Director of Public Prosecutions v Booth (No 2)

[2024] ACTSC 64

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Booth (No 2)

Citation: 

[2024] ACTSC 64  

Hearing Date: 

7 March 2024

Decision Date: 

15 March 2024

Before:

Hopkins AJ

Decision: 

See [51].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – family violence – Drug and Alcohol Treatment Order – s 80ZH review – treatment and supervision part cancelled – unsatisfactory circumstances – s 80ZE imposition or resentence – suspended sentence – rehabilitation – Good Behaviour Order

Legislation Cited: 

Crimes Act 1900 (ACT) s 24

Criminal Code 2002 (ACT) ss 308, 312

Crimes (Sentencing) Act 2005 (ACT) ss 80W, 80ZD, 80ZE, 80ZH

Cases Cited: 

R v Cook (No 2) [2024] ACTSC 27

R v Tonna (No 2) [2022] ACTSC 362

R v West (No 2) [2024] ACTSC 5

Parties: 

Director of Public Prosecutions ( Crown)

Damian Bolton Booth ( Offender)

Representation: 

Counsel

T Cobden ( Crown)

C Duffy ( Offender)

Solicitors

ACT Director of Public Prosecution ( Crown)

Legal Aid ACT ( Offender)

File Number:

SCC 323 of 2022

HOPKINS AJ:

Introduction

1․Damian Booth, you sought to address your substance dependency through a Drug and Alcohol Treatment Order (Treatment Order). On 8 May 2023 you were given this opportunity. After a positive start in residential rehabilitation, you lapsed. Your Treatment Order was cancelled. You found yourself back in custody. This was a significant step back for you.

2․You were then granted bail on 23 October 2023, giving you another opportunity to progress your rehabilitation. You seized this opportunity, remaining abstinent and engaging with supervision and support. Because of your hard work, the future for you looks very different from the past.

3․Because your Treatment Order was cancelled, I must now either impose the sentence or resentence you.

4․Your lawyer and the prosecutor disagreed about whether it was appropriate to impose your sentence or resentence you. They did, however, agree that you should be given the opportunity to continue your rehabilitation and healing in the community. In short, they agreed on the destination but not the route the Court should take to reach the destination.

5․For the reasons that follow, I have decided that it is appropriate to resentence you.

6․You will be resentenced to a term of 15 months imprisonment backdated to take account of time served in custody and for half of the time you have spent in residential rehabilitation. The remainder of the sentence will be suspended on conditions that you be of good behaviour, that you accept the supervision of corrective services and undertake drug and alcohol testing as directed for a period of 6 months from today.

7․This extends the period of supervision that you would have been subject to under the original Treatment Order. It is also intended to ensure that you have continued support and structure to help you reach your destination.  

Background

8․On 8 May 2023 you were convicted and sentenced to imprisonment for 15 months for an offence of assault occasioning actual bodily harm (CAN 8576/2022), pursuant to s 24 of the Crimes Act 1900 (ACT). The maximum penalty for the offence is imprisonment for 5 years.

9․Your sentence was reduced from 18 months because of your plea of guilty.

10․It was backdated to begin on 28 March 2023 to take account of time spent in presentence custody. This was a period of 41 days.

11․The custodial part of the sentence was suspended to enable you to pursue your rehabilitation under a Treatment Order, with the treatment and supervision part of that order to run for 12 months from 8 May 2023.

12․You entered the Canberra Recovery Services (CRS) residential rehabilitation program on 8 May 2023.

13․Between 8 May 2023 and 1 August 2023, you engaged well with the CRS residential rehabilitation program, complying with the requirements of your Treatment Order. For most of this 86-day period you demonstrated a commitment to addressing your substance dependency.

14․On 1 August 2023, you were discharged from CRS because you had relapsed. You had tested positive for illicit substance use on 28 and 31 July 2023.

15․On 2 August 2023, the suspension of the sentence of imprisonment under the Treatment Order was provisionally cancelled. You were remanded in custody.

16․On 11 August 2023, the Treatment Order was cancelled under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). You remained in custody.

17․On 23 October 2023, you were granted bail to enable you to make further efforts to pursue your rehabilitation and demonstrate that progress before the finalisation of your sentence proceeding, required as a consequence of the cancellation of your Treatment Order.

18․Between 2 August 2023 and 23 October 2023, you spent 83 days in custody.

19․Strict rehabilitation and supervision conditions were imposed as part of your bail. These included a requirement that you complete the Canberra Recovery Hub (CRH) program, as well as a prohibition on consuming alcohol and illegal drugs with corresponding testing requirements.

20․You were required to attend court on 17 November 2023, 5 December 2023 and 19 January 2024 to enable your progress to be monitored. Bail progress reports were provided to the Court, including a report provided ahead of sentence proceedings on 7 March 2024.

21․These reports establish that you have been compliant with supervision, that you have not tested positive for alcohol or illicit substances, and that you progressed well on the CRH program, graduating from it successfully.

22․Further, it is clear from these reports that you engaged with and sought the support of Narcotics Anonymous to address your substance dependency and a General Practitioner to manage your mental health.

23․The Court was provided with a letter written by your Outreach Alcohol and Other Drug Program case manager, Mr Rose, dated 6 March 2024. This letter establishes that you:

(a)have commenced weekly engagement with your case manager that will continue;

(b)are living in safe supportive accommodation;

(c)are investigating study at the Canberra Institute of Technology in fitness;

(d)have connected with pro-social friends and established a daily fitness routine;

(e)are taking Buvidal to address your substance dependence as well as medication to manage your mental health;

(f)are attending Narcotics Anonymous meetings to support your abstinence; and

(g)are motivated and positive to make major life changes.

24․The progress you have made whilst on bail is significant. It is impressive. It demonstrates that you are committed to your rehabilitation and that you have the strength and support to address your substance use dependency.

25․This progress is critical to the consideration of whether your original sentence should be imposed or whether you should be resentenced: R v Tonna (No 2) [2022] ACTSC 362.

Imposition or resentence

26․Because your treatment order was cancelled due to unsatisfactory circumstances, I must either impose the sentence that was suspended or resentence you: s 80ZE(2) of the Sentencing Act.

27․In either case, I must take account of the extent to which you complied with the treatment and supervision part of the Treatment Order: s 80ZE(2) of the Sentencing Act.

28․The greater the degree of compliance with the treatment and supervision part of the Treatment Order, the more likely it will be that a resentence is appropriate.

29․In contrast, a high degree of non-compliance will ordinarily result in the imposition of the suspended sentence of imprisonment.

30․This approach is necessary to ensure that “current and potential participants on the Drug and Alcohol Sentencing List appreciate the privilege available to them and the likely consequences of non-compliance”: R v Cook (No 2) [2024] ACTSC 27 at [19]-[20].

31․However, though important, the degree of compliance with the treatment order is only one of the circumstances to consider.

32․The discretion to resentence arises where “the court considers it appropriate in the circumstances”: s 80ZE(2)(b) of the Sentencing Act. This enables a court to consider all of the circumstances that are relevant and known at the time of deciding whether to impose or resentence.

33․Mr Booth, you made a promising start on your Treatment Order. For close to three months, you engaged well in residential rehabilitation and remained abstinent. This alone would not be sufficient to persuade me to resentence you.

34․I am, however, satisfied that the work you did in residential rehabilitation, together with your progress since being granted bail on 23 October 2023, makes it appropriate to resentence you rather than impose the sentence.

35․Rehabilitation is not linear. The backward step of a relapse can be understood as a foundation for continuing to climb the mountain towards abstinence and healing. Your progress on bail demonstrates that this is true for you. You have continued to climb.

Resentence

36․Your lawyer and the prosecutor agree that the original sentence imposed on you on 8 May 2023 appropriately took account of all of the relevant circumstances of the offence and of you as the person who committed the offence.

37․I have read these reasons and agree with what was said and the way the purposes of sentencing were weighed by Refshauge AJ.

38․The facts of your offence are set out in detail in the reasons given for the original sentence on 8 May 2023. I will not repeat what was said. In brief, you punched your father with a closed fist to his face twice during a heated argument. He suffered a fracture to the socket of his left eye. During the argument, you behaved in an aggressive and intimidating way towards him. Because he is your father, an important consideration in sentencing is the family violence context. Critically, you were using heroin at the time which was found to have “precipitated” your behaviour.

39․I have read the letter you wrote to the court about your offending. It is clear that you felt, and likely still feel, a deep sense of shame and regret for what you did to your father, who you described as your “biggest supporter and [your] idol”. Your motivation to address your substance use dependency was, and likely still is, your desire to “never see the pain in your father eyes when he sees you” again. I hope that this still motivates you and that your father will look at you with pride that reflects how far you have come. I am told that your relationship is continuing to “mend”.

40․Your remorse and your plea of guilty were appropriately taken into account at the time of your original sentence.

41․Your subjective circumstances were also set out in detail in reasons given for sentence on 8 May 2023. Again, I will not repeat all that was said.

42․You are now 36. You had a generally positive childhood. You maintain positive relationships with one sister and with your father.

43․After leaving school at year 10, you completed a carpentry apprenticeship. You had your own business for a time, but mental ill-health resulted in the breakdown of that business.

44․You have been diagnosed with anxiety, depression and borderline personality disorder. Happily, you are compliant with, and now realising the benefits of, medication for these conditions.

45․You commenced using heroin and methamphetamine at the age of 18. You were using both substances daily at the time of your offending.

46․You have a moderately serious criminal history, mainly for dishonesty and drug offences, though you have three offences of common assault and four of damaging property on your record.

47․You have not performed well when subject to supervision on community-based orders in the past.

48․This is your history. It is your past. If you can continue to demonstrate the strength you are showing at present the future will look very different.

Pre-Sentence Custody

49․You had spent 41 days in presentence custody prior to your original sentence. Your then spend a further 83 days in custody after the suspension of the custodial part of your Treatment Order was provisionally cancelled, including the period in custody after the Treatment Order itself was cancelled. This is a total of 124 days in custody.

50․You also spent 86 days in residential rehabilitation. It is not appropriate to take this time into account as being equivalent to time in custody. However, residential rehabilitation does generally involve a significant restriction of liberty. That was the case for you. For this reason, I will further backdate your sentence for half of this period, or 43 days: see R v West (No 2) [2024] ACTSC 5 at [67]. This brings to total period to 167 days.

Orders

51․For those reasons I will make the following orders:

(1)The cancellation of the Drug and Alcohol Treatment Order made on 8 May 2023 is confirmed.

(2)The conviction of Damian Bolton Booth for assault occasioning actual bodily harm (CAN 8576/2022) is confirmed and he is resentenced to 15 months imprisonment, reduced from 18 months on account of his plea of guilty, commencing 30 September 2023 and ending 29 December 2024.  

(3)The sentence of imprisonment is suspended from 15 March 2024 until 29 December 2024.

(4)Damian Bolton Booth is required to sign an undertaking to comply with the offender’s good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 15 March 2024 until 29 December 2024 with the following additional probation conditions:

(a)That he accept the supervision of the Commissioner of ACT Corrective Services or his delegate for a period of 6 months from 15 March 2024 to 14 September 2024 or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him, including but not limited to, undertaking any psychiatric or psychological assessment and participating in any program of treatment or rehabilitation.

(b)That he comply with directions with respect to alcohol and drug testing for the period that he is subject to supervision by the person supervising him.

52․Mr Booth, we could not celebrate your graduation from the treatment and supervision part of your Treatment Order. Today is, however, a day to celebrate your progress and achievement towards rehabilitation and healing.

53․Facing and recovering from addiction is very difficult. You know this far better than I do. It has been your lived experience. There is a mountain to climb. You have demonstrated that, with support, you have the strength to continue this climb. I wish you luck.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins.

Associate: J Liu

Date: