R v Borg [2023] NSWDC 369

District Court New South Wales

Medium Neutral Citation: R v Borg [2023] NSWDC 369 Hearing dates: 18 July 2023, 1 September 2023 Date of orders: 8 September 2023 Decision date: 08 September 2023 Jurisdiction: Criminal Before: Fitzsimmons SC DCJ Decision: 1. The conviction appeal is dismissed. 2. The order of the learned Magistrate made on 22 March 2023, dismissing the appellant's application, is confirmed. 3. The severity appeal is allowed in part. 4. The aggregate sentence of imprisonment of 10 months is confirmed. 5. The order that the term of imprisonment be served by way of intensive corrections order is confirmed. 6. The conditions of the intensive corrections order are varied as follows: a. The condition that the appellant perform 100 hours of community service is set aside and in lieu thereof the appellant is to perform 20 hours of community service. 7. The remaining conditions of the community service order are confirmed. 8. The order of the Magistrate that the term of imprisonment is to commence on 12 May 2023 and expire on 11 March 2024 is confirmed. Catchwords: CRIME – conviction and severity appeal – unprovoked assaults on indigenous juvenile by police officer whilst in police custody – assault captured on optical surveillance device - mental health impairment - Mental Health and Cognitive Impairment Forensic Provisions Act 2020 - general deterrence – specific deterrence – general denunciation of police violence of persons in custody Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 11 and 18, 19 Crimes Act 1900, s 61 Crimes (Sentencing Procedure) Act 1999, s 66 Mental Health and Cognitive Impairment Forensic Provisions Act 2020, ss 4, 12(1), 14, 15 Cases Cited: Alkanaan v Regina [2017] NSWCCA 56 Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 DC v R [2023] NSWCCA 82 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 DPP v El Mawas (2006) 66 NSWLR 93 McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 Muldrock v R (2011) 244 CLR 120 R v Henry (1999) 46 NSWLR R v Israil [2002] NSWCCA 255 Category: Principal judgment Parties: Rex (Crown) Christopher Borg (Appellant) Representation: Counsel: Mr J Brook (Appellant)