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R v Booth

R v Booth

Case [1999] QCA 100 30 March 1999

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IN THE COURT OF APPEAL [1999] QCA 100
SUPREME COURT OF QUEENSLAND
Brisbane
[R v Booth]
T H E Q U E E N

v

DAVID JOHN BOOTH
Appellant

(Applicant)
McPherson JA
Thomas JA
White J

Judgment delivered 30 March 1999
Separate reasons for judgment of each member of the Court, each concurring as to the order made.
APPEAL AGAINST SENTENCE ALLOWED. TERM OF IMPRISONMENT IMPOSED IN RESPECT OF EACH OF THE OFFENCES CHARGED IN COUNTS 1, 2, 5 AND 6 OF THE INDICTMENT REDUCED FROM 12 YEARS TO 10 YEARS.
CATCHWORDS: CRIMINAL LAW - Sentence - Serious violent offender - Offences committed whilst on parole - Penalties and Sentences Act 1992 - Cumulative sentences imposed - Totality principle - Deferral of parole.
Clements v. R (1993) 68 A Crim R 167
Coss v R (1995) 78 A Crim R 550
R v Laman (CA 142 of 1997; Oct 21, 1997)
R v Peter Stinton (CA 289 of 1998; Feb 2, 1999)
R v Robinson (CA 72 of 1998; May 26, 1998)
Mill v The Queen (1988) 166 CLR 59, 63
Siganto v The Queen (1998) 73 ALJR 162
Corrective Services Act 1992
Penalties and Sentences Act 1992

Counsel:Mr T D Martin SC for the applicant/appellant
Mr T Moynihan for the respondent

Solicitors:Dan Creevey & Associates for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 16 March 1999
REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 30 March 1999

On 17 September 1998, the appellant pleaded guilty in the District Court at Toowoomba to a total of seven counts charging offences, of which four had been committed on 15 May 1998 and the other three some five days later on 20 May 1998. In each of the series of offences committed on those two days, there were charges of burglary with circumstances of aggravation (counts 1 and 5), armed robbery (counts 2 and 6), and unlawful use of a motor vehicle (counts 4 and 7). In addition, among the offences committed on 15 May there was a further charge (count 3) of breaking, entering and stealing. The applicant was sentenced to imprisonment for 12 years on counts 1, 2, 5 and 6 (burglary and armed robbery) and 3 years on each of the other three offences.
All sentences were to be served concurrently, but they were ordered to be cumulative upon an existing sentence or sentences of 9 years and 3 years imposed on 21 August 1992, with a recommendation for parole after 3 years, for earlier offences committed by the applicant of armed robbery and breaking, entering and stealing. In that instance the target of the robbery was a shop or a shopkeeper from whom some $14,000 was taken. Since that date, he has also been sentenced (on 24 August 1992) to imprisonment for 3 months for a drug offence committed in July 1992, and on 19 January 1994 to a further three months for assaulting a prison officer and occasioning bodily harm, which…

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 [1999] QCA 100
Case: [1999] QCA 100
Decision Date: 30 March 1999

CaseChat Overview and Summary

The case of R v Booth involves the appellant, David John Booth, who was convicted of offences and sentenced under the amended Penalties and Sentences Act 1992. The Court of Appeal of the Supreme Court of Queensland considered the sentencing approach for serious violent offences as per the 1997 amendments to the Act. The central legal issues revolved around the interpretation of these amendments, particularly in relation to the totality principle and the calculation of head sentences and non-parole periods for serious violent offences.

The Court of Appeal examined the legislative intent behind the amendments, particularly in light of the abolition of the remissions system and the introduction of minimum terms of imprisonment and additional terms for parole eligibility. The court referred to the New South Wales Sentencing Act 1989, which similarly abolished remissions and introduced a new sentencing regime. The Queensland amendments were intended to promote truth in sentencing, ensuring that the terms set by the court accurately reflect the period a person will spend in custody.

The reasoning of the Court of Appeal focused on the need to adhere to the new sentencing regime while also considering the totality principle in determining an appropriate sentence. The court acknowledged that the amendments did not abolish the totality principle but confined its application to the head sentence or combined head sentences when considering overall criminality. The court recognised the importance of the early plea of guilty and its impact on the victims, who would otherwise have to endure the trauma of giving evidence.

Ultimately, the Court of Appeal upheld the reasoning of McPherson JA, agreeing that the sentencing should reflect the new legislative framework while also considering the totality principle and the circumstances of the case. The court's outcome ensures that the sentencing approach aligns with the legislative intent of promoting truth in sentencing for serious violent offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I agree with the reasons of McPherson JA and White J and with the orders proposed by McPherson JA.IN THE COURT OF APPEALSUPREME COURT OF QUEENSLANDC.A. No. 338 of 1998BrisbaneBeforeMcPherson JAThomas JAWhite J[R v. Booth]THE QUEENv.DAVID JOHN BOOTH(Applicant) AppellantREASONS FOR JUDGMENT - WHITE JJudgment delivered 30 March 1999 I have read the reasons for judgment of McPherson JA and with respect agree with his Honour’s analysis of the amendments made to the Penalties and Sentences Act 1992 in 1997 insofar as those amendments apply to this application. The legislature in passing the amendments to the Penalties and Sentences Act clearly intended that a different sentencing regime should be applied in respect of sentences imposed for offences designated serious violent offences, ss. 9(3), 156A(2), 161D and s. 166(1) of the Corrective Services Act 1988. Reference to the New South Wales Sentencing Act 1989 and its interpretation may be instructive. That Act abolished the system of remissions which operated similarly in that state to the system of remissions in Queensland as well as the concepts of “head sentence” and “non-parole period”. The Act provides that in their stead a sentencing court when sentencing a person to imprisonment for an offence is required to set a minimum term of imprisonment that the person must serve and set an additional term during which the person may be released on parole. The additional term may not exceed one-third of the minimum term unless a court decides that there are special circumstances. The object of this new Act was to promote truth in sentencing which is similar to the impetus for the Queensland amendments. In R v Maclay (1990) 19 NSWLR 112 the Court of Criminal Appeal (Gleeson CJ, Hunt and Loveday JJ) considering the new Act for the first time and after an extensive review of the history of parole in New South Wales against the changing pattern of sentencing legislation and the case law interpreting it said of the new system at p. 122:“The remissions system is abolished. The concepts of ‘head sentence’ and ‘non-parole period’ are also done away with, although it is understandable that persons accustomed to considering sentencing patterns in those terms will see a relationship between minimum terms and what used to be called ‘non-parole period’ and between minimum terms plus additional terms and head sentences. Nevertheless, it is important to observe that the Act introduces a fresh approach to sentencing and it would be unfortunate if old habits of thought were to be allowed completely to control the operation of what is evidently intended to be a new system. Many, perhaps most, sentencing principles will continue to be as relevant to the new legislation as they were to the old, but it is a new and different system that has been introduced.” Mr Martin SC who appeared for the applicant does not seek to retain any old habits in respect of this sentence. He submitted that the new regime for serious violent offences does not abolish the totality principle but confines it to the head sentence or combined head sentences when considering overall criminality. He accepted that Part 9A and s. 161(1)(c) of the Corrective Services Act may not be taken into account further to reduce what would otherwise be an appropriate head sentence under the sentencing tariff which applied prior to the amendments. It must be kept in mind that notwithstanding the new serious violent offence provisions, s. 9(1) still applies when sentencing such an offender who must be punished “in a way which is just in all the circumstances”. For that reason I agree with McPherson JA that some greater allowance ought to have been made for the early plea of guilty which saved the complainants, who have suffered continuing symptoms of distress because of these attacks, from giving evidence.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Booth [1999] QCA 100

Most Recent Citation

R v McCormick; ex parte [1999] QCA 354

Cases citing this decision · 10 of 10 shown

R v Maksoud
[2016] QCA 115 Para 19

…en recent decisions of this Court in R v Booth [55] and R v Daphney .[56] [53][1998] HCA 74; (1998) 194 CLR 656 at [60]. [54]At [27]. [55][1999] QCA 100; [2001] 1 Qd R 393. [56][1999] QCA 69.…
R v Amato
[2013] QCA 158

…ed R v Aaron Blenkinsop [2007] QCA 181, cited R v Awai, Rapana and Rapana [1994] QCA 252, considered R v Booth [2001] 1 Qd R 393; [1999] QCA 100, considered R v Dodds [2003] QCA 540, considered R v Hill [2012] QCA 59, cited R v Jones [2000] QCA 84, considered R v Kitson [2008] QCA 86, cited R v Leu; R v Togia (20…
R v Kapitano
[2012] QCA 288

…(2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Booth [2001] 1 Qd R 393; [1999] QCA 100, not followed R v Brown [2003] QCA 372, considered R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, considered R v Keating [2002] QCA 19, considered R v King [2003] NSWCCA 352…
R v Hicks & Taylor
[2011] QCA 207 Para 1

…otherwise have been. [7] Penalties and Sentences Act 1992 (Qld) s 156A subsections (1)(a)(i) and (b)(ii), (2). See also R v Booth [2001] 2 Qd R 393; [1999] QCA 100. There was no submission that the accumulation of the sentences made the overall period of imprisonment excessive.…
R v Honeysett; ex parte
[2010] QCA 212

…istinguished R v Beer [2000] QCA 193, cited R v Blenkinsop [2007] QCA 181, cited R v Booth [2001] 1 Qd R 393; [1999] QCA 100, applied R v Chambers, Harrison and Fisher; ex parte A-G (Qld) (2002) 136 A Crim R 89; [2002] QCA 534, applied R v Darke [1996] QCA 303, distinguished R v Diana & A-G (Qld) [1996] QCA 505,…
R v Cowie
[2005] QCA 223

…2 (Qld), s 161A, s 161B R v B [2000] QCA 110; (2000) 110 A Crim R 499, considered R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, considered R v Booth [1999] QCA 100; [2001] 1 Qd R 393, cited R v Crossley [1999] QCA 223; (1999) 106 A Crim R 80, cited R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, considered R v H…
R v Witchard
[2004] QCA 429

…94; (2000) 110 A Crim R 394, followed R v Booth [1999] QCA 100; [2001] 1 Qd R 393, followed R v Byers ; ex parte A-G (Qld) [1995] QCA 44; CA No 430 of 1994 and CA No 436 of 1994, 28 February 1995, considered R v Crawford [1989] 2 Qd R 443, distinguished R v Gill; ex parte A-G (Qld) [2004] QCA 139; CA No 414 of 20…
R v B; ex parte A-G
[2000] QCA 110

…v Black [1948] QWN 23, considered R v Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999, considered and distinguished R v Booth [1999] QCA 100; CA No 338 of 1998, 30 March 1999, considered R v Crossley [1999] QCA 223; CA No 477 of 1998, 18 June 1999, considered R v Geddes; exparte A-G [1999] QCA 84; CA No 486…
R v Bird and Schipper
[2000] QCA 94 Para 1

…8, s 166. [3]CA No 4 of 1997, 9 May 1997. [4][1999] QCA 238; CA No 13 of 1999, 22 June 1999. [5][1999] QCA 311; CA No 462 of 1998, 10 August 1999. [6][1999] QCA 100; CA No 338 of 1998, 30 March 1999 [7]CA No 72 of 1998, 26 May 1998. [8][1999] QCA 258; CA No 151 of 1999, 9 July 1999 [9][1999] QCA 71; CA No 309, 31…
R v McCormick; ex parte
[1999] QCA 354 Para 1

…e to circumvent the effects of these statutory provisions by making a specially early parole recommendation: cf R v Booth (CA 338/1998, 30 Mar 1999; [1999] QCA 100); R v Crossley (CA 477/1998, 18 June 1999; [1999] QCA 223). It is nevertheless considerably to the respondent's credit that he did volunteer to the po…

View all 10 citing cases →

Cases cited in this decision · 3 of 3 shown

Siganto v the Queen
[1998] HCA 74 Para 4

…y obiter having regard to the particular circumstances of and result in that case, are directly in point. Reliance was also placed on the decision in Siganto v The Queen (1998) 73 ALJR 162, where the High Court considered certain recent Northern Territory legislation which effected a deferral of parole until 70% of the sente…
Radenkovic v The Queen
[1990] HCA 54 Para 11

…In R v Maclay (1990) 19 NSWLR 112 the Court of Criminal Appeal (Gleeson CJ, Hunt and Loveday JJ) considering the new Act for the first time and after an extensive review of the history of parole in New South Wales against the changing pattern of sentencing legislation and the case law interpreting it said of the new s…
Mill v The Queen
[1988] HCA 70 Para 16

…In Mill v The Queen (1988) 166 CLR 59, 63, the High Court adopted the following statements of the principle taken from a leading textbook: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed…

Legislation cited in this decision · 3

Corrective Services Act 1988 (Qld)
1 mention (from Para 12)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 13)
Sentencing Act 1995 (WA)
1 mention (from Para 4)