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R v Booth

R v Booth

Case [2014] NSWCCA 156 13 August 2014

Sentencing

Intellectual Disability

Aboriginal Offenders

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Booth [2014] NSWCCA 156
Decision date: 13 August 2014
Before: Hoeben CJ at CL at [1];
Beech-Jones J at [2];
Hamill J at [3].
Decision:
(1) Appeal allowed.
(2) Quash the sentences imposed in the District Court.
(3) In lieu thereof, the respondent is sentenced to an aggregate sentence of 7½ years commencing on 18 December 2012 and expiring on 17 June 2020. There will be a non-parole period of 3½ years commencing on 18 December 2012 and expiring on 17 June 2016.
(4) The respondent will become eligible for release to parole at the expiration of the non-parole period.

Catchwords: CRIMINAL LAW - sentencing - prosecution appeal - manifest inadequacy - failure to accumulate - circumstances of deprivation - intellectual disability - institutionalised offender - relevance of deterrence - whether sentencing Judge failed to consider deterrence - deterrence of limited relevance - sentencing of Aboriginal offenders - residual discretion - moderate increase in degree of accumulation
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Brown v R [2012] NSWCCA 199
Bugmy v The Queen [2013] HCA 37
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Hili and Jones v The Queen [2010] HCA 450
Johnson v the Queen [2004] HCA 15; 205 ALR 346; 78 ALJR 616
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Munda v Western Australia [2013] HCA 38; 294 CLR 600
Neal v The Queen (1982) 149 CLR 305
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [46]
R v Cramp [2004] NSWCCA 264
R v Engert (1994) 84 A Crim R 67
R v Fernando (1992) 76 A Crim R 58
R v Gladue [1999] 1 SCR 688
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Harris [2007] NSWCCA 130
R v Henry and ors [1999] NSWCCA 111; 46 NSWLR 346
R v Ipeelee [2012] 1 SCR 433
R v Israil [2002] NSWCCA 255
R v Nykolyn [2012] NSWCCA 219
R v Tsiaras [1996] 1 VR 398
SHR v R [2014] NSWCCA 94
Trad v R [2009] NSWCCA 56; 194 A Crim R 20
Category: Principal judgment
Parties: Crown (Appellant)
Daniel Booth (Respondent)
Representation: Counsel:
P Ingram SC (Appellant)
B Rigg (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Legal Aid New South Wales (Respondent)

File Number(s): 2012/45396
Publication restriction: Nil
Decision under appeal

Date of Decision:

2013-12-18 00:00:00

Before:

Judge Toner

Judgment

HOEBEN CJ at CL: I agree with Hamill J.

BEECH-JONES J: I agree with Hamill J.

HAMILL J: This is a Crown appeal against a sentence imposed by his Honour Judge Toner on 18 December 2013.

It is a case which brings into very sharp focus the decisions of the High Court in Bugmy v The Queen [2013] HCA…

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 [2014] NSWCCA 156
Case: [2014] NSWCCA 156
Decision Date: 13 August 2014

CaseChat Overview and Summary

In this case, the respondent, Booth, was convicted of manslaughter and sentenced to a term of imprisonment with parole eligibility after serving half of the term. The Crown appealed the sentence, arguing that the sentence was manifestly inadequate due to the trial judge's failure to adequately accumulate the aggravating factors of the offence. The High Court of Australia heard the appeal. The legal issues before the Court were whether the sentence imposed was manifestly inadequate, and if the trial judge failed to adequately consider the relevance of deterrence in sentencing, particularly in light of the respondent's institutionalised history and intellectual disability.

The Court found that the sentence was indeed manifestly inadequate as the trial judge did not sufficiently accumulate the aggravating factors of the offence. The Court noted that the trial judge had failed to consider the circumstances of the deprivation, the respondent's intellectual disability, and his institutionalised background. While the Court acknowledged that deterrence was of limited relevance in this case, it found that the trial judge's failure to consider deterrence was a significant error in the sentencing process. Additionally, the Court considered the sentencing of Aboriginal offenders and the trial judge's residual discretion. Ultimately, the Court found that a moderate increase in the degree of accumulation was warranted.

The Court allowed the appeal, quashed the original sentence, and remitted the matter to the trial judge for re-sentencing. The Court emphasised that the trial judge should adequately accumulate the aggravating factors, consider the circumstances of the deprivation, and appropriately weigh the relevance of deterrence in the sentencing process.

Orders