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7
Court of Criminal Appeal 21 June 2019

Borg v R

[2019] NSWCCA 129

Homicide
SENTENCING RELEVANT FACTORS ON SENTENCE PARITY OF SENTENCING OFFENDERS JOINT CRIMINAL ENTERPRISE MURDER

Citation: Borg v R [2019] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 21 June 2019
Judges: Bathurst CJ (with Hamill J and N Adams J agreeing)

Background

The applicant pleaded guilty to the murder of a man who was shot while sitting in the back seat of a parked car in Bexley in July 2013. The applicant drove his co-offender to the car park, accompanied him to locate the victim's vehicle, and both men produced firearms. The co-offender fired seven rounds, two of which struck the deceased, who later died in hospital. The applicant was found not to have been the shooter.

The applicant was sentenced in June 2017 to 16 years and 2 months imprisonment, with a non-parole period of 12 years and 2 months, after receiving a 40% combined discount for his guilty plea and offer of future assistance. His co-offender, who pleaded not guilty and was convicted by a jury, was sentenced by the same judge in June 2018 to 28 years imprisonment with a non-parole period of 21 years.

The applicant sought leave to appeal on a single ground: that the disparity between his sentence and the co-offender's sentence gave rise to a justifiable sense of grievance.

  • Whether the disparity between the applicant's sentence and the co-offender's sentence was sufficient to give rise to a justifiable sense of grievance, warranting appellate intervention on parity grounds.
  • Whether differences in the evidentiary basis on which each co-offender was sentenced affected the parity analysis.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. Bathurst CJ, with Hamill J and N Adams J agreeing, found that the marked disparity between the two sentences gave rise to a justifiable sense of grievance on the applicant's part.

Central to the Court's analysis was the recognition that each co-offender had been sentenced on a different evidentiary basis. The applicant pleaded guilty and was sentenced on agreed facts, which established clearly that he was not the shooter. The co-offender was sentenced following a jury verdict, and the sentencing judge could not positively determine whether the co-offender or the applicant had fired the shots. This uncertainty was treated adversely to the co-offender under the applicable evidentiary standard.

Beyond the question of who fired the shots, the Court identified a stark contrast in the subjective circumstances of the two men. The applicant had minimal prior criminal history, was only 23 at the time of the offence, and the offence was found to be out of character. The sentencing judge had described his subjective case as powerful. By contrast, the co-offender had a significantly more serious criminal record, and no findings of remorse or prospects of rehabilitation could be made in his favour.

Taking all of these factors together, the Court concluded that the applicant's offence was objectively less serious than the co-offender's, and that the powerful subjective case available to the applicant, set against the co-offender's virtually non-existent one, demonstrated a disparity that could not be justified. The Court resentenced the applicant to a total term of 15 years imprisonment, with a non-parole period of 11 years and 3 months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed on 9 June 2017 quashed.
  • Applicant resentenced to 15 years imprisonment commencing 19 March 2014 and expiring 18 March 2029, comprising a non-parole period of 11 years and 3 months expiring 18 June 2025, with a balance of term of 3 years and 9 months.

Key Takeaways

  • A parity challenge requires an appellate court to consider the separate evidentiary basis on which each co-offender was sentenced, not simply to compare the headline figures side by side.
  • Where co-offenders are sentenced following a guilty plea on agreed facts and a jury verdict respectively, the factual findings available to the sentencing judge may differ materially, and those differences bear directly on any parity analysis.
  • A marked disparity between co-offenders' sentences can give rise to a justifiable sense of grievance even where the same judge imposed both sentences, though the Court of Criminal Appeal emphasised that appellate caution is warranted in such circumstances.
  • Significant differences in subjective circumstances, including criminal history, prospects of rehabilitation, and demonstrated remorse, are relevant to whether a sentencing disparity is justifiable rather than merely reflecting the different circumstances of each offender.
  • In resentencing after a successful parity appeal, the Court noted that a sentence must not be reduced to a level that would constitute an affront to the proper administration of justice, and set the new sentence accordingly.

Legislation and Cases Referenced

Cases:
- Lowe v R (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Tuivaga v R [2015] NSWCCA 145
- PG v R [2017] NSWCCA 179
- R v Gatt (No 11) [2018] NSWSC 991
- Gill v R [2010] NSWCCA 236
- Lee v R [2011] NSWCCA 169
- TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146
- Various 2017 NSWCCA decisions including Afu, Buxton, Cameron, Daw, Dayment, Lloyd, Miles, TL, and Wan

Legislation: No specific legislation cited.