Borg v R [2022] NSWCCA 70

Borg v R [2022] NSWCCA 70

The sentencing judge’s reliance on incorrect agreed facts regarding the number of pills for Count 2 (10,000 instead of 3,000-4,000 as formally agreed) was capable of affecting the sentencing discretion, constituting an error. The appeal was allowed and the applicant was resentenced on the correct factual basis, with the Court taking into account both the correction and relevant subjective circumstances, including COVID-19 custodial hardship and family circumstances.

Parties
Applicant: Matthew Borg; Respondent: Regina
Jurisdiction
Australia
Judgment Date
01 April 2022
Procedural Posture
Criminal Appeal / Appeal Against Sentence (court of Criminal Appeal)
Outcome
Appeal allowed; applicant resentenced.
Legal Topics
Appeal Against Sentence, Drug Offences, Agreed Facts, Procedural Fairness, COVID 19 Custodial Hardship, Special Circumstances
Criminal Law Appeal Against Sentence Drug Offences Agreed Facts Procedural Fairness COVID 19 Custodial Hardship Special Circumstances

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Parties

Matthew Borg

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence (court of Criminal Appeal)

Legal Issues

  1. 1 Whether reliance on incorrect agreed facts as to quantity of pills manufactured for Count 2 resulted in a miscarriage of justice in sentencing
  2. 2 Whether leave to appeal and extension of time should be granted
  3. 3 Appropriate sentence in light of corrected facts and subjective circumstances

Ratio Decidendi

The sentencing judge’s reliance on incorrect agreed facts regarding the number of pills for Count 2 (10,000 instead of 3,000-4,000 as formally agreed) was capable of affecting the sentencing discretion, constituting an error. The appeal was allowed and the applicant was resentenced on the correct factual basis, with the Court taking into account both the correction and relevant subjective circumstances, including COVID-19 custodial hardship and family circumstances.

Court Disposition

Appeal allowed; applicant resentenced.

Orders

  • The time for filing a notice of appeal for leave to appeal against sentence is extended to 11 March 2022.
  • Leave to appeal granted.