R v Borg

R v Borg - [2010] NSWSC 951 - NSWSC 2010 case summary — Zoe

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The relationship between the offender and the deceased and the events leading up to the commission of the crime 12 The deceased and the offender had known each other as teenagers. After leaving school the deceased lived with the offender for a period before they went their separate ways. There after the deceased married twice and had two sons. Both marriages failed. In about 1998 the deceased and the offender resumed their relationship. In the year 2000 the deceased and her two sons joined the offender in his home at Tumbi Umbi. The elder of the deceased's two sons did not remain in the home at Tumbi Umbi until June 2007 but the deceased and her younger son did. 13 The offender's father started a business in the building industry some forty years prior to his son's trial. In 1988 the offender joined his father in partnership trading as Ultra Light Skylights. That business was conducted at Charmhaven. The offender's father manufactured skylights and the offender installed them. It seems that the offender's father met up with the deceased after the offender's marriage failed. The offender and his father quarrelled and in 2004 the offender and the deceased started a business manufacturing and fitting skylights and other roof fixtures and also supplying roofing material. The company was styled "Flashings 'N More Pty Limited" (FNM). The working relationship between the offender and the deceased involved the offender looking after the factory and the deceased looking after administration. 14 The evidence introduced at the trial established that both the offender and the deceased worked hard in the business. When it was set up in 2004 the deceased was the sole director and the sole shareholder of the company but in 2007 the offender replaced the deceased as the sole director of the company whilst the deceased remained the sole shareholder. A family trust was set up to cover the company's assets. 15 The personal relationship between the offender and the deceased broke down in 2007 and the deceased went to live with her younger son in a flat at Berkeley Vale, but the deceased continued to participate in the business at Tuggerah. 16 It seems that the business prospered. Over the years the company moved into larger premises at Gavenlock Road Tuggerah where the business was being conducted at the time of the murder. 17 By July 2008, it is apparent that the deceased and the offender were in conflict over their business affairs and by then the deceased had formed a new personal relationship. On 3 July 2008 the deceased telephoned the accountant John Marziano who had been engaged to look after the company's affairs since 2004. The deceased told Mr Marziano that it was her wish that the directorship be transferred to her and Mr Marziano acting on her instructions forwarded to the deceased the appropriate forms to implement the change of director. The forms were not executed. Also in July 2008 the deceased sought advice from her solicitor as to whether the deceased could lawfully remove the offender from his directorship. The deceased was advised that she could do so and the deceased gave instructions to her solicitor to write a letter to the offender and the letter was written and received by the offender on 4 July 2008, some days before the crime was committed. Omitting the formal parts the letter reads as follows:

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The partial defences 21 Although the jury determined the provocation issue against the offender it does not necessarily follow that this issue is to be cast aside altogether. In R v Bell (1985) 2 NSWLR 466 at 485 Lee CJ at CL said in point: "Another matter raised in argument before us in this Court related to the approach to be made in cases where, for instance, a defence of provocation or self-defence had been raised before the jury and rejected. Had provocation been accepted by the jury, it would have entitled the accused to a verdict of not guilty of murder, but guilty of manslaughter … and if self-defence had been accepted it would have entitled him to an acquittal or a verdict of guilty of manslaughter if the case was one of excessive force in self-defence. The rejection of these (or any other defences) does not necessarily mean that the accused cannot get the benefit, as a mitigating factor, at least to some extent of the factual basis upon which they rested. If the sentencing judge is satisfied from credible evidence in the case that there was a degree of provocation he may take it into account as a mitigating factor; likewise, if the judge is satisfied from credible evidence that there was an element of self-defence involved in the killing. But every case must be judged according to its own circumstances and the question for the Court in every case will be whether on the evidence the factor being put forward as a mitigating factor has a relevant connection with the crime in its full sense as I have explained earlier." 22 See also R v Heffernan [2005] NSWSC 739. 23 Similarly as to the issue arising under s 23A of the Crimes Act 1900 I must consider the evidence that bears upon this issue notwithstanding the verdict of the jury. See R v Bell (supra), and R v Cheatham [2002] NSWCCA 360. 24 The principles as to fact finding to be applied by a sentencing judge after conviction by a jury were stated by the Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374 at 377-378 and I direct myself in accordance with those principles. Any finding of fact made against the offender must be arrived at beyond reasonable doubt, and must be consistent with the verdict of the jury. 25 There was a formidable body of evidence introduced at the trial about the importance which the offender attached to his work and the business conducted by FNM:

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"Q. And you indicated that on his description, you formed a view about his position in relation to his work activities, isn't that right? A. Yes and this is where I would agree more strongly with Dr Wilcox that there was a, truly an obsessional, a pathological obsessional compulsive component to his personality in that his obsession and pre-occupation with his work and business and so on, drove out everything else and caused him to be such a perfectionist that he was bound to come to logger heads with other staff, where he would demand the same level of perfection that he demanded of himself, and I've written that I thought he was almost manically driven in his work activities and I say that because there was a kind of relentlessness to his work drive." (T791-T792) 34 I accept that the offender at the time of the commission of the crime was suffering from a personality disorder as diagnosed by Dr Wilcox and from an anxiety disorder as diagnosed by Dr Giuffrida with the behavioural responses outlined in the passages from the doctors' evidence which I have set out above. 35 The offender told police that he "snapped" in the course of the discussion I referred to earlier in these sentencing remarks. This occurred after the deceased said that the company FNM was hers (Q&A62). The offender also told the police later in the interview (Q&A300) that earlier that day, probably around lunchtime, the deceased told him she was replacing him in the business. 36 The offender told Dr Wilcox that at about 4.30pm that day the deceased came into the office and told him he was sacked and that he was to leave the keys to the Mitsubishi, and that if he did not go she would call the police. The offender gave a similar history of events to Dr Roberts, that the deceased had said: "leave the keys on the table, return the keys to the factory and go". Similarly to Dr Giuffrida the offender said that the deceased told him somewhere between 5.30pm and 6pm to leave the keys to both the ute and the factory and to leave the premises. 37 These histories to the doctors as to the terminal demand by the deceased to the offender as to the handing over of the keys and demanding that he leave the premises were not part of the offender's account to the police in the ERISP. The offender gave no evidence at trial or at the hearing as to sentence and I am not satisfied that these histories given to the doctors accord with what occurred, but I do find in accordance with the ERISP that somewhere about lunchtime the deceased told the accused that she was replacing him in the business and that there followed the later discussion in which division of property was discussed and the deceased made the assertion that the company was hers. 38 I find that the offender became enraged and he attacked the deceased whilst he was enraged. Of course I bear in mind the jury's findings in relation to provocation and I also bear in mind that the offender failed to satisfy the jury that at the time he caused the death of the deceased his capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. Further I am satisfied beyond reasonable doubt having considered the evidence relevant to this issue that the conduct of the deceased was not such as could have caused an ordinary person in the position of the offender to have so far lost his self control as have formed the intent requisite to establish the crime of murder. 39 Nevertheless I bear in mind the dicta in Bell previously expressed, and I consider it probable that when the offender struck the deceased with the hockey stick, he did so after the deceased had told him she was replacing him in the business and after she had told him the company was hers earlier on the day of the killing. I find that what the deceased said, and her decision to replace him as a director and to ask him to leave the business altogether impacted on the self control of the offender and that there was a measure of loss of self control when this crime was committed. In making this finding I have regard to the medical evidence which I accept as to the offender's personality disorder and his chronic anxiety state. Those disorders accounted in part for the impact on the offender's self control. 40 Having expressed that finding, favourable to the offender, it remains the position that the offender has been found guilty of murder, and it is implicit in the jury's verdict that the offender was acting voluntarily and deliberately and that he was aware of what he was doing when he struck the deceased over the head with the hockey stick; and further that he was aware of what he was doing when he strangled the deceased. I have regard to the evidence of Dr Little, which I reviewed earlier and which I accept, to the effect that the "sleeper hold" would have to have been in position for an appreciable period of time before death resulted, and reflecting on the doctor's evidence I am satisfied beyond reasonable doubt that the offender acted with intent to kill. 41 Victim impact statements were produced in the Court and tendered before me. I have considered those statements closely and it is appropriate that the impact which this crime had upon the deceased's loved ones ought to be acknowledged. However I must also heed the relevant provisions of the Crimes (Sentencing Procedure) Act and the decisions in Previtera (1997) 94 ACrimR 76; Bollen (1998) 99 ACrimR 510; Berg [2004] NSWCCA 300 and King [2004] NSWCCA 444. Having regard as I must to the principles to be found in those decisions I cannot allow myself to be influenced by the content of those victim impact statements when determining an appropriate sentence for the crime which the offender has committed. 42 Having regard to the date of the commission of this crime Part IV Division 1A of the Crimes (Sentencing Procedure) Act 1999 applies. The present case is not one attracting a sentence of imprisonment for life so s 54D does not apply. Rather, s 54A and s 54B apply. 43 Section 54A provides:

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"[33] The non parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence: First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna (2004) 149 ACrimR 505, per Barr J; R v George (2004) 149 ACrimR 38). Secondly, should the offence be characterised as being in the mid-range of objective seriousness? That task should be approached in the manner suggested by Simpson J, intuitively evaluating the objective seriousness of the offence and looking to those matters in s 21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s 21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid-range. If the offence falls within the mid-range, the standard non parole period should apply, subject to the remaining issues. Thirdly, are there other reasons in the matters identified in s 21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s 21A(3)(h)) may furnish reasons for departing from the standard non parole period. It should be noted that s 21A(1) provides that the matters specifically identified in the subparagraphs of s 21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s 21A(3), may be taken into account in determining whether there should be a departure from the standard non parole period. Fourthly, there is the issue of special circumstances. Ordinarily, the non parole period bears a relationship to the term of the sentence defined by s 44(2) of the Crimes (Sentencing Procedure) Act , that is, the non parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non parole period that it is reduced below the minimum term which justice requires the offender to serve ( Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525, 47 ACrimR 433).

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(6) That the offender has shown remorse: s 21A(3)(i). Mr Turnbull submitted that I should find the offender has shown remorse and he asked me to so conclude by reason of the offender having surrendered himself to the police and by reason of what he has said in his ERISP and subsequently. I bear in mind that he freely admitted to the police that he had struck the deceased with the hockey stick. There has been no expression of contrition from the offender in this Court and I am not persuaded by Mr Turnbull's submissions or by the evidence to which he referred that the offender has shown remorse in the strict sense. He has however shown a measure of acceptance of responsibility for what he did. He admitted the use of the hockey stick and whilst he did not admit strangling the deceased he did not deny having done so. I take these matters into consideration. 52 Deterrence of the offender as an element of sentencing does not loom large in the circumstances of this case. General deterrence however is a significant consideration. 53 In the course of submissions the Crown referred to sentences in imposed in a number of cases: Mencarious [2008] NSWCCA 237; Versluys [2008] NSWCCA 76; Yun [2008] NSWCCA 114; Goebel-McGregor [2006] NSWCCA 390; Anderson [2006] NSWCCA 156; Disano [2006] NSWCCA 125 and Whitmore [2010] NSWCCA 157. Mr Turnbull referred me also to the decision in O'Connor [2008] NSWSC 1297. 54 I have considered those various decisions but of course ultimately my task is to determine what sentence is appropriate in the present case. I have come to the conclusion that the present offence falls short of the middle of the range of objective seriousness for offences of murder. In so concluding I bear in mind my finding that the offender was subject to some loss of self control at the time he killed the deceased to which his underlying personality disorder and anxiety condition contributed. I am also mindful that there was a lack of premeditation and planning in this crime. 55 In determining the sentence to be imposed I must take account of the mitigating features found for the purposes of s 21A(3) as earlier recorded. 56 Mr Turnbull submitted that I should find special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. He submitted that I should make that finding having regard to the age of the offender and to his previous history. Mr Turnbull submitted that because he has not been in prison before, having regard to his age and background he will require a lengthy period of support when he is released from custody. 57 The offender is now 53 years of age. 58 Having reflected on Mr Turnbull's submission I do not conclude there are special circumstances in this case. The balance of the term I am about to specify will suffice to address the matters raised by Mr Turnbull and I do not consider that the non-parole period for the sentence should be any less than the period I am about to specify. 59 Whilst I have determined that the present offence falls short of the middle of the range of objective seriousness for offences of murder it by no means follows that the crime committed by the offender was other than a very serious one indeed. The offender took the life of the deceased by deliberately strangling her and he did this after striking the deceased on the back of the head with a hockey stick. The offender's behaviour was cowardly and brutal and the crime merits condign punishment. I must have due regard in the sentence that I am about to impose of considerations of deterrence and retribution and punishment of the offender such as reflect the gravity of the crime he committed. 60 The offender has been in custody since the date upon which he surrendered himself to the police, namely, 12 July 2008. Credit is to be given for that period already spent in custody and I therefore propose to backdate the sentence to commence on that date. 61 I now pass sentence as follows:

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