R v Malakai Glen Braithwaite

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Malakai Glen BRAITHWAITE [2023] NSWDC 480

Hearing dates:

10 March 2023 (offender gave evidence)
15 March 2023 (expert gave evidence)
10 May 2023 (expert gave evidence again)
18 May 2023 (expert gave evidence for a third time)
6 July 2023 (submissions and remarks)

Date of orders:

6 July 2023

Decision date:

06 July 2023

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

2 years 10 months Head Sentence, 1 year 8 months Non-Parole Period. Decision at [58] – [60]

Catchwords:

CRIME – Sentencing – Larceny – Assault with intent to rob with an offensive weapon

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act (1999)

Cases Cited:

R v Henry (1999) 46 NSWLR 346

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Bugmy v R (2013) 302 ALR 192

Texts Cited:

None.

Category:

Sentence

Parties:

R (Crown)
Braithwaite (Offender)

Representation:

Solicitors:
Ms Scott (Crown)
Ms Martinez (Offender)

File Number(s):

2022/0006437

Publication restriction:

Nil.

Ex Tempore JUDGMENT

INTRODUCTION

1. The offender appears to be sentenced in respect of two charges: one being larceny comprising one chicken wrap and a packet of lollies valued at $9.50 in breach of s 117 of the Crimes Act. It carries a maximum penalty of five years imprisonment.

2. Sequence 4 is far more serious, that is assault with intent to rob armed with an offensive weapon in breach of s 97(1) of the Crimes Act. Twenty years imprisonment is the maximum penalty.

3. The offending took place 9 January 2022. The offender was arrested and bail refused the same day. He was committed to sentence from the Local Court and the timing of his plea entitles him to a discount of 25%.

4. His time in custody has been difficult and I note that on 24 January 2022 he was involved in assaulting a correctives services officer. He was arrested the same day and bail refused in relation to that. He was eventually sentenced on 28 July 2022 and received a community corrections order that will expire 27 July 2024.

5. On 9 February 2022, the offender also engaged in further offending whilst in custody, namely assaulting a correctives officer. He was charged on 10 February 2022 and upon sentence on 28 July 2022 was sentenced to a period of 7 months imprisonment commencing 9 February 2022 through to 8 September 2022.

6. A third incident occurred on 10 May 2022, when the offender was involved in an altercation with his cellmate. He was later charged with assault occasioning actual bodily harm and reckless wounding. He was bail-refused. I understand that the offender has pleaded not guilty in relation to this incident and that those matters are listed for trial in the Downing Centre in Sydney on 6 November 2023.

7. The relevance is that not all the time spent in custody is referrable to the subject offending. In fact, the solely referrable period is a period of just 15 days between 9 January 2022 and…