Re Booth
[2022] VSC 657
•2 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0242
| IN THE MATTER of an application for bail | |
| Between: | |
| JOHN RAYMOND BOOTH | Applicant |
| -and- | |
| SENIOR CONSTABLE BEN ROBERTS | Respondent |
---
JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 October 2022 |
DATE OF ORDERS: | 14 October 2022 |
DATE OF PUBLICATION OF REASONS: | 2 November 2022 |
CASE MAY BE CITED AS: | Re Booth |
MEDIUM NEUTRAL CITATION: | [2022] VSC 657 |
---
CRIMINAL LAW — Application for bail — Applicant, aged 44, charged with trafficking (simpliciter) in and possession of methamphetamine, possession of 1,4 butanediol and dealing with property suspected of being proceeds of crime — Whether compelling reason justifying bail — Whether, if bailed, unacceptable risk of offending or endangering others — History of illicit drug use — Substantial criminal history — Support of CISP and drug counselling — Surety of $10,000 — Stable address in rural area — Contestable issue on trafficking charge — Delay of two years until trial — If bailed refused, period in custody likely to exceed any non-parole period imposed if found guilty as charged — Compelling reason established — Unacceptable risk not established — Bail granted on surety of $10,000, with conditions — Bail Act 1977 (Vic), ss 4, 4AA, 4C, 4D & 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Chernok | Valos Black & Associates |
| For the Respondent | Mr P Pickering | Abbey Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Overview
John Booth applies for bail. The principal charge he faces is trafficking (simpliciter) in methylamphetamine. The trafficking is put on the basis of possession for sale (as opposed to actual sales). Other charges allege possession of 1,4 butanediol and dealing with cash suspected of being proceeds of crime.
There are two main issues on this application. The first is whether Mr Booth has established a compelling reason justifying bail. The delay before a trial is heard in the County Court is likely to be such that, if Mr Booth is not bailed, his period in custody will exceed any non-parole period component of a prison sentence imposed on him, were he to be found guilty of all charges at that trial. I am satisfied that this amounts to a compelling reason justifying bail.
The second issue is whether the prosecution has established that there is an unacceptable risk that, if granted bail, Mr Booth would commit an offence or endanger the safety or welfare of another while on bail. Mr Booth’s history of heavy drug use and his prior convictions point strongly to a risk of offending and to some risk, albeit not as high, of endangering others. However, I am not satisfied that either risk is unacceptable. Instead, I am persuaded that Mr Booth’s resolve to change his ways and accept the support of the Court Integrated Services Program (“CISP”), and proposed conditions of bail, reduce those risks to an acceptable level.
Accordingly, I consider that bail must be granted. Mr Booth will be released with a surety of $10,000, with conditions.
My more detailed reasons for these conclusions follow.[1]
Background
[1]On 14 October 2022, I heard and granted Mr Booth’s application, and made orders accordingly. On that day, I gave brief reasons for my decision but indicated that I would give more detailed written reasons at a later date. These are those reasons, which, relevantly, I have left in the present tense.
Summary of evidence
The evidence giving rise to the charges may be summarised shortly.
At about 7:10 a.m. on 18 July 2022, police attended an address in Bulla Road, Essendon North. Mr Booth, who is aged 44, lived there with his daughter and granddaughter.
In Mr Booth’s bedroom wardrobe, police found two zip-lock bags containing methylamphetamine. While, initially, the amounts of the substance in the two bags were thought to be heavier, they have since been tested and determined to weigh 9.5 grams and 46.8 grams respectively (making a total of 56.3 grams), with a purity of 81 percent (or about 45.6 grams pure in total).
In the same room, police found hanging on a clothing rack a satchel containing $3,860 in cash, and another $1,050 in cash was found on the bedside table.
Inside Mr Booth’s car, which was parked in the garage, police found a bottle containing butanediol, which is a drug of dependence similar to GHB.
Arrest and charges
Mr Booth was arrested and taken to the Fawkner Police Station for interview.
Initially, he was charged with trafficking in not less than a commercial quantity of methylamphetamine.[2] This was because the amount of the drug seized was thought to be 88 grams, which is over the commercial quantity threshold (of 50 grams pure).[3] Later, however, that charge was withdrawn and substituted with a charge of trafficking simpliciter,[4] as the total weight of the substance seized was found to be under the threshold. Mr Booth was charged additionally with possession of methylamphetamine[5] (presumably, as an alternative to trafficking charge).
[2]Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[3]See Column 2 of Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[4]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[5]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Mr Booth was also charged with possession of the drug of dependence 1,4 butanediol[6] and two instances of dealing with property suspected of being proceeds of crime[7] — one charge in respect of each amount of cash seized.
[6]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[7]Contrary to s 195 of the Crimes Act 1958 (Vic).
Bail refused in Magistrates’ Court
On 2 and 9 August 2022, Mr Booth’s first application for bail was heard at Melbourne Magistrates’ Court. I was informed that, while the magistrate was satisfied that compelling reasons justifying bail existed, her Honour refused the application because she was satisfied that Mr Booth posed an unacceptable risk of offending on bail and endangering others.[8]
[8]The extract of the magistrate’s order refusing bail refers only to the finding of unacceptable risk.
Applicable tests for bail
There is no dispute that, because Mr Booth is charged with trafficking in a drug of dependence, bail must be refused unless I am satisfied that a compelling reason exists that justifies the grant of bail.[9]
[9]See ss 4AA(3) and 4C and item 24(b) of Schedule 2 of the Bail Act 1977 (Vic).
Further, if the compelling reason test is met, bail must still be refused if the prosecution satisfies me that there is an unacceptable risk that, if released on bail, Mr Booth would commit an offence while on bail or endanger the safety or welfare of any person.[10] If I am not so satisfied, bail must be granted.[11]
[10]See ss 4D and 4E of the Bail Act 1977 (Vic). There is no suggestion there is a risk that, if bailed, Mr Booth would fail to appear or interfere with a witness or otherwise obstruct the course of justice (see s 4E(1)(a)(iii) & (iv)).
[11]See s 4 of the Bail Act 1977 (Vic).
In considering each of these statutory tests, I must take into account the surrounding circumstances, which in this case include at least the following matters of relevance:[12]
[12]See ss 3AAA, 4C(3) and 4E(3)(a) of the Bail Act 1977 (Vic).
a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
b)the strength of the prosecution case;
c)the accused’s criminal history;
d)the accused’s personal circumstances, associations, home environment and background;
e)any special vulnerability of the accused, including being in ill health;
f)the availability of treatment or bail support services;
g)the length of time the accused is likely to spend in custody if bail is refused; and
h)the likely sentence to be imposed should the accused be found guilty of the offences charged.
Further, in considering whether a risk of the kind alleged is an unacceptable risk, I must consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[13]
Compelling reasons
[13]See s 4E(3)(b) of the Bail Act 1977 (Vic).
Mr Booth’s submissions
Mr Chernok, who appears for Mr Booth, submitted that several matters amounted to compelling reasons justifying bail. In the circumstances of this case, it is sufficient to refer to just two of those matters in considering the compelling reasons test, and to refer to one of them again, and the remaining ones, when considering the question of unacceptable risk.
First, while Mr Chernok conceded that the prosecution case on trafficking was not weak, he submitted that there were triable issues on that charge. In particular, he explained that it will be submitted at trial that a jury should not be satisfied beyond reasonable doubt that the methylamphetamine was in Mr Booth’s possession for sale. Instead, his instructions are that it was possessed for personal use, which, he submitted, Mr Booth’s history of heavy drug use tends to support. Further, consistently with their instructions, Mr Booth’s solicitors were in the process of attempting to obtain documentation to show that the cash found came from legitimate sources. The police had already been provided with documents showing that at least part of the cash was earmarked for a household purchase to be made imminently. Moreover, Mr Chernok explained, it was not unusual for Mr Booth to have largish amounts of cash given that, having spent a large portion of the last ten years in prison, he missed the societal shift to heavy reliance on credit cards at the expense of cash.
Second, Mr Chernok submitted that, even if Mr Booth’s defence failed, the resulting sentence (or at least the non-parole period component of it) would be exceeded by the period spent in custody awaiting trial, which is expected to be around two years. Counsel supported this submission with an argument that, despite Mr Booth’s extensive criminal history (which includes prison sentences for trafficking in drugs), it could not be gainsaid that, if found to be in possession for sale, realisation of that purpose would have been directed at supporting a heavy drug habit rather than funding any lavish lifestyle. Further, it was submitted that Mr Booth has other compelling circumstances personal to him that would warrant a degree of leniency.
Police submissions
While Mr Pickering accepted that there is a triable issue on the trafficking charge, he pointed out that there was no direct evidence, nor an account to police from Mr Booth, that the methylamphetamine was possessed only for personal use. Further, the amount found, while not a commercial quantity, was, in his submission, “a large amount” for personal use, and was well over the traffickable quantity (which is three grams mixed[14]). Thus, the effect of his submission was that it would be no easy task to secure an acquittal of trafficking.
[14]See Column 3A of Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Next, Mr Pickering submitted that Mr Booth’s strongest claim to a compelling reason justifying bail concerned the expected delay between arrest and trial. He accepted that it is likely that the matter would not be reached as a trial in the County Court until early in 2024 or even later (perhaps mid-2024). Thus, the delay would be in the order of 21 months to two years. Mr Pickering also accepted that, despite Mr Booth’s criminal history in general and for trafficking offences in particular, if convicted, he might well receive a sentence with a non-parole period of a lesser duration than that period of delay. Matters supporting that concession included the nature of the trafficking alleged (possession for sale, not actual selling or the like[15]) and the circumstances in which the offence might be found to have occurred (including in the context of, and for the purposes of supporting, heavy drug use).
[15]See the definition of “traffick” in s 70 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Consideration
It is convenient to address the second matter first. I accept counsel’s estimates of the delay in this matter coming to trial and of the sentence likely to be imposed, were Mr Booth found guilty as charged. In my view, a compelling reason justifying bail is established by acceptance of the estimate that the delay will be such that, if Mr Booth is not bailed, his time spent in custody awaiting trial is likely to exceed any non‑parole period component of a sentence imposed on him, were he convicted.
It is often difficult to make an adequate assessment of the strength of a prosecution case on a bail application. In the present case, however, it is somewhat easier, as the evidence and issues are confined and quite straightforward. It is in that context that I accept Mr Chernok’s submission that there is a triable issue on the trafficking charge. I can well see how a jury might have a reasonable doubt about whether Mr Booth possessed the methylamphetamines for the purposes of sale. Equally, I accept Mr Pickering’s submission to the effect that, while that triable issue might be resolved in Mr Booth’s favour, securing an acquittal on trafficking will be no easy task, at least on the evidence as it stands now.
If the defence did succeed, it is all but inevitable that Mr Booth would be convicted of the alternative offence of possessing the methylamphetamine. While trafficking carries a maximum penalty of 15 years’ imprisonment, the maximum penalty for possession is imprisonment for five years, or for one year if the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking.[16] If a prison sentence were imposed at all on a possession conviction, it would be a good deal shorter than any sentence would be on trafficking.
[16]See ss 71AC(1) and 73(1)(b) & (c) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Given that I have concluded that the first point — about delay and the likely sentence for trafficking, if convicted — amounts to a compelling reason justifying bail, it is unnecessary to decide in the present case whether the availability of an arguable defence to trafficking is a factor that, by itself, amounts to another such reason. Nevertheless, I am prepared to say that the fact that there is a triable issue on the trafficking charge brings that delay into even sharper relief, and in that sense adds to the conclusion that there is a compelling reason justifying bail.
Unacceptable risk
Mr Booth’s submissions
On the question of unacceptable risk, in addition to the two considerations just discussed, Mr Chernok relied on what he described as an array of “protective factors” as offsetting or ameliorating the risks alleged. Among these factors were the following.
First, Mr Booth is able to live with his mother Kathleen Booth in a rural town. This, it was submitted, would have the benefit of keeping Mr Booth away from his former associates in the drug-using and criminal milieu in Melbourne. Further, in her sworn evidence before me, Mrs Booth said she had renovation and repair work for her son to do around her home, which would keep him occupied. Additionally, she promised to contact police should she become aware that her son breached his bail conditions. Finally, Mrs Booth offered a surety of $10,000.
Second, Mr Chernok submitted that I should be satisfied that Mr Booth has the resolve to commit to and persist with the therapeutic services of CISP and a drug counsellor (Maria Hutchison) in order to assist him in ridding himself of illicit drug use and refraining from criminal offending. Counsel’s instructions are that Mr Booth has had enough of his past ways, and plans to re-engage with his family, much of whose lives he has missed through his incarceration. I was referred to remarks Mr Booth made to three professionals — namely, the author of the CISP report, Ms Hutchison and psychologist Luke Armstrong — which are said to support these instructions.
Third, Mr Chernok submitted that the risks asserted could be ameliorated sufficiently by imposing conditions of bail designed to keep tabs on Mr Booth and ensure that he makes good his resolve to abstain from drug use and offending. The conditions proposed included that Mr Booth would:
a)reside at his mother’s address;
b)obey all lawful directions given by CISP case workers and Ms Hutchinson;
c)undertake weekly urine screens and provide the results to the informant;
d)report to police every Monday;
e)not use a drug of dependence; and
f)not leave the State.
Police submissions
Mr Pickering submitted that Mr Booth’s extensive prior convictions, his long history of drug use and his psychological profile, when coupled with the circumstances of his arrest, give rise to an unacceptable risk that he would commit offences while on bail. He placed emphasis on the fact that, while Mr Booth spent several years in prison on his last sentence, within a year of the expiry of his parole, he still managed to fall back into heavy drug use and end up with a substantial quantity of drugs in his home — and, on the prosecution case, he possessed those drugs for the purposes of sale.
As for the address offered by Mrs Booth, Mr Pickering submitted that, given Mr Booth is not a teenager but a man of 44, she would have no control over him. Further, because she would be elsewhere much of the time, Mrs Booth could provide only minimal oversight. Mr Pickering did not, however, dispute the sincerity of Mrs Booth’s promise to report any breach of bail conditions that she did detect.
While he accepted that the supports offered by CISP and Ms Hutchison are positive factors, Mr Pickering submitted that these measures are not capable of offsetting the risk of offending in the same way that, say, a place in a residential rehabilitation facility might.
Mr Pickering submitted that I should be persuaded that no conditions of bail could ameliorate the risks of offending to a level that was not unacceptable.
He went on to submit that, were I minded to grant bail, the conditions proposed by Mr Chernok would be appropriate.
Consideration
Mr Booth has an extensive criminal history dating back to his teenage years. He has prior convictions for offences involving violence, firearms/weapons, dishonesty, aggravated burglary, property damage, driving causing serious injury, and trafficking, possession and use of drugs of dependence.
Some of the trafficking offences have resulted in terms of imprisonment, either partly suspended or wholly to be served. In particular, he received a six-month partly suspended sentence in 2002; a five-month gaol sentence in 2010; and a sentence of two years’ gaol with a non-parole period of 16 months in 2012.
His most recent prior convictions were recorded in 2014 following a trial in the County Court. For offences of aggravated burglary, kidnapping, criminal damage, common assault and possessing a firearm (as a prohibited person), he was ultimately re-sentenced by the Court of Appeal to a total effective sentence of eight years and three months’ imprisonment with a non-parole period of six years and three months.[17] While it is not entirely clear, when allowance is made for pre-sentence detention, it seems that Mr Booth spent about seven years and seven months continuously in custody under that sentence before he was released on parole in March 2021. His parole was completed seven months later, in October that same year.
[17]See Booth v The Queen [2015] VSCA 51 (Ashley and Priest JJA). (The sentence of the County Court was nine years and three months’ imprisonment with a non-parole period of seven years.)
Given that criminal history, the fact that he had fallen into heavy drug use again before his arrest in July this year, and the charges he faces on this occasion, I am satisfied that there is a considerable risk that Mr Booth would commit drug offences while on bail. He might also commit offences of violence, and thereby could endanger the safety or welfare of others, but I think that risk is somewhat lower.
However, for the following reasons — which, essentially, comprise the matters raised by Mr Chernok — I am not satisfied that those risks are unacceptable.
First, I think it is important that Mr Booth is able to live with his mother in a rural town. Presumably, illicit drugs are available in that town. But physical separation from his former associates in the city is likely to give him a better chance of resisting the pull of drug addiction. His mother’s suggestion that he might perform work on her home is also a good idea, as it will occupy some of his time. I was impressed by Mrs Booth as a witness. I accept that she would contact police should she become aware that her son breached his bail conditions, which should act as a deterrent to his doing so. While flight was not a concern of the prosecution, her preparedness to offer a surety showed her confidence in Mr Booth and, hopefully, will give him an incentive to ensure that her $10,000 is not lost through his behaviour.
Second, on my reading of the reports of CISP, Ms Hutchison and Mr Armstrong, it does appear that Mr Booth intends to engage in the therapeutic services offered to him. History shows that, when approaching middle age, many with an extensive history of drug use and criminal offending come to realise that, unless they change their ways for the better, they will be imprisoned again and again, die far too young, or suffer both fates. I am prepared to accept that Mr Booth is at that point in his life. The prospect of re-engaging with his family after years of separation through incarceration provides a strong incentive for him to make a serious attempt at rehabilitation. I note that, in addition to his mother, other members of Mr Booth’s family were in court to support him on this application, which gives at least a degree of comfort.
Third, I think that the bail conditions proposed will ameliorate the risk that Mr Booth might offend on bail. Among other things, those conditions will effectively compel Mr Booth to engage in the therapeutic services offered by CISP and Ms Hutchison, and will allow police both to keep tabs on him (via reporting) and to monitor his progress in maintaining abstinence (through urinalysis). The conditions should assist him in his rehabilitative efforts and provide a form of disincentive to deviate from this path for fear of losing his liberty consequent upon a failure to comply with those conditions.
Finally, I consider that whether the asserted risks are unacceptable must be assessed against the reality that, if Mr Booth is refused bail, it is likely that the period spent in custody before trial would exceed the non-parole period of any prison sentence imposed upon him, were he convicted of trafficking (and the other offences charged).[18] When that assessment is made, I cannot escape the conclusion that, in all the circumstances of this case, the risks asserted are not unacceptable.
[18]See, e.g., Mokbel v DPP (No 3) (2002) 133 A Crim R 141 at 143[10] (per Kellam J).
Conclusion and order
In those circumstances, I am satisfied that the application for bail must be granted.
Mr Booth will be admitted to bail with a surety of $10,000 and with conditions that he:
a)is to reside at […], Morwell, Victoria, 3840 (this is a static address and is to be altered only by order of a court);
b)is to obey all lawful directions given by CISP case workers;
c)is to accept treatment from and obey all lawful directions given by drug addiction counsellor Ms Hutchinson;
d)is to undertake weekly urine screens and provide results within 24 hours of the receipt of same to the informant;
e)is to report to Morwell Police Station every Monday between 6:00 a.m. and 9:00 p.m.;
f)is not to use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic);
g)is not to attend any points of international departure or to leave Victoria or Australia; and
h)is to appear at the Melbourne Magistrates’ Court for committal mention at 9:30 a.m. on 15 November 2022.
----
0
2
0