DPP v Booth [2024] ACTSC 368

DPP v Booth [2024] ACTSC 368 | Case summary | Zoe

At the time of this offending, Mr Booth was on bail for an unrelated matter, and he had failed to report to police as required.
On 1 January 2024 at about 12:40pm, police were patrolling in Florey. They saw Mr Booth outside of a house and when he saw the police vehicle, he ran from the top of the driveway to the front courtyard and hid behind outdoor furniture.
Police entered the area and asked him why he was running. The offender said that he had “fucked up” and he admitting to breaching his bail. He provided his name when asked.
One of the police placed her hand on his shoulder and told him he was under arrest. He was instructed to stand up, and he did so. He was instructed to turn around and he muttered something unintelligible. He then made an abrupt left turn and attempted to flee.
Police grabbed him by his arms. He started to resist them. Police discharged a conducted electrical weapon (a taser) into his chest and upper legs with minimal effect. Mr Booth tried to pull the barbs out. A second cartridge was discharged into his torso, which was also ineffective.
While Mr Booth continued to resist the police, he struck the police officer who had placed him under arrest in the chest with his elbow.
He was taken to the ground. He continued to display a high level of resistance, despite three officers trying to gain control of him. He was sprayed with capsicum spray for two seconds which had limited initial effect. A drive stun was then delivered to his lower back, which had immediate effect. He then complied with police direction to put his hands behind his back, and he was handcuffed, decontaminated, searched and conveyed to the watch house. Police formed the impression that he was intoxicated.
The arresting police officer experienced a headache and lower back pain from the incident that began to worsen at about 6pm that night. She began to feel extremely nauseous. She woke three times in the night with vomiting and increased head and lower back pain. She attended the hospital at about 1pm the next day because the pain had not abated. She was diagnosed with a concussion. Medical officers advised that she likely had hit her head at an unknown time during the incident.
The potential for serious consequences from the offending conduct is borne out by the concerning injury the police officer sustained. Police are entitled to expect they can carry out their duties without risk of harm to their physical health. Mr Booth’s conduct in assaulting the officer involved what appears to have been a forceful and reckless application of force during the attempt to escape, with this conduct of sufficient seriousness to cause a serious injury.
The offending conduct was in the nature of resisting police, although the offence is one of attempting to escape police custody following a lawful arrest. To that end, while it was impulsive, it was a determined and persistent attempt to escape, that was not dissuaded by use of a taser. It was an attempt to escape that was always doomed to fail. Mr Booth was surrounded by multiple police at the time he decided to attempt to flee rather than be detained, and he was rapidly detained on the ground by multiple police. He continued in his attempt to escape by struggling against the police, and again, was not readily dissuaded by the use of a taser.
Plainly, terms of imprisonment are the only appropriate penalties. Both parties made submissions as to the care to be taken in the application of the totality principle for this series. I accept this, and that double punishment is to be avoided. I conclude that a level of concurrency is appropriate to reflect that the offending was inextricably linked, but that there was also a distinct victim and conduct for the assault offence.

On 19 January 2024, the owner of a white Toyota Celica reported that his vehicle had been stolen from his house in Spence. Two days later, a resident of Bonner reported that his vehicle’s Queensland registration plates had been stolen from his car.
On 21 January 2024 at about 6pm, police saw the white Toyota Celica with the Queensland registration plate reverse parked in a car park on a street in Belconnen. The engine was running. Mr Booth was in the driver’s seat. He appeared unconscious. The vehicle was revving sporadically.
Police parked a marked vehicle in front of the Toyota. They knocked on the window and asked Mr Booth to turn the engine off. He woke up and immediately reached for the gear stick and key and revved the vehicle excessively. Police smashed the driver’s window with a baton. They attempted to turn the engine off but there was no key in the ignition.
Mr Booth continued to try and put the Toyota into gear while revving the engine. Police repeatedly directed him to turn the engine off and attempted to open the driver’s door. Mr Booth turned the steering wheel towards police and began to accelerate.
Police stepped away from the vehicle and discharged a cartridge from a taser. This was momentarily effective, causing the vehicle to slow down. Mr Booth removed the barbs. A second cartridge was discharged but this was unsuccessful. Mr Booth drove the Toyota away at speed. His right to drive had been suspended since 11 October 2023 due to an unpaid infringement.
On 23 January 2024, police found the vehicle at a location that was approximately 400 metres from Mr Booth’s residence. Subsequent police investigations and forensic examinations linked Mr Booth to the vehicle.
Mr Booth’s conduct on this occasion has similarities to his conduct in the first series of offending. He has again persistently ignored and defied police directions. On this occasion, he escalated that to engaging in the inherently risky conduct of failing to stop the vehicle for police. Such conduct places police at significant risk, as well as having the potential to cause harm to other community members. Deterrent sentences are warranted.
Mr Booth was driving a motor vehicle that was stolen. The duration that he was unlawfully driving the vehicle is relatively short, but it is apparent that the victim was inconvenienced by not having possession of the vehicle for a period of days. The vehicle was also damaged during the offending. There was plainly inconvenience caused, and likely financial implications. Mr Booth’s use of the vehicle was a blatant use of another person’s valuable possession.
The maximum penalty for the unlicensed driving offence is a fine of 20 penalty units. Mr Booth plainly has no capacity to pay a fine, but denunciation of the conduct is necessary. I propose to convict Mr Booth of the offence, but not proceed to impose a sentence or penalty. While this was not a matter the subject of submissions by the parties, I consider such an approach to be in accordance with it being a discretionary matter for the Court as to whether to impose a sentence or penalty: ss 7, 9, 33(1) Sentencing Act. Accordingly, Mr Booth will be convicted, with no penalty imposed for this offence.

On 3 March 2024 between 1:15am and 9:30am, Mr Booth entered a residence in Spence. He stole a number of items, including a black leather wallet containing debit cards, a set of car keys for a Suzuki Liana and a set of car keys for a white Ford Territory. He left behind a screwdriver and cigarettes.
Later that morning, Mr Booth used one of the debit cards stolen from the victim’s house in two transactions at petrol stations. One transaction was in the amount of $71.15 for a drink and packet of cigarettes. The other transaction was for $35.99 with the items purchased not included in the facts.
That is the extent of the facts provided to the Court at the sentence hearing. I infer, given there is a charge for driving a white Ford Territory without the consent of the victim of the house that was burgled, that Mr Booth also took, and drove, one of the vehicles from the residence using the keys that he had found in the house.
The facts are silent as to the duration of the driving, and whether the vehicle was recovered with any damage. The facts are also silent as to the method of entry for the burglary and whether the occupants were home at the time. It is reasonable to infer that they were given the time when the entry occurred.
It can be concluded that any offence of this type, involving the invasion of privacy of the victim’s home and the theft of property, extending to the unlawful driving of their vehicle, will have caused significant distress to the victims. There are financial implications, as well as the impact on their sense of safety. There can be no conclusion that there are any aggravating features to this offending, and I will regard them as typical forms of these offences. It remains, however, that they warrant deterrent sentences.
As to the conduct of obtaining financial advantage, the amount stolen was not significant, but it did involve two transactions, and this is a form of offending that causes financial loss to others. It demonstrates a complete disrespect to other community members. There is nothing to suggest it was offending driven by the purchasing of necessities.

Mr Booth returned to the same residence three days later, on 6 March 2024. This was at about 12am. He searched a stand-alone building at the back of the property.
A male occupant of the property was sitting in his living room when he heard a noise. He went outside and saw the carport gate was open and heard a noise from the carport. He began yelling and then saw Mr Booth standing near the Suzuki Liana. Mr Booth ran into the backyard. A neighbour heard the commotion and came to assist.
The male occupant, who is the victim and is the same victim from the earlier burglary, and the neighbour went to the backyard and saw Mr Booth carrying out the victim’s cannabis plant. A scuffle broke out. Mr Booth was restrained, and police were called.
Police arrived at 12:09am and Mr Booth was arrested. He was searched and found to be carrying housebreaking implements, being a pair of bull nose pliers, side cutters, a small serrated knife, and two pairs of scissors.
He was also carrying a dark blue ‘24 Seven’ branded satchel containing a black leather wallet, a Suzuki car key, house keys, and a small silver heart shaped box. These items belonged to the occupants of the house, but they are not sure whether they were stolen during the 3 or 6 March burglary.
The repeated nature of the second burglary increases the seriousness of it. It demonstrates a complete disregard for the impacts of this type of offending on the victims, and only served to compound their distress. Offending of this type inevitably causes impacts on a victim’s sense of safety and security, as well as having financial implications. I have given careful consideration to the effect on the victims based on the information provided to the Court, but in accordance with the victim’s preference, I will not set this out.
That Mr Booth assaulted the occupant of the property in the course of burglary, or at least in his attempt to leave the property after being detected, is serious. The mechanism of the assault is not provided in the facts, but it appears that it occurred during the scuffle. The victim was assaulted at his own home, and, it can be expected, experienced physical and psychological effects as a result.
The second burglary shows a persistence in conduct, with Mr Booth not immediately leaving the residence when detected. There are aspects of planning for the offending given the items being carried. One of the items taken and possessed, whether from this or the earlier burglary, was of a sentimental nature, and otherwise the items taken and possessed will have caused inconvenience for the victims. Pleas of guilty
The pleas of guilty were entered in the Magistrates Court. It was submitted on behalf of Mr Booth that a reduction of 25 per cent was appropriate, even where some of those pleas of guilty came after the provision of the brief of evidence. Reliance was placed on DPP v Joliffe-Cole [2024] ACTSC 256 at [55]-[56] (DPP v Joliffe-Cole). Submissions were made as to whether there is a distinction to be drawn between pleas of guilty in the Magistrates Court for strictly indictable matters or summary-indictable matters.
While what was said in DPP v Joliffe-Cole is undoubtedly correct, it remains that assessing the appropriate reduction in each case is to be considered with reference to the circumstances of the particular pleas of guilty and the application of s 35 of the Sentencing Act. Section 35 provides in subsection (5) – (5) … the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.
Here, all pleas of guilty were entered in the Magistrates Court, but at different stages. In this matter, there are distinctions as to how early in the proceeding the guilty plea was made and it is appropriate to reflect that in the reductions to be afforded.
Where there was a plea of guilty at an early mention stage, and prior to any plea of not guilty, I consider a reduction in the order of 25 per cent is appropriate: CAN 2024/5317; CAN 2024/3034; CAN 2024/5316; CAN 2024/3038; CAN 2024/6521; CAN 2024/5177.
Where there was a plea of guilty at a later mention stage, after an initial plea of not guilty and the brief of evidence was prepared, a reduction in the order of 20 per cent is appropriate: CAN 2024/525; CAN 2024/3033; CAN 2024/5176; CAN 2024/5178; CAN 2024/3037.

Mr Booth is now 40 years of age and was aged 39 years at the time of the offending. He was born in Goulburn and is the eldest of five children. He describes a positive and supportive early childhood. As an adult he has positive relationships with his parents, which includes that he provides care to his father who has health issues. Mr Booth proposes to reside with him, and provide care to him, upon his release from custody. Mr Booth is currently single and has no children.
His criminal history is lengthy, and includes a number of serious offences including for violence, driving offending, and burglary. The offending on this occasion involves less serious forms of offending than he has committed in the past, although it remains that Mr Booth’s criminal history is such that leniency cannot be afforded. His criminal history is also such that it reflects his entrenched drug dependency that he again describes as causing his offending.
This is a drug dependency that I am satisfied commenced at an early age, although the circumstances of how and why this occurred is not clear, beyond Mr Booth expressing that he got involved “with the wrong crowd”. He commenced smoking cannabis from the age of 12 years, alcohol and heroin from 13 years, amphetamine at 15 years, and was a regular user of methamphetamine by 30 years of age. I am satisfied his early exposure to substances goes some way to reduce his moral culpability for his offending. It is also of relevance in considering the appropriateness of a treatment order, with it clear that addressing his substance use will reduce his offending behaviour.
His most recent offending arose in circumstances of returning to problematic alcohol and methamphetamine use. His stepfather had passed away, and circumstances requiring him to revisit past traumas led to a return to substance use. With regard to this, and other information contained in the assessment reports, it is also apparent that Mr Booth would benefit from assistance to address past trauma. He recognises this and is willing to engage with recommended supports and programs.
Mr Booth was on bail for the first two series of offending, and, having failed to appear at court in early February, was subject to a warrant for the offending in March. This conditional liberty is an aggravating factor on sentence. In this matter, it informs the likelihood of Mr Booth complying with the onerous requirements of a treatment order. His past history of non-compliance with parole orders is also informative as to this, as is occasions of disciplinary action that have occurred while in custody.
As the prosecution submitted, there is reason to have concern as to Mr Booth’s ability to comply with the requirements of a treatment order. However, both Canberra Health Services and ACT Corrective Services have assessed him as suitable, while being well aware of these issues. There has been one example of previous completion of a parole order, and Mr Booth is described as having consistently expressed an aspiration to access the support available through a treatment order. There have been periods when he has achieved abstinence and engaged successfully with employment in the removalist sector. He has such employment available to him in the future. Treatment order
In relation to all offences where imprisonment is an available penalty, it is plain that, having considered possible alternatives, the only appropriate penalty is imprisonment. Mr Booth has pleaded guilty to each of the eligible offences, and the total period to be imposed is such that he is eligible for a treatment order: s 12A(1) Sentencing Act.
In accordance with s 12A(2)(a) of the Sentencing Act, I am satisfied on the balance of probabilities that Mr Booth is dependent on alcohol or a controlled drug, and that his dependency substantially contributed to the commission of the offences. His housing situation in the ACT has been assessed as suitable.
I consider that a treatment order is appropriate: s 12A(2)(b) Sentencing Act. I have had regard to the concerns as to safety or welfare of the victims and, having regard to all protections available, remain satisfied that such an order is appropriate. As the prosecution submitted, compliance and successful completion of a treatment order will ultimately “provide the best protection for the community in the long-run”.
Mr Booth has indicia of an ability to engage successfully with rehabilitation. He has engaged with the Solaris Therapeutic Community while in custody and has found the program more beneficial than on previous occasions he has participated in it. He has now graduated from Solaris and has prepared a comprehensive relapse prevention plan. He is engaged with a pharmacotherapy program which he describes as effective.
Mr Booth is said to have demonstrated awareness of illicit drug trends and overdose risks in the ACT and indicated he does not wish to consume heroin again. His goals include to “stay clean and not go back to jail” and to go back to furniture removal work. He is motivated by wanting to be present for his aging parents and has long term goals to go prospecting for gold.
I am satisfied that a treatment order is a suitable order for Mr Booth, that it is appropriate he serve a sentence suspended in accordance with a treatment order, and that appropriate arrangements for the administration of a treatment order are practicable: ss 80S, 80T Sentencing Act.
The terms of the order will include a curfew to increase oversight and enforce compliance with the conditions of the order. It is also appropriate to make an order for restorative justice, which Mr Booth has expressed a willingness to engage with. It will be a matter for the victims whether they wish to engage in such a process, but nevertheless, Mr Booth’s willingness to do so is demonstrative of his remorse, and intentions to change. Orders
For those reasons, the following orders are made: (1) On the charge of attempt to escape from custody (CAN 2024/525), the offender is convicted and sentenced to 4 months imprisonment, reduced from 5 months on account of the plea of guilty, to commence on 31 March 2024 and end on 30 July 2024. (2) On the charge of assault occasioning actual bodily harm (CAN 2024/6521), the offender is convicted and sentenced to 3 months imprisonment, reduced from 4 months on account of the plea of guilty, to commence on 1 July 2024 and end on 30 September 2024. (3) On the charge of drive motor vehicle without consent (CAN 2024/5317), the offender is convicted and sentenced to 5 months imprisonment, reduced from 7 months on account of the plea of guilty, to commence on 1 October 2024 and end on 28 February 2025. (4) On the charge of fail to stop for police (first offender) (CAN 2024/5316), the offender is convicted and sentenced to 3 months imprisonment, reduced from 4 months on account of the plea of guilty, to commence on 1 January 2025 and end on 31 March 2025. (5) On the charge of unlicensed driver (first offender) (CAN 2024/5409), the offender is convicted and no penalty is imposed. (6) On the charge of burglary (CAN 2024/3033), the offender is convicted and sentenced to 8 months imprisonment, reduced from 10 months on account of the plea of guilty, to commence on 1 April 2025 and end on 30 November 2025. (7) On the charge of drive motor vehicle without consent (CAN 2024/5177), the offender is convicted and sentenced to 6 months imprisonment, reduced from 8 months on account of the plea of guilty, to commence on 1 December 2025 and end on 31 May 2026. (8) On the charge of obtain financial advantage (CAN 2024/5176), the offender is convicted and sentenced to 25 days imprisonment, reduced from 1 month on account of the plea of guilty, to commence on 1 June 2026 and end on 25 June 2026. (9) On the charge of burglary (CAN 2024/3034), the offender is convicted and sentenced to 9 months imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 26 June 2026 and end on 25 March 2027. (10) On the charge of common assault (CAN 2024/5178), the offender is convicted and sentenced to 4 months imprisonment, reduced from 5 months on account of the plea of guilty, to commence on 26 January 2027 and end on 25 May 2027. (11) On the charge of minor theft (CAN 2024/3037), the offender is convicted and sentenced to 2 months imprisonment, reduced from 75 days on account of the plea of guilty, to commence on 26 May 2027 and end on 25 July 2027. (12) On the charge of possess stolen goods (CAN 2024/3038), the offender is convicted and sentenced to 1 month imprisonment, reduced from 40 days on account of the plea of guilty, to commence on 26 July 2027 and end on 25 August 2027. (13) The total period of imprisonment of 3 years, 4 months, and 26 days will commence on 31 March 2024 and end on 25 August 2027. Drug and alcohol treatment order (14) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Colin Maxwell Booth in respect of the eligible offences contained in Orders 1 to 12 of which he has been convicted and for which he has been sentenced to 3 years, 4 months, and 26 days imprisonment. (15) The Drug and Alcohol Treatment Order be for 2 years, 9 months, and 8 days from today, 18 November 2024, to 25 August 2027. (16) The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 18 months, from today, 18 November 2024 until 17 May 2026. (17) The Custodial Part of the Drug and Alcohol Treatment Order for the offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 18 November 2024 until 25 August 2027. (18) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Colin Maxwell Booth be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 18 May 2026, until the end of the total sentence, 25 August 2027, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment. (19) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order: (a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; (b) Colin Maxwell Booth undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance at Court and case management meetings from time to time; (c) Colin Maxwell Booth not return a positive test sample under alcohol and drug testing; and (d) Colin Maxwell Booth comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. (e) Colin Maxwell Booth be directed to comply with a curfew from 8pm to 7am every day. (20) Colin Maxwell Booth be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force to before he leaves the Court precincts. (21) Colin Maxwell Booth be directed to appear in person or by electronic means in Court at 11:30am on Friday, 22 November 2024 before Christensen AJ for DASL review.
It is noted that in relation to CAN 2024/5316, pursuant to s 63(d) of the Road Transport (General) Act 1999 (ACT) the offender is automatically disqualified from holding or obtaining a driver’s licence for 3 months.
It be noted that Colin Maxwell Booth has indicated a willingness to engage in restorative justice, and it is recommended that the Director-General (corrections) refer the offence for restorative justice pursuant to Pt 6 of the Crimes (Restorative Justice) Act 2004 (ACT) at a stage as deemed appropriate by the Director-General (corrections) during the Drug and Alcohol Treatment Order. I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date:

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