DPP (Vic) v Borg [2013] VSCA 181

2 In November 2009, the respondent travelled to New South Wales with Michael Spiropoulos and purchased a .22 rifle.

3 About a week later, on 15 November 2009, the respondent took Mr Rule out to dinner and afterwards drove him to a factory in Campbellfield. There the respondent shot Mr Rule six times in the head and four times in the chest with the .22 rifle, killing him.

4 The respondent told Spiropoulos to buy bottles of bleach, garbage bags and rags and bring them to the Campbellfield factory. The respondent and Spiropoulos spent an hour and a half cleaning the factory. The respondent then drove to a factory in Thomastown with Rule's body in the boot of the car.

5 The following day, Spiropoulos went to the Thomastown factory and found the respondent burning Rule's body. A chainsaw was purchased and over the ensuing three days, the pair dismembered the body and placed its parts in tubs containing acid. The offenders travelled to the seaside, concealed various items in the bush and washed the contents of a tub into the sea. They cleaned and painted the floor of the Thomastown factory.

6 In January 2010, the respondent denied to the police that he had any knowledge of the fate of Mr Rule and gave a false alibi as to his whereabouts on 15 November 2009. The respondent prevailed upon his employer to create a false record to support the alibi.

7 On 5 April 2010, Spiropoulos confessed his involvement in the murder. The respondent was tried in the Supreme Court on a charge of murder and was found guilty. He also pleaded guilty to charges of handling stolen goods and cultivating a narcotic plant.

8 After a plea, the respondent was sentenced to be imprisoned for a term of 23 years on the charge of murder, for a term of 12 months on the charge of handling stolen goods and for a term of three years on the charge of cultivating a narcotic plant. With a measure of cumulation, a total effective sentence of 23 years and nine months' imprisonment was produced. A minimum term of 19 years' imprisonment was fixed.

9 The Director has appealed against the sentence on the charge of murder on the ground that the sentence was manifestly inadequate, producing a manifestly inadequate total effective sentence and nonparole period. The appellant alleges the usual particulars of the ground, that is, weighing considerations relevant to the exercise of discretion in a manner which disclosed error by giving too much weight to mitigating circumstances and too little weight to aggravating circumstances.

10 Counsel for the respondent raised a preliminary point. He submitted that the notice of appeal was invalid and this Court lacked jurisdiction to entertain the appeal because the notice of appeal did not disclose that the Director had formed the opinions set out in s 287 of the Criminal Procedure Act 2009. The section provides:

The Director of Public Prosecutions may appeal to the Court of Appeal against a sentence imposed by an originating court if the Director of Public Prosecutions: (a) considers that there is error in the sentence imposed and that a different sentence should be imposed and; (b) is satisfied that the appeal should be brought in the public interest.

11 The second page of the notice of appeal contained the following statement:

Take notice that I, John Ross Champion, Senior Counsel, and Director of Public Prosecutions for the State of Victoria consider that a different sentence should have been passed upon the respondent and I am satisfied that an appeal should be brought in the public interest as provided by s 287 of the Criminal Procedure Act 2009.

12 The principal defect was said to be the omission of a statement that the Director considers that there is error in the sentence imposed.

13 The next page of the notice contains the grounds of appeal over the signature of the Director. As I have said, the grounds identify errors which are said to give rise to a manifestly inadequate sentence. When it is read as a whole, it is, I think, abundantly clear that the Director considers that there is error in the sentence passed below.

14 Counsel for the respondent also criticised the notice for stating that, 'A different sentence should have been passed', instead of saying, 'A different sentence should be passed'. There is nothing in this criticism. It follows from the words he used that the Director considers that this Court should impose a different sentence.

15 It emerged at the hearing of the plea that the respondent is 29 years' old. He was born in Australia of Maltese parents. After leaving school, the respondent completed an apprenticeship as a boiler maker.

16 The respondent has eight prior convictions from three court appearances, including convictions for theft and intentionally damaging property. None of the offences resulted in a sentence of imprisonment and I do not regard the prior convictions as significant.

17 In the course of the plea, a report by a psychologist was tendered. The psychologist concluded that the respondent's prospects for rehabilitation were quite 'good' although the sentencing judge noted that the difficulty with this conclusion was that the respondent denied his guilt.

18 The psychologist also said the respondent had shortcomings in his cognitive ability which meant that he could not easily think of solutions to problems. The sentencing judge, however, while conceding that the respondent seemed to be immature, said that he was able to plan the cultivation of a large number of cannabis plants and the killing of a man to protect the financial benefit he expected to derive from that enterprise and the manner in which he acted after the victim's death to conceal what he had done, revealed an orderly and organised approach to the problem.

19 Since the enactment of the Criminal Procedure Act 2009, the concept of double jeopardy as a limitation upon the ability of this Court to increase sentences upon appeal by the Crown has been removed from the questions of whether there has been sentencing error, whether, if error has been established, a different sentence should be passed and, if the respondent is to be resentenced, the terms of that sentence.[1] It is no longer the case that the Crown must establish something more than significant inadequacy of a sentence[2] or that Crown appeals are to be brought only in rare and exceptional cases.[3] Nevertheless, there remains a residual discretion in the Court to dismiss a Crown appeal notwithstanding sentencing error if the Court is of the opinion that a different sentence should not be passed, although double jeopardy is not now a basis for the exercise of that discretion.[4]

20 As the sentencing judge found, the respondent carried out a cold blooded execution, planned well in advance for the purpose of protecting the profits from a significant criminal enterprise and then brutally degraded his victim's body in an attempt to conceal the crime. The fact that the respondent continued to deny his responsibility for the death of Rule precluded a finding of any remorse.

21 The mitigating factors identified by the sentencing judge were of limited significance. His Honour said only:

However, I take into account your relative youth and the fact that your family support you and in all likelihood will continue to do so. I am also willing to accept that your life had been somewhat isolated and that your social skills have been very limited. It may well be that you have some prospect of rehabilitating yourself in the commission of these offences.

22 No specific error can be identified in the sentencing remarks. I agree with the sentencing judge's appraisal of the gravity of the crime which he expressed in these terms:

[T]his is very serious offending and requires clear denunciation of what you have done. As for deterrence, both specific and general, both you and the community needs to be reminded that the law will not tolerate individuals resorting to behaviour involving gross violence like yours to protect the expected financial benefits from other illegal activity.

Unfortunately, it seems to me that the sentence itself fails to reflect the seriousness of the crime and its attendant circumstances. A planned execution carried out for the sole purpose of protecting a criminal enterprise at least approached the worst case of an offence for which the maximum penalty is life imprisonment.

23 Counsel for the respondent sought to invoke the residual discretion of the Court. He cited Green v R[5] in which the court cited the statement of the Court of Criminal Appeal in New South Wales in R v Borkowski[6] to the effect that the purpose of a Crown appeal in achieving a consistency in sentencing:

... can be achieved to a very significant extent by a statement of this Court that sentences imposed upon the respondent were wrong and why they were wrong.

24 The context of the High Court's approval of the statement by the Court of Criminal Appeal was that the result of allowing the appeal by the Crown would create an unjustifiable disparity between any new sentence and a sentence already imposed upon a cooffender. That is not this case. Nor is this a case in which the discretion is usually enlivened, for example, where there is delay in determining the appeal or the offender has been or is about to be released on parole or rehabilitation has been affected or fault on any part of the Crown. In my opinion, achieving consistency in sentencing requires the imposition of a different sentence upon the respondent.

25 I would allow the appeal and resentence the respondent on the charge of murder to a term of 28 years' imprisonment. I would confirm the sentences on the

charges of handling stolen goods and cultivating a narcotic plant, making a total effective sentence of 28 years and 9 months' imprisonment. I would fix a nonparole period of 24 years and 9 months' imprisonment.

26 I agree. I wish only to add that in my view it would be desirable if the Director took care with any future notice of appeal against sentence to ensure that the 'statement of jurisdictional fact', as counsel for the respondent referred to it, more closely tracks the terms of s 287 of the Criminal Procedure Act 2009.

27 I also agree with the reasons of Buchanan JA and with the orders which he proposes.

1. The sentences of imprisonment imposed below are quashed. In lieu thereof, the respondent is sentenced as follows:

Charge 1 - on indictment A11056367-1 - 28 years' imprisonment

Charge 1 - on indictment A11056367-3 - 12 months' imprisonment

Charge 2 - on indictment A11056367-3 - 3 years' imprisonment

1. The Court directs that 3 months of the sentence on charge 1 on indictment A11056367-3 and 6 months of the sentence on charge 2 on indictment A11056367-3 be served cumulatively upon each other and upon the sentence imposed on count 1 on indictment A11056367-1, making a total effective sentence of 28 years and 9 months' imprisonment.

4. A non-parole period of 24 years and 9 months' imprisonment is fixed.

1. It is declared that a period of 1,186 days not including today is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

1. The declaration made pursuant to s 6AAA of the Sentencing Act 1991 made in the court below is confirmed.

In other matters, it is noted that the Court grants to the respondent a certificate pursuant to s 15 of the Appeal Costs Act 1998.

[1] Sections 289(1) and (2) and 290(3). See DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634.

[2] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538.

[3] DPP v Karazisis, above, [120]. Cf R v Clarke [1996] VICSC 30; [1996] 2 VR 520; Griffiths v R [1977] HCA 44; (1997) 137 CLR 293.

[5] [2011] HCA 49; (2011) 244 CLR 462, 477-8.

[6] [2009] NSWCCA 102; (2009) 195 A Crim R 1, 18.