Citation: Braithwaite v R [2024] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 16 February 2024
Judges: Leeming JA; Wright J; Wilson J
Background
The appellant pleaded guilty in the Local Court to two offences arising from an incident on 9 January 2022: assault with intent to rob armed with an offensive weapon (s 97(1) of the Crimes Act 1900 (NSW)), and larceny (s 117). The offences occurred at a petrol station in Wamberal in the early hours of the morning, when the appellant entered the store, produced a pair of scissors at a service counter, and ultimately consumed a chicken wrap and a packet of lollies worth $9.50 without paying.
In the District Court at Gosford, Wilson SC DCJ sentenced the appellant to a total term of 2 years and 10 months imprisonment for the s 97(1) offence, with a non-parole period of 1 year and 8 months. The sentence incorporated a 25% discount for the guilty plea. For the larceny, given its relative triviality, the sentencing judge recorded a conviction but imposed no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The appellant sought leave to appeal to the Court of Criminal Appeal, contending that the sentencing judge had erred in assessing the objective seriousness of the s 97(1) offence and had failed to properly consider expert evidence on his prospects of rehabilitation.
Legal Issues
- Whether the sentencing judge erred by failing to take into account that the offence involved no actual violence when assessing objective seriousness.
- Whether the sentencing judge's assessment of objective seriousness as "below the mid-range" was an assessment that was open on the facts.
- Whether the sentencing judge failed to take into account the totality of the expert evidence on the appellant's prospects of rehabilitation and likelihood of reoffending.
- Whether the sentence imposed was manifestly excessive.
Decision
On ground 1(a), all three judges agreed there was a factual error in the remarks on sentence: the sentencing judge had referred to "limited actual violence" when, in fact, there was none. However, the court was not persuaded this error materially affected the outcome. Leeming JA and Wright J considered it an unfortunate slip rather than a genuine misconception, noting that the sentence had been indicated seven weeks before the reasons were delivered. Wilson J characterised the complaint as purely semantic.
On ground 1(b), the court unanimously held that the assessment of objective seriousness as "below the mid-range" was not open. In the context of the submissions at first instance, placing the offence "below the mid-range" was understood to be more serious than "at the lower end of objective seriousness." The court found that, for a s 97(1) offence where a weapon and threat are always present, this particular offending featured a comparatively minor weapon (scissors), a low and brief threat, a single victim, and nothing actually taken by force. The appropriate assessment was that the offending fell at the lower end of the range.
On grounds 2 and 3, Wright J's reasons addressed the expert evidence and manifest excess arguments. Given that error was established on ground 1(b), the court proceeded to resentence the appellant without needing to decide whether the sentence was independently manifestly excessive.
On resentencing, the court adopted an undiscounted starting point of 3 years and 3 months, which after the 25% guilty plea discount yielded a total sentence of 2 years, 5 months and 7 days.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- The sentence imposed by the District Court on 6 July 2023 for the s 97(1) offence is quashed.
- In lieu, the appellant is sentenced to imprisonment for a non-parole period of 1 year, 5 months and 7 days, commencing 17 September 2022 and expiring 23 February 2024, with a remainder of term of 1 year expiring 23 February 2025.
- The appellant became eligible for release to parole on 23 February 2024.
Key Takeaways
- A factual inaccuracy in sentencing remarks does not of itself warrant appellate intervention where the court is satisfied the error was not material and did not influence the ultimate finding, particularly where the sentence was indicated well before the written reasons were delivered.
- The Court of Criminal Appeal confirmed that an assessment of objective seriousness must remain within the range properly open on all the evidence, and that appellate courts will intervene where the assessment cannot be justified by reference to the specific features of the offending.
- Under s 97(1) of the Crimes Act, the presence of a weapon and a threat are inherent features of the offence; they do not automatically elevate an offence toward the mid-range where those features are relatively minor in character and brief in duration.
- In characterising the gravity of offending, the specific qualities of the weapon, the level of threat conveyed, the duration of the threat, and whether anything was actually taken are all relevant to placing the offending within the sentencing range.
- Wilson J observed, concisely, that arguments about precise placement within a notional range of seriousness are generally sterile, but acknowledged that in this case the distinction between "below mid-range" and "lower end" was material given the submissions made at first instance.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Cases:
- Ali v R [2010] NSWCCA 35
- Bugmy v The Queen (2013) 249 CLR 571
- DL v The Queen (2018) 265 CLR 215
- House v The King (1936) 55 CLR 499
- R v Gray [2018] NSWCCA 241
- R v Henry (1999) 46 NSWLR 346
- Salafia v R [2015] NSWCCA 141
- Salama v The King [2023] NSWCCA 141
- Tuncbilek v R [2020] NSWCCA 30