Citation: R v Malakai Glen Braithwaite [2023] NSWDC 480
Court: District Court of New South Wales
Date: 6 July 2023
Judge: Wilson SC DCJ
Background
The offender, a 20-year-old man, attended an Ampol service station at Wamberal in the early hours of 9 January 2022. After waiting outside until the doors opened at 5am, he entered the store, produced a pair of scissors from his pocket, and demanded all the money from the till. The attendant, separated from the offender by a counter and protective wiring, pressed a silent alarm and retreated to a secure office. The offender then left without obtaining any money.
Before leaving, the offender consumed a chicken wrap and a packet of lollies valued at $9.50, which formed the basis of a separate larceny charge. Police arrested him shortly after on a nearby road and found the scissors on the ground nearby. CCTV footage and fingerprint evidence confirmed his involvement.
The sentencing proceedings were significantly complicated by the offender's time in custody following arrest. He had been involved in multiple incidents while on remand, including two assaults on corrections officers and an assault on a cellmate, each generating separate proceedings that affected which periods of pre-sentence custody were referable to the subject offending.
Legal Issues
- Whether the larceny offence crossed the threshold for full-time imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999
- What sentence was appropriate for the more serious charge of assault with intent to rob armed with an offensive weapon under s 97(1) of the Crimes Act 1900, carrying a maximum of 20 years
- How to calculate the commencement date for the sentence, given that only 15 days of pre-sentence custody was solely referable to the subject offences
- Whether special circumstances existed to justify a non-parole period shorter than the statutory proportion
- Whether an intensive corrections order (ICO) was appropriate or available
Decision
On the larceny charge, Wilson SC DCJ found that the s 5 threshold for full-time custody was not crossed. Given the trivial value of the goods taken ($9.50), his Honour dealt with the offence under s 10(a) of the Crimes (Sentencing Procedure) Act, recording a conviction but imposing no further penalty.
On the armed robbery charge, the court imposed a head sentence of two years and ten months, with a non-parole period of one year and eight months. This reflected a 25% discount for the timing of the guilty plea and a finding of special circumstances, which permitted the non-parole period to fall below the standard statutory ratio. The commencement date was set at 17 September 2022, a date chosen to allow credit for approximately half of the time spent in custody, accounting for the fact that most of that time was not solely referable to the subject offending.
The sentence reflected a careful assessment of the offender's subjective circumstances, including a significant mental health history involving diagnoses of PTSD, ADHD, and schizophrenia, a background of serious and longstanding substance abuse, and a difficult childhood documented in both his mother's affidavit and multiple expert reports. Expert evidence from both a psychologist and a forensic mental health clinician was considered. The court noted that treatment received in custody had been markedly more effective than previous community-based rehabilitation attempts.
An ICO was considered but rejected on two grounds. First, the head sentence of two years and ten months exceeded the two-year eligibility threshold for an ICO. Second, even had the sentence fallen within that threshold, the court would have declined an ICO given concerns about community safety and a view that continued custodial treatment offered the best prospect of reducing the risk of reoffending.
Orders Made
- Larceny (s 117, Crimes Act 1900): conviction recorded, no further penalty imposed (s 10(a))
- Assault with intent to rob armed with an offensive weapon (s 97(1), Crimes Act 1900): sentence of imprisonment with a head sentence expiring 16 July 2025, commencing 17 September 2022, with release to parole on 16 May 2024
Key Takeaways
- The District Court applied s 10(a) of the Crimes (Sentencing Procedure) Act 1999 to a larceny charge involving goods worth $9.50, finding the offence too trivial to justify any custodial or non-custodial penalty beyond a conviction.
- Where an offender accumulates multiple, overlapping periods of pre-sentence custody arising from separate incidents, only the period solely referable to the subject offences may be applied directly; courts may otherwise adopt a commencement date that gives partial credit for mixed custody.
- A finding of special circumstances permitted a non-parole period shorter than the standard statutory proportion, supported by the offender's complex mental health history and the need for an extended period of supervised parole to support rehabilitation.
- Availability of an ICO depends on the head sentence falling within the two-year threshold; a sentence exceeding that threshold removes ICO as an option regardless of the offender's circumstances.
- Risk of reoffending assessed as medium-high, combined with concerns for community safety, formed independent grounds for declining an ICO even had the sentence length permitted it.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 10(a)
Cases
- R v Henry (1999) 46 NSWLR 346
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Bugmy v R (2013) 302 ALR 192