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Court of Criminal Appeal 9 April 2020

Borg v R; Gray v R

[2020] NSWCCA 67

Drugs

Citation: Borg v R; Gray v R [2020] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 9 April 2020
Judge(s): McCallum JA, Johnson J, Adamson J

Background

Two women, Renee Borg and Kylie Gray, were convicted after a joint trial of supplying a commercial quantity of methylamphetamine (approximately 333 to 334 grams each) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Each had acted as an agent for a third co-offender who supplied the drugs: Borg operated in the Orange area and Gray in the Wellington area between August and November 2015. Both had argued at trial that they believed the drugs were cannabis; the jury rejected those claims.

Norton SC DCJ sentenced both women on 8 March 2019. Borg received a total sentence of 4 years 6 months with a non-parole period of 2 years 8 months. Gray received a total sentence of 5 years with a non-parole period of 3 years. The 6-month difference between the two sentences reflected differences in their subjective circumstances, particularly their respective prospects of rehabilitation.

Both women sought leave to appeal their sentences to the Court of Criminal Appeal. Borg raised manifest excess only. Gray raised both manifest excess and parity (arguing her sentence was unjustifiably higher than Borg's).

  • Whether Borg's sentence was manifestly excessive, having regard to her difficult personal background and the principles in Bugmy v The Queen (2013) 249 CLR 571
  • Whether Gray's sentence was manifestly excessive on the same basis
  • Whether the difference between the two sentences gave rise to a justifiable sense of grievance on Gray's part, engaging parity principles
  • Whether the COVID-19 pandemic was a legitimate basis for the Court of Criminal Appeal to review or reduce sentences already imposed

Decision

Manifest excess (both applicants): The Court accepted that both women had experienced significant hardship and deprivation in childhood, and that the Bugmy principles were engaged. The sentencing judge had expressly acknowledged that these backgrounds moderated the weight to be given to general and specific deterrence. The Court of Criminal Appeal found that, while a more lenient approach would have been open to the sentencing judge, the sentences could not be characterised as excessive to the point of constituting error. The weight to be given to subjective factors remained within the sentencing judge's discretion.

Parity (Gray only): Gray argued that the difference between her sentence and Borg's was not sufficiently explained. The Court disagreed. The sentencing judge had found that Borg demonstrated meaningfully better prospects of rehabilitation than Gray, based on their respective post-offence conduct. That distinction provided a principled basis for the 6-month (10%) difference in total terms and the equivalent proportional difference in non-parole periods. The Court also noted that a parity argument reformulated on appeal that had not been advanced in the same form below was not an appropriate basis for appellate intervention.

COVID-19 as a sentencing consideration: Borg submitted that the COVID-19 pandemic and its impact on prisoners should inform the appellate court's assessment of the sentences. The Court firmly rejected this. It distinguished the pandemic's relevance in bail proceedings (where it had been properly considered in Rakielbakhour v DPP [2020] NSWSC 323) from its role in a sentence appeal. Where no error in the original sentencing is established, the Court of Criminal Appeal has no authority to re-sentence. Any review of a sentence in light of subsequent events, including a public health emergency, is a matter for the Executive Government. The Court noted that amendments to the Crimes (Administration of Sentences) Act 1999 (NSW) had already given the Commissioner of Corrective Services emergency powers to release certain inmates on parole, and that it was not for the appellate court to arrogate such a power to itself.

Orders Made

  • In matter 2016/90677 (Borg): leave to appeal granted; appeal dismissed
  • In matter 2016/204881 (Gray): leave to appeal granted; appeal dismissed

Key Takeaways

  • The Bugmy principle, that serious childhood deprivation and disadvantage reduces an offender's moral culpability, was engaged for both women. However, the Court of Criminal Appeal confirmed that the weight to be given to such evidence remains within the sentencing judge's discretion and will not, by itself, render a sentence manifestly excessive.
  • A 10% difference between sentences imposed on two offenders engaged in the same criminal enterprise can be justified where there is a meaningful distinction in their prospects of rehabilitation, even if their objective offending was of similar seriousness.
  • Arguments raised on a sentence appeal that were not advanced in the same form before the sentencing judge will generally not be entertained: Zreika v R [2012] NSWCCA 44 applied.
  • The COVID-19 pandemic is not a basis for the Court of Criminal Appeal to intervene in a sentence where no legal error in the original sentencing has been established. Hardship arising from subsequent events, including a public health crisis, is properly addressed through Executive Government mechanisms rather than appellate re-sentencing.
  • Pandemic conditions are relevant to bail decisions, where evidence of risk to health and safety in custody bears directly on the questions under the Bail Act 2013 (NSW), but that reasoning does not translate automatically into the sentencing appeal context.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Bail Act 2013 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Rakielbakhour v DPP [2020] NSWSC 323
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Douar v R [2005] NSWCCA 445; (2005) 159 A Crim R 154
- Imbornone v R [2017] NSWCCA 144
- Pham v R [2009] NSWCCA 25; (2009) 193 A Crim R 190
- Pham v R [2010] NSWCCA 208
- R v Baker [2000] NSWCCA 85