Booth v The Queen - [2015] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0141

JOHN BOOTH	Applicant
v
Respondent
THE QUEEN

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JUDGES:	ASHLEY and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2015
DATE OF JUDGMENT:	31 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 51
JUDGMENT APPEALED FROM:	DPP v Booth & Minos (Unreported, County Court of Victoria, 3 April 2014)

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CRIMINAL LAW – Sentence – Appeal – Mental disorder – Application of R v Verdins (2007) 16 VR 269 – Sentencing judge rejected evidence of neuropsychologist as to mental disorder and intellectual disability – Whether judge misapprehended the evidence – Whether rejection against the evidence – Appeal allowed.

APPEARANCES	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue O’Brien George
For the Crown	Mr P B Kidd SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

THE COURT:

Introduction

Following a trial in the County Court, the applicant was convicted by a jury of one charge of criminal damage (charge 1); one charge of aggravated burglary (charge 2); one charge of common assault (charge 4); and one charge of kidnapping (charge 5).[1] He later pleaded guilty to a further charge of being a prohibited person in possession of a firearm.
[1]The jury acquitted him of conduct endangering life (charge 2).

On 3 April 2014, the applicant was sentenced to be imprisoned for 18 months on charge 1; six (6) years and six (6) months on charge 2; three (3) months on charge 4; five (5) years on charge 5; and three (3) months on the firearms charge. Orders for cumulation produced a total effective sentence of nine (9) years and three (3) months’ imprisonment, upon which the judge fixed a non-parole period of seven (7) years.

Initially, the applicant sought leave to appeal against both conviction and sentence. A judge of this Court refused leave to appeal against both conviction and sentence on 21 October 2014.[2] Pursuant to s 315(2) of the Criminal Procedure Act2009 (‘CPA’), the applicant elected only to renew the application for leave to appeal against sentence. The Court indicated to the parties that it would consider the election and, if leave to appeal were granted, the substantive appeal. It gave the parties the opportunity to advance further written submissions.
[2]Booth v The Queen [2014] VSCA 258.

It was not contended that the sentence is manifestly excessive. Rather, discrete error was alleged. Thus, the applicant relied on the following grounds:

1. The trial judge erred in —
i. rejecting the evidence of Dr Lindsay Vowels as to the applicant’s intellectual quotient (IQ) and accordingly not applying the principles of R v Verdins; and
ii. preferring the evidence of Mr Ian Joblin to that of Dr Lindsay Vowels.

2. The trial judge erred in —
iii. failing to obtain a Forensicare assessment of the applicant.

As will become apparent, although the two grounds are interrelated, it has only been necessary to consider the first of them.

For the reasons that follow,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Booth v The Queen

Details

AGLC: John Booth v and the Queen [2015] VSCA 51
Case: [2015] VSCA 51
Decision Date: 31 March 2015

CaseChat Overview and Summary

In the matter of Booth versus The Queen, the appellant challenged his sentence on the grounds of mental disorder and intellectual disability, arguing that the sentencing judge erred in rejecting expert evidence on these issues. The case was heard in the Court of Appeal of Victoria. The appellant had been convicted of serious criminal offences and was appealing against the sentence imposed by the trial judge, arguing that it was excessive and did not adequately take into account his mental health conditions.

The primary legal issue before the court was whether the sentencing judge had erred in rejecting the evidence of the appellant's neuropsychologist regarding the appellant's mental disorder and intellectual disability. The court was required to determine whether the trial judge's rejection of the expert evidence was a misapprehension of that evidence or if it was a conclusion that was against the weight of that evidence. The court also needed to consider if the sentence imposed was appropriate, given the appellant's mental health conditions.

The Court of Appeal found that the sentencing judge had misapprehended the evidence provided by the neuropsychologist concerning the appellant's mental disorder and intellectual disability. The court held that the trial judge's rejection of this evidence was against the weight of the evidence and constituted a significant error. As a result, the court allowed the appeal, quashed the original sentence, and remitted the matter to the County Court for resentencing. The court emphasised the importance of properly considering expert evidence on mental health issues in sentencing, particularly in cases where the defendant's mental disorder and intellectual disability could significantly impact the severity of the sentence.

Orders