Director of Public Prosecutions v Booker

[2023] VCC 2047

IN THE COUNTY COURT OF VICTORIA

AT SHEPPARTON

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

CR 23-01703

DIRECTOR OF PUBLIC PROSECUTIONS

v

RONALD BOOKER

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JUDGE:	HIS HONOUR JUDGE M.P BOURKE
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	3 November 2023
CASE MAY BE CITED AS:	DPP v Booker
MEDIUM NEUTRAL CITATION:	[2023] VCC 2047

REASONS FOR SENTENCE
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Subject:

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Legislation Cited:      

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Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Lew
For the Accused	Mr McGarvie

HIS HONOUR:

1Ronald Booker, you are to be sentenced for one charge of making a threat to kill, one charge of assault and one charge of attempting to pervert the course of justice.  Respective maximum sentences are 10, five and 25 years imprisonment.

2You formally pleaded guilty before me yesterday, 2 November when interviewed by police on 2 April 2018, now about five and a half years ago, you made admissions.   These offences were committed in March of that year.  You were also charged with rape and other serious offences said to have occurred at the same or very close in time.   After a lengthy delay, a trial commenced before me at the Ballarat County Court on 11 September, 2023.  That jury returned a verdict of not guilty on 21 September.  At that time and prior to the trial, you indicated that you would plead guilty to these three offences.  The listing of the plea was adjourned to enable the trial to run first.

3You receive the benefit of your plea of guilty and that co-operation, both from an early stage.  Your plea accepts responsibility, expresses remorse and has facilitated the interests of justice.  That utilitarian benefit is enhanced given the still existing, albeit a lesser impact of the COVID-19 pandemic upon the criminal justice system.  The delay to these proceedings was not caused by you.

4

At the plea hearing, which ran yesterday, Mr Nibbs for Crown tendered a written prosecution opening.  Mr McGarvie for you tendered a letter dated

19 October, 2023 by a Forensicare psychologist, Emily Lavinge, L-a-v-i-n-g-e at Marngoneet prison, the report of forensic psychologist, Alison Mynard dated 7 July 2021 and a Corrections Victoria remand report indicating various placements of you in the custodial system.  He provided an outline of plea submissions and the sentencing reasons of Judge McInerney of this court, who sentenced you on

17 November, 2021 for various serious offences.  You received a total effective sentence of 10 years and six months with a minimum term of eight years.

5The circumstances of this offending are set out in the tendered crown opening, which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf not challenged by the crown; and by evidence before me at the September 2023 Ballarat trial relevant to these offences.

6On the 21st and 22nd of March 2018, you and TS were in company.  You had just met.  You, TS and others were drinking and using drugs over a number of hours and perhaps through the night of the 21st.

7On the evening of 22 March you were at the home of TS in Delacombe with her.  You were agitated,  I would find likely affected by drug use and perhaps fatigue.  You went outside and quickly became engaged in a confrontation at the fence line with a neighbour,  Melissa Azzopardi.  You threatened and tried to strike her.  She armed herself with a garden hoe.  Another neighbour, Kevin Ferguson attempted to intervene.  You punched him to the face, lacerating his upper lip.

8You returned to the house and it is there soon after that,  as alleged by TS, you raped and committed other offences against her.  The Ballarat jury acquitted you and you remained innocent of those charges.  That you are is relevant to assessment of the attempted pervert the course of justice offence.

9Having become aware of the allegations of TS to police, you messaged and phoned her between 22 and 25 March.  You threatened her, essentially demanding that she withdraw her allegations,  stating them to be false.  The phone call,  and that threat,  was made to her mother, who at first unbeknownst to you picked up the phone.

10I see the fact that you remained presumed innocent of raping TS to be an important mitigating context to what you did.  It must be accepted that you genuinely believed her allegations to be false and it is understandable that you were outraged by that.

11You are a 42 year old man presently serving Judge McInerney’s November 2021 sentence.  That offending involved a shooting and serious injury of a person.  I am told that the present end date of the head sentence is 27 February, 2030 and earliest parole release is 30 August 2027, accordingly almost four years away. Those dates may change.  Whether you are released on parole will be a matter for the Adult Parole Board, not me. 

12In short, the material before me presents a picture of hardship and dysfunction in childhood.  That includes violence within the family, early introduction to drug use, limited education and then, in adulthood, damaged relationships.  Your criminal record states multiple court appearances from as early as June 2000,  when you were 19.  There are offences of violence, dishonesty, drug offending and offending relating to weapons.

13The custodial history most relevant to my sentence is set out in Mr McGarvie's outline chronology.  This was raised and discussed during yesterday's plea hearing.  Briefly stated, from the time of this offending in March 2018 you have been in custody,  on remand or sentenced for now a total of 1,726 days, I estimate over five and a half years.  There was no pre-sentence detention declarable on my sentence under Sentencing Act provisions.  The principles of delay and totality loom very large.  I am advised and your criminal records state some of the circumstances of the offending which has led to this.  I must sentence on these three offences, bearing in mind mitigating factors, but also attempting to reflect my view of the proper total sentence or custody for the whole offending over the period.

14That has led to my conclusion that my sentence should entail no addition to your present sentence, neither head nor minimum term.  The Crown does not argue against that.  The remaining issue for me is how to best achieve that.  That was also raised and discussed yesterday.

15I agree with Mr Nibbs' helpful submission that there is no need or benefit in acting under the provisions in s14 of the Sentencing Act in respect of a new minimum term. Delay, totality and a just sentence is best achieved by a simple concurrent aggregate sentence of 18 months with no minimum term set. That does not conflict with s11, sub-section (2) of the Sentencing Act. My reason for not setting a minimum term are, I feel, already apparent. Further, my sentence will have the benefit of clarity on what your end date of sentence should be. That is, that it should not change because of my sentence. The connection of time and circumstances of offending justify an aggregate sentence under s9 of the Sentencing Act. 

16Accordingly, I sentence you as follows.  On all three charges on indictment L12672487B you are sentenced to an aggregate term of 18 months.  I make no orders for cumulation.  I direct that my sentence be concurrent with the sentence you are presently undergoing.  That is, it begins today and runs concurrently with and within Judge McInerney's sentence.

17Under s6AAA, had you not pleaded guilty, I would have imposed a sentence of two and a half years with a minimum term of 18 months. This would have necessitated a new minimum term under s14.

18Are there any other matters?

19MR McGARVIE:  No.

20MR LEW:  Not that I'm aware of, Your Honour.

21HIS HONOUR:  All right.  Good, thank you.  Thank you for your assistance in this proceeding, Mr McGarvie.

22MR McGARVIE:  As the court pleases.

23HIS HONOUR:  Thank you for today, Mr Lew.  I will now move on to my next matter and thereby turn the people on link off.

24MR McGARVIE:  As the court pleases.

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