Ronald William Booker v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0186

RONALD WILLIAM BOOKER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2022
DATE OF JUDGMENT:	29 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 150
JUDGMENT APPEALED FROM:	[2021] VCC 1957 (Judge McInerney)

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CRIMINAL LAW – Sentence – Appeal – Intentionally causing serious injury and being a prohibited person in possession of a firearm – Sentenced to 10 years for intentionally causing serious injury – TES of 10 years and 6 months, with NPP of 8 years – Manifest excess – Whether sentence manifestly excessive – Parity – Co-offender sentenced to 5 years for intentionally causing serious injury – Co-offender’s circumstances considerably different from applicant’s circumstance – Reduction in co-offender’s sentence due to cooperation and lesser criminal history – Parity complaint not reasonably arguable – Appeal dismissed.

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Counsel
Applicant:		Ms J Swiney
Respondent:		Mr C B Boyce QC
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Shortly after midnight on 8 February 2020, the applicant and a co-accused (HU) drove to an address in Sunbury at which their intended victim (‘the victim’) lived. At about 1:10 am, the victim and his wife arrived home from a wedding. They parked in the driveway and walked to the front door. HU drove the vehicle in which she and the applicant were travelling up to the victim’s address. The applicant got out of the front passenger seat. He was wearing a Freddy Krueger-style mask over his face and head, and carrying a sawn-off shotgun. HU remained in the driver’s seat with her face covered.
The applicant approached the victim and his wife. The victim pushed his wife behind him, yelled at the applicant to get off their property, and tried to kick him away. The applicant aimed and fired a shot into the victim’s lower right leg at close range causing muscle and tissue from his leg to spray around the area. The victim fell to the ground and immediately began to bleed heavily.
Subsequently, the applicant and HU each pleaded guilty in the County Court to one charge of intentionally causing serious injury[1] (charge 1) and one charge of being a prohibited person in possession of a firearm[2] (charge 2 on the indictment in relation to the applicant, and charge 3 in relation to HU). The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment; and the maximum penalty for a prohibited person in possession of a firearm is ten years.
[1]Contrary to s 16 of the Crimes Act 1958.
[2]Contrary to s 5 of the Firearms Act 1996.
On 17 November 2021, the judge sentenced the applicant to a term of imprisonment of ten years on charge 1, and one year on charge 2. The judge ordered that six months of the sentence on charge 2 be served cumulatively upon the sentence on charge 1, making a total effective sentence of ten years and six months. A non-parole period of eight years was fixed.
On the same day, the judge sentenced HU to a term of imprisonment of five years on charge 1 and six months on charge 3. His Honour cumulated two months of the sentence on charge 2, and a further six months on charges of unrelated offending,[3] making a total effective sentence of five years and eight months for HU. A non-parole period of three years and nine months was then fixed.
[3]Two charges of trafficking in a drug of dependence and one charge of committing an indictable offence whilst on bail.
The applicant now seeks leave to appeal against his sentence. Under proposed ground 1, he asserts that the sentence and non-parole period are each manifestly excessive. Under proposed ground 2, he contends that the sentences imposed upon him give rise to a justifiable sense of grievance in light of the sentences imposed on HU – a parity complaint.

Circumstances of the offending

The summary of prosecution opening tendered on the plea (and accepted by the applicant) asserted that the shooting of the victim was arranged by a third co-accused, GH, a cousin of the victim. HU met GH in 2016. The applicant was introduced to GH by HU. In text messages exchanged between GH and HU on the afternoon of 7 February 2020, HU told GH that the applicant ‘is keen as to do’. They discussed payment terms of $5,000 each or a ‘box of tomatoes’ (an ounce of methylamphetamine). HU told GH that she would need a car.
On the evening of 7 February 2020, HU borrowed a Mitsubishi Outlander wagon from a friend in Bendigo. She and the applicant drove from Bendigo towards Sunbury. Throughout the evening, HU and GH exchanged a number of SMS messages, and had several short conversations. At around midnight, HU and the applicant met with GH in Sunbury. As we have already said, shortly after midnight, the applicant and HU drove to the victim’s address in Sunbury and the offending occurred in the manner described above.
After shooting the victim, the victim’s wife started screaming. The applicant ran back towards his car, and dropped the firearm on the ground. He turned to pick it up. The victim’s son, KB, ran out of the house, tackled the applicant to the ground and started punching him. The applicant’s mask came off and fell to the ground. The applicant shouted for help, and HU got out of the vehicle. KB thought that HU had the firearm and let the applicant go. The applicant and HU got back in their car and fled.
Family members came to the victim’s aid, administering first aid and trying to stop the bleeding. Emergency Services were called. The victim’s daughter-in-law and her children were in the house and were all woken by the commotion. Police and paramedics subsequently arrived. The victim was noted to have a fall in blood pressure and was estimated to have lost between 500 and a 1000 ml of blood. Haemostatic dressings were applied to the wound, and an arterial tourniquet applied below the knee to reduce blood loss. The victim was given pain relief and transported to the Royal Melbourne Hospital. Upon arrival at the hospital, the victim was in haemodynamic shock and his blood pressure was dangerously low. He was noted to have suffered a significant injury to his lower right leg and that he had suffered a large loss of tissue.
On 9 February 2020, HU contacted GH about payment. Later she sent a message to the applicant saying, ‘we have been paid hun come see me’.
Surgical procedures were performed on the victim on 8 and 13 February and 1 March 2020. On 6 March 2020, he was discharged after nearly a month in hospital. In the summary of prosecution opening, the effects of the victim’s injuries were described as follows:
Muscle and nerve loss and damage is permanent. The muscle and nerve affected are involved in maintaining balance, turning the foot and flexing toes. The forensic medical evidence is that muscle taken from his back will ‘fill in’ the defect created by the lost muscle but will not restore function. As a result the victim may have permanent difficulties with walking, running and balancing on his right leg.

Sentencing reasons

At the start of his reasons for sentence, the judge noted that the applicant was 39, and HU was 40, at the time the applicant shot the victim.[4] The judge then said that the seriousness of the offence of intentionally causing serious injury was marked by the fact that Parliament had prescribed a maximum penalty of 20 years’ imprisonment and that the offence was a Category 2 offence within the meaning of the Sentencing Act 1991 (requiring a term of imprisonment to be imposed unless one of the exceptions set out in s 5(2H) of that Act applied).[5]
[4]DPP v Booker [2021] VCC 1957, [2]–[3] (‘Reasons’).
[5]Ibid [6].
His Honour then noted that because the applicant had a prior conviction for intentionally causing serious injury, he fell to be sentenced on charge 1 as a serious violent offender within the meaning of s 6B. Section 6D of the Sentencing Act thus required the Court to regard the protection of the community from the applicant as the principal purpose for which the sentence on charge 1 was to be imposed.[6] The judge also noted that s 6E of the Act required any term of imprisonment imposed on the applicant on charge 1 be served cumulatively on any other sentence imposed upon the applicant.[7]
[6]See s 6D of the Sentencing Act 1991.
[7]Reasons [8], [10].
The judge described the circumstances of the applicant’s offending as ‘quite horrific’.[8] His Honour then said:
It evokes not only high objective culpability, but high objective criminality.
(a)Firstly, this was an intentional infliction of serious injury for reward. The reward, in the circumstances was paltry. This deliberate injury inflicted on this victim was for the receipt of a combination of cash and drugs. Essentially, in each instance, cash of $1,250 plus the drug ice to the value of $1,250 which involved some 679 grams of ice.
(b)The second factor is that both accused did not know the victim, nor were they aware of what was the precise gripe or reason why the person who hired them had them carry out this horrible crime.
(c)Thirdly, there was a considerable degree of pre-planning, essentially undertaken by [HU], who connected the organiser [GH] to Mr Booker [the applicant]. She organised for the lend of a car from a friend. That car was used to transport them both from Bendigo down to close to the scene of this crime, where they met the organiser and were handed a bag, which included the shot gun used in the assault.
(d)Fourthly, the assault was conducted by the use of a sawn-off shotgun. It was conducted by way of an ambush at night, with Mr Booker being masked. It was conducted in circumstances where the victim's wife and family were present at the home. Not only did it result in the injuries that I have referred to, but the blood loss was such, as set out in Exhibit B, that hyperdynamic (scil, haemodynamic) shock was experienced and as a result he was required to be taken to hospital.
(e)To top everything off, the crime was persevered with, in the sense that [HU] contacted the organiser the next day, arranged for payment, received payment and then paid Mr Booker his half. Of course, in particular, insofar as Mr Booker is concerned, this culpability and criminality is illuminated by his priors.[9]
[8]Ibid [20].
[9]Ibid.
After describing the victim impact statements,[10] the judge turned to the applicant’s prior criminal history. His Honour said again that the crimes for which the applicant fell to be sentenced were ‘illuminated by his priors’.[11] Specifically, the applicant’s prior convictions spanned a period from June 2000 to August 2019. They included convictions for intentionally causing serious injury, intentionally causing injury, aggravated burglary, reckless conduct endangering serious injury, common law assault, contravention of a family violence final intervention order, possessing a controlled weapon without an excuse, threatening to inflict serious injury, robbery and persistently contravening a family violence order.
[10]Ibid [24]–[27].
[11]Ibid [28].
In relation to HU’s prior convictions, the judge said ‘they certainly do not amount to anything of the seriousness of what is involved in [charge 1]’.[12] His Honour said that HU’s offending on the night the victim was shot was a ‘big step up for her’.[13]
[12]Ibid [46].
[13]Ibid. See also Reasons [47].
The judge summarised the applicant’s plea counsel’s submissions and referred to a neuropsychological report written by Dr Loretta Evans and a psychologist’s report written by Ms Alison Mynard tendered on the plea.[14] His Honour accepted that the service of a term of imprisonment by the applicant would be more difficult for him than for members of the community who did not have the applicant’s background. In this regard, his Honour referred to the applicant’s depression and anxiety, suffered by him from a young age.[15] Additionally, the judge referred to this Court’s decision in Worboyes v The Queen[16] and the ‘additional utilitarian value’ of the applicant’s plea having been made during the pandemic.[17]
[14]Ibid [50]–[70].
[15]Ibid [70].
[16][2021] VSCA 169.
[17]Reasons [52].
In relation to HU, the judge repeated that her involvement in the offending against the victim was ‘certainly a big step up’.[18] Additionally, his Honour accepted that ‘the specifics of her role were not as serious as [the applicant], given that [the applicant] was the person who shot the victim with the shotgun’.[19] His Honour also accepted that HU’s role was not as high as that of GH, ‘the organiser’ — who his Honour noted HU was going to give evidence against in accordance with the undertaking given by her.[20]
[18]Ibid [72].
[19]Ibid.
[20]Ibid.
While his Honour accepted that the specifics of HU’s role were not as serious as the applicant’s, he ultimately concluded that HU was ‘equally liable, as [the applicant] is, for his serious criminality and culpability committed in regard to charge 1’.[21]
[21]Ibid [73].
In dealing with matters personal to HU, the judge described her performance in custody as ‘exceptional’ — noting that HU had been ‘clean and sober’ while in custody.[22] His Honour also accepted that HU was remorseful.[23]
[22]Ibid [76].
[23]Ibid [77].
In relation to HU’s undertaking to give evidence against GH, the judge said that he would ‘impose a much less severe sentence upon [her] due to the valuable undertaking made by her to give [that] evidence’.[24] Additionally, the judge said that the sentence to be imposed on HU would be ‘as merciful’ as could be given in the circumstances explained on her plea.[25]
[24]Ibid [85].
[25]Ibid [77], [100].
The judge referred to this Court’s decisions of Yang v The Queen,[26] Nicholls v The Queen[27] and Jawahiri v The Queen;[28] and the High Court’s decision in DPP v Dalgliesh.[29] Additionally, the judge referred to the judgment of Priest JA in Nash v The Queen,[30] wherein his Honour said:
Experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable, and thus the sentences commonly imposed widely vary. There are cases which involve protracted savagery, while others are constituted by one punch. Some involve the use of a variety of weapons. Moreover, the injuries caused widely vary, from gross and permanently disabling injuries to others that barely cross the threshold of ‘serious’. Accordingly, sentences widely vary, from suspended sentences of imprisonment at the low end of the spectrum, to head sentences of imprisonment in double figures at the high end.[31]
[26][2011] VSCA 161.
[27][2016] VSCA 250.
[28][2021] VSCA 287.
[29](2017) 262 CLR 428.
[30][2013] VSCA 172; (2013) 40 VR 134.
[31]Ibid 145-6 [55] (citations omitted).
Finally, the judge referred to sentencing statistics tendered on the plea which related to the period 2014/2015 to 2018/2019, and which disclosed that the median sentence for intentionally causing serious injury was five years, with the median non-parole period being 3.6 years.[32]
[32]Reasons [96].

Proposed ground 1: manifest excess

The applicant submitted that the sentence imposed on charge 1 was manifestly excessive when consideration was given to:
•the applicant’s relatively early plea of guilty, and the utility of that plea given during a period when jury trials were suspended;
•the fact that the shooting was done by the applicant at ‘the behest of another whose trial is pending’ (it was submitted that the applicant was ‘acting as an instrument of the co-accused whose culpability [was] higher than [that of] the applicant’);
•the applicant’s diagnoses of anxiety and depression; and
•the principle of parsimony.
The respondent conceded that, given that the sentence on charge 1 equated to
50 per cent of the maximum available sentence, the proposition that the sentence was manifestly excessive was ‘at least reasonably arguable’. Counsel for the respondent contended, however, that ‘while high in the range’, the sentence ‘does not sit wholly outside it’.
Despite the respondent’s concession, we are not persuaded that the sentence imposed on charge 1 was manifestly excessive. The same may be said of any contention that the total effective sentence or the non-parole period were manifestly excessive. The applicant’s offending on charge 1 was a very serious example of a very serious offence. Taking full account of all of the applicant’s circumstances (including his appalling criminal record) the sentence imposed upon him was well-deserved. The contrary is not reasonably arguable.

Proposed ground 2: parity

In support of his complaint about parity with HU, the applicant noted that:
•in addition to the two charges for which they were co-accused, HU was also sentenced on two charges of trafficking in a drug of dependence;
•HU received a total effective sentence of five years and eight months with a non-parole period of three years and nine months;
•the applicant’s sentence on charge 1 was double that of HU;
•the judge found HU and the applicant ‘equally liable … for this serious criminality and culpability’;
•it was HU who contacted GH the day after the offending to arrange payment, and HU who received payment and then paid the applicant; and
•the applicant was paid ‘exactly the same’ as HU.
There is no substance in the applicant’s parity complaint. The disparity between the sentences imposed upon the applicant and HU is well-explained by HU’s undertaking to give evidence against GH and her considerably more modest criminal history than that of the applicant. In relation to HU’s undertaking to give evidence against GH, we would simply observe that, as has been said before, reduction in sentences for cooperation can be very significant — indeed, reductions of the order of 50 per cent (and in some cases even more) are not unknown.[33] The judge thought that HU’s cooperation in this case was worthy of the imposition of a ‘much less severe sentence’ than would otherwise have been imposed.[34] We see no error in that approach.
[33]See generally DPP v Cooper [2018] VSCA 21, [42]-[45].
[34]Reasons [85].

Conclusion

Given the respondent’s concession on ground 1, we would grant leave to appeal. But for the reasons we have given, we would dismiss the appeal.
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[2022] VSCA 150

29 July 2022