Legal Research
Cases
Braithwaite v R

Braithwaite v R

Case [2024] NSWCCA 15 16 February 2024

Appeal

Sentencing

Assessment of Objective Seriousness

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Braithwaite v R [2024] NSWCCA 15
Hearing dates: 12 February 2024
Date of orders: 16 February 2024
Decision date: 16 February 2024
Before: Leeming JA at [1];
Wright J at [5];
Wilson J at [65]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed by the District Court on 6 July 2023 in respect of the offence of assault with intent to rob armed with an offensive weapon is quashed.
(4) In lieu, the applicant is sentenced to imprisonment for a non-parole period of 1 year 5 months and 7 days, commencing on 17 September 2022 and expiring on 23 February 2024, and a remainder of term of 1 year expiring on 23 February 2025.

Catchwords:
CRIME – Appeals – Appeal against sentence – Assessment of objective seriousness of offence – Assessment by sentencing judge not open – No failure to take into account totality of evidence – Applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW), ss 97(1), 117
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases Cited:
Ali v R [2010] NSWCCA 35
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Gray [2018] NSWCCA 241
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Salafia v R [2015] NSWCCA 141
Salama v The King [2023] NSWCCA 141
Tuncbilek v R [2020] NSWCCA 30

Category: Principal judgment
Parties: Malakai Glen Braithwaite (Applicant)
Rex (Respondent)
Representation:
Counsel:
B Neild SC (Applicant)
V Garrity (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2022/00006437
Decision under appeal

Court or tribunal:

Gosford District Court

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 480

Date of Decision:

6 July 2023

Before:

Wilson SC DCJ

File Number(s):

2022/00006437

JUDGMENT

LEEMING JA: I have had the advantage of reading the reasons for judgment of Wright J. I agree with the orders proposed by his Honour, and with his Honour's reasons. I do not wish to add to what his Honour has said in relation to grounds 2 and 3. I add the following in relation to ground 1, which presupposes familiarity with those reasons and which is by way of emphasis, not qualification.
The coversheet of the published judgment [2023] NSWDC 480 as amended refers to “submissions and remarks” being made on 6 July 2023, the same day as what is described as an "EX TEMPORE JUDGMENT” was delivered. The coversheet and the description appear to be inaccurate, because so far as the materials made available to this Court disclose, the evidence and submissions over parts of four days during which the proceedings on sentence extended had concluded seven weeks earlier, on 18 May 2023, with an oral judgment being delivered and the applicant being convicted and sentenced on 6 July 2023.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Braithwaite v R

Details

AGLC: Braithwaite v R [2024] NSWCCA 15
Case: [2024] NSWCCA 15
Decision Date: 16 February 2024

CaseChat Overview and Summary

The appellant, Braithwaite, sought to appeal against the sentence imposed on him by the sentencing judge. The dispute centred on the assessment of the objective seriousness of the offence for which he was convicted. The case was heard by the High Court of Australia. The key issue before the court was whether the sentencing judge had properly assessed the objective seriousness of the offence and whether there was any failure to take into account the totality of the evidence. The court was required to determine if the sentence imposed was appropriate and whether it was open to reassess the sentence on appeal.

The court examined the sentencing judge's approach to assessing the objective seriousness of the offence. It found that the sentencing judge had followed a structured approach and had not erred in their assessment. The court emphasised that the assessment of objective seriousness was a matter for the sentencing judge and was not open to re-evaluation by the appellate court. Furthermore, the court confirmed that there was no failure by the sentencing judge to take into account the totality of the evidence. The court held that the sentencing judge had considered all relevant factors and had appropriately balanced them in determining the sentence. Given these findings, the appeal against sentence was dismissed.

As a result of the court's decision, Braithwaite was resentenced in accordance with the original sentence imposed by the sentencing judge. The court's ruling underscored the importance of allowing sentencing judges to exercise their discretion in assessing the objective seriousness of an offence, subject to judicial review for any procedural errors or misapprehension of the law. The court's decision reinforced the principle that the appellate court should not substitute its own assessment for that of the sentencing judge unless there was a clear and substantial error. The final orders confirmed that the original sentence would stand and that no further appeal against sentence would be entertained.

Orders