Borri v R [2023] NSWCCA 166

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Borri v R [2023] NSWCCA 166 Hearing dates: 5 April 2023 Date of orders: 30 June 2023 Decision date: 30 June 2023 Before: Simpson AJA at [1]; Button J at [2]; Hamill J at [3]. Decision: (1) Extend time in which to lodge the notice of intention to appeal. (2) Grant leave to appeal against sentence. (3) Allow the appeal. (4) Quash the aggregate sentence imposed in the District Court on 5 February 2021 and in lieu thereof impose an aggregate sentence of 14 years commencing 26 June 2019 and expiring on 25 June 2033 with a non-parole period of 10 years commencing 26 June 2019 and expiring on 25 June 2029. (5) The applicant will be eligible for release to parole at the expiration of the non-parole period. (6) Pursuant to s 25C of the Crimes (High Risk Offenders Act) 2006 (NSW), the applicant is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him. Catchwords: CRIME – sentence – appeal against sentence – statutory sentencing discount – whether applied to indicative sentences – where no reference to discount in judgment as published – amendment to judgment 21 months after sentence imposed and 27 days after appeal raises ground of appeal – hyperlink to JusticeLink entry added suggestion 25% discount applied – unusual course – amendment to judgment ignored – ground of appeal upheld – applicant sentenced afresh Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23(6), 25D, 25D(2)(a), 25F, 25F(7), 25F(7)(a), 25F(7)(b), s 25F(8), 44(2A)53, 53A, 53A(2)(b), 54A(2), 54B(4), 101A Crimes Act 1900, ss 61M, 61N, 61O, 66C District Court Rules 1973, Pt 53 r 12 Cases Cited: Berryman v R [2017] NSWCCA 297 Convery v R [2014] NSWCCA 93 Cullen v R [2014] NSWCCA 162 Edwards v R [2017] NSWCCA 160 Hanna v R (2020) 102 NSWLR 244; [2020] NSWCCA 125 Lee, Matthew v R [2016] NSWCCA 146 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Panetta v R [2016] NSWCCA 85 PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 R v Borri [2021] NSWDC 189 R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Tran v R [2020] NSWCCA 39 Valentine v R [2020] NSWCCA 116 Wei v R [2015] NSWCCA 66 Woodward v R (2014) 68 MVR 376; [2014] NSWCCA 205 Zhang v R [2018] NSWCCA 82 Category: Principal judgment Parties: Mark Annsley Borri (Applicant) The Crown (Respondent) Representation: Counsel: J S Stratton SC with K Ng (Applicant) M Millward (Respondent)