R v Robert Borkowski [2009] NSWCCA 102

R v Robert Borkowski [2009] NSWCCA 102

Although the sentencing judge erred in granting an overly generous discount for the plea and in treating delay as a mitigating factor, and the sentences were manifestly inadequate, the Court exercised its discretion to dismiss the Crown appeal because the Crown failed to appeal against the co-offender's sentence, and increasing the respondent's sentence would create unjustifiable disparity contrary to principles of equal justice.

Parties
Applicant: Regina; Respondent: Robert James Borkowski
Jurisdiction
Australia
Judgment Date
15 April 2009
Procedural Posture
Crown Appeal / Court of Criminal Appeal Judgment
Outcome
Crown appeal dismissed
Legal Topics
Motor Vehicle Manslaughter, Sentencing, Crown Appeal, Discount for Guilty Plea, Delay as Mitigating Factor, Criminal Record Relevance, Statutory Scheme for Motor Vehicle Offences, Discretion in Sentencing, Disparity With Co Offenders
Criminal Law Motor Vehicle Manslaughter Sentencing Crown Appeal Discount for Guilty Plea Delay as Mitigating Factor Criminal Record Relevance Statutory Scheme for Motor Vehicle Offences +2 more

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Parties

Regina

Applicant

Robert James Borkowski

Respondent

Procedural Posture

Crown Appeal / Court of Criminal Appeal Judgment

Legal Issues

  1. 1 Whether the sentencing judge erred in granting a maximum discount for guilty plea when plea was not entered at the earliest opportunity
  2. 2 Whether delay between arrest and sentencing should be a mitigating factor
  3. 3 Whether the respondent's criminal and traffic record should have been treated as an aggravating factor

Ratio Decidendi

Although the sentencing judge erred in granting an overly generous discount for the plea and in treating delay as a mitigating factor, and the sentences were manifestly inadequate, the Court exercised its discretion to dismiss the Crown appeal because the Crown failed to appeal against the co-offender's sentence, and increasing the respondent's sentence would create unjustifiable disparity contrary to principles of equal justice.

Court Disposition

Crown appeal dismissed

Orders

  • The Crown appeal against sentence is dismissed.