Borri v R [2023] NSWCCA 166

Borri v R [2023] NSWCCA 166

The appeal was allowed because the sentencing judgment did not indicate or record, when passing sentence, whether the statutory sentencing discount for the applicant's guilty pleas was applied and how the sentences were calculated, contrary to s 25F(7). The Court ignored the later amendment to the published judgment and hyperlink to JusticeLink entries because of the timing and uncertainty about reliability. There was significant doubt that the applicant received the benefit of his early guilty pleas, creating patent error and requiring the Court to resentence him. On resentencing, the Court imposed an aggregate sentence of 14 years with a non-parole period of 10 years, taking into...

Jurisdiction
Australia
Judgment Date
30 June 2023
Procedural Posture
Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence; Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Extension of time granted, leave to appeal granted, appeal allowed, District Court aggregate sentence quashed, and the applicant resentenced to an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years.
Legal Topics
['statutory Sentencing Discount for Guilty Plea' 'section 25 F(7) Disclosure and Recording Requirements' 'aggregate Sentences and Indicative Sentences' 'resentencing' 'sexual Offences Against Children']
['criminal Law' 'sentencing' 'criminal Appeals'] ['statutory Sentencing Discount for Guilty Plea' 'section 25 F(7) Disclosure and Recording Requirements' 'aggregate Sentences and Indicative Sentences' 'resentencing' 'sexual Offences Against Children']

Case Brief

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Procedural Posture

Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence; Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether time should be extended to lodge the notice of intention to appeal.' "Whether the sentencing Judge failed to take into account the applicant's early pleas of guilty or failed to apply the statutory sentencing discount." 'Whether the sentencing Judge failed to comply with s 25F(7) of the Crimes (Sentencing Procedure) Act 1999 (NSW) by not indicating and recording how any sentencing discount was applied, or why it was not applied.' 'Whether the aggregate sentence was manifestly excessive.' 'Whether the Court should ignore the later amendment to the NSW Caselaw judgment and hyperlink to JusticeLink entries stating that a 25% discount was included.']

Ratio Decidendi

The appeal was allowed because the sentencing judgment did not indicate or record, when passing sentence, whether the statutory sentencing discount for the applicant's guilty pleas was applied and how the sentences were calculated, contrary to s 25F(7). The Court ignored the later amendment to the published judgment and hyperlink to JusticeLink entries because of the timing and uncertainty about reliability. There was significant doubt that the applicant received the benefit of his early guilty pleas, creating patent error and requiring the Court to resentence him. On resentencing, the Court imposed an aggregate sentence of 14 years with a non-parole period of 10 years, taking into...

Court Disposition

Extension of time granted, leave to appeal granted, appeal allowed, District Court aggregate sentence quashed, and the applicant resentenced to an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years.

Orders

  • ['Extend time in which to lodge the notice of intention to appeal.' 'Grant leave to appeal against sentence.' 'Allow the appeal.' '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...