R v Malakai Glen BRAITHWAITE [2023] NSWDC 480

District Court New South Wales

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.