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236
Court of Criminal Appeal 15 April 2009

R v Robert Borkowski

[2009] NSWCCA 102

Also reported as (2009) 195 A Crim R 1 (2009) 195 A Crim R 152 (2009) 95 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: Court of Criminal Appeal, NSW
Date: 15 April 2009
Judges: McClellan CJ at CL, Simpson J, Howie J

Background

On 29 July 2007, the respondent was involved in a street race along the Great Western Highway at St Mary's. Three vehicles raced for approximately five kilometres at speeds well exceeding the 60kph limit. The respondent's vehicle was travelling at 120kph when it collided with a vehicle carrying an elderly couple, killing both occupants.

The respondent pleaded guilty in the District Court to two counts of manslaughter. He was sentenced to a total of 9 years imprisonment with an overall non-parole period of 6 years, backdated to the date of his arrest. His co-offender, McDonald, received a total sentence of 8 years with a non-parole period of 5 years after pleading guilty in the Local Court.

The Crown appealed the respondent's sentence as manifestly inadequate. The Crown did not appeal McDonald's sentence. This asymmetry became the central factor in the Court's exercise of discretion to dismiss the appeal, even though the Court found the sentences were wrong.

Legal Issues

  • Whether the sentencing judge erred in awarding a 25% guilty plea discount for a plea entered at arraignment in the District Court, following contested committal proceedings
  • Whether delay of approximately 15 months between arrest and sentence was properly treated as a mitigating factor under the principles in R v Todd
  • Whether the respondent's criminal and traffic record should have been treated as an aggravating factor
  • Whether the sentences were manifestly inadequate for two counts of manslaughter arising from a street race
  • Whether the Court should exercise its discretion to dismiss the Crown appeal given the Crown's failure to appeal the co-offender's sentence

Decision

Ground 1(a): Discount for guilty plea

The sentencing judge gave a 25% discount on the basis that the respondent pleaded guilty at arraignment, treating that as the critical date for the maximum discount. The Court found this reflected a localised court practice inconsistent with the guideline in R v Thomson and Houlton. Under that guideline, the maximum discount is generally reserved for pleas entered in the Local Court, and a plea at arraignment following committal proceedings would ordinarily attract no more than about 15%. The judge's discretion miscarried.

However, because the prosecutor at the sentencing hearing had conceded a range of 20 to 22.5%, the Court declined to intervene on this ground alone. The Court took the opportunity to restate, in a numbered list of 12 principles, the rules governing plea discounts, emphasising that sentencing discounts cannot vary according to administrative arrangements of a particular court or judge.

Ground 1(b): Delay as a mitigating factor

The Court found the judge erred in applying the Todd principles to a delay of 15 months. The principles in Todd address cases of extended, unusual delay, and any leniency depends on the cause, extent, and demonstrated impact of the delay on the offender. Here, the delay largely arose from the respondent's own decision to contest a factual allegation at committal. There was no evidence the delay adversely affected him, and the "sword of Damocles" analogy was inapt given the respondent must have known a significant sentence was inevitable.

Ground 1(c): Relevance of criminal record

The Crown argued before the appeal court that the record should have been treated as an aggravating factor, but had not pressed that argument before the sentencing judge. The Court noted it is generally inappropriate for the Crown to adopt a different stance on appeal. In any event, whether the record was an aggravating factor was primarily a factual judgment for the sentencing judge, and the Court found no basis to disturb it.

The adequacy of the sentences

The Court concluded the sentences were manifestly inadequate to a very significant degree. The judge appeared to have substantially underestimated the criminality involved. The Court also noted that the charge description, manslaughter by unlawful and dangerous act, was itself problematic: following R v Pullman, a breach of a traffic regulation cannot by itself constitute the "unlawful act" needed for this category of manslaughter. However, the parties did not seek to challenge Pullman, and returning the matter to the District Court would have exposed the respondent to what the Court described as triple jeopardy.

The Court found that, properly assessed, the minimum appropriate sentence would have been 12 years total with a non-parole period of 9 years, and that even that figure reflected the double jeopardy discount applicable to Crown appeals.

Exercise of discretion to dismiss

Despite identifying manifest inadequacy, the Court dismissed the appeal. The Crown had not appealed McDonald's sentence, and no explanation was offered for that omission. Allowing the appeal would have resulted in the respondent serving a minimum of 9 years while his equally culpable co-offender served 5 years. The Court found this disparity unjustifiable and could not be explained by differences in subjective circumstances or the fact that it was the respondent's vehicle that made the fatal impact.

The Court acknowledged that where a co-offender's sentence is itself manifestly inadequate, a co-offender's grievance about disparity is normally considered unjustified. However, the purpose of a Crown appeal extends beyond correcting an individual sentence. That purpose, the Court held, could be substantially achieved by making clear findings about why the sentences were wrong, thereby guiding future sentencing for motor vehicle manslaughter, even without formally increasing the sentence.

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • The maximum guilty plea discount under R v Thomson and Houlton is generally reserved for pleas entered in the Local Court; a plea at arraignment following contested committal proceedings will ordinarily attract a discount of no more than approximately 15%, regardless of any local court practice to the contrary.

  • Regional or judge-specific sentencing practices that award discounts inconsistent with appellate authority have no validity in law, and the Court of Criminal Appeal restated this emphatically, setting out 12 numbered principles governing plea discounts.

  • A Crown appeal may properly be dismissed in the exercise of discretion where allowing it would create unjustifiable sentencing disparity with a co-offender whose sentence the Crown chose not to appeal, even where the sentences under review are found to be manifestly inadequate.

  • In dismissing the Crown appeal, the Court confirmed that the general deterrent and consistency purposes of a Crown appeal can be served by a court's express findings and guidance, without necessarily varying the sentence under review.

  • Following R v Pullman, a breach of a traffic regulation cannot, by itself, constitute the "unlawful act" required to found a charge of manslaughter by unlawful and dangerous act; the Court flagged doubt about the breadth of that principle, with Simpson J reserving her position, but neither party sought to disturb it in this appeal.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated