R v Booth
[2021] ACTSC 223
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Booth |
Citation: | [2021] ACTSC 223 |
Hearing Date: | 31 August 2021 |
DecisionDate: | 1 September 2021 |
Before: | Mossop J |
Decision: | See [64] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated burglary – offender found guilty at jury trial – offending did not involve pre-mediation – no entry into the house proper – offender otherwise of good character – good behaviour order with community service work condition imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – related charge – transfer charge of common assault – determination of charge following jury trial – offence proved beyond reasonable doubt – sentence – offending in the mid-range of objective seriousness – good behaviour order imposed |
Legislation Cited: | Criminal Code 2002 (ACT), ss 45A, 312 Crimes (Sentencing) Act 2005 (ACT), s 10 |
Cases Cited: | Cheung v The Queen [2001] HCA 67; 209 CLR 1 R v Swift [2007] VSCA 52; 15 VR 497 |
Parties: | The Queen ( Crown) Melanie Booth ( Offender) |
Representation: | Counsel A Williamson ( Crown) B Morrisroe ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) David Healey Solicitors ( Offender) | |
File Numbers: | SCC 202 of 2019 SCC 203 of 2019 |
MOSSOP J:
Introduction
On 2 July 2021, at the conclusion of an eight-day trial, a jury found the offender, Melanie Booth, guilty of one count of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) on a joint indictment dated 21 June 2021 (CC2019/1372). The maximum penalty for aggravated burglary is 20 years’ imprisonment, 2000 penalty units or both.
The Crown’s case was that the offender was guilty of a joint commission offence of aggravated burglary, or alternatively, guilty of the offence other than by joint commission. The jury was not required to indicate if they had found the offender guilty of the offence by way of joint commission or other than by joint commission.
On the same day, the jury found the offender’s four co-accused, Stancy (Bonnie) Booth, Deanne Booth, Richard Booth and Sharniesha Booth not guilty of a single count of aggravated burglary, contrary to s 312 of the Criminal Code. The charge against each of the four co-accused was by way of joint commission. The alternative of finding the offender’s co-accused guilty of the offence of aggravated burglary other than by joint commission was only put to the jury in relation to Stancy.
Having regard to the jury’s verdicts, the verdict of guilty for the offender must have been on the aggravated burglary charge simpliciter rather than the aggravated burglary charge by joint commission.
The offender has also pleaded not guilty to a transfer charge of common assault (CC2019/1374) arising out of the same incident. At the conclusion of the trial, the parties agreed that it would be appropriate for me to hear submissions and determine whether that charge had been proved at the time of sentencing the offender for the aggravated burglary offence.
In these reasons I will often refer to persons by their first names. This is how they were referred to in the trial. I do not intend any disrespect to them by referring to them in this informal way. It is done principally because the principal protagonists have only two surnames.
Facts
It is necessary to find the facts for the purposes of sentencing: see Cheung v The Queen [2001] HCA 67; 209 CLR 1. Those facts are also relevant to the determination of the transfer charge of assault which is dealt with in more detail below.
On the evening of Saturday, 3 November 2018, members of the Booth family, including the offender, were out in Civic in the Australian Capital Territory. At some point in the night, the offender was observed by her sister, Deanne Booth, to be behaving abnormally and lying down on the path. Deanne was concerned that the offender’s drink may have been spiked and arranged for the offender to be taken to Woden hospital by ambulance. She was released from hospital the next day, shortly before the incident giving rise to the proceedings.
Desi Connors and Michael Shannon were also out in Civic that night celebrating Mr Shannon’s twenty-first birthday. During the night, there was an incident in Civic that resulted in the offender’s niece, Sharniesha Booth, and another of the offender’s family members being assaulted. Sharniesha told the offender’s sister, Deanne, that Desi Connors was involved in her assault.
In the morning on Sunday, 4 November 2018 a group including the offender, Deanne, Stancy, Sharniesha, Richard and Tiam Fisher arrived in a minibus driven by Deanne at Desi’s house in Gilmore.
The jury’s verdicts in relation to the offender, Deanne, Richard, Stancy, and Sharniesha are inconsistent with there being established beyond reasonable doubt that there was an agreement between these parties to threaten or cause harm to anyone in the building. However, the jury was satisfied that in committing the offence of aggravated burglary, the offender was “in company”. To be in company, the offender must have shared her purpose with either one of the other accused or with at least one other person who was present. The verdict of the jury indicates that either:
(a)they were satisfied that Melanie shared her purpose with either Tiam Fisher or another unidentified person who was present; or
(b)shared a purpose with one or other of the accused but the jury could not be satisfied beyond reasonable doubt that it was any particular accused.
The minibus arrived at the address in Gilmore and parked along the side of the road at about 10:26am. The offender got out of the vehicle and began walking towards the entry to the house. Stancy and Deanne also got out of the vehicle. Deanne followed the offender towards the front door and stood behind her. To access the front door, the offender had to walk onto the partly enclosed, paved area immediately outside the front door but underneath the roofline of the property. This was described at the trial as the patio area. The verdict of the jury is consistent either with Melanie having entered the house proper or alternatively the patio area, satisfying the definition of “building” in accordance with the directions that they were given. While I am satisfied beyond reasonable doubt that Melanie entered the patio area, I am not satisfied beyond reasonable doubt that she entered the house proper. She may have entered the doorway but not beyond that. The jury verdict must therefore be on the basis that the patio area formed part of the building for the purposes of the elements of the offence of burglary.
Desi and her children, MD, LD and ND, who were 16 years old, 15 years old and 13 years old respectively, were inside the house at the time the minivan arrived. Also inside the house were two children who were four years old and one years old and Mr Shannon, a friend of the family who had been out in Civic with Desi the night before.
The offender knocked on the front door and MD answered. The offender asked MD where her mother was. MD observed the offender’s tone to become aggressive when she asked again for MD’s mother. During the exchange, MD said words to the effect of, “I’m going to kick your cunt in if you’re going to touch my mother”.
A fight described as a “punch up” broke out between the offender and MD in the doorway of the building. The offender punched MD in the face, stomach or breasts. The offender and MD were eventually pulled apart and Desi came to the front door and MD went inside the house, where she called the police.
Desi attempted to close the door which was being pushed and kicked. At one-point Tiam Fisher got in the door and had an altercation with Mr Shannon who, by that time, was in the living room.
There was a lot of arguing and shouting. MD can be heard shouting at one or more of the intruders to get out of the house as the police had been called. The offender, however, did not play any further part in the incident after the end of her interaction with MD.
It is necessary to determine whether or not the offending by the offender was premeditated, in that it preceded the offence on the patio so that the offence involved the entry into the building, or whether the intention was formed as events unfolded and that the offence was remaining within the building after that intention had been formed. The verdicts of the jury are consistent with the intention having been formed after the entry onto the premises. The acquittals of the other accused appear to be inconsistent with the existence of an agreement before or during the incident that the offending involving threats or harm would be committed.
For the reasons given below, I have concluded that the offender is guilty of the transfer charge of common assault.
The offender is to be sentenced on the basis that the intention to commit an offence involving causing harm or threatening to cause harm was only formed once she was already on the patio. That is consistent with her responding in an aggressive manner to the words said to her by MD at the door and remaining within the patio area once she had formed that intention.
Transfer charge
The transfer charge is a charge of common assault arising out of the interaction between the offender and MD. It is uncontroversial that they got into a fight. The charge of assault necessarily involves a finding that the offender initiated the fight and therefore that when she assaulted MD she was not acting in self-defence.
The Crown witnesses were consistent in their accounts of the offender as having grabbed MD by the hair and punched her.
The defence case was that it was, in fact, MD who assaulted the offender. That was suggested in cross-examination. It was supported by the evidence of Deanne which I will refer to below.
Desi gave evidence that the offender had grabbed MD by the hair and bent her over and was punching her. In evidence at the trial, the following exchange occurred:
When you said that you said that you saw Melanie sort of under punching or something like that to [MD], is that right?---Yes.
Did you see how many punches?---At the time I seen three and her - like she was grabbing hold of [MD] by the hair, having her bent over and, like, three punches.
Did you see where they were hitting?---Underneath - like underneath. I don't know if it was the face or her stomach or her boobs. It was just under.
Could you tell how much force was being used?---That was a strong force. Like force.
And what was [MD] doing?---Screaming. At that time when she got let go, that's when I was sort of pretty much still behind her and when we seen all the mob coming, that's when I pushed her behind me.
You said Melanie went somewhere. Did you see where she went?---She walked away. I don't know if she was standing on the driveway behind them or if she jumped back in the bus.
In cross-examination by counsel for Deanne, the following exchange occurred:
When you got up and walked to the front door of the house what I suggest to you that you saw was that your daughter, [MD], left the confines of your house and grabbed Melanie Booth by the hair - - -?---No, incorrect.
Please let me finish - - -?---Sorry.
- - - the proposition and you can agree or disagree with me if you like?---Okay. Sorry.
What I suggest that you saw was [MD] was at the front door of your house, she left the confines of your house, walked outside, grabbed Melanie Booth by the hair and started to punch her in the face. Do you agree or disagree that is what you saw?---I disagree but like I said, I only seen that Mel had my daughter over and punching her underneath.
In cross-examination by counsel for the offender, the following occurred:
And that [MD] was in fact fighting with [MD] and was physically assaulting Melanie?---I can't say because I didn't - all I seen was Melanie had hold of [MD] and punching her underneath.
Did [MD] have a hold of Melanie as well?---No.
Could you see where [MD]'s hands were?---No.
In his evidence-in-chief interview, LD said:
I woke up in the morning and, um, I heard yelling and screaming and I walked into the lounge room and I saw Melanie Booth, um, bashing my sister - my big sister. And then my mum came and then, like, we shut the door and pushed them all out.
At question 30 and following, he gave a description of how the offender was punching her.
In cross-examination by counsel for the offender, he said:
Did you see [MD] knee Melanie?---No.
Did you see her pulling her hair? Did you see [MD] pulling Melanie's hair?---No.
Or having a hold of Melanie?---No.
But when you came out of your room, the incident between the two of them was already happening?---Yes.
So obviously you had missed some part of it?---Yes, I did.
What I want to suggest to you is that that incident was happening just outside the front door?---No.
That that was not inside the house?---It was inside the house.
In her 000 call, MD was recorded as saying:
And I’ve got this (indistinct) one of the girls had my head and tried to punch me up my (indistinct) and then she’s (indistinct) out again.
That evidence has the value of being contemporaneous and unfiltered.
In the evidence-in-chief interview, MD said:
Q30. …
… Somewhere in between-round about there, I’ve - Melanie Booth has been grabbed me by the head. Shes started punching me to the left side of my head. I’ve swung back around. So I started punching her. And then I kept telling her, “Let go of my hair. Let go of me.” She wouldn’t let go. So I had to - I got - I kind of took my head back and I kneed her in the face to get her off me. Um, I then realised the kids was behind me the whole time, so I quickly -no, mum grabbed the kids and then told me, “Grab the kids,” so I’ve rushed them straight into the room. I’ve then called the police.
Q41. …
… I’ve then opened the door and then that’s when that little argument between me and Mel happened. I’ve told her that she wasn’t going to touch my mum. And then I - because I didn’t realise the kids was behind me and mum’s come rushing to the door and went to shut the door and they’ve all come round the corner. They’ve tried to barge through the door and then Mel grabbed me by my head. Um that’s when me and her had that little fight.
Q50. Okay. All right, so can you just tell me a bit more about exactly how that all sort of happened, the - where you say you got assaulted?
A. When I was at the door, she’s grabbed my head, my hair. She was pulling my hair. Um, she was kind of, like, swinging my neck a little bit when she was grabbing it and she’s tipped my head over to the right side a little bit and she started laying into the left side of my head. So I’ve kept my neck back to the left side and so I started punching her to get off me. I’m screaming at her, “Let go of my fucking head.” I - oh, sorry for swearing.
Q51. No, that’s okay. Um, I’ve got the kids -“the kids are behind me. The kids are behind me.” See she wouldn’t - she wouldn’t let go. She kept going. So I’ve then lifted my head back up and I’ve kneed her in the face to let go of me. And then that’s when mum’s grabbed me back and dragged me back in the house, straight after that. And then - I don’t known - somewhere in between, I’m not sure whereabouts, but when I went back to the door she was like, “Get - get out of here, [MD],” but when she was assaulting me, I can hear Dede in the background yelling, “Get her, get her.”
The punches are described at question 62 and following. In cross-examination by counsel for the offender, the following exchange occurred:
And as a result of Melanie saying something to you about Michael having been out the night before, you were angry, weren't you?---No. She didn't say anything.
You went outside and you grabbed her by the hair?---No. I didn't leave the front door. I had two children holding my leg, I couldn't leave the front door.
So you say the children are holding your front leg at the front door?---I had my son right behind me grabbing on my leg.
You didn't tell the police that, did you?---No, I - I did say it on Friday but. I did say my son was behind me holding my leg.
Well, on your evidence, you then get into a fight with Melanie. You've got her hair, she's got your hair, you're punching each other?---Yes.
Correct? Where's your son?---He was still behind me when Melanie grabbed me. They - both of them children were behind me when Melanie grabbed me and that's why I was really - I got really angry, the fact that she had done that while my two children were standing there, my son and my sister.
I suggest to you that you're the person who instigated the physical altercation?---No.
That you did that after you told her that you would kick her cunt in?---No.
That the fight happened just outside the front door step on that paved patio area?---No. It happened while I was still standing just before the carpet on that step between the actual door hinges.
So you're teetering on the edge of the step?---There's the step and then there's the carpet. I was standing right in the middle. So I wasn't completely on the step and I wasn't completely on the carpet, I was in between.
You said in your evidence this morning that you do recall now that Bonnie Booth at least was saying to you, 'Let her go, let her go,' something to that?---I heard, 'Let her go,' but I wasn't sure if that was my mum or Bonnie because my mum was also saying, 'Let go.'
So your mum is telling you to let go as well?---Yes. She's telling Melanie to let go of me.
And telling you to let go of Melanie?---No.
Well, you were holding onto Melanie, weren't you?---I was holding her while she was holding me and she wouldn't let go. I screamed, 'Let go,' she wouldn't let go, so I kneed her in the head to let go of me.
How did you get her head to your knee?---So like I've explained, she held me to the side and she's punching me. I've managed to flick my head to the other side and punch her back. I then swung my head back up and then pulled her down.
Where's the nappy you were holding?---I threw it on the ground.
ND said the following in examination-in-chief:
Can you tell us as much as you can recall from when you heard they arrived?---So I - I was in the room with my mum and I heard a knock and then I went to go open it but my big sister [MD], she opened it before me and then I saw Melanie Booth at the door asking for my mum, so I went to go tell her. And then when she was in front of me and when I turned around to the corner I saw Melanie, she had my sister by the hair.
Michael Shannon also gave evidence of having observed the fight, but not its commencement.
Sergeant Lowrencev gave evidence that when she attended the premises, MD made a complaint to her that she had been assaulted by the offender.
Deanne Booth presented a very different picture of the interaction. It involved her and Stancy going to the house simply to talk to Desi and picking up Melanie, Richard, Sharniesha and Tiam along the way. It involved Melanie going to the door first and then being attacked by MD. The offender was pulled away from the assault by Deanne and Bonnie and then they left. She never saw Desi with a knife. On her version of events Richard never left the bus.
This evidence is inconsistent with:
(a)the physical evidence of damage to the door, as that is inconsistent with the benign explanation of events put forward by Deanne and cannot be explained by that version of events; and
(b)the complaints that can be heard on the 000 call as that is inconsistent with the Booths’ leaving immediately after the offender and MD were disengaged.
The 000 call is consistent with a version of events that has at least one member of the group into the house in the manner described in the evidence of the witnesses in the house.
The key evidence as to the initiation of the fight was that given by MD. Having seen and heard MD give evidence, I have treated her evidence with some caution as she appeared to me to have a tendency to over-dramatise events. However, her evidence of being assaulted by the offender was consistent with the observations of other members of her family after the assault commenced, in particular, the observations consistent with Melanie being the aggressor and, at least initially, getting the best of MD in the interaction. It was consistent with there being a substantial degree of animus on the part of those arriving at the house, as illustrated by what was heard by Mr Evans and the damage to the door. The version of events that was put to her was inconsistent with what might be expected of somebody who was having a normal morning at home changing her child’s nappy with young children still around. Her evidence was also consistent with the complaint made to the officer shortly afterwards.
I am satisfied beyond reasonable doubt that Melanie initiated the fight and was not, at the point of initiation of the fight, acting in self-defence. I am, therefore, satisfied that she intentionally applied force to MD, that MD did not consent and that Melanie had no lawful reason for the application of force. I therefore find the charge of assault to be proved.
Victim impact statement
A victim impact statement prepared by Desi Connors referred to the impacts of the incident. It refers to increased fear, feeling unsafe going out in public, the effect on her son, that she lacks motivation and self-esteem because of fearing to work in circumstances where she might meet the offender and the consequent effect on her mental health and on her children. She indicates that she fears a further attack and may have to leave and move interstate.
The way in which the content of this victim impact statement was to be used was the subject of some discussion between the parties. Counsel for the offender made the statement that the Connors have regularly attended events within the Aboriginal community, such as family events and weddings. The Crown said nothing to contradict this.
I have treated the statements made in the victim impact statement in a manner consistent with R v Swift [2007] VSCA 52; 15 VR 497 at [6]-[7], recognising that such statements provide an opportunity for the victims to draw the court’s attention to the damage and sense of anguish which has been created by the offending and that such statements may be the only opportunity for victims to publicly express these effects. In those circumstances, it is often a prudent course for parties not to say a great deal about the admissibility of the contents of the victim impact statements but leave it to the sentencing judge to work out which parts of the statement should be given weight. I have proceeded on the basis that offending such as this is likely to have ongoing consequences for the victim’s sense of security in their home and that those consequences will have an impact both upon the adults and the children that were involved.
Objective seriousness
Having regard to the findings that I have made, the aggravated burglary is at the low end of objective seriousness for this offending. It occurred only at or near the doorway to the premises, rather than within the home proper. The offending was not pre-meditated even if there was some pre-existing hostility toward Desi as a result of what was thought to have happened the night before. It involved remaining on the premises after the relevant intention was formed, rather than entry onto the premises for that purpose.
So far as the assault is concerned, it is at the low end of the mid-range of objective seriousness for a common assault. It involved the pulling of hair and a number of punches to the upper body.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report dated 26 August 2021.
The offender is currently 40 years old and was 37 years old at the time of the offence. She is an Aboriginal woman who was born in the ACT. She relocated between the ACT and Queensland several times throughout her childhood, before permanently relocating to the ACT in 2016.
The offender’s parents were never in a partnership. She was raised by her mother and stepfather and described witnessing her stepfather perpetrate domestic violence against her mother throughout her childhood. The offender has a supportive relationship with her mother, who also resides in the ACT. She also has positive relationships with her siblings.
The offender is the mother of eight children. The three youngest children, who are currently 10 years old, 9 years old and 7 years old reside with her. She is single and has access to stable accommodation.
The offender completed year 11 at school. She commenced study in hospitality immediately after leaving school but fell pregnant and was unable to complete those studies. She has previously been employed intermittently in several different industries, including labouring work, house cleaning, providing service delivery to the Aboriginal community through an Aboriginal community organisation and, most recently, in the retail industry. She is currently receiving Centrelink benefits and has described her financial circumstances as unstable.
She did not report any issues relating to alcohol consumption and did not report any relevant drug use.
The offender described her mental health as stable, although she reported that she is experiencing unresolved grief related to the death of one of her brothers.
In terms of the offender’s attitude to the offence, the author of the report stated that while she did not attempt to justify or minimise her actions, she failed to acknowledge the seriousness of the offending behaviour, discuss the circumstances behind it in depth or demonstrate insight into the impact her actions may have had on the victims of the offending.
She was assessed by the author of the pre-sentence report as being at a “medium/low‑risk of general re-offending”. It was noted that she has numerous protective factors in place, including stable accommodation, the absence of drug or alcohol issues, positive relationships with her children and an employment history.
The offender was assessed as being suitable for a good behaviour order with a medium‑low level of intervention by ACT Corrective Services, suitable for a community service work condition and suitable for an intensive correction order.
A character reference was provided by Stancy Booth. Stancy was obviously involved in the incident the subject of the proceedings. Insofar as the reference make statements as to the circumstances of the offending, I place little weight on it when compared with the evidence in the case. I accept, however, the substance of the reference which makes reference to Melanie’s good character as a mother, aunt, grandmother and support for Stancy. I also accept the evidence insofar as it relates to her volunteer work at the local church and in relation to netball.
Another character reference was provided by Deanne Booth who also was intimately involved in the incident the subject of the proceedings. This too makes reference to her volunteer work relating to netball, the local church and the Yeddung Mura organisation.
A reference from Priestley Obed identifies that the offender was employed as an outreach worker in 2018. Mr Obed expresses the opinion that she is quiet, calm, caring, thoughtful, honest, reliable, friendly, trustworthy, dedicated, polite and helpful.
Criminal history
Prior to the offending currently before the court, the offender had no criminal history in the ACT. There are some very old matters from Queensland but none of which resulted in a conviction.
I treat the offender as being a person of good character.
Time in custody
The offender has not spent any time in custody for the offending.
Consideration
The offender is a person of otherwise good character. The determination of the charge has taken longer than usual, having regard to the delays in the conduct of jury trials. The incident was a very unfortunate and frightening incident for the victims of the offending. However, having regard to the otherwise good character of the offender, it is clear that notwithstanding the very significant maximum penalty available for an aggravated burglary, the s 10 of the Crimes (Sentencing) Act 2005 (ACT) threshold has not been passed and the purposes of sentencing may be met by the imposition of lenient sentences.
In the unusual circumstances of this case, the aggravated burglary can be dealt with by way of a good behaviour order combined with a short period of community service. The common assault may be dealt with by way of a good behaviour order.
Orders
The orders of the Court are:
1. On the charge of aggravated burglary (CC2019/1372) the offender is convicted and required to enter into an undertaking to be of good behaviour for a period of 12 months with the additional condition that, for the period of 12 months or such shorter period as determined by the Director-General, she be on probation subject to the supervision of the Director-General and obey all reasonable directions of the Director-General for that period and that she complete 20 hours of community service within that period.
2. On the charge of assault (CC2019/1374) the offender is convicted and required to enter into an undertaking to be of good behaviour for a period of 12 months.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 29 September 2021 |
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