R v Booth

[2004] QCA 423

SUPREME COURT OF QUEENSLAND

CITATION:	R v Booth [2004] QCA 423
PARTIES:	R v BOOTH, William Michael (applicant)
FILE NO/S:	CA No 256 of 2004 DC No 347 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED EX TEMPORE ON:	4 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2004
JUDGES:	McMurdo P and Fryberg and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – applicant pleaded guilty to one count of breaking and entering premises and stealing and acquitted of one count of arson – pleaded guilty to first charge on first day of trial – had broken into former employer's business and removed computer equipment to the value of between $1500 and $2000 – most equipment recovered – applicant had prior criminal history – learned sentencing judge found offence motivated by malice – whether sentence was manifestly excessive
COUNSEL:	A J Kimmins for the applicant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  Mr Booth was charged with one count of breaking and entering premises and stealing and one count of arson.  These offences were said to have been committed in January 2002.  On the first day of his trial on 6 July 2004, he pleaded guilty to the former count and not guilty to the latter.  He was subsequently found not guilty of the arson charge and was then sentenced for the breaking and entering offence to 18 months' imprisonment.  The sole ground of appeal is that the sentence was manifestly excessive.  Mr Kimmins who appears for Mr Booth argues that the learned sentencing judge erred in finding that the offence was not a spur of the moment offence and, in giving insufficient weight to the plea of guilty and the delay of two and a half years in finalising the matter, a delay which was not Mr Booth's fault.

The evidence at trial established that Mr Booth had worked as a spray painter for the complainant.  Their relationship had deteriorated because of the complainant's concerns about the standard of Mr Booth's work and, in January 2002 when he returned after the Christmas break, the complainant told Mr Booth there was no job for him.  Mr Booth took his tools, left the premises and quickly obtained work for another panel beater.  On Sunday, 12 January 2002, Mr Booth worked until lunchtime and then drank some beer.  He went home and continued drinking.  Later, he attended the home of his co-offender Justin Lloyd where he continued drinking.  Lloyd and Booth next travelled to martial arts schools looking for a suitable insignia to tattoo onto Mr Booth's back.  They drove past the complainant's workshop.  Mr Booth pulled over and broke into the premises through the back roller door, removing a quantity of computer equipment.  He then returned to the premises and took further equipment.  The complainant estimated the replacement value of the equipment was between $1,500 and $2,000.  Most of the equipment was recovered. 

Lloyd gave evidence for the prosecution at Mr Booth's trial and was sentenced beforehand.  At his sentence, the Crown Prosecutor indicated to the Court that the value of the outstanding property was $400. 

Mr Booth was 36 years old at sentence.  He was in a permanent relationship and was the main support of his two children aged 10 and 4.  He is a qualified spray painter and his current employer provided a reference to the Court.  Mr Booth had relevant criminal history.  In 1991, he was convicted in New South Wales of malicious damage, fined $400 and ordered to pay compensation of $2,300.  In May 1992, he was convicted in the Southport District Court of breaking and entering a dwelling house in the night with intent and assault occasioning bodily harm.  He was fined in respect of both offences.  That offence was motivated by his anger at his next door neighbour who showed unwanted interest in his wife.  He broke and entered the neighbour's house and assaulted him.  He also had some minor convictions for drug offences in 2000 and 2003.  Mr Booth made an offer at sentence to pay compensation.

In his brief sentencing remarks, the learned primary judge noted that he was quite satisfied that,

"… some planning went into this.  I do not think it was a spur of the moment matter at all.  You were motivated by malice.  You went to the premises of the people who employed [you] as a contract worker with the intention of breaking in, taking their property and thus causing them as much trouble and inconvenience as you could.  I think this is a serious offence.  You pleaded guilty at the beginning of the trial, but I do not think that it could be said to be a timely plea."

The Crown case was not that Mr Booth had a long term plan to seek revenge on his former employer, the complainant, but that he had a brooding intention to harm him because he resented losing his employment and believed the complainant had wrongly withheld payment to which he was entitled.  Mr Booth's grievances against the complainant may well have been fuelled on the day by alcohol.  Lloyd gave evidence that Mr Booth told him that he was agitated because the complainant had withheld $400 or $500 of his wages. On the day of the offence, Lloyd said that he and Booth were driving around karate schools looking for a suitable yin and yang symbol to complete a tattoo on Mr Booth's back.  En route, Mr Booth stopped at the complainant's business premises and asked Lloyd to keep a lookout and to sound the car horn if anyone came.  Mr Booth then loaded the stolen items into the car making several trips to the premises.  Mr Booth was swearing and making comments like, "Fucking cunts, arseholes, I'll fix them.  They won't rip anyone else off", and noted that Mr Booth was "generally pissed off". 

When Mr Booth gave evidence, he accepted that he expressed the intention to another of the complainant's employees Christopher Fitzhenry to follow the complainant home and drive him off the road although Mr Booth described this as "just shit talk".

The learned primary judge was entitled on the evidence at trial to conclude that the offence was not a truly spur of the moment matter but had some, although perhaps not very significant, planning to it arising out of brooding resentment fuelled by alcohol.  The offence was unquestionably motivated by malice.

His Honour was also entitled to conclude that although the monetary value of the actual property stolen was not great and all but $400 worth was recovered the loss of computer equipment including hard drives to a small business causes very great inconvenience and that Mr Booth intended this result.  The learned primary judge was right to conclude that, in the circumstances, this was a serious offence.

His Honour's observation that Mr Booth pleaded guilty at the beginning of the trial but that this was not a timely plea was also plainly correct.  Mr Booth was nevertheless entitled to some credit for his indication to the prosecuting authorities a few months before the trial, but still two years after the offence, that he would plead guilty to the offence of which he was ultimately convicted.  In the week before the trial, and contrary to his earlier indication, Mr Booth told the prosecution he would plead not guilty to both the break and enter offence and the arson charge.  Mr Booth did not initially cooperate with the authorities and encouraged Lloyd and his wife to provide a false alibi to police, an alibi which Mr Booth also initially confirmed to police.  His cooperation with the administration of justice was certainly not extensive.

The delay of two and a half years seems to have been because that was the time taken for the prosecution to prepare for the committal and trial and for the trial to be listed and heard at the Southport District Court.  His Honour's brief sentencing remarks do not refer to the matter of delay which it is not suggested was caused through any fault of Mr Booth.

The question for this Court, it seems to me, is whether in all the circumstances the sentence imposed was manifestly excessive.  These circumstances include Mr Booth's intimation, some months before the trial, of his willingness to plead guilty to this count if the arson charge were dropped, although tempered by his subsequent contrary statement in the week before the trial, and the fact that he has had this matter hanging over his head for two and a half years through no particular fault of his.

We have been referred to a number of cases by both counsel on the issue of whether the sentence was manifestly excessive but, in my view, none can be said to be comparable or of any particular assistance.

The maximum penalty for the offence was life imprisonment.  Mr Booth is a mature man who has a previous conviction for a like offence, albeit in 1992.  His Honour rightly concluded that the serious aspect of this offence was that it was committed out of malice.  No doubt the theft from a small business of its office computers causes great inconvenience.  In those circumstances, although a suspension or partial suspension of the sentence was also open, I am not persuaded that the sentence of 18 months imprisonment was manifestly excessive.  I would refuse the application for leave to appeal.

FRYBERG J:  I agree.

MULLINS J:  I agree.

THE PRESIDENT:  That is the order of the Court.

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