R v Booth (No 3)
[2021] ACTSC 309
•23 November 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Booth (No 3) |
Citation: | [2021] ACTSC 309 |
Hearing Dates: | 22 and 23 November 2021 |
DecisionDate: | 23 November 2021 |
Before: | Mossop J |
Decision: | See [9] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender acquitted in trial by jury – transfer charge of property damage – offending did not involve pre-meditation – significant criminal history involving property offending – current offending not a continuation of previous, drug-related offending – good behaviour order with a period of community service imposed |
Legislation Cited: | Crimes Act 1900 (ACT), s 116(3) |
Cases Cited: | R v Booth [2021] ACTSC 223 R v Booth (No 2) [2021] ACTSC 255 |
Parties: | The Queen ( Crown) Richard Booth ( Offender) |
Representation: | Counsel T Hickey ( Crown) J De Bruin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 177 of 2019 |
MOSSOP J:
Introduction
On 2 July 2021, following an eight-day trial, the offender, Richard Booth, was acquitted by a jury on a charge of aggravated burglary. There was a transfer charge of property damage contrary to s 116(3) of the Crimes Act 1900 (ACT), arising out of the same factual circumstances (CC2019/1404). This was particularised as being that the offender damaged a wooden door and door frame. On 1 October 2021, I found the offender guilty of this charge: see R v Booth (No 2) [2021] ACTSC 255 (R v Booth (No 2)). The maximum penalty is two years’ imprisonment, 50 penalty units or both. No reparation order was sought.
Facts
The background facts are set out in my reasons for sentencing Melanie Booth: see R v Booth [2021] ACTSC 223 at [7]-[17]. I gave my findings of fact in relation to the transfer charge in R v Booth (No 2) at [24]-[26]. The property damage involved kicking the door to a house as part of an attempt to gain entry to the house. The offender was part of a group of men and women at the door of the house.
Objective seriousness
The offending occurred in the context of a group attempting to gain access to a family’s house. I do not find that the offender’s conduct was pre-meditated but rather, he is likely to have been carried along with the chaos and heightened emotion of the incident. He was not responsible for the creation of that incident or the actions of others. Having regard to the nature of the property damaged and the circumstances in which the offending occurred, the offending is below the mid-range of objective seriousness for this offence.
Subjective circumstances
The offender is 44 years old. He had a disrupted upbringing. His parents separated when he was young. He was exposed to family violence and was made for a period a ward of the state. He has three children to three separate former partners. They all reside interstate. He resides with his partner in stable ACT Housing accommodation. He is in receipt of Newstart benefits. He has a limited employment history. He has a 20-year history of alcohol and illicit substance abuse, including heroin and methylamphetamine. He has not used heroin for many years. He has used methylamphetamine relatively recently. He has taken some steps to address his illicit drug use. He is on the methadone program. He participates in the SMART Recovery program, which relates to illicit drug use. He is assessed as suitable for community service work.
Criminal history
Prior to this offending, the offender had a criminal history in the Australian Capital Territory, New South Wales (NSW) and Queensland. Most recently, in 2017, he received sentences of imprisonment for convictions for theft, aggravated burglary and two counts of ride/drive motor vehicle without consent. These offences were committed in 2016. He received an aggregate sentence of 26 months’ imprisonment with a non-parole period of 16 months. Prior to that, the offender had an attempted aggravated robbery conviction in 2006 for which he was sentenced to seven years’ imprisonment with a non-parole period of four years, as well as some associated convictions and sentences. These offences were committed in 2005. He has convictions relating to offences in 2002 for burglary, theft and possessing stolen property for which he had a head sentence of five years with a non-parole period of two years. He also has a significant criminal history in NSW involving property offending, for which sentences of imprisonment were imposed. He also has a criminal history in Queensland, but the most recent offending is from 1994.
Time in custody
The offender has not spent any time in custody for the offending.
Consideration
The offending in this case occurred in November 2018. The offender was originally before the court in April 2019. The jury trial occurred in June and July 2021. There has, therefore, been a significant period of time since the offending occurred. There is no evidence of other offending in that time.
The offender has a very poor criminal history. The offending in the present case occurred a few months after the conclusion of the sentences relating to the offending in 2016. While there can be no dispute that people must be deterred from this kind of property damage, I do not accept the submission on behalf of the Crown that general and specific deterrence warrant a custodial sentence of one sort or another. It appears that the offending is not a continuation of the previous drug-related offending but is offending during an incident he was not responsible for creating. In my view, the matter can be appropriately dealt with by way of a good behaviour order with a period of community service. This more appropriately reflects the unusual circumstances in which the offending arose and the objective gravity of the offending.
Orders
The order of the Court is:
1. The offender is convicted and required to enter into a good behaviour order for a period of two years with a condition that he be on probation subject to supervision by the Director-General for a period of one year or such shorter period as determined by the Director-General and within that time complete 40 hours of community service.
| I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 10 December 2021 |
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