Braithwaite v R

Background

1. The applicant pleaded guilty in the Local Court in respect of two offences committed on 9 January 2022: 1. assault with intent to rob armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW) (Crimes Act); and 2. larceny contrary to s 117 of the Crimes Act.
2. The sentence proceedings were heard before Wilson SC DCJ on 10 and 15 March and 10 and 18 May 2023. Although on 18 May the sentencing judge indicated the sentence he intended to impose, it was on 6 July 2023 that his Honour delivered his remarks on sentence and imposed sentences as follows. 1. In respect of the assault with intent to rob offence, the applicant was sentenced to imprisonment for a non-parole period of 1 year and 8 months, commencing on 17 September 2022 and expiring on 16 May 2024, and a balance of term of 1 year and 2 months, which yielded a total term of 2 years and 10 months. The sentence included a 25% discount for the plea of guilty. 2. In relation to the larceny offence, because of the relative triviality of the offending, Wilson SC DCJ recorded a conviction but imposed no further penalty, under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act).

Application for leave to appeal and grounds of appeal

1. The applicant's notice of appeal was filed within time and the grounds of appeal, if leave were granted, are as follows: "1. The sentencing judge erred in his assessment of the objective seriousness of the offence against s 97(1) by: (a) Failing to take into account that the assault did not involve any actual violence; and/or (b) Arriving at a result which was not open. 2. The sentencing judge erred in his consideration of the expert evidence relating to the applicant's prospects of rehabilitation and likelihood of re-offending (including his risk of future violence) by failing to take into account the totality of the evidence. 3. The sentence in respect of the offence against s 97(1) was manifestly excessive."
2. In light of the nature of the grounds of appeal sought to be relied on, it is appropriate first to review in some detail the remarks on sentence, whose medium neutral citation is [2023] NSWDC 480.

Introduction

1. The learned sentencing judge commenced his remarks on sentence by identifying the two charges for which the applicant was to be sentenced, noting that: 1. the larceny, for which the maximum penalty was 5 years imprisonment, involved one chicken wrap and a packet of lollies valued at $9.50; and 2. the assault with intent to rob armed with an offensive weapon charge was "far more serious" and carried a maximum penalty of 20 years imprisonment.
2. Next, his Honour observed that the offending took place on 9 January 2022 and that the applicant was arrested and refused bail on that day. It was accepted that given the timing of his pleas, the applicant was entitled to a discount of 25%.
3. The sentencing judge then dealt with the sentences which had been imposed on the applicant subsequently as a result of his assaulting a corrective officer on two occasions during his "difficult" time in custody soon after he was arrested on 9 January 2022. It was noted that, for the offence committed on 24 January 2022, he was arrested and bail refused on that day and eventually received a 2 years community corrections order that will expire on 27 July 2024. As to the second offence committed on 9 February 2022, the applicant was sentenced to 7 months imprisonment expiring on 8 September 2022. There was a third incident in custody which occurred on 10 May 2022, in relation to which the applicant pleaded not guilty and which had not been disposed of at the time of sentencing. As a result of those matters, his Honour calculated that only a period of 15 days in custody was solely attributable to the offending for which the applicant was to be sentenced. In those circumstances, his Honour determined that the commencement date for the sentence should be 17 September 2022. There was no challenge to this aspect of his Honour's decision.
4. Wilson SC DCJ then recorded that at the time of the relevant offending, the applicant was subject to a 12 months community corrections order which was imposed on 1 July 2021.

Agreed Facts

1. Under the heading "Agreed Facts", the sentencing judge recorded the factual circumstances of the offending in the following terms: "10 The offender was born 5 May 2021 [sic, 2001] 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

1. Under the heading "Subjective Case", Wilson SC DCJ made the following findings and comments. 1. The offending in the applicant's criminal history disentitled him to a finding of good character and any mitigation of sentence which may otherwise have flown from that finding. 2. The applicant's mother's affidavit made good the history provided by him to the psychologist. 3. The sentencing assessment report indicated that the applicant was unemployed at the time but had a work history of cash in hand jobs as a labourer, which his mother reported would be available to him on release from custody. The author of the report stated that the applicant had an extensive history of antisocial behaviour beginning at 15. The report also recorded that the applicant said he was not in his right mind at the time of the offending due to a combination of poor mental health and the influence of drugs. It was also specifically recorded that: "[h]e 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." The report also noted the applicant's weekly drug use and that his previous attendance at rehabilitation on a number of occasions had been unsuccessful but his treatment whilst in custody had been "very successful". It was said that the applicant reported historical diagnoses of post-traumatic stress disorder (PTSD), attention-deficit/hyperactivity disorder (ADHD) and schizophrenia. His Honour found that, although the applicant denied that last diagnosis, it was clear from the evidence that the diagnosis was, in fact, sound. It was noted that the author was of the view that the applicant displayed some insight into his offending, and had expressed a willingness to engage in community service work having, in the past, demonstrated a mixed response to community supervision. Finally, it was recorded that the applicant's risk of reoffending was assessed as medium-high. 1. Next, the sentencing judge considered the reports by the psychologist, Dr Kala Ram. Her first report was found to be "particularly useful in that it paints a detailed and comprehensive picture of the offender's childhood, his education and vocational history" which was described as "deprived", an observation with which his Honour said he agreed. It was noted that the psychologist assessed the applicant as being a low to medium risk classification for reoffending. The psychologist's diagnoses of major depressive disorder with anxious distress, post-traumatic stress disorder, amphetamine-type substance use disorder and cannabis use disorder were recorded. The sentencing judge then referred to Dr Ram's second report and her comment that the applicant ceased using drugs in February or March 2022 about a month or two after going into custody. It was said that the psychologist repeated that the applicant had "a very traumatic childhood, characterised by a number of unsatisfactory features referred to at page 6 of her report." His Honour also noted information from Dr Ram as to the effects of chronic long-term methamphetamine use and, in particular, her opinion that it was highly probable that the drugs compounded the commission of the offences but it was also possible that untreated ADHD in the absence of polysubstance use directly contributed to the commission of the offences. Finally, the sentencing judge said: "When asked whether she [Dr Ram] agreed that, in the absence of any drug use, the ADHD and schizophrenia would not have cause[d] him to commit the index offences, she answered in the negative." 1. Wilson SC DCJ noted that a forensic community treatment order (FCTO) had been made by the Mental Health Review Tribunal and was in place, together with a treatment plan. 2. His Honour then referred to the report of a psychiatrist with Justice Health, Dr Lam, whose report provided the evidentiary foundation for the Mental Health Review Tribunal's findings, and to the applicant's clinical notes from Justice Health. It was noted that 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". It was said that most of the material in the Justice Health had been "adequately and comprehensively" summarised by Dr Ram. 3. The sentencing judge next addressed the evidence of Mr Lee Knight, whom his Honour described as a "clinician consultant" and who gave evidence on three occasions. Mr Knight concurred with Dr Ram's opinion that the applicant suffered a psychotic illness, most likely schizophrenia. It was recorded that the applicant commenced consulting Mr Knight in September 2022 via AVL and Mr Knight said that he would manage the applicant's transition from custody into the community with the continuation of the FCTO. Following the first time on which he gave evidence, Mr Knight prepared a report dated 5 May 2023 which his Honour said that he found "alarming". The sentencing judge noted that the report stated that at the time the report was prepared: 1. "[the applicant] 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"; and 2. the applicant represented "a high risk of future violence" when assessed using the HCR-20 risk for violence assessment tool but that risk may be reduced in the event that the treatment continued. The sentencing judge also noted, however, that Mr Knight stated: "[The applicant] 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". In addition, it was noted that Mr Knight was of the view that the applicant was "now as well as he can be on prescribed medication" and Mr Knight proposed a treatment plan should the applicant be released into the community. 1. Wilson SC DCJ then commented on the applicant's evidence given on 10 March 2023 and stated that he "thought [the applicant] was a reasonable witness, endeavouring to do his best to tell the truth. He expressed remorse and regret for his offending". His Honour expressly accepted the applicant's expressions of remorse. 2. At this point in his remarks, the sentencing judge returned to the evidence of Mr Knight and noted that he when he gave evidence on 15 March 2023 he emphasised "the importance of there being a transition plan from custody with Justice Health into the community mental health team". His Honour also recorded that during his evidence on 10 May 2023 Mr Knight "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". His Honour continued, at [44] and [46]: "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. … 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. …" It was noted that Mr Knight also gave evidence on 18 May 2023 and the sentencing judge said that he had regard to this evidence, without identifying its specific content.

Crown Submissions and findings

1. Although under the heading "Crown Submissions", the sentencing judge first recorded the applicant's essential submission that he should be released under an intensive correction order and referred to the Crown's resisting such an approach because favourable findings had not been made under s 66 of the Sentencing Procedure Act.
2. Next, the Crown's submissions concerning the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (Henry) were referred to and his Honour noted that a number of features of the decision in Henry existed in the present case namely: the applicant being a young offender with no or very little criminal history; and, 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." After accepting that the degree of planning was limited, Wilson SC DCJ continued at [50]: "… There was limited actual violence but, by reason of the presentation of the scissors, a threat thereof. …"
3. His Honour also accepted that: the victim was in a vulnerable position, although he was able to secure himself in a safe environment being the manager's room; no property was taken by the offender although he did consume some food at the premises; and, a plea of guilty was entered attracting a discount of 25%.
4. Under the subheading "Objective Seriousness", the sentencing judge made his assessment of objective seriousness in the following terms, at [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."
5. The sentencing judge then dealt with the larceny offending, stating that he accepted the Crown's submission that the larceny offending fell at the "lowest end of the range of objective seriousness" and accepted that the offending was committed for financial gain but noted that financial gain was not an element of the offending.
6. Under the subheading "Mitigating Factors", his Honour accepted and found that: the offending was spontaneous; not part of a planned or organised criminal activity; and, the applicant was entitled to mitigation because of his guilty plea.
7. Under the subheading "Prospects of Rehabilitation", the sentencing judge said, at [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."
8. Finally, under the subheading "Special Circumstances", special circumstances were found on the basis that: it was the applicant's first time in custody; his time in custody would be more onerous by reason of his psychiatric conditions; and there was a requirement for a greater period of time in the community to pursue treatment.

Submissions For Offender

1. Under the heading "Submissions For Offender", his Honour said he was assisted by the applicant's submissions MFI 2 and noted that lengthy submissions were made concerning intensive corrections orders but did not set any of those submissions out. In relation to the assessment of objective seriousness, it was expressly noted at [56] that: "I have already made findings of objective seriousness, and before doing so I considered the submissions on behalf of the [applicant] at page 4 [of MFI2]."
2. The applicant's moral culpability for the offending was expressly accepted as being reduced by reason of his psychiatric conditions and his deprived upbringing and, as a consequence, the sentencing judge said that the applicant was a less appropriate vehicle for general deterrence and the need for specific deterrence and denunciation were reduced.
3. His Honour also said that he "note[d] the remarks of the High Court in the matter of Bugmy [v The Queen (2013) 249 CLR 571; [2013] HCA 27], which are commonly quoted in these circumstances" and that he had had regard to the cases in the applicant's table of comparative cases and to the Judicial Information Research System (JIRS) statistics attached to the applicant's submissions.

Sentence

1. The sentencing judge then imposed the sentence referred to above for the assault with intent to rob offending and entered a conviction for the larceny offence but imposed no further penalty.
2. Finally, his Honour said that the term of the head sentence would preclude consideration being given to an intensive corrections order but, even if that were not the case, he would not have imposed such an order as he held concerns for community safety and, in assessing the risk of reoffending, he considered it "as best reduced by continuing the effective treatment in custody".

Ground 1

1. The first ground of appeal raised the issue of whether the sentencing judge erred in his assessment of the objective seriousness of the assault with intent to rob offence in two ways, namely by: 1. failing to take into account that the assault did not involve any actual violence; and/or 2. arriving at a result which was not open.
2. The applicant submitted in effect that the sentencing judge's error was that he failed to take into account that the nature of the assault was one that did not involve any actual violence and was only constituted by the applicant producing scissors from his pocket without any oral threat. It was contended that this factor was highly material to the assessment of objective seriousness but was not referred to in the reasoning as to why the offending was characterised as being "below the mid-range". It was submitted that, furthermore, the position in relation to the absence of actual violence was misstated by his Honour at [50] where it was said that there was "limited actual violence but, by reason of the presentation of the scissors, a threat thereof". The failure to take into account the absence of actual violence was submitted to be a material error which required resentence. Alternatively, it was submitted that a proper consideration of the facts demonstrated that the assessment made by the sentencing judge was not open.
3. The Crown submitted that the sentencing judge's finding that "there was limited actual violence but, by reason of the presentation of the scissors, a threat thereof" was not erroneous. It was contended that, although it was correct that the offence did not involve a physical assault or battery, "the confronting of the store employee, in the inherently vulnerable position that he worked in, and the production of an implement that could cause real physical harm, was in itself an act of violence that was both aggressive and confronting". The implicit submission appeared to be that a perceived threat of violence could constitute "actual violence". It was also submitted in effect that the statement that there was "limited actual violence" when, in fact, there was no physical assault or battery was in effect a semantic infelicity or an immaterial slip. It was also submitted that the use of indefinite descriptions of parts of a range of objective seriousness as occurred in this case was not such as to lead to the conclusion that the sentencing judge's assessment that the offending was "below the mid-range" was not open in the circumstances.
4. There was no dispute that it is to be accepted that assessment of objective seriousness is classically a matter for the sentencing judge and that this Court should be slow to determine such matters for itself or to set aside the assessment made by the first instance judge: Salafia v R [2015] NSWCCA 141 (Salafia) at [89] (Wilson J, Hoeben CJ at CL and Hall J agreeing) quoting Ali v R [2010] NSWCCA 35 at [33].
5. It is also well established that a ground of appeal asserting error in the assessment of objective seriousness can be advanced successfully only where specific error of the sort referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) can be identified: see for example Salafia at [90]. The types of errors referred to in House v The King, which was a case of an appeal against sentence, were identified by Dixon, Evatt and McTiernan JJ as follows, at 505: "If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
6. If the sentencing judge proceeded on the basis that there was some, albeit limited, actual violence involved in the assault with intent to rob offending, he mistook the facts and thus made an error of a type referred to in House v The King. The agreed facts, as accepted by his Honour, establish that there was no such actual violence. The difficulty in the present case arises out of the fact that the sentencing judge did not articulate in detail how he arrived at his assessment of objective seriousness.
7. The specific reasoning as to the relevant assessment of objective seriousness was at [51] and [56] of the remarks on sentence. All that is disclosed in those paragraphs is that the sentencing judge: 1. accepted the Crown's characterisation of the assault of intent to rob offending as falling "below the mid-range", "having regard to offending including the nature of the offensive weapon involved, namely a small pair of scissors": [51]; and 2. before reaching that conclusion, the sentencing judge considered page 4 of the applicant's written submissions, which were identified as MFI 2 during the proceedings on sentence: [56]. It can be noted that in par 12 on page 4 of the applicant's submissions, there was a reference back to the submissions in par 5 on page 2 that both offences were "at the lower end of objective seriousness" for the detailed reasons set out in subpars (a) to (f) and, on page 4 itself at par 12, there was the submission that the offending was "towards the lesser end of objective seriousness for offences of this kind" and a number of factors were identified in pars [13] - [15].
8. The sentencing judge's other consideration of the objective circumstances of the offending was found under the heading "Crown Submissions" at [49] and [50] and was limited in effect to acceptance of various Crown submissions as follows: 1. "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": [49] (the remainder of the considerations in that paragraph were personal to the applicant); 2. "there was a limited degree of planning": [50]; 3. "[t]here was limited actual violence but, by reason of the presentation of the scissors, a threat thereof": [50]. It can be noted here that the sentencing judge appears to have adopted the Crown's description of the relevant factor referred to in Henry rather than the actual submission made by the Crown which was "[t]here is no actual violence present in the current matter however there was the clear perception of immediate harm on the part of the victim"; [1] 4. "the victim was in a vulnerable position, although he was able to secure himself into a safe environment being the manager's room": [50]; and 5. "no property was taken by [the applicant], he did, however, consume some food at the premises": [50].
9. It is clear from the submissions made during the sentence proceedings that the parties propounded different assessments of objective seriousness using indefinite descriptions of positions or ranges on a notional scale or spectrum of objective gravity of the offending in question. The Crown submitted it was "below the mid-range" and the applicant "at the lower end of objective seriousness". The use of such imprecise descriptions involves the difficulties referred to by Wilson J (Wright and Fagan JJ agreeing) in Salama v The King [2023] NSWCCA 141 at [47] - [49].
10. Nonetheless, it appeared from a consideration of the proceedings on sentence, and was effectively accepted by the Crown during oral submissions in this Court, that the sentence proceedings were conducted on the basis that "at the lower end of objective seriousness" involved a substantially lesser degree of objective seriousness than was involved in "below the mid-range [of objective seriousness]". Similarly, it appeared that the sentence proceedings were not conducted on the basis that "below the mid-range" referred to any objective seriousness lower than the middle of the range including objective seriousness at the lower or the lowest level.
11. The factors specifically considered by the sentencing judge, such as the nature of the offensive weapon involved, a small pair of scissors, the limited degree of planning, the fact that the victim was able to secure himself in a safe environment and the fact that no property was taken all suggested that the offending would properly be characterised, using the parties' categories, as "at the lower end of objective seriousness". The only other factor specially referred to by his Honour was the presence of "limited actual violence", which would elevate the seriousness of the assault with intent to rob offending.
12. In these circumstances, it appears to me that there are two possibilities. First, the sentencing judge when preparing his remarks and making his assessment of objective seriousness mis-recalled and mistook the facts and proceeded on the basis that there was some, albeit limited, actual violence (when there was in fact none) and that this caused him to characterise the relevant offending as "below the mid-range" and as more objectively serious than "at the lower end of objective seriousness". Or, secondly, if the sentencing judge was not mistaken and proceeded on the basis that there was no actual violence, having regard to that fact and all the other circumstances of the offending, the assessment that the assault with intent to rob offending was (once again adopting the terminology of the parties) "below the mid-range" and not "at the lower end of objective seriousness" was not reasonably open, and was unreasonable or plainly unjust. In reaching that conclusion, the relevant objective circumstances of the offending, as disclosed on the agreed facts and his Honour's findings, included not only that there was no actual violence involved at all but also that: 1. there was little planning; 2. the offensive weapon was a small pair of scissors, which were less likely to cause death or inflict serious harm than a knife; 3. the applicant did not orally threaten to use violence and did not attempt to lunge or move so as to attack the victim before or after the victim entered the secure area behind the screen and locked door; 4. when the applicant produced the scissors and demanded money, the victim was caused to fear harm but the applicant and the victim were separated by a counter and the screen and vertical wires protected the victim to some extent; 5. after he activated the alarm and went into the manager's office, the victim was safe; 6. the applicant replaced the scissors in his pocket and waited and responded non-threateningly and courteously saying "good morning" to the second employee when she arrived and walked through the public area to the secure area and the manager's office; 7. the victim watched the offender on CCTV and locked the customer entry door after the applicant left the premises and he did not attempt to re-enter; 8. no money or property was taken and the food consumed was the subject of the larceny offending; and, 9. no other customers were affected by the applicant's actions.
13. Indeed, although such comparisons are of little if any determinative value, my perception was that it would be difficult to conceive of circumstances which would establish each of the elements of the offence of assault with intent to rob armed with an offensive weapon and which would, in total, justify an assessment that those circumstances were significantly less objectively serious than the circumstances of the present case.
14. Similarly, a comparison of circumstances in a particular case with the circumstances in other cases is generally of no determinative assistance as each case will turn on its own particular facts. Nonetheless, I have considered the two cases referred to in the applicant's submissions which were said to be similar to the present. In those cases, the offending was accepted as being: 1. "at the lower range of objective seriousness" for offending which was summarised as "a somewhat amateurish and impulsive attempted robbery, no physical violence was in fact affected [sic] and nothing of particular value was stolen": R v Gray [2018] NSWCCA 241 at [58] and [59]; and 2. "towards the lower end of the range for this type of offence" for an assault with intent to rob armed with an offensive weapon which was involved the offender brandishing a butter knife, kicking the door and making threatening comments but also telling the victim he "can call the cops" because the motive was his desire to be arrested: Tuncbilek v R [2020] NSWCCA 30 at [78]-[81].
15. To the extent that these cases have any particular relevance, they confirm my conclusions.
16. For these reasons, in my view, the first ground of appeal has been made out on one or other of the bases relied upon and the sentence should be quashed and the applicant resentenced.
17. As a consequence of those conclusions, the remaining ground 2 can be addressed relatively briefly and ground 3, which contends that the sentence was manifestly excessive, is not required to be addressed.

Ground 2

1. The second ground of appeal concerned whether the sentencing judge had failed to take into account the totality of the evidence in relation to the applicant's prospects of rehabilitation and likelihood of reoffending.
2. In his remarks on sentence, Wilson SC DCJ reviewed, in addition to the evidence of Dr Ram and Dr Lam, the evidence of Mr Knight in some detail, as summarised above.
3. The sentencing judge's conclusion, at [54], in relation to the applicant's prospects of rehabilitation and risk of reoffending was that, although encouraging progress had been made in custody, any finding in relation to those two topics "must remain guarded", in view of the opinion of Mr Knight.
4. Under his second ground of appeal, the applicant made, in substance, four criticisms of the sentencing judge's approach. First, it was contended that in his reasons, his Honour made only passing reference at [41] to the "extremely detailed treatment plan" proposed by Mr Knight whereas the comprehensive nature of that plan should have been taken into account in assessing the applicant's prospects of rehabilitation and likelihood of reoffending. In my view, the sentencing judge did take into account the plan actually proposed by Mr Knight and was not required to set out the specifics of that plan in his remarks. His Honour recorded that the applicant was the subject of an FCTO and noted at [38] that Mr Knight proposed managing the applicant's transition from custody into the community with the continuation of the FCTO. It was also found, based on Mr Knight's evidence, that the longer the applicant went without violence, without drugs and successfully engaging in treatment, the less the risk of violence or reoffending would be and that the risk of violence arose largely through historical factors which his Honour accepted would dissipate as time moved on. Finally, in relation to his finding of special circumstances, the sentencing judge accepted that the applicant required a greater period of time in the community "to pursue the treatment referred to by the experts". All of these findings and comments demonstrated that the treatment plan proposed by Mr Knight had been taken into account.
5. Secondly, it was submitted that the sentencing judge took a "reductive" approach to Mr Knight's evidence that while the HCR-20 risk assessment tool yielded a risk of future violence which was high, if the treatment plan were taken into account, Mr Knight would assess that risk as moderate. Thus, it was contended that his Honour had not taken into account the totality of Mr Knight's evidence. I do not accept that submission. After reviewing relevant parts of that evidence, the sentencing judge explained his conclusion as follows: "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.
6. This assessment of Mr Knight's evidence was, in my view, open and was a reasonable summary of the situation which emphasised that the risk of violent reoffending assessed by Mr Knight was high but, if the applicant adhered to the treatment plan, it would moderate. The sentencing judge took into account, appropriately, that whether the applicant's risk became moderate would depend on his degree of compliance with the plan.
7. Thirdly, it was submitted that the sentencing judge erred by failing to mention that "while Mr Knight eventually conceded … that as at 5 May 2023 his assessment of the applicant's risk of future violence, taking into account his current treatment regime, was high, he did so with the caveat that the risk was high set 'in its totality, with no time limit on it', whereas the imminent risk was moderate". The sentencing judge was not required to mention, or accept, every part of Mr Knight's evidence in his remarks on sentence. In my view, the conclusions reached by his Honour in respect of Mr Knight's evidence that were relevant to the issues of rehabilitation and re-offending were adequately explained in the remarks.
8. Fourthly, it was contended that in reaching the conclusion that in relation to the applicant's prospects of rehabilitation and risk of reoffending the sentencing judge's findings should remain guarded, his Honour made no mention of any other expert evidence, including in particular the evidence of Dr Ram who assessed the applicant as a low/medium risk of reoffending and the evidence of a list of "[p]rotective factors that suggest a promising prognosis (and therefore reduced risk of recidivism)". I do not accept that this constituted an error on the part of the sentencing judge which would vitiate the sentencing exercise. In the remarks on sentence Dr Ram's reports were referred to in some detail including, for example, her assessment of the applicant's risk of re-offending. His Honour was not obliged to accept Dr Ram's opinions and to reject Mr Knight's. It was open to the sentencing judge to accept Mr Knight's evidence in that regard and to make the finding that he did.
9. Accordingly, I am not satisfied that the applicant's second ground of appeal has been made out.

Resentence

1. Since I would uphold the first ground of appeal, it is necessary now to consider re-sentencing the applicant in the fresh exercise of the sentencing discretion.
2. In re-exercising the sentencing discretion, the Court is to have regard to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9] (Bell, Keane, Nettle, Gordon and Edelman JJ). Furthermore, to the extent that the submissions made by the parties in respect of the third ground of appeal contending that the sentence imposed was manifestly excessive are relevant to re-sentence, I have taken them into account in resentencing.
3. For the purposes of resentencing, the applicant relied upon his affidavit affirmed on 11 January 2024. The affidavit established the following: 1. the applicant is working as a sweeper throughout the day, without any direct supervision; 2. the applicant is in the mental health pod at the Metropolitan Reception and Remand Centre and sees a psychiatrist every few months. His perception is that his anti-psychotic medication helps him significantly and he believes that he no longer has any major symptoms of schizophrenia, including delusions; 3. the applicant has not had any major problems or charges for offences while in custody since his sentencing; 4. on release from custody the applicant will live with his parent in Coolah which is a considerable distance from where the offending took place and away from anti-social peers and he expressed confidence that he could find employment in the Coolah area; 5. the applicant believes that he will continue to receive assistance from the NDIS and his case worker, Mr Knight, who will be available, post-release to assist him; and 6. the applicant continues to have support from his parents.
4. For the reasons set out in relation to ground 1, in my assessment the assault with intent to rob offending fell at the lower end of the range of objective seriousness for such offences. In addition, for the reasons given in relation to ground 2 and for the reasons given by Wilson SC DCJ in that regard, I agree with the sentencing judge's conclusion that the applicant's prospects of rehabilitation and risk of re-offending remain guarded to a certain extent but, in light of the applicant's affidavit, I would accept that there is now an improved prospect of the applicant complying with the detailed treatment plan recommended by Mr Knight and thus those prospects and that risk have improved.
5. Otherwise, where there was no challenge to the sentencing judge's factual findings or assessments and having considered all the material, I would respectfully adopt those factual findings and assessments, including (without attempting to be exhaustive) as to the commencement date of the sentence, his entitlement to a 25% discount, the impact of his psychiatric conditions, the role of general and specific deterrence and denunciation, and the finding of special circumstances, as they corresponded with my own. These findings and assessments are set out in the sentencing judge's remarks and some are summarised above. It is not necessary to repeat them all here.
6. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate.
7. In determining the sentence that I consider should be imposed, I have had regard to all relevant objective and subjective circumstances of the offending for which the applicant is to be resentenced, including those referred to above and those referred to in the sentencing judge's remarks which were not challenged on appeal, as well as the relevant principles relating to, and the purposes of, sentencing.
8. In all the circumstances, in my view the appropriate sentence would involve an undiscounted starting point of 3 years and 3 months, which after application of the discount of 25% for the plea of guilty, results in a sentence of 2 years, 5 months and 7 days. The sentence is to commence on 17 September 2022. Applying approximately the same percentage as the sentencing judge to reflect the finding of special circumstances, yields a non-parole period of 1 year, 5 months and 7 day and a remainder of sentence of 1 year.
9. Accordingly, in my view, the orders of the Court should be: 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.
10. It may be noted that under such orders the applicant will be released to parole on 23 February 2024.
11. WILSON J: I am grateful to Wright J and Leeming JA for their respective judgments, which I have read in draft. Although I would not uphold ground 1(a), which I regard as a purely semantic complaint, I agree with their Honours that error has been established by ground 1(b) as to the assessment of the gravity of the s 97(1) offence, for the reasons given by Wright J. Although arguments about what a particular place in a notional range of seriousness may mean are generally sterile, in the context of the submissions made at first instance in this matter, a resolution of the dispute placing this offence as below the mid-range is too high. Without diminishing the fear and distress doubtless caused to the attendant, this was a clumsy crime, clumsily executed, of lower gravity. I agree with the orders proposed by Wright J.

Endnote

1. The Crown's written submissions on sentence dated 25 May 2021 (Appeal Book p 260) under the heading "Objective Seriousness" contained sub-par 3(iv). That sub-paragraph addressed the factor in Henry identified as "Limited actual violence but a real threat thereof". The Crown's submission in that regard was: "There is no actual violence present in the current matter however there was the clear perception of immediate harm on the part of the victim". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2024