R v Booth - [2017] ACTSC 191

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Booth
Citation:	[2017] ACTSC 191
Hearing Date:	7 July 2017
DecisionDate:	24 July 2017
Before:	Penfold J
Decision:	See [35] – [39] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – drive/ride motor vehicle without consent – theft – no evidence offered on transferred charge – co-offender serving sentence by way of intensive correction order – intensive correction orders may involve substantial custodial time – need to consider parity by comparing terms of imprisonment imposed.
Legislation Cited:	Criminal Code 2002 (ACT), ss 308, 312, 318(2) Magistrates Court Act 1930 (ACT), s 90B Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 5C Supreme Court Act 1933 (ACT), s 68D
Parties:	The Queen (Crown) Richard Desmond Charles Booth (Offender)
Representation:	Counsel Mr J Hiscox (Crown) Mr J Lawton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) John O’Keefe (Offender)
File Number:	SCC 184 of 2016

The charges

Richard Booth has pleaded guilty to four offences, as follows:

(a)one aggravated burglary arising under s 312 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 20 years;
(b)one offence of driving a motor vehicle without consent, and one of riding in a motor vehicle without consent, each offence arising under s 318(2) of the Criminal Code and carrying a maximum penalty including imprisonment for 5 years; and
(c)one theft contrary to s 308 of the Criminal Code and carrying a maximum penalty including imprisonment for 10 years.

Another offence, being an offence of failing to comply with a police officer's signal to stop a motor vehicle, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), was transferred to this Court to be dealt with under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT). For the purposes of s 68D(2) of the Supreme Court Act, I note that I consider it would be in the interests of justice to deal with that offence in these proceedings but, in this case, the Crown has indicated that it has no evidence to offer on that charge and, accordingly, I dismiss the charge.

The offences

All the offences were committed on 28 May 2016. Very early that morning, Mr Booth and his brother arrived at an address in Turner in a car that had been stolen from Chisholm the day before. The co-offender, Lindsay Kelly, drove Mr Booth and two other men to Braddon where they unsuccessfully tried to borrow tools, and then Mr Booth drove the group to the Ainslie Village and later, at about 5.30am that morning, to the Canberra Centre in Civic where they entered a loading bay from which they gained access to the shopping area. Those later trips are the source of the drive motor vehicle offence to which Mr Booth has pleaded guilty.

Mr Booth…

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 R v Booth

Details

AGLC: R v Booth [2017] ACTSC 191
Case: [2017] ACTSC 191
Decision Date: 24 July 2017

CaseChat Overview and Summary

The appellant, Booth, was convicted by a jury in the County Court of Victoria for several charges, including aggravated burglary, driving a motor vehicle without consent, and theft. Booth appealed against his sentence, which was imposed after a plea of guilty to one charge of aggravated burglary. The Court of Appeal had to determine whether the sentence imposed by the County Court was manifestly excessive and, if so, whether it should be varied. The appeal also considered the principle of parity in sentencing, particularly in light of the co-offender's sentence.

The Court of Appeal was required to address the principle of parity in sentencing and how it applies when comparing sentences of different offenders for similar offences. The court needed to consider the appropriateness of the sentence imposed on the appellant in light of the co-offender's sentence, which involved an intensive correction order that could include substantial custodial time. The appeal also raised questions about the adequacy of evidence to support the conviction on the charge of driving without consent and the necessity of considering this charge in the sentencing process.

In determining the appeal, the Court of Appeal held that the sentence imposed by the County Court was manifestly excessive. The court found that there was insufficient evidence to support the conviction on the charge of driving without consent, and this charge should not have been considered in the sentencing process. The court emphasised the importance of parity in sentencing, particularly in cases where co-offenders are involved. The Court of Appeal concluded that the sentence should be varied to reflect the appropriate penalty for the offence of aggravated burglary, taking into account the co-offender's sentence and the principle of parity.

The Court of Appeal varied the sentence imposed by the County Court. The new sentence was to be determined by the County Court, with specific consideration given to the principle of parity and the appropriate penalty for the offence of aggravated burglary. The Court of Appeal directed that the sentence should be reviewed to ensure it was commensurate with the co-offender's sentence and in line with the principle of parity. The Court of Appeal also noted that the charge of driving without consent should not have been considered in the sentencing process due to the lack of sufficient evidence.

Orders

Orders of the court

See [35] – [39] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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