DPP v Borg [2020] VCC 1029

"I went to Kadina Police Station to find out what was going on because I thought I was going to be arrested. I was very distraught and upset about the whole thing. I thought the police were going to serve me with the order that [JS] had sent me the photo of."

1. The police officer was later advised by the Magistrates Court staff not to serve the false interim intervention order.

1. You are now 40 years old. You are married and have two children, the elder is five years old, and the younger approximately five months old.
2. You were the eldest of four children. You parents separated when you were around 20 years old, when your mother left the family taking the two younger children with her, from Western Australia back to Victoria. There followed a period where your father was not able to see the younger two children which caused him considerable distress.
3. You did well at school, describing yourself to Mr Newton as an above average student. From school you went to university where you obtained a Bachelor of Science. You then obtained work in the Victorian public service and commenced working for Court Services Victoria from 2008. You commenced your relationship with your husband also in 2008.
4. Whilst working as a Registrar you commenced studying law at Deakin University, and were engaged in that course when this offending occurred. I was told that you intend to complete that degree, despite knowing that these charges mean that it is unlikely you will ever be able to practice as a lawyer.
5. Your counsel described a history of family violence in your relationship with your husband. In February 2017 during an argument with Mr Borg, who had been drinking, he threatened to kill himself to which you replied that he should just go and do it. He then grabbed you around the throat and strangled you. Your father called the police and you made a statement. An intervention order was put in place. Mr Borg entered a plea of guilty to a charge of assault relating to this incident.
6. I was told that after a year of separation Mr Borg and you resumed your relationship, but that instances of family violence persisted. On 19 November 2019 you sought medical treatment for damage to your right wrist. You told the treaters that your husband had been drinking and had grabbed your arm. You persuaded the treaters not to call the police. Your daughter was with you when you presented for treatment, and you told them that your husband had not been violent towards her. I was told that your daughter was in the next room when the violence towards you occurred.
7. On 28 November 2019 you told your husband about the pending charges, whilst in the car. He was very angry. The next day at home, whilst your child was at kindergarten, your husband was angry because the matter had been in the paper. As you walked away he grabbed you, and you fell, bruising your knee.
8. After the first day of the plea hearing you separated from your husband. He now resides with his father, and you have been taking the children to visit him, with your father-in-law present during these visits.

1. You were assessed by Mr Patrick Newton, a forensic psychologist. He noted three experiences relating to suicide of others that have had an effect upon you.[1] Mr Newton said that you continue to have intrusive thoughts and experience distress about these events. In particular, he noted that you retain a feeling of guilt for not preventing your friend from suicide, when you were 18. You also have a history of being subjected to domestic violence.
2. You told Mr Newton that JS had expressed suicidal thoughts, and you wanted to prevent that from happening. You described your offending as opportunistic and impulsive and that it had only occurred to you to make the false application and order when you found yourself unexpectedly alone in Court.
3. Mr Newton considered that you are suffering from, "noteworthy anxiety in the context of moderate depressive symptoms".[2] You feel guilty and sad and pessimistic for your future. He considers you have experienced long-term emotional problems, arising from the distressing incidents I referred to earlier, as well as connected with the domestic violence of which you have been a victim.
4. Mr Newton diagnosed post-traumatic stress disorder in partial remission. He noted the relatively proximate death by suicide of Mr Myall, and the suicidal expressions made by JS. He said:

As a result, Ms Borg experienced a significant resurgence of the anxiety that she had previously been supressing. This anxiety is likely to have resulted in significant difficulties for Ms Borg's ability to exercise her usual judgment and reasoning skills. Not only would I expect her to have focused on issues related to JS's possible self-harming to the exclusion of other considerations, but I would also anticipate that she would have had difficulty reasoning about these matters with calm composure and settled reflection on account of the elevated anxiety that she was experiencing. These impairments are likely to have contributed to her serious lapse of judgment with regard to these matters.[3]

1. I note that this explanation does not seem to apply to Charge 1.
2. You are now seeking to address these long-term issues by utilising counselling. The reports from Mr Burrows and Mr Newton indicate that you are making some progress in this area, although it is at an early stage.

1. All of your offending occurred in the context of your role as a Registrar at Werribee Magistrates' Court. This position gave you access to Courtlink, so that you could search for information in respect to Charge 1, and enabled you to create the false intervention order application, make the false order, and send it to the South Australian Police with the intention that a false Order be served on the mother.
2. The making of an intervention order is governed by legislation, which entrusts that power in a judicial officer, only. An intervention order can have a serious impact on the life of the person at whom the order is directed. Breaching the order is a criminal offence. The purported Order you created and arranged to have served required a mother to surrender an infant to the child's father.
3. As a Registrar of the Magistrates' Court you had access to personal and confidential information. You had duties which are an essential part of the administration of justice. It is very important for judicial officers, police and members of the public to be able to rely on staff such as yourself to carefully and properly carry out their duties. Your offending undermined the administration of justice, and confidence in the judicial system.
4. Magistrate Grubissa, in whose name you made the false Order, said:

I was greatly affected by this happening in my court and was plagued by what could have happened had this order, bearing my judicial identification (albeit never made by me), actually been served, binding the respondent as a matter of law. The fact that a child was to be delivered to a party as a condition of such an order caused me great distress given the very unfortunate and often tragic outcomes in such family violence/family law related proceedings.

1. The facts show that the notion of an Intervention Order in the terms created by you was in your contemplation at least the day before you made it. The acts required were carried out between the start of lunch time, when you arranged to be alone in the court room, and the faxing of the false document later that afternoon. Whilst it might be said that your role as a Registrar gave you the opportunity to do these things, the offending itself cannot reasonably be described as having been conceived of and carried out without forethought or anticipation. Furthermore, whilst the falsity of the Order was discovered before it was served, it was clearly your intention that it would be served and acted upon by the mother. Indeed, you flew to South Australia to assist the father with the care of his child, once he had taken custody of her from the mother.
2. Your offending in respect to Charge 1 means that the more serious conduct one month later, founding Charges 2-6, cannot be treated as an isolated breach of your duty. Whilst Charge 1 is not of the same gravity as the later offending, it is nevertheless serious and it involved a breach not only of your responsibilities and the trust placed in you, but also the privacy of the person whose details you sent to your sister.
3. Misconduct in public office will necessarily be delimited by the office the offender holds. Your office, whilst less than that of a judicial officer or a government minister, gave you access to a computer system containing private information. It gave you the ability and knowledge to create the false order, which could have led to the surrender of an infant by one parent to another. Your actions were repeated and serious.
4. Your willingness to go to great lengths to assist people appears to be the reason why you committed these offences. In respect to Charges 2 to 6, it also appears that your past experiences with suicide, in combination with your powerful desire and willingness to assist others, had some effect on your judgment and ability to address the situation regarding JS in a calm and rational way. This is to some degree mitigating, but not to a great extent.

1. Your indication that you would plead guilty was made at the earliest reasonable stage. It entitles you to a reduction in sentence by reason of the utilitarian benefit which follows and the facilitation of the administration of justice, even more so in the current situation where the COVID-19 restrictions are in force.
2. I also accept that your plea of guilty is an indication of remorse. You have not sought to put blame on anyone else, and you assisted the police to some degree in their investigation. Mr Newton reported:

'Ms Borg said that she is "deeply, deeply sorry" for her offending. While her remorse seemed genuinely felt, her reflections on her offending were focussed on the damage which had been done to her relationships with other Court staff and the disappointment they would feel about what she had done. Ms Borg found it difficult to engage with a discussion of the dishonesty and violation of trust inherent in her conduct.[4]

1. I accept that a period of imprisonment will be difficult for you. You have an infant child whom you are breastfeeding. Although it appears you will be able to keep him with you if incarcerated, the process of arranging this may interrupt your care of him. You also have a 5 year old daughter from whom you would be separated in custody. Furthermore the COVID -19 restrictions will limit your ability to see your daughter in person, and being incarcerated will mean you cannot control your own exposure and risk of contracting that disease.
2. I accept that the separation from your child or children will cause you considerable distress, for your loss of that contact, and your concern for their wellbeing.
3. Mr Newton also considered that your mental state would mean that you:

'Experience more frequent and intense bouts of emotional distress than a prisoner not afflicted with [your] pre-existing problems, but that [you] would also have fewer resources and opportunities with which to address them. In combination such matters would be likely to result in an experience of incarceration that is significantly more onerous than that of a prisoner not so encumbered.[5]

I accept that this is so and take this into account in mitigation of your sentence.

1. It was also submitted that your older child was at risk of violence from her father, if you were incarcerated. You pointed to the domestic violence committed against you, and the opinions of Mr Burrows and Mr Newton that if you were incarcerated they would report a risk to the child to the relevant authorities.
2. This material does not persuade me on the balance of probabilities that there is a real risk of violence being perpetrated against your children by their father. I am not satisfied that there are exceptional circumstances by reason of risk to your children which would lead me to impose a merciful sentence, and in particular one that would not involve incarceration.
3. I do accept that by depriving you of your liberty, this will cause you grief and concern in respect to not being able to care for your daughter and your inability to offer care to your father during that period, and I take this into account in mitigation.

1. Your offending has caused you to lose your employment, and your potential future career as a lawyer, and to lose friendships and the good reputation you previously enjoyed. I accept that this has been distressing and humiliating and has had a deterrent effect upon you.
2. You are an intelligent person, with a good education and a respectable career behind you. You are receiving treatment from a psychologist. You have your family to care for, and the support of friends. I accept that you have good prospects for rehabilitation.

1. Tendered on your behalf were letters from your father and two friends. All speak highly of you, noting your caring and generous behaviour, and your willingness to help others. Your friends also state that they have observed that you understand what you did was wrong, and have shown remorse. The reference from your father sums up your support of others in the following terms:

'She is the type of person who would give you the shirt off her back and go out of her way to help people she really is so loving and kind and generous.'

1. No case with comparable facts was provided. The cases referred to by your barristers provide points of comparison and principle.
2. Your counsel pointed to the significant overlapping between the facts and elements of Charges 2 to 6, and, as did the prosecution, accepted that an aggregate sentence would be open and appropriate in respect to those charges. I consider that:[6]

'the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality.

1. As I have noted earlier, this is serious offending. General deterrence, denunciation and just punishment are important sentencing considerations. Specific deterrence has only a limited role to play, which I take into account in imposing both the sentences, and imposing a non-parole period.
2. Your counsel submitted that all of the sentencing goals could be met by the imposition of a community correction order. The prosecution, which accepted that there were exceptional circumstances, also submitted that a CCO would be within range. Imprisonment is always the disposition of last resort. As difficult as it is to sentence a woman with two small children to prison, I consider, particularly in respect to Charges 2 to 6, that taking into account all the relevant facts and sentencing principles and acknowledging the punitive nature of a community correction order, nevertheless a term of imprisonment must be imposed. This would be the case even if I had accepted that there were exceptional circumstances relating to your children.
3. On Charge 1, misconduct in public office, you are sentenced to a term of imprisonment of 2 months.
4. On Charges 2, 3, 4, 5, and 6, pursuant to s.9 of the Sentencing Act 1991, I impose an aggregate term of imprisonment of two years.
5. I direct that one month of the sentence upon Charge 1 be served cumulatively upon the aggregate sentence imposed on Charges 2 to 6, so that the total effective sentence is two years and one month imprisonment.
6. Your prospects for rehabilitation warrant a shorter than usual non-parole period, and so I direct that you serve a period of 13 months imprisonment before you are eligible for parole.
7. I understand that there is no pre-sentence detention to declare.
8. Pursuant to s. 6AAA Sentencing Act 1991 (Vic), had you pleaded not guilty, I would have sentenced you to a total effective sentence of four years six months, with a non-parole period of two years and six months.
9. Are there any other matters?
10. MS HOGAN: No, Your Honour.
11. MS LACY: No.
12. HER HONOUR: Adjourn the court. Sorry, I will wait, if you could take Ms Borg down once I have adjourned the court. All right, thank you Carmel.

[2] Mr Newton [35], plea transcript 49-50.

[3] Mr Newton [41]; see also transcript 46-48, 50-51, 53-54, 58-59.

[6] DPP v Frewstal Pty Ltd [2015] VSCA 266; [2015] 47 VR 660, [44].