R v Booth
[2019] ACTSC 345
•10 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Booth |
Citation: | [2019] ACTSC 345 |
Hearing Date: | 2 and 5 December 2019 |
DecisionDate: | 10 December 2019 |
Before: | Mossop J |
Decision: | See [27] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing –manslaughter – sentencing of three co-offenders – offence by joint commission with varied degrees of culpability – offender identified as the least culpable – offender entered early plea of guilty – significant criminal history |
Legislation Cited: | Crimes Act 1900 (ACT), s 15 |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Welsh [2019] ACTSC 344 |
Parties: | The Queen (Crown) Colin Booth (Offender) |
Representation: | Counsel R Christensen (Crown) K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 272 of 2018 |
MOSSOP J:
Introduction
The offender, Colin Maxwell Booth, pleaded guilty to one count of manslaughter by joint commission contrary to s 15 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 20 years’ imprisonment. He is being sentenced at the same time as his two co-offenders and these reasons must be understood in the context of the reasons given in those matters: R v Vickerstaff (No 2) [2019] ACTSC 343; R v Welsh [2019] ACTSC 344.
Facts and objective seriousness
The facts upon which Mr Booth is to be sentenced are recorded in the Agreed Statement of Facts. I have summarised those facts in my decision in R v Vickerstaff (No 2). I adopt what I have said there.
In summary, Mr Booth along with Graeme Vickerstaff and Dean Welsh attended Mr Bobby Allan’s house in the early hours of the morning of 17 December 2017. When the door was opened Mr Vickerstaff had a violent altercation with Mr Allan in which he deployed a baseball bat to strike him on the head two or three times. Mr Allan escaped from the house and went down the road to find assistance. He ultimately died from a combination of factors which would not have occurred without the assault.
Mr Booth’s involvement was that he was present at the time of the altercation and accepts that there was a non-verbal understanding that Mr Allan was to be violently attacked. His culpability is substantially less than that of Mr Vickerstaff and somewhat less than that of Mr Welsh.
He opportunistically stole some methamphetamine, Mr Allan’s mobile phone and credit card from the premises after Mr Allan had been assaulted.
I have taken into account the victim impact statements which are referred to in my decision in R v Vickerstaff (No 2).
Subjective circumstances
Mr Booth’s subjective circumstances are described in the pre-sentence report.
Mr Booth was born in Goulburn, New South Wales (NSW) and relocated to Canberra when he was two years old. He advised the author of the pre-sentence report that he was one of nine children born to his parents’ union and described a happy and supportive childhood. His parents separated when he was 15 years old, and subsequently he became transient and would often reside with friends.
As an adult, Mr Booth stated that he continued his transient lifestyle and before the current remand period had resided at approximately five addresses in 12 months. Mr Booth maintained that he enjoyed good relationships with his parents and siblings.
Whilst remanded in custody, Mr Booth has received regular visits from his mother, but not from other members of his immediate family.
Mr Booth reported that he had been single for the past 12 months and was satisfied with that situation. Prior to this he had been in an intimate relationship for three years.
Mr Booth lived with his mother for approximately four months before the current period of remand and prior to that led a predominantly transient lifestyle.
He completed Year 10 education, however this was completed at a juvenile justice facility following multiple suspensions at school. He was eventually expelled from school due to a stabbing incident. Mr Booth does not hold any post‑school qualifications. He reported he worked in retail for eight months before moving into the construction industry. He reported a limited work history due to long periods of incarceration and advised that he occasionally boosted his income in the community by repairing motor vehicles.
Mr Booth reported he had been reliant upon the Centrelink Newstart allowance since 2009.
Mr Booth stated that he first drank alcohol at the age of 12 and by his early teens was drinking daily. He claimed he had been abstinent since 2012, however relapsed in 2017 due to a traumatic incident.
In relation to drug use, Mr Booth described that he had smoked cannabis from the age of 12 years and that he had continued to use on a daily basis before entering into custody. He disclosed that he was introduced to heroin at approximately 13 years of age and progressed to daily use in his late teens. He advised amphetamine use commenced at the age of 15 years and that he was regularly using methamphetamine at the age of 26 years. Mr Booth reported that prior to the current offence he was using methamphetamine regularly and his use escalated when he heard of the victim’s death. He reported he was using up to one gram per day.
Mr Booth stated that he had undertaken several custodial treatment programs within the Alexander Maconochie Centre (AMC). Records show that his engagement has been mixed and that he had been exited from programs on numerous occasions due to non‑attendance.
Mr Booth accepted the Agreed Statement of Facts and accepted responsibility for his actions. He provided his own version of events and denied any premeditation or intent to harm. Mr Booth did not attempt to minimise his behaviour and acknowledged the seriousness of the offence. He displayed some victim empathy and advised that he would like to engage in restorative justice with the victim’s family. Mr Booth stated that the main contributors towards his offence were his associates and his drug dependency. He disclosed that he felt regretful of his actions and would remain abstinent from illicit drugs and away from antisocial influences upon his return to the community, however he was unable to express how he was going to achieve this.
The opinion of the author of the pre-sentence report is as follows:
Mr Booth is a 35 year old Aboriginal Man who has been assessed as a high risk of reoffending. He has been sentenced to numerous custodial sentences and has a poor history of compliance with community supervision. His consistent contact with the criminal justice system appears to be a result of poor employment prospects, mental health, unstable accommodation, a lack of prosocial supports, and a history of ongoing drug use. These factors are likely to have contributed towards his reoffending and consequently need to be addressed if his risk is to be reduced.
Criminal history
Mr Booth has a poor criminal history. In 2004 he was sentenced to six years’ imprisonment for offences which included recklessly inflicting grievous bodily harm. In 2012 he was convicted of burglary, going equipped for theft and theft and received a sentence of imprisonment of four years on each. In 2013 he was sentenced to a year imprisonment for damaging property. In 2014 he was sentenced to imprisonment for 18 months for attempting to pervert the course of justice. In 2018 he was sentenced to nine months’ imprisonment for burglary. He received sentences of imprisonment in 2018 for three counts of theft, one count of burglary, three counts of destroying or damaging property as well as possessing an offensive weapon with intent, obstructing or resisting a Territory public official and unlawful possession of stolen property. He has also a substantial number of convictions for other offences. In NSW he has received sentences of imprisonment for breaking and entering on two different occasions. He was on parole in relation to a NSW sentence at the time of the present offending.
Plea of guilty
Mr Booth pleaded guilty on 29 August 2019. At the criminal case conference which was held on 26 August 2019, as a result of negotiations between the parties, the Crown offered to accept a plea of manslaughter in lieu of murder and the report of the outcome of the conference recorded that the plea of guilty to manslaughter could be taken as being indicated at the first reasonable opportunity after having been committed for trial and invited to consider the alternative offence of manslaughter. In those circumstances the appropriate discount on account of the plea of guilty is 20%: see Blundell v The Queen [2019] ACTCA 34 at [12]-[14]; R v Nicholas; R v Palmer [2019] ACTCA 36 at [52].
Following the plea of guilty, Mr Booth participated in a taped record of conversation which was to form the basis of his evidence at trial. This was of very significant assistance to the administration of justice as it provided the Crown the first eyewitness account of the events that occurred at Mr Allan’s premises. While the Crown case was a strong one, it lacked any direct eyewitness evidence. Mr Booth’s cooperation was instrumental in achieving the pleas of Mr Welsh and ultimately, from Mr Vickerstaff. It is appropriate that he receive a further reduction in his sentence of 10%.
Time in custody
Mr Booth has been in custody in relation to this charge since 9 February 2018. He was at that point already in custody on remand in relation to other offences for which he was subsequently sentenced to imprisonment for the period 29 December 2018 until 28 November 2020. He had been serving a sentence prior to that.
The sentence for the current offence will commence at the end of the last existing sentence, namely, commence from 29 November 2020.
Consideration
The comparable cases identified by the parties were referred to in my decision in R v Vickerstaff (No 2). The circumstances of this case are distinct in that they involve manslaughter by joint commission where the respective roles, and hence culpability of the offenders, vary significantly.
Having regard to the relatively minor role played by Mr Booth in the offending, in my view the objective seriousness of his offending is at the low end of the spectrum for this offence. The fact that he has a poor criminal history does not increase the gravity of his offending on this occasion, although clearly he is not entitled to any leniency. In my view the starting point is a sentence of imprisonment for four years or 48 months. Because of his plea of guilty and his assistance to the administration of justice, this is to be reduced by 30%. That gives a sentence of 33 and a half months’ imprisonment. The non-parole period for his existing sentence ends on 28 April 2020. This is cancelled and must be reset. There is no reason to impose a non-parole period on this charge of less than 70% of the head sentence. Counsel for Mr Booth did not wish to be heard against adopting the simple approach of adding what would be the appropriate non‑parole period if this was his only sentence, namely, 23 and a half months to the end of the existing non-parole period. That gives an end date of 12 April 2022.
Orders
The orders of the Court are:
1. For the offence of manslaughter (CC2347/2018) the offender is sentenced to imprisonment for a period of 33 months and 15 days months commencing on 29 November 2020 and ending on 12 September 2023.
2. The existing non-parole period is cancelled and a new non-parole period is set which has an end date of 12 April 2022.
3.Liberty to the parties to communicate an agreed commencement date for the non-parole period when that date becomes available.
[The parties subsequently notified an agreed commencement date for the non‑parole period of 29 December 2018]
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 18 December 2019 |
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