future offending.
  • Where a guilty plea is entered on arraignment following a contested committal, the degree of discount for that plea requires careful calibration and cannot simply be treated as equivalent to an early plea entered at the first available opportunity.
  • Simpson J flagged, without deciding, that the broad proposition in R v Pullman, that breaches of statutory or regulatory prohibitions cannot found the "unlawfulness" element of manslaughter by unlawful and dangerous act, may warrant reconsideration in an appropriate future case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51A, 52A, 53, 54
- Criminal Case Conferencing Trial Act 2008 (NSW)
- Road Transport (Safety and Traffic Management) Act (NSW), ss 40(1), 42(1)(b)

Cases:
- 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 Pullman (1991) 25 NSWLR 89
- Veen v The Queen (No.2) [1988] HCA 14; 164 CLR 465
- R v Isaacs (1997) 41 NSWLR 374
- R v Buttsworth [1983] 1 NSWLR 658
- R v Cameron [2005] NSWCCA 359; 157 A Crim R 70
- R v Chen [2002] NSWCCA 447
- R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206
- Lewins v R [2007] NSWCCA 189
- R v Carter [1999] NSWCCA 376
- R v Dally [2000] NSWCCA 162; 115 A Crim R 582
- R v V (1998) 99 A Crim R 297
- R v Shore (1992) 66 A Crim R 37
- R v Diamond (NSWCCA, 18 February 1993, unreported)
- R v Rexhaj (NSWCCA, 29 February 1996, unreported)