Borg v R [2022] NSWCCA 70

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Borg v R [2022] NSWCCA 70 Hearing dates: 11 March 2022 Date of orders: 01 April 2022 Decision date: 01 April 2022 Before: Beech-Jones CJ at CL at [1]; N Adams J at [2]; Lonergan J at [3]. Decision: (1) The time for filing a notice of appeal for leave to appeal against sentence is extended to 11 March 2022. (2) Leave to appeal granted. (3) Appeal allowed. (4) Sentence imposed by Turnbull SC DCJ on 17 October 2019 is quashed and in lieu thereof the following sentence is imposed: An aggregate sentence of 10 years and 6 months, commencing on 27 July 2017 and expiring on 26 January 2028, with an aggregate non-parole period of 7 years commencing on 27 July 2017 and expiring on 26 July 2024. (5) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: (a) For count 1, 3 years and 6 months with a non-parole period of 2 years and 3 months. (b) For count 2, 9 years and 6 months with a non-parole period of 6 years. (c) For count 3, taking into account the offence on the Form 1, 7 years, 6 months with a non-parole period of 5 years. Catchwords: CRIME – Appeals – Appeal against sentence – wrong facts provided on sentence in respect of number of pills referable to count 2 – re-sentence – exercise of discretion – applicant's subjective factors – hardship – conditions in custody – COVID-19 related – special circumstances Legislation Cited: Crimes Act 1900 (NSW), s 198B Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: House v R (1936) 55 CLR 501; [1936] HCA 40 Kentwell v the Queen (2014) 252 CLR 601; [2014] HCA 37 Newman (a pseudonym) v R [2019] NSWCCA 157 R v Girard [2004] NSWCCA 170 Taha v R [2022] NSWCCA 46 Young (a pseudonym) v R [2021] NSWCCA 163 Category: Principal judgment Parties: Matthew Borg (Applicant) Regina (Respondent) Representation: Counsel: D Carroll (Applicant) E Wilkins SC (Respondent)