R v Malakai Glen Braithwaite

[2023] NSWDC 480

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 23 January 2022. I determined on the last occasion the matter was before me that I would adopt a commencement date of 17 September 2022 allowing about half the time spent in custody to determine the commencement date for this sentence.

8. At the time of the subject offending, the offender was subjected to a 12-month CCO which was imposed on 1 July 2021 for the offence of destroy or damage property. That was called up on 28 July 2022 at Burwood Local Court, but no action was taken in respect of the breach.

9. The sentence hearing before me has been extremely protracted, largely through the need on the part of the offender to adduce evidence concerning his psychiatric condition. The expert, Mr Knight, has given evidence on three occasions.

AGREED FACTS

10. The offender was born 5 May 2021 and was aged 20 years at the time of the offending. The victim was 38 years of age.

11. On 9 January 2022, the victim was working at the Ampol service station at Wamberal. He began his shift at midnight. The offender arrived some time before 5.10am and sat on a brick wall near the customer carpark about 5 to 10 metres from the entry to the store. The service station had a locked door policy between midnight and 5am. At 5am the victim unlocked the doors then served some customers.

12. After those customers left, and at about 5.35am, the offender entered the service station and walked to the counter. He walked straight past the victim who was dusting shelves at the time. The victim made his way through the locked staff door to the service side of the counter and approached the till. The victim asked the offender, “what would you like?”. The offender was about a metre from the victim separated by horizontal wiring and a plastic screen. The offender said “Um, can I please get, um, can I please get um”. The offender was looking around outside and behind him. The offender reached into his pocket and produced a pair of scissors. As he did so the offender said, “Um can I please get, um, all the fucking money right now”. The victim stepped backwards. The offender said “like, right fucking now”.

13. The victim, fearing for his safety pressed the alarm under the counter and then retreated immediately to a secure managers office. The offender said quote “what” and then yelled “what” again. The victim feared the offender and was worried about what the offender would do if he got to the victim. Those are the facts relating to sequence 4.

14. The offender put the scissors in his pocket and walked away from the counter. The offender walked around the service station and ate part of a packet of lollies, $1 in value and a chicken wrap $8.50. It is those acts which comprise the charge of larceny.

15. Another staff member, Cheryl, entered the store at 5.40am. She said good morning to the offender as she walked in, to which the offender replied, “good morning”. Cheryl then entered the manager’s office and was told what had occurred. Sometime afterwards the offender walked outside of the service station. The victim watched the offender on CCTV and locked the customer entry door behind him.

16. Another customer arrived and began walking towards the customer entry. The offender walked towards the customer entry but stopped. The offender walked away towards a roundabout on The Entrance Road. Police arrived and arrested the offender further up the road, finding the scissors on the ground nearby. The incident was captured on CCTV. The offender’s fingerprints were found at the scene.

17. Also forming part of the facts are a number of still photographs from a CCTV which depict the circumstances in which the offending took place. The offender is seen holding a pair of scissors which are not particularly large in size. It is also apparent from the photographs that the offender and the victim were separated by a counter and also the vertical wires which protected the victim from the offender.

SUBJECTIVE CASE

Criminal Record

18. The offender has a criminal history dating back to the Children’s Court. He has a number of offences as an adult commencing in June 2021. The offending is such that it disentitles the offender to a finding of good character and any mitigation upon sentence which may otherwise flow from that finding.

Affidavit of Sally Braithwaite, Offender’s Mother

19. I have read and I have had regard to the contents of the affidavit of Sally Braithwaite, being the mother of the offender. She acknowledges the difficulties in his childhood and the mental health issues which arose when he was younger. Out of respect to her privacy, I do not intend to go into her affidavit in any greater detail, although I do note that that annexure A(2) provides a chronology of sorts in relation to the offender’s childhood, which makes good the history provided by him to the psychologist.

Sentencing Assessment Report

20. Exhibit B is a sentencing assessment report prepared by Zachary Cahill dated 9 March 2023. He spoke to the offender in custody. He was told at the time the offender was unemployed and had a work history of cash-in-hand jobs as a labourer. His mother reported similar work will be available to him upon his release from custody. The author recorded the offender has an extensive history of antisocial behaviour beginning at 15.

21. The offender agreed that his choice of behaviour was poor and said that he was not in his right mind due to a combination of poor mental health and the influence of drugs. He said that he deliberately committed the offence to acquire support with drug addiction and mental health, acknowledging they were the cause of his offending behaviour.

22. In terms of substance abuse, he recalled a weekly use of ice, cannabis, Xanax and acid which had placed him into a drug-induced psychosis in the past. He has attended rehabilitation on a number of occasions previously which has been unsuccessful. His treatment whilst in custody, it seems, has, on the other hand, been very successful.

23. He reported historical diagnoses of PTSD, ADHD and schizophrenia. The offender denied his schizophrenia diagnosis, believing any psychosis in the past was drug-induced. It is clear from the evidence that the diagnosis is, in fact, sound.

24. The author of the report noted that the offender displayed some insight into his offending. He expressed a willingness to engage in community service work and in the past had demonstrated a mixed response to community supervision. His risk of reoffending was assessed as medium-high.

25. The offender relied upon an extremely voluminous bundle of documents which included affidavit evidence and also quite a bit of psychiatric material in relation to the offender. There are two sources of opinion evidence. The first from Dr Kala Ram, psychologist, and the second from Mr Lee Knight, a forensic mental health clinician. Mr Knight gave evidence on several occasions.

Reports by Dr Kala Ram, Psychologist

26. Dr Ram provided three reports. Two were provided to the solicitor for the offender and the third in response to a letter sent from the DPP to her. Her report is particularly useful in that it paints a detailed and comprehensive picture of the offender’s childhood, his education and vocational history. She expressed the opinion that the offender’s childhood was deprived, an observation with which I agree having regard to the content of her report. The psychologist assessed the offender as being a low to medium risk classification for reoffending.

27. I do not intend to refer to every aspect of the offender’s childhood which may be considered traumatic. I note the contents of the report at page 11, in particular, the second paragraph under the heading “Concluding Remarks”. It is plain, and I accept, that his childhood was challenging and, in many respects, deprived.

28. The psychologist diagnosed four conditions:

1. Major Depressive Disorder with Anxious Distress;

2. Post-Traumatic Stress Disorder;

3. Amphetamine-type Substance Use Disorder; and

4. Cannabis Use Disorder.

29. She noted that he had a desire to break his cycle of drug dependency, which appears to have been successful whilst in custody.

30. In her second report, dated 1 March 2023, the psychologist updated her opinion on this occasion providing a differential diagnosis set out at p 5 of the report. She observed that the offender appears to have some symptoms consistent with psychosis whilst in custody in the absence of using illicit drugs. She noted that he ceased using drugs in February or March 2022, about a month or two after going into custody. She again repeated that the offender had a very traumatic childhood, characterised by a number of unsatisfactory features referred to at page 6 of her report.

31. The final source of information from this psychologist came from questions asked of her by the DPP. The aspects of the opinion which are pertinent are that chronic long-term methamphetamine use can also cause people to experience other symptoms including anxiety, confusion, insomnia, mood disturbance, psychotic symptoms including paranoia, hallucinations and delusions and violent behaviour. She stated “a person’s mental health and behaviour whilst using methylamphetamines would be further exacerbated by underlying co-morbid psychopathology.” Further, she stated “accordingly, it is highly probably that the drugs compounded the commission of the offence, however it is also possible that Mr Braithwaite’s untreated ADHD in the absence of the reported poly-substances use directly contributed to the commission of his offending.” When asked whether she agreed that, in the absence of any drug use, the ADHD and schizophrenia would not have cause him to commit the index offences, she answered in the negative.

Forensic Community Treatment Order

32. I have a copy of the Forensic Community Treatment Order (FCTO) made by the Mental Health Review Tribunal on 25 August 2022. The order remains in place and will expire no later than 24 August 2023. It may well be extended. The treatment plan was reviewed by the Mental Health Review Tribunal earlier this year and, as I have already observed, the plan remains in place.

Report by Dr Lam, Psychiatrist with Justice Health

33. Dr Lam is a psychiatrist with Justice Health. He has provided a report dated 12 August 2022 which was the subject of the evidentiary foundation for the Mental Health Review Tribunal’s findings. He refers to the assaults that have occurred in custody, together with the psychotic episodes that have occurred in custody. He expressed the opinion that the offender suffered a mental illness and, and as a result, has an increased risk of physical harm and aggression to others.

34. Next, forming part of the same exhibit, a series of updated clinical notes commencing 18 January 2022 which record the details of the offender’s progress through Justice Health. It is plain, that he has at times experienced hallucinations which have been expressed in terms to the treatment providers.

35. On 12 May 2022, a treatment provider recorded “psychotic symptoms appear to have abated over previous months with adherence to medication and a low-stimulus environment.” Regrettably, that was just two days after the alleged assault upon the inmate.

36. Amongst the 169 pages of the document are some duplicates. I will not refer to a single document more than once and I do not intend that observation as a criticism of the legal representatives of the offender. Most of the material contained in the exhibit has been adequately and comprehensively summarised by the psychologist Dr Ram.

Report by Lee Knight, Forensic Mental Health Clinician

37. There are a number of reports by Lee Knight, the clinical consultant. First, is dated 5 March 2023, a report to the solicitor for the offender. He concurred with the opinion of Dr Ram that the offender suffers a psychotic illness, most likely schizophrenia.

38. The offender commenced consulting Mr Knight on 9 September 2022 and except for one occasion those consultations have occurred via AVL on a monthly basis. Mr Knight expressed the view that he would manage the offender’s transition from custody into the community with the continuation of the FCTO.

39. Following Mr Knight’s first attendance in relation to this matter, he prepared a report dated 5 May 2023, which became Exhibit 2. As I have expressed to Ms Martinez for the offender and openly in Court on a number of occasions, the contents of that report I found alarming. The report was prepared following a review of the offender in custody via AVL on the same day, 5 May 2023. At that time the offender informed Mr Knight that he had held beliefs that the Illuminati and Freemasons intended to kill him. He initially stated that he believed that he was just “wigging out”. Believing he would never be released from custody, he agreed when it was proposed that this was a symptom of schizophrenia and there was some talk about a change of medication.

40. Mr Knight performed a risk for violence assessment in accordance with HCR-20. The results of that assessment are set out at pages 6 and 7 of the report. The opinion expressed by Mr Knight following his analysis of those results is that the offender, as of 5 May 2023, represented a high risk for future violence. He did, however, express the opinion that the risk may be reduced in the event that the treatment continued. At page 17 he stated:

“Mr Braithwaite would be a considered to be at moderate risk of imminent violence in the near future. His mental state at his most recent review was stable, he was taking medication as prescribed, and he had not engaged in further acts of violence. Imminent violence is the risk that violence will occur in the near future, for example in the coming hours, days or weeks. His risk of imminent violence will require regular review and must be considered in the context of his current mental state”.

41. Notwithstanding the opinion expressed by Mr Knight to which I have just made reference, he was also of the view that the offender is now as well as he can be on prescribed medication. He proposed a treatment plan should the offender be released into the community in due course.

42. The matter first came before me on 10 March 2023, at which time the offender gave evidence. I thought he was a reasonable witness, endeavouring to do his best to tell the truth. He expressed remorse and regret for his offending, and I accept those expressions of remorse.

43. The matter was next before me on 15 March 2023. When Mr Knight was called, he expressed concerns about the offender and other offenders suffering psychiatric conditions being released from custody and “falling through the cracks”. He emphasised the importance of there being a transition plan from custody with Justice Health into the community mental health team.

44. At page 11 of the transcript of that day, in answering a question about the risk (if any) which the offender presented to the community, Mr Knight indicated that he had not had the opportunity to conduct a formal risk assessment on the offender and was not prepared to answer that question. As a consequence of the need to perform the HCR-20 test, the matter was again adjourned to 10 May 2023, by which time the report of 5 May 2023 had come into existence and was marked as an exhibit in the sentence hearing. Mr Knight gave evidence on 10 May 2023. At one point he attempted to review his risk assessment as being moderate, however, he stood by the assessment that he was a high risk of violence which was the subject of the comprehensive report dated 5 May 2023. I draw from the opinion of Mr Knight that the longer the offender goes without violence, without drugs and successfully engaging in treatment, the less the risk of violence or reoffending will be, but as of 5 May and with the treatment which was in place on that occasion, the assessment was high.

45. Following the hearing on 10 May 2023, Mr Knight sent an email to the solicitor for the offender in which he expressed opinions in relation to a number of questions directly put to him. As a consequence, Mr Knight was required for cross-examination again and attended by AVL on 18 May 2023. I note that the email exchange was MFI 7, it will be marked as exhibit 5.

46. Again, Mr Knight repeated his opinion that the offender was as well treated as he could be at the current time. His risk to the community, as to the risk of violence, arises largely through historical factors which, as I have observed, will dissipate as time moves on. At transcript 17 line 41 he was asked this question:

“Q. Well, as a matter of common sense it would seem logical that if he is in custody in a controlled environment, the risk of violence, the risk of reoffending, is reduced. Do you accept that?”

“A. I accept that, but I would say that would be true for most people”.

47. The matter finally came back for further submissions on 18 May 2023 at which time Mr Knight gave evidence on yet another occasion in relation to an email sent at 8.16am that day. I have had regard to both the email and the short evidence given by him on 18 May 2023.

CROWN SUBMISSIONS

48. The parties then engaged in oral addresses supplementing their written addresses. Essentially, Ms Martinez for the offender was asking for her client to be released on an intensive corrections order. The crown resisted that on the basis that favourable findings had not been made pursuant to s 66 of the Crimes (Sentencing Procedure) Act (1999). On that occasion, because of anxiety expressed in relation to the offender wanting to know the outcome of the sentence, I indicated what the sentence would be.

49. MFI 1 are the written submissions for the crown. The Crown referred to the guideline judgment of Henry, a number of features of which exist in this case including the offender being a young offender with no or very little criminal history. Next, a weapon like a knife was used, in this case scissors which were probably less likely to cause death or inflict serious harm than a knife.

50. I accept that there was a limited degree of planning. There was limited actual violence but, by reason of the presentation of the scissors, a threat thereof. I accept that the victim was in a vulnerable position, although he was able to secure himself into a safe environment being the manager’s room. I note that no property was taken by this offender, he did, however, consume some food at the premises and a plea of guilty was entered in the Local Court attracting a discount of 25%.

Objective Seriousness

51. The crown submitted, having regard to offending including the nature of the offensive weapon involved, namely a small pair of scissors, that the offending fell below the mid-range. I accept that characterisation of this offending.

52. In relation to the larceny offending, it was submitted for the crown that it fell at the lowest end of the range of objective seriousness. I also accept and adopt that submission. It was further submitted that the offending was committed for financial gain. I accept that submission and make that finding, noting that financial gain, whilst it may be a motive, it is not an element of the subject offending.

Mitigating Factors

53. In terms of mitigating factors under s 21A (3) of the Crimes Sentencing and Procedure Act (1999) I accept and find that the offending was spontaneous, not part of a planned or organised criminal activity. Next, the offender is entitled to mitigation by reason of the guilty plea.

Prospects of Rehabilitation

54. In relation to his prospects of rehabilitation and risk of reoffending I am encouraged by the progress he has made in custody but, in view of the opinion of Mr Knight, my findings in relation to those two topics must remain guarded.

Special Circumstances

55. I do intend to find special circumstances on the basis that it is the offender’s first time in adult custody, secondly, that his time in custody will be more onerous by reason of his psychiatric conditions and thirdly, because he requires a greater period of time in the community to pursue the treatment referred to by the experts.

SUBMISSIONS FOR OFFENDER

56. I was also assisted by submissions on behalf of the offender MFI 2. Lengthy submissions were made about the decision of the High Court in the matter of Stanley (2023) regarding intensive corrections orders. I have already made findings of objective seriousness, and before doing so I considered the submissions on behalf of the offender at page 4. I accept that by reason of the offender’s psychiatric conditions and his deprived upbringing, his moral culpability for this offending is reduced. As a consequence, he is a less appropriate vehicle for general deterrence and the need for specific deterrence and denunciation are reduced.

57. I note the remarks of the High Court in the matter of Bugmy (2013), which are commonly quoted in these circumstances. On behalf of the offender a table of comparative cases was thoughtfully prepared. I have had regard to those cases and also to the JIRS statistics attached to the submissions for the offender.

SENTENCE

58. I find that, in respect of the larceny offence, s 117, the s 5 threshold is not crossed. That is, that there are alternatives to sentences of full-time custody which, in the circumstances, are appropriate. The relative triviality of the offending causes me to deal with it pursuant to s 10(a) by recording a conviction but imposing no further penalty.

59. In relation to the more serious offence under s 97(1), I intend to impose a sentence previously indicated to the parties comprising a head sentence of two years, ten months and a non-parole period reflecting a favourable finding of special circumstances of one year, eight months. I previously announced the commencement of the sentence will be 17 September 2022. Accordingly, the head sentence will expire 16 July 2025 and the offender will be entitled to be released on parole on 16 May 2024.

60. Mr Braithwaite, in respect of those two offences, you are convicted. In relation to the larceny, I record a conviction but impose no further penalty. In relation to the assault with intent to rob I impose a prison sentence which I have just announced.

Consideration of ICO

61. A considerable time was taken in the course of the addresses regarding the availability and utility of an intensive corrections order. I note that term of the head sentence would now preclude consideration being given to an intensive corrections order. Even had the sentence fallen below two years I would have declined to direct the sentence be served by way of an intensive corrections order as I hold concerns for community safety and also in assessing the risk of reoffending, I consider it as best reduced by continuing the effective treatment in custody.

62. HIS HONOUR: Ms Martinez, have I overlooked anything?

63. MARTINEZ: Not to my knowledge your Honour.

64. HIS HONOUR: Madam Crown, have I overlooked anything?

65. SCOTT: No, your Honour.

EXPLANATION TO OFFENDER

66. HIS HONOUR: Mr Braithwaite, do you understand the sentence?

67. OFFENDER: Yes, your Honour.

68. HIS HONOUR: You will be released to parole 26 May 2024.

69. OFFENDER: Yep.

70. HIS HONOUR: I encourage you to continue consulting with Mr Knight so that he can put in place a transition program for you, and I wish you all the very best.

71. OFFENDER: Yep, thank you.

**********

Amendments

14 November 2023 - Hearing dates amended

Decision last updated: 14 November 2023