R v Booth [2017] ACTSC 191

See [35] - [39] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated burglary - drive/ride motor vehicle without consent - theft - no evidence offered on transferred charge - co-offender serving sentence by way of intensive correction order - intensive correction orders may involve substantial custodial time - need to consider parity by comparing terms of imprisonment imposed.

Magistrates Court Act 1930 (ACT), s 90B

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 5C

Supreme Court Act 1933 (ACT), s 68D

1. Richard Booth has pleaded guilty to four offences, as follows:

(a) one aggravated burglary arising under s 312 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 20 years;

(b) one offence of driving a motor vehicle without consent, and one of riding in a motor vehicle without consent, each offence arising under s 318(2) of the Criminal Code and carrying a maximum penalty including imprisonment for 5 years; and

(c) one theft contrary to s 308 of the Criminal Code and carrying a maximum penalty including imprisonment for 10 years.

2. Another offence, being an offence of failing to comply with a police officer's signal to stop a motor vehicle, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), was transferred to this Court to be dealt with under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT). For the purposes of s 68D(2) of the Supreme Court Act, I note that I consider it would be in the interests of justice to deal with that offence in these proceedings but, in this case, the Crown has indicated that it has no evidence to offer on that charge and, accordingly, I dismiss the charge.

3. All the offences were committed on 28 May 2016. Very early that morning, Mr Booth and his brother arrived at an address in Turner in a car that had been stolen from Chisholm the day before. The co-offender, Lindsay Kelly, drove Mr Booth and two other men to Braddon where they unsuccessfully tried to borrow tools, and then Mr Booth drove the group to the Ainslie Village and later, at about 5.30am that morning, to the Canberra Centre in Civic where they entered a loading bay from which they gained access to the shopping area. Those later trips are the source of the drive motor vehicle offence to which Mr Booth has pleaded guilty.

4. Mr Booth and the other man entered the kiosk in the shopping centre, apparently by climbing over the counter, and lifted a large yellow toolbox over the counter to Mr Kelly. The toolbox contained $20-$30 in cash, an EFTPOS terminal, some personal documents and a money scale. The three men went back to the stolen car and drove away with the toolbox.

5. Late in the evening of the same day, Mr Booth, Mr Kelly and an unknown man were in Braddon in the stolen car. After police observed the car enter an intersection against a red light they followed it, activating their sirens and signalling the driver to stop. The driver ignored this and sped away, turning right against a red arrow. Shortly afterwards, police terminated the pursuit on Ainslie Avenue. Mr Booth's presence in the car during this trip is the source of the ride in motor vehicle offence.

6. The next morning, 29 May 2016, police went to the address in Turner where they saw a stolen car and arrested Mr Booth, Mr Kelly and a third man.

7. Mr Booth has been in custody ever since. As at today, he has spent almost 14 months in custody in respect of these charges, and the backdating date will be 29 May 2016.

8. Mr Booth pleaded not guilty in the Magistrates Court and was committed to this Court for trial. He pleaded guilty on the first day set down for a judge-alone trial; I understand that this guilty plea came after the Crown provided a still photo from CCTV footage that had been given to the defence some time earlier. This limits the discount available for the guilty pleas, but the guilty pleas still had real utilitarian value, at least for the Court, and there will be a small discount.

9. As well as the statement of facts, the following material is in evidence before me:

(a) Mr Booth's criminal history involving offending in the ACT, New South Wales and Queensland;

(b) a pre-sentence report for Mr Booth;

(c) a CADAS report for Mr Booth;

(d) a restorative justice suitability assessment for Mr Booth;

(e) the criminal history of the co-offender, Lindsay Kelly;

(f) a pre-sentence report for Mr Kelly;

(g) an updated pre-sentence report for Mr Kelly; and

(h) a CADAS report for Mr Kelly.

10. In considering the objective seriousness of Mr Booth's offences, I have had regard to the following matters.

11. All the offences are aggravated by the fact that they were committed in breach of a 12month good behaviour order made in the Magistrates Court in March 2016. The motor vehicle offences are aggravated by the fact that a stolen car was used to facilitate the commission of the burglary and was also involved in a brief police pursuit after it was noticed by police.

12. Mr Booth told the pre-sentence report author that it was his co-offender's decision to steal the toolbox. He also said that he was under the influence of drugs at the time of the offences, but conceded that he knew what he was doing and he knew that it was wrong.

13. Mr Booth expressed an interest in participating in restorative justice, but the matter has been assessed as not suitable for restorative justice.

14. The statutory aggravating factor of the aggravated burglary was that it was committed in company. Apart from that, it is a relatively low-level example of the offence, noting among other things that the offenders did not need to break into a secured property, but simply had to jump over the counter in order to remove the toolbox. It is however interesting, if not directly relevant to sentencing Mr Booth, to wonder why the security of the shopping centre (which is presumably relied on by kiosk owners in particular) was so easily breached.

15. The ride or drive offences seem to me to be somewhat above the lowest level of seriousness.

16. Little contrition on Mr Booth's part can be inferred from the circumstances of the late guilty plea, but defence counsel submitted that Mr Booth's willingness to be involved in the restorative justice process shows some contrition, not affected by the assessment that, despite Mr Booth's continuing willingness to engage, the matter was not suitable to proceed to restorative justice "at this time".

17. I have also had regard in this sentencing to Mr Booth's subjective circumstances.

18. Mr Booth is 39 years old. His criminal history in the ACT includes:

(a) an armed robbery in 1996 for which he was sentenced to 18 months imprisonment, suspended after 4 months in full time custody;

(b) two burglaries and associated offences committed in 2002 for which he was sentenced to a total of 5 years imprisonment with a 2-year non-parole period; and

(c) an attempted aggravated robbery in 2005 for which he was sentenced to 7 years imprisonment with a non-parole period of 4 years.

19. There are also various theft and minor theft charges which seem, having regard to the penalties imposed, to have been considerably less serious than the offences already mentioned, and a large number of entries relating to other relatively minor offences and breaches of bail. Mr Booth also has criminal records in New South Wales and Queensland. These two mainly involved dishonesty offences, such as burglaries, thefts and related offences. He appears to have served prison time in both those jurisdictions as well.

20. Mr Booth is an Aboriginal man who identifies as a Punthamarra man. He was born in Brisbane and was brought up by his mother after his parents, both of whom abused alcohol, separated shortly after he was born. Mr Booth told the pre-sentence report author that he had positive relationships with both his parents, but that he was traumatised as a child by witnessing violence against his mother committed by her subsequent partners.

21. Mr Booth has three children to three former partners, none of whom live in the ACT. He does see his children from time to time. Mr Booth has incomplete qualifications in mechanics, and a limited employment history, having apparently last worked around six years ago. He reported an interest in obtaining work on the ACT light rail project.

22. Mr Booth abused alcohol from the age of 18 until about 21, but rarely uses alcohol now. On the other hand, he reported using cannabis, heroin and, in the last couple of years, methamphetamines, and told the pre-sentence report author that he was using cannabis and methamphetamine at a high level before being remanded in custody last year.

23. Mr Booth completed the Solaris Therapeutic Community program in the Alexander Maconochie Centre (AMC) during a previous period in custody, but has attempted other rehabilitation programs without success. He suffers from a blood-borne virus, and has previously been treated for depression, but does not seem to be currently receiving treatment for either of these problems.

24. The pre-sentence report author provided the following opinion about Mr Booth:

Mr Booth was assessed as medium-high risk of general reoffending, and he has multiple risk factors including, substance abuse, mental health, unemployment and financial issues. In addition, Mr Booth also lacks prosocial organised activities and peers and displays antisocial values and attitudes. Although he currently has accommodation available to him, he has noted Housing ACT has issued a Notice to Vacate. Should Mr Booth be unsuccessful in opposing this eviction, his criminogenic risks will also include a lack of accommodation. It is recommended Mr Booth address the identified risks in order to reduce the likelihood of reoffending.

25. Mr Booth appears to be open to further attempts at drug rehabilitation, but has indicated a preference for community-based options to enable his return to employment. He has engaged with Winnunga Nimmityjah Health Service over the years, but it seems that there is currently a long waiting list for relevant treatments from that service and Mr Booth may need to consider other options. It is hard, however, to assess the strength of his commitment to rehabilitation.

26. Mr Booth's co-offender, Lindsay Kelly, was sentenced recently for offences arising out of this incident. He was sentenced to nine months full-time custody (being time served) for riding in a stolen motor vehicle, and a further 14 months for aggravated burglary and theft to be served by way of an intensive correction order. These sentences were imposed in the Magistrates Court after relatively early guilty pleas.

27. Mr Kelly, who is five years younger than Mr Booth, had a criminal history apparently confined to the ACT, and one which appears somewhat less serious than Mr Booth's history. He has also spent time in custody, but this has involved much shorter sentences than those imposed on Mr Booth, being a few months at a time.

28. I should mention at this point that the sentences imposed on Mr Kelly in the Magistrates Court seem to me to be at the higher end of the range, given:

(a) the circumstances of the offences; and

(b) the fact that, while an intensive correction order certainly gives an offender a chance at serving his sentence entirely in the community, it also puts him at risk of serving a quite substantial part of the sentence in full-time custody.

29. In terms of actual time in custody, a sentence with an intensive correction order may turn out to be more or less lenient than a sentence of the same length with a nonparole period or a suspension order.

30. For these reasons, it seems to me to be vital in considering parity to compare the full terms of imprisonment imposed, and not to be distracted by the possibilities for how these terms might be served.

31. Furthermore, I cannot ignore the possibility that the burglary and theft sentence or sentences imposed in the Magistrates Court have been fully accumulated on the ride motor vehicle sentence in order to permit the making of an intensive correction order rather than because, as a matter of principle, full accumulation seemed to be the required or most appropriate disposition.

32. Accordingly, although I have provided a similar accumulation of the burglary sentence on top of the motor vehicle sentences, I have provided very little accumulation on the other sentence.

33. General deterrence is usually relevant for offences of this kind, which are generally not committed in the heat of the moment. Clearly, Mr Booth also needs personal deterrence, but it is not so clear that prison terms have any particular deterrent effect on him.

34. Counsel provided extracts from the ACT sentencing database and several cases discussing the usual range of sentences for burglary in the ACT. I am grateful for that information but see no need to comment on it further in this case.

35. Mr Booth, please stand. I record convictions on four offences, being:

(a) one aggravated burglary;

(b) one theft;

(c) one offence of ride in a motor vehicle without consent; and

(d) one offence of drive a motor vehicle without consent.

36. I now sentence you to imprisonment as follows:

(a) for the 2 motor vehicle offences, to 11 months imprisonment each, reduced from 12 months for your guilty pleas, the second sentence to be served so as to add one month to the total;

(b) for the aggravated burglary offence, to 17 months reduced from 18 months, and for the theft, to 5 months reduced from 6 months - those 2 sentences are to be served concurrently with each other but so that the burglary sentence adds 14 months to the total sentence.

37. That gives a total sentence of 26 months, which will be backdated to 29 May 2016 when you were taken into custody, and so it will run, for the reasons I have already explained, being the leap year problem, until 27 July 2018.

38. The effect of that sentencing is that the two motor vehicle offences have now been served, and you are nearly three months into your sentences for burglary and theft.

39. Because I do not have any clear picture of your rehabilitation plans beyond an expressed general openness to rehabilitation activity in the community, I propose to set a non-parole period rather than a suspension date, in the hope that when you are released on parole, you and the Corrections authorities will have a clear plan for your rehabilitation. That non-parole period will be 16 months from 29 May 2016, which means that you will be eligible for parole in just over two months, that is 28 September 2017. You should therefore think about applying for parole very quickly, because it will take a while to organise.

40. If you have any particular questions about the orders I have just made, please ask the court officials when they speak to you, or Mr Lawton, perhaps.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.