Citation: Luchetti v R [2025] NSWCCA 222
Court: Court of Criminal Appeal
Date: 17 December 2025
Judges: Mitchelmore JA, Kirk JA, Rigg J
Background
The appellant pleaded guilty to robbery whilst armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW), following an incident at a Liquorland store in November 2023. He concealed a bottle of whiskey in his bag and, when approached by a store employee, raised a cigarette lighter toward the employee while telling him not to come near. The employee, who found the object alarming, stopped and the appellant left the store. Police arrested him six days later, and he remained in custody from that point.
At first instance, Hock DCJ sentenced the appellant to 4 years imprisonment with a non-parole period of 2 years and 3 months, after applying a 25% discount for an early guilty plea. The offence carries a maximum penalty of 20 years imprisonment.
The appellant was 38 years old at the time of the offence and had a significant criminal history, including prior robbery offences. He was on parole and subject to two Community Correction Orders when the offending occurred. He had been diagnosed with chronic treatment-resistant schizophrenia, substance use disorders, and cognitive deficits, and had been released from custody just one month before the offence without receiving community mental health treatment.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the offending by misapplying the Henry guideline judgment (R v Henry (1999) 46 NSWLR 346)
- Whether the sentencing judge failed to disclose her assessment of objective seriousness
- Whether the sentencing judge erred in her assessment of the nature of the weapon (the lighter)
- Whether the sentencing judge failed to consider whether the appellant's mental health made full-time custody more onerous
- Whether the sentence was manifestly excessive
Decision
The Court of Criminal Appeal upheld the appeal, finding error in the sentencing judge's application of the Henry guideline judgment. The Henry guidelines were developed in the context of a particular cohort of armed robbery cases and did not offer useful guidance in sentencing the appellant's offending, which was objectively at a very low level. The Court found the sentencing judge had incorrectly anchored the sentencing exercise to that framework.
The Court also found error in the sentencing judge's assessment of the weapon. The object was a cigarette lighter. Although it qualified as an offensive weapon in the circumstances, treating it as more serious in character than the facts warranted contributed to an inflated assessment of objective seriousness. There was no evidence the victim saw the flame the CCTV footage captured. The appellant himself told the sentencing assessment report author he had pointed the lighter to deter the victim from approaching, not to threaten with fire.
On resentencing, the Court determined an appropriate starting point of 2 years imprisonment before the 25% guilty plea discount, producing a head sentence of 18 months. A finding of special circumstances was maintained, resulting in a non-parole period of 10 months. By the time the Court made its orders on 8 October 2025, the appellant had spent close to two years in custody. The Court found that period of custody had already more than satisfied all punitive, deterrent, and denunciatory purposes, and there was no basis for further punishment.
The Court accepted that the appellant was not a suitable vehicle for general deterrence, given the close indirect association between his chronic mental illness, substance use, and offending behaviour. Although his prospects of rehabilitation were guarded, the resentencing material provided some basis for cautious optimism.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence imposed in the District Court on 7 November 2024 set aside
- Appellant resentenced to 18 months imprisonment commencing 18 December 2023 and expiring 17 June 2025, with a non-parole period of 10 months commencing 18 December 2023 and expiring 17 October 2024
- The appellant was entitled to immediate release upon the making of these orders on 8 October 2025
Key Takeaways
- The Henry guideline judgment does not apply universally to all armed robbery sentences. Where the facts of the offending fall outside the cohort that the guideline was designed to address, a sentencing court should not use it as a reference point.
- A conviction under s 97(1) of the Crimes Act 1900 (NSW) requires consideration of the actual character and circumstances of the weapon used, not simply its legal classification as an offensive weapon. Overstating the seriousness of a modest object inflates the objective gravity of the offence.
- In dismissing the utility of the Henry guideline for this case, the Court of Criminal Appeal confirmed that guideline judgments must be applied with attention to whether the offending before the court genuinely falls within the contemplated range of conduct.
- Where a significant period of pre-sentence custody has already served all punitive, deterrent, and denunciatory purposes, a court resentencing on appeal has no proper basis for imposing additional punishment beyond what that custody represents.
- An indirect association between a diagnosed mental illness and offending behaviour (here, through substance abuse used to manage psychotic symptoms) is a relevant mitigating factor that bears on moral culpability and the weight to be given to general deterrence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Henry & Barber [1999] NSWCCA 107
- R v Jenkins [1999] NSWCCA 110
- R v Kyroglou & Tsoukatos [1999] NSWCCA 106
- Baydoun v R [2024] NSWCCA 65
- Whipp v R [2024] NSWCCA 79
- Towers v R [2025] NSWCCA 142
- Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
- Qoro v R [2020] NSWCCA 276
- Wood v R [2022] NSWCCA 84
- R v Campbell [2010] ACTCA 20