Director of Public Prosecutions v Booth
[2017] VCC 509
•3 May 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-01016
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL BOOTH |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 April 2017 |
| DATE OF SENTENCE: | 3 May 2017 |
| CASE MAY BE CITED AS: | DPP v Booth |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 509 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms S Thomas | OPP |
| For the Accused | Mr P Kilduff | Stary Norton Halphen |
HIS HONOUR:
1 Daniel Booth, you have pleaded guilty to one charge of false imprisonment, one charge of causing injury recklessly, one charge of causing injury intentionally, one charge of contravention of order intending to cause harm or fear for safety, and one charge of theft. The maximum penalties for these offences are:
· False Imprisonment - ten years' imprisonment;
· Causing Injury Recklessly - five years' imprisonment;
· Causing Injury Intentionally - ten years' imprisonment;
· Contravention of order intending to cause harm or fear for safety - five years' imprisonment or 600 penalty units, or both; and
· Theft - ten years' imprisonment.
2
You have also pleaded guilty to three related summary charges of contravene conduct condition of bail and one related summary charge of commit indictable offence whilst on bail. The maximum penalty for each of these offences is
30-penalty units or three months' imprisonment.
3 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in the plea proceedings.
4
Briefly, you and the victim had been in a relationship since mid-2014. There was a history of violence within the relationship and on 8 September 2015 a family violence intervention order was made against you. The victim was the protected person under the order. The order was served on you on or about
14 September 2015.
5 On 27 October 2015, the victim, who had been homeless for a period of time, moved into a room in a property in Wantirna. You contacted her and told her that you needed to see her. She was concerned for your welfare and drove to your premises, arriving between 8 and 9pm. You got into her car.
6 The victim says that your mood darkened whilst sitting in the car. You ordered the victim to drive off, telling her where to go. From this time forward, you detained the victim against her will.
7 You told her that you had a gun down your pants and said you were going to kill her. She continued to drive and at one stage attempted to jump out of the moving car, but you pulled her back. She stopped the vehicle in the middle of an intersection and again attempted to get out of the car. You overpowered her and forced her into the back seat of the car. You then got into the driver’s seat and told the victim to climb into the front passenger seat, which she did.
8 You then forced her head into your lap and forced her to remain there by pressing on her head with your elbow. The victim found it difficult to breathe and she could not see where the car was going. You began striking her to the face and head, causing swelling to her eye and bleeding from her lip and mouth.
9 Eventually, you drove back to your house in Montrose where you began crying and apologising to the victim. You got out of the car and the victim drove back to her address in the early hours of the following morning.
10 You had some minimal contact with the victim over the following two days.
11 Then at about 8.00pm on Friday 30 October, the complainant was in bed when you knocked on her window and directed her to come outside. She had a cigarette with you and you questioned her about her movements the previous night. An argument ensued and the victim ran inside to get away from you. You followed her and a physical altercation followed. You grabbed her by the neck, threw her up against the wall, pushed her to the ground and dragged her further into her bedroom. She yelled to other residents to call the police and you punched her to the stomach, threw her by the neck onto the bed, covered her mouth to stop her screaming and, punched her to the head. She was able to get away from you and ran to room 4 where she and the resident of that room, locked the door and called the police.
12 Police attended the premises. The victim was in a distressed state and had bruising on her face and eyes, swollen cheekbones and blood coming from her left ear. She was found by paramedics to have a perforated left eardrum. She also discovered that you had stolen her handbag, containing $400 cash, her keys, two mobile phones and a laptop computer.
13 The following day, the victim went interstate to stay with family members. She attended the Cairns Hospital and received treatment for the bruising and a perforated eardrum. Three days later she again attended the hospital for treatment of anxiety.
14 You were arrested on 3 November 2015 and you have been in custody on remand ever since.
15 Mr Booth, this is serious offending. On 27 October 2015, you threatened the victim and imprisoned her against her will. You also assaulted her. Three days later you again attended her home and again assaulted her. You also stole her handbag. As a result of the assault on 30 October, the victim suffered bruising, a perforated eardrum and anxiety. I am satisfied that this must have been a terrifying two days for the victim.
16 It is an aggravating feature of your offending that you acted in contravention of an intervention order that prohibited you from assaulting the victim and by committing the offences whilst on bail.
17 With this offending, general deterrence is a paramount sentencing consideration. Just punishment and denunciation are also relevant sentencing considerations. Your counsel quite properly conceded your criminal behaviour must be dealt with by the imposition of an appropriate term of imprisonment.
18 I note that you do not have any prior convictions for violence. However, you do have a number of convictions for driving offences. These include a traffic infringement notice in 2010 for drink-driving and a conviction in November 2013 for the same offence. In addition, on 29 September 2014, you appeared at the Ringwood Magistrates’ Court on charges of burglary, theft, attempt to obtain property by deception and motor vehicle traffic charges. You were placed on a Community Corrections Order (CCO) for 12 months with conditions that included assessment and treatment for drug abuse and assessment, and treatment for mental health issues. The present offending does not breach the order. However, there are a large number of charges, including a charge of contravening community corrections order that are listed for hearing in the Ringwood Magistrates’ Court on 4 May.
19 Given your criminal history, specific deterrence is of some relevance.
20 You come from a loving and caring family. It must be incredibly distressing for your parents to see you in your current situation. Notwithstanding the heartbreak you have caused them, they attended court and made it clear through counsel that they have not given up on you. They will offer you their ongoing support and assistance upon your release from prison. Your sister and an auntie also provided strong references in your favour. Your family has visited you regularly whilst you have been on remand. You are fortunate to have such steadfast support.
21 You left school at 17 and undertook a carpentry apprenticeship. You then commenced work as a subcontracted carpenter, and you had a good work history until late 2013.
22 Mr Booth, your background is not the sort of background that normally produces a serious criminal offender.
23 In a report provided to the court, Jeffrey Cummins, Consulting and Forensic Psychologist, quotes your assessment of what went wrong. You said this: “Well I was feeling depressed. I lost my licence again and I couldn’t work as a carpenter. So I just went through a rough patch. I was in with the wrong guys again and I was into drugs.”
24 You told Mr Cummins that you had experimented with ecstasy and methamphetamine when you were 22 or 23 and that after losing your licence and your job at the end of 2013, drug use became a dominant feature of your life.
25 The victim in the present offending was your partner from mid-2014 until she obtained the intervention order in September 2015. I was told that she also was a drug user. Your counsel described the relationship between you and the victim as volatile. That may have been so, but you were the person in the relationship that was violent and aggressive. Your history of alcohol and drug use goes some way to explain how a man from good family and with a good trade qualification ends up in jail. It does not offer any excuse for your criminal behaviour.
26 I now move to those matters in mitigation.
27 You have pleaded guilty to the offences. It was not an early plea. However, you had been charged with the offence of aggravated burglary, which was a charge that you disputed. Once the prosecution determined it would not proceed with that charge, the matter resolved to a plea to the present charges. In these circumstances, you will be given credit for your plea of guilty. In addition, the plea has relieved the victim from the trauma associated with giving evidence and also saved the community the cost and expense associated with a criminal trial.
28 I am satisfied that you are genuinely remorseful for your behaviour towards the victim. The extent of your remorse is evident from your plea of guilty, the remarks you have made to various family members and the comments you made to Mr Cummins.
29 It is in your favour that you have a limited criminal history and that you have no prior history for offences of violence.
30 You have never been in custody before and your counsel submitted that the period on remand has been a salutary lesson. In this regard, your counsel pointed to the assessments made by your father and sister.
31 In his reference your father said:
“As a family we have noticed that Daniel has changed his outlook on life and how he is much easier to discuss issues with since he has been in remand. He regularly talks about how he wants to get back to work and make something of his life.“
32 In her reference to the court, your sister says:
“I have observed how Daniel has progressed whilst in remand. There has been a positive shift in the way Daniel communicates, he is showing respect again, he is showing maturity, and his decisions seem to be based on the good morals that we were brought up with up.”
33 It is also to your credit that you have used your time in prison constructively. You have completed a number of courses and programs including a substance misuse program and a relapse prevention program. You are not using drugs and you are not on any form of medication. These facts augur well for your rehabilitation.
34 Obviously, your prospects of rehabilitation are very much dependent on maintaining a drug free status upon your release from prison. If you do so, your prospects will be good.
35 I note the comments of Mr Cummins that in his opinion you do not suffer from any personality disorder and that this enhances your future prospects.
36 Finally, in imposing sentence in this case, I must ensure compliance with the principle of totality.
37 Mr Booth, will you please stand?
38 On Charge 1, sentenced to 15 months' imprisonment. This is the base sentence. Given the circumstances of this offending, I also make an order that all licences held by you are cancelled and that you are disqualified from driving for 12 months.
39 Charge 2 – nine months' imprisonment.
40 Charge 3 – 15 months' imprisonment.
41 Charge 4 – nine months' imprisonment.
42 Charge 5 – four months' imprisonment.
43 On each of the related summary offences – one month's imprisonment.
44 I order three months of the sentence on Charge 2, eight months of the sentence on Charge 3, two months of the sentence on Charge 4, one month of the sentence on Charge 5, and the one month sentence on committing an indictable offence on bail, be served cumulatively upon each other and on the sentence imposed on Charge 1.
45 This makes a total effective sentence of 30 months imprisonment. I fix a minimum term of 18 months before you will be eligible for release on parole.
46 I declare 547 days' pre-sentence detention.
47 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of 42 months with a 30 month minimum.
48 I make an order pursuant to s.464ZF of the Crimes Act that you provide a forensic sample, namely a buccal swab, to the authorities, and that you do so within 28 days. I must warn you that if you do not cooperate in the taking of that sample, then reasonable force can be used to obtain the sample, and indeed the sample taken can be a blood sample.
49 I make this order given the serious nature of the offending. The order is not opposed, and the order is in the interests of justice. You can be seated for the moment. Is there anything else?
50 MR KILDUFF: If Your Honour pleases.
51 MR ROONEY: No, Your Honour.
52 HIS HONOUR: Thank you, you can remove Mr Booth.
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