Braithwaite v R [2024] NSWCCA 15

Braithwaite v R [2024] NSWCCA 15

Ground 1 was established because either the sentencing judge mistook the facts by proceeding on the basis that there was some actual violence when there was none, or, if he proceeded on the correct basis, the characterisation of the offending as below the mid-range rather than at the lower end of objective seriousness was not reasonably open. The objective circumstances included little planning, a small pair of scissors, no oral threat to use violence, separation from the victim by the counter and protective screen or wires, the victim reaching safety, no property taken in the robbery, and no other customers affected. Ground 2 was not established because the sentencing judge adequately...

Jurisdiction
Australia
Judgment Date
16 February 2024
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From Sentence Imposed in the District Court
Outcome
Leave to appeal granted; appeal allowed; sentence for assault with intent to rob armed with an offensive weapon quashed; applicant resentenced.
Legal Topics
['assault With Intent to Rob Armed With an Offensive Weapon' 'larceny' 'objective Seriousness' 'prospects of Rehabilitation' 'risk of Reoffending' 'manifest Excess' 'resentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['assault With Intent to Rob Armed With an Offensive Weapon' 'larceny' 'objective Seriousness' 'prospects of Rehabilitation' 'risk of Reoffending' 'manifest Excess' 'resentencing']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of the s 97(1) offence by failing to take into account that the assault did not involve actual violence or by arriving at a result that was not open.' "Whether the sentencing judge failed to take into account the totality of the expert evidence concerning the applicant's prospects of rehabilitation and likelihood of reoffending." 'Whether the sentence for the s 97(1) offence was manifestly excessive.']

Ratio Decidendi

Ground 1 was established because either the sentencing judge mistook the facts by proceeding on the basis that there was some actual violence when there was none, or, if he proceeded on the correct basis, the characterisation of the offending as below the mid-range rather than at the lower end of objective seriousness was not reasonably open. The objective circumstances included little planning, a small pair of scissors, no oral threat to use violence, separation from the victim by the counter and protective screen or wires, the victim reaching safety, no property taken in the robbery, and no other customers affected. Ground 2 was not established because the sentencing judge adequately...

Court Disposition

Leave to appeal granted; appeal allowed; sentence for assault with intent to rob armed with an offensive weapon quashed; applicant resentenced.

Orders

  • ['Leave to appeal is granted.' 'The appeal is allowed.' '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.' 'In lieu, the applicant is sentenced to imprisonment for a non-parole period of 1 year 5 months and 7...