Braithwaite v R

Case [2024] NSWCCA 15


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

  1. 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.

  2. 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.…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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