By Paul Gregoire and Ugur Nedim
On 13 September 2022, officers attached to the NSW Police Central Metropolitan Region Enforcement Squad were conducting a surveillance operation in a street in the western Sydney suburb of Prospect, where a stolen Audi Q5 car had been noted as parked and left unattended.
Just after 10:30 pm, the plainclothes officers noticed the blinkers of the car flash, which indicated it was being unlocked. And three young men were seen to approach the vehicle. However, as they detected the police presence, the trio attempted to flee the scene.
On pursuing the men, police caught a 16-year-old Indigenous male, who was handcuffed, marched back to the vehicle and made to sit in the gutter. And at this point, senior constable Christopher Borg, kicked the boy in the face, with such force that he fell backwards onto the ground.
Borg moved away from the teenager after the assault, but then changed his mind, turned around and returned to spit on the boy, who was still in the same position on the ground. And both these assaults were caught on an optical surveillance device and were witnessed by another officer.
Serious offending warrants punishment
The offending police officer was charged on 4 October2022 with two counts of common assault, contrary to section 61 of the Crimes Act 1900 (NSW). Those found guilty of this offence are liable to up two years prison time. And Borg pleaded guilty to both charges at the earliest opportunity.
Before a NSW Local Court magistrate, Borg admitted committing the crimes, but argued he was also suffering a mental health illness and the charges should therefore be dismissed pursuant to section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP).
Section 14 provides that a magistrate may dismiss charges brought against a person suffering from a mental health impairment or cognitive impairment conditional upon undergoing a mental health treatment or support plan for up to 12 months.
Whilst the prosecution conceded that the NSW police senior constable was suffering mental health impairment at the time, it asserted that due to the nature of the offending, a section 14 order was not an appropriate way to deal with what happened.
On 21 November 2022, the Sydney Downing Centre Local Court magistrate said he was satisfied that, due to several supporting medical opinions, the senior constable was suffering a mental disorder at the time of the commission of the crimes, namely adjustment disorder, depression and anxiety.
But his Honour noted that this didn’t automatically result in the charges being dismissed pursuant to section 14, and given the serious nature of the assault, with the victim being in custody and being vulnerable due to his age and Indigeneity, the charges should be dealt with according to the general law.
This was further supported by “a strong public interest in punishment being imposed, particularly in circumstances where there was a strong public interest in police violence against Indigenous adults and children in custody”.
Senior constable Borg was therefore, convicted on two counts of common assault and sentenced to 10 months imprisonment, which was to be served in the community under the strict conditions of a an intensive correction order (ICO).
Arguments on appeal
Borg appealed against his conviction to the NSW District Court in September this year. He did so based on the ground that considering it was established he was suffering from mental impairment at the time, the proceedings should have been dismissed under section 14 of the MHCIFP Act.
The former constable raised the 2006 NSW Court of Appeal case Director of Public Prosecutions versus El Mawas, in which former Justice Ruth McColl found that consideration of dismissal relating to mental health was established due to a number of considerations, not just seriousness of offence.
The convicted man further put it to the court that given he was suffering from a mental health condition at the time of the commission of the offence, this further lessened its seriousness and his moral culpability.
The Crown put it to the court that whilst the evidence regarding Borg’s mental health was clear, the magistrate had gone on to correctly weigh up the competing factors as to whether to simply dismiss the charge under section 14, including the “overwhelming public interest” involved in prosecuting.
The prosecution further argued that the evidence reveals that despite being aware of his condition, the then officer kept working, although his general duties weren’t affected until this specific incident, and it was “highly unlikely” his mental illness caused this type of offending behaviour.
Considerations on appeal
NSW District Court Judge William Fitzsimmons pointed out that section 14 of the MHCIFP permits a charge to be dismissed conditionally or unconditionally, and in considering whether to make such an order a magistrate needs to consider the stipulations under section 15.
These include the nature of the mental illness, the seriousness of the offence, the suitability of the alternative sentencing options, changes to the defendant since the offence, their criminal record, if there have been any other past mental health orders and whether they’re a threat to anybody.
His Honour further outlined that while it was beyond doubt that Borg was suffering mental health impairment at the time, “it is readily apparent that the appellant was able to lead a relatively normal life, and otherwise was capable of performing duties as an operational police officer”.
However, the judge found that the offences, especially the first one, was “objectively serious”, regardless of any mental illness, and the footage of the incident seen by the court shows Borg “kicking the victim in the face with considerable force” and no sign of hesitation in doing so.
“The fact that the appellant did so whilst performing duties as a police officer, and was directed toward a vulnerable Indigenous teenager, further increases its objective seriousness,” the NSW District Court judge found.
“The second assault, whilst less violent, still involved a significant degree of animosity towards the victim.”
And whilst past authorities have shown that “deterrence, retribution and denunciation” are aspects to sentencing that are lessened due to mental illness, they’re not principles that are totally eradicated by this state of mind.
Judge Fitzsimmons further noted that following the incident, Borg has undergone further treatment for his mental illness, he’s resigned the NSW Police Force as a result of what happened, and it was found the ex-police officer was unlikely to reoffend now that he has left law enforcement.
“The offence was committed by a police officer in the execution of his duty of arresting and detaining an offender,” he continued. “As the Crown correctly observed, both offences were examples of police brutality against an Indigenous child in custody. The significance of this cannot be understated.”
His Honour went on to reject the suggestion that the magistrate had given too much emphasis to the seriousness of the crime and the strong public interest it entailed. And the judge further outlined that the magistrate was not wrong in his consideration of deterrence, denunciation and retribution.
Further, Judge Fitzsimmons rejected the idea that the objective seriousness was lessened by Borg’s state of mind, that the offending behaviour’s link to mental illness reduced its criminality and he stressed that general deterrence was key when determining a correct sentence for this crime.
So, on 8 September, his Honour dismissed the appeal and confirmed that the severity of the sentence, the 10 month ICO, was appropriate, as the crime warranted punishment, and as the time is being served in the community, Borg also has more opportunity to treat his mental illness.