Luchetti v R [2025] NSWCCA 222 | Case summary | Zoe

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Luchetti v R [2025] NSWCCA 222 | Case summary | Zoe

The appellant’s circumstances were before the Court by further aspects of the agreed facts, his criminal and custodial history, a sentencing assessment report and breach of parole report tendered by the Crown, and the psychiatric report of Dr Dayalan tendered on the appellant’s behalf. The appellant was 38 years of age at the time of the offending.
As well as assessing the appellant, Dr Dayalan had previously been involved in his care at South Coast Correctional Centre. He also considered earlier psychiatric reports of Dr Robertson dated 6 December 2021 and Dr Furst dated 22 February 2023.
The appellant was born in Sri Lanka and adopted at a young age by an Australian couple. They also adopted his brother. He had difficulties in learning and attended special classes in high school. He displayed conduct problems at this time which coincided with abusing cannabis and alcohol, and criminal offending. He was seriously assaulted as a youth and the consequential trauma exacerbated his substance abuse.
In his early twenties the appellant began to experience auditory hallucinations, even when abstinent from drugs and despite treatment with antipsychotic medication. He believed the voices were those of Outlaw Motorcycle Gang (“OMCG”) members. He believed they had murdered his father while he was visiting Thailand, and he blamed himself for his father’s death. In 2012 he was admitted to the Mater Hospital in the context of the voices telling him that OMCG members were going to kill him. He was diagnosed with schizophrenia at 27 years of age. He has had a number of psychiatric admissions since then, and his ongoing use of illicit substances and non-compliance with medication have exacerbated his symptoms. These substances have been described by him as being used to help him “cope with reality.” The appellant has a history of suicidal thoughts, although to Dr Dayalan he denied any past suicide attempt.
Regarding the offending, the appellant reported to Dr Dayalan that he believed he was being followed by neo-Nazis and OMCG members. He was experiencing auditory hallucinations. He said his substance abuse had contributed to his actions and that he hoped to sell the bottle of whiskey for crystal methamphetamine, but consumed it himself. He had been released a month earlier from custody and was not receiving mental health treatment in the community.
Dr Dayalan noted that since his return to custody the appellant had been recommenced on antipsychotic medications and denied illicit drug use. He reported to Dr Dayalan that he continued to hear voices. He said he challenged correctives officers to stop spreading rumours about him being a sex offender and this led to a physical altercation. He said he had also made a statement that a female officer defecated on his stomach, and believed he was being persecuted for this comment. Dr Dayalan described the appellant as providing a thought disordered account regarding OMCG members at the time of his assessment in October 2024.
The appellant stated to Dr Dayalan that he coped better in custody than in the community. He felt more anxious and feared more persecution from OMCG members in the community.
Dr Dayalan diagnosed the appellant with: chronic treatment resistant schizophrenia; cannabis, stimulant and alcohol use disorders; and noted that he was suffering from cognitive deficits.
Dr Dayalan referred to the appellant’s psychotic symptoms around the time of the offence, use of drugs and non-compliance with medication. He expressed the opinion that while the appellant’s offending did not appear to be directly influenced by his psychotic symptoms, there was a close correlation between his substance use and offending behaviour. He abused substances to manage distress secondary to psychotic symptoms, which suggested an indirect association between the mental condition and offending. Dr Dayalan explained that there is a high incidence of substance abuse amongst individuals with schizophrenia. He expressed the view that the ongoing psychosis, cognitive deficits and the effects of substances were all likely to have contributed to impaired judgment and consequential thinking at the time of the offence.
The appellant has a significant record of criminal convictions including for robbery in company and robbery while armed with an offensive weapon as a juvenile, resulting in the imposition of control orders.
The appellant’s adult convictions include robbery in company in 2005, demanding money with menaces in 2010, assault occasioning actual bodily harm and other assaults in 2010, robberies in 2017 and 2022, larceny and shoplifting, custody of a knife, offences of having goods in his custody, and stalking and intimidation. The sentencing assessment report describes the appellant’s offending as consistently underpinned by substance abuse and mental illness. He was on parole at the time of the commission of the offence, having been released from custody to parole on 18 October 2023. He was also subject to two Community Correction Orders.
After the appellant’s release to parole on 18 October 2023 he was hospitalised at Cumberland Mental Health Hospital for six days from 21 October 2023 because of his manner of presentation at the accommodation organised for him. After his discharge he reported, at an appointment with Community Corrections on 2 November 2023, that he was struggling to remain abstinent. He was not present at his managed accommodation on a Community Corrections home visit on 9 November 2023, and further enquiries revealed that he had been returned to hospital the previous day due to a decline in his mental health. He was directed to report on 13 November 2023 but failed to do so in person. He did however make telephone contact with Community Corrections, stating he could not report due to not feeling safe in Merrylands, which feeling had also caused him to leave the previous accommodation. Contact with Community Mental Health shortly after this resulted in advice to Community Corrections that the appellant needed to be admitted to hospital. Attempts to locate the appellant on 16 November 2023 were unsuccessful, and he was arrested on 17 November 2023, having offended on November 11.
The appellant acknowledged to the author of the sentencing assessment report that when in the community he is not compliant with prescribed mental health medication, and it was noted that he has previously indicated he should be placed on a Community Treatment Order.
As at the date of the commission of the offence, the appellant had provided to him accommodation in Merrylands managed by Healthcare Requests (Accommodation Services), and was assisted by disability support workers. However he did not always live at the managed property, due to delusional thoughts about the safety of the property. He described himself to the author of the sentencing assessment report as homeless at the relevant time.
On the day of offending the appellant was assisted by a disability support worker between 9 am and 2 pm. That worker went to an address in Surry Hills and picked up the appellant, taking him to a mall in Redfern and then to the appellant’s managed accommodation. The worker stayed there for a period before the appellant asked to be taken to Westfield Parramatta, which is where he then offended.
Dr Dayalan described the appellant as institutionalised. He has struggled to adapt to living in the community when released from gaol, resulting in repeated incarcerations. This issue, in his view, required input from multiple agencies upon the appellant transitioning into the community, such as the mental health team, drug and alcohol services, disability support services and Community Corrections. He suggested that a prolonged period of parole with such engagement mandated would better address these rehabilitation needs than a protracted period in a correctional environment.
At the time of the completion of the sentencing assessment report the appellant had refused to accept calls from his National Disability Insurance Scheme (“NDIS”) provider, who advised the report’s author they had capacity to assist him in finding post-release accommodation.

In the District Court, the prosecution accepted that the appellant’s mental health conditions made him an inappropriate vehicle for general deterrence. Her Honour acknowledged the appellant’s diagnosis of schizophrenia and stated that Dr Dayalan’s evidence that methamphetamine is well known to exacerbate psychotic illness did not excuse his actions, but provided some explanation. Her Honour referred to the absence of direct influence of psychotic symptoms on his actions, but close correlation between substance use and offending behaviour, and stated “Where the offender’s use of drugs is closely linked to his mental health problems, his moral culpability is reduced to some extent.” Her Honour held that protection of the community remained an important factor in the sentencing exercise. Her Honour stated that specific and general deterrence were moderated due to the appellant’s mental health issues.
Her Honour acknowledged the appellant’s report to Dr Dayalan of a particular traumatic aspect of his background, and stated that this matter was taken into account. Her Honour stated again at the end of her sentencing judgment that she had taken his subjective case into account.
Her Honour noted that it was an aggravating factor that the appellant was subject to three forms of conditional liberty. It was found to be unrealistic to be anything other than guarded about the appellant’s prospects of rehabilitation and likelihood of reoffending, given his criminal record and history of breaching conditional liberty orders. Her Honour found the appellant to be institutionalised.
As noted a 25% discount for the guilty plea was afforded – indicating a starting point prior to such discount of 5 years 4 months, at the upper end of the range identified by her Honour as suggested by the Henry guideline, with the variable of the stage of the guilty plea removed. Special circumstances were found because the appellant and community will benefit from him having a longer period of structured supervision while on parole. The paragraph from Dr Dayalan’s report referred to above at [26] was expressly taken into account by her Honour in making this finding of special circumstances to vary the ratio between the non-parole period and total sentence; and as noted above her Honour had accepted Dr Dayalan’s evidence that the appellant is institutionalised.
Her Honour acknowledged that parole was revoked, effective from the date of arrest on 17 November 2023, and that it expired on 17 January 2024. Her Honour selected the date between these of 18 December 2023 for the commencement of the sentence.

As outlined above, the appellant’s first ground of appeal, asserting error in assessment of objective seriousness, was argued in three ways.
In support of the first of these, ground 1(i), asserting erroneous application of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (“Henry”) to the sentencing task, it was submitted that the seven Henry characteristics (as quoted in her Honour’s sentencing judgment, above at [28]) are not a guideline or proxy for criteria relevant to a finding of objective seriousness. As they do not all relate to objective seriousness, but include the offender’s age, criminal antecedents, and plea, assessment of objective circumstances by reference to these criteria was submitted to demonstrate error.
Reliance was placed upon the decision of this Court in Towers v R [2025] NSWCCA 142 (“Towers”), in which it was held that the sentencing judge erred in taking into account subjective matters, namely the age and criminal antecedents of the applicant, in his assessment of objective seriousness for the aggravated steal from person offence: Towers at [60]-[77] (Coleman J, N Adams and Sweeney JJ agreeing).
The second way in which the appellant contended that the sentencing judge erred in her assessment of the objective seriousness of the offending was in an asserted failure to disclose such assessment (ground 1(ii)), as no express or implied finding of objective seriousness is disclosed by a comparison or contrast with Henry. While the Court in Henry referred generally to the seriousness of armed robbery, it did not make a finding of objective seriousness of the specific armed robbery scenario reflected in the frequently recurring case. It is not as though the Henry scenario is known to be “mid-point” or “above mid-point”, such that reference to Henry necessarily reveals the assessment of the level of objective seriousness. That is, a reference to the extent to which the appellant’s offending compares to the Henry criteria was submitted to not reveal that an assessment of objective seriousness has been made, nor what it is.
Further, even if her Honour could be taken to have been referring to her Honour’s earlier summary of the facts for sentence rather than the Henry criteria she had just summarised and compared to the offence before her (which was not accepted), this was contended to not make her Honour’s assessment of objective seriousness “obvious”, as her Honour had said it did (above at [28]). In this respect the applicant quoted and relied upon the decision of this Court in Baydoun v R [2024] NSWCCA 65 (“Baydoun”) per Chen J at [43], Wilson and Huggett JJ agreeing as follows:

It was submitted to be necessary for the sentencing judge to make clear evaluations of such matters as objective seriousness, with her Honour’s failure to do so rendering it necessary for this Court to undertake the task itself.
The third way in which the assessment of objective seriousness was submitted to have been erroneous was with respect to the weapon used, and the assessment of how this compared to the Henry criteria, which was wrong in fact. Her Honour assessed that the offending differed from that outlined in the Henry guideline only by reference to the appellant’s greater age and worse criminal antecedents (that is, unfavourably). It was accordingly submitted that her Honour implicitly accepted that the appellant was armed with an offensive weapon “like a knife, capable of killing or inflicting serious injury”.
The lighter was emphasised to be unlike a knife, an extremely serious form of offensive weapon - knives in some cases being considered worse than guns because they are “always loaded,” citing R v Campbell [2010] ACTCA 20 at [38]. A finding of the lighter as broadly comparable to a weapon like a knife, capable of killing or inflicting serious injury, was submitted to not be open to her Honour.
The respondent contended that there could be no doubt that the Henry guideline was applicable in the present case, being an offence of robbery armed with an offensive weapon. It was submitted that there was no possible error in considering the weapon, degree of planning, degree of possible or actual violence, vulnerability of the victim, and value of the property stolen in an assessment of objective seriousness of the offence, such that ground 1(i) should be rejected.
There was submitted to be no prospect that the judge had included the appellant’s age and criminal antecedents as bearing upon the objective gravity of the offence.
It was submitted in respect of ground 1(ii) that the sentencing judge’s findings in relation to the objective gravity of the offending were sufficiently clear or, as her Honour had said, “obvious,” through a combination of: setting out the facts, including a description of the level of threatened violence, the value of property stolen, the offensive weapon used, and the position of the victim; setting out the Henry characteristics; and finding “[t]he present offence falls broadly within those characteristics.” Because of this, the sentencing remarks were not a bare recitation of the facts of the offending, unlike the case in Baydoun.
With respect to her Honour’s assessment of the weapon, the respondent noted that the victim thought the object was shaped like a gun and was fearful. There was thus submitted to be no error in her Honour finding the offence to be “broadly” within the Henry guideline, including by reference to the nature of the weapon.

In holding up a lighter and telling a store owner to not come near him the appellant used the lighter for an offensive purpose. The lighter however was profoundly different in its actual capacity for inflicting harm, and the fear it was likely to engender significantly less, than the weapons contemplated in Henry.
The fear of the victim described in the agreed facts was no more than the fear essential as an element of armed robbery. The Henry factor (iv) of “limited if any actual violence but a real threat thereof”, in the frequently recurring case, was describing some level of threat more significant than simply making out the requisite element of robbery as occurred here.
By way of contrast, in the suite of cases responsive to the Crown appeals in the proceedings associated with the guideline judgment, in the first of Mr Henry’s armed robbery offences he produced a filleting style wooden handled knife which was about 35cm in length, and in making his demands of a service station console operator held the knife to the skin of the operator, although it did not pierce the skin. In the second offence he held a long bladed carving knife about 30 cm from the lone female shop assistant: R v Henry & Barber [1999] NSWCCA 107 at [8], [10]. Mr Jenkins pointed what was described as a “boning knife” or “nasty looking weapon” (obtained from a friend who worked in an abattoir) to the ribcage of the victim: R v Jenkins [1999] NSWCCA 110. Consideration was given to the comparative seriousness of grabbing the victim by the arm with a threat to stab him with a syringe filled with red liquid, with the guideline, in the associated proceedings in R v Kyroglou & Tsoukatos [1999] NSWCCA 106 at [15], [88]. Simpson J described the only inference the victim would draw, that the syringe was filled with blood infected with the AIDS virus or some other deadly or life threatening organism, as so calculated to instil terror that its use, if not more serious than the use of a knife, was at the very least right at the outside limits of seriousness of the kind of weapon the guideline contemplates.
More contemporaneous examples were provided in the appellant’s submissions in support of the complaint of manifest excess. These included Qoro v R [2020] NSWCCA 276, where a 25 cm knife was produced initially to within arm’s length of a female taxi driver, with the applicant’s hand on her shoulder saying “I’m going to stick ya”, then moved closer to her throat. The applicant cut the cord of her radio with the knife, and threatened to stab her with it if she touched the alarm button. He pinned her to her seat and there was a struggle before the property was taken from her. In Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 a small knife and metal pole were used by co-offenders, with weapons wielded and swung in a way to knock merchandise off shelves, and the blade of the knife held to the victim’s neck whilst he was threatened to be “cut”. In Wood v R [2022] NSWCCA 84 the offenders produced weapons including machetes to threaten the receptionist of a brothel. In Whipp v R [2024] NSWCCA 79 three offenders were involved and pointed a black object believed to be a gun, and a long knife (inferentially a hunting style knife later found with the victim’s property), at the owners of a grocery store. His fingers were cut by the knife in the process of handing over the property.
Henry and subsequent cases have made clear that the guideline is not prescriptive, as the sentencing judge confirmed. It is also uncontroversial that the guideline may have some utility in cases not squarely falling within its criteria. However this case was one where the guideline really had no role to perform, as the circumstances were so different in almost all respects, and there was the overlaying component of the appellant’s significant mental illness.
At first instance neither party submitted that the guideline criterion of a weapon like a knife, capable of killing or inflicting grievous bodily harm, was present. It was submitted for the appellant that the Henry guideline was of limited relevance in the circumstances of this case.
This case was not comparable to the frequently recurring case considered in Henry. Contrary to the respondent’s submission, it is not right to state that there could be no doubt the Henry guideline was applicable because this was an offence of robbery armed with an offensive weapon. Neither the guideline judgment nor the purpose of guideline judgments supports the proposition that Henry offers guidance in all armed robbery sentence proceedings.
Section 36 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”) provides that:

The role of guideline judgments was explained at length in Henry, as was the focus of and reason for a guideline relevant to the frequently recurring case considered by the Court. In my view this was not a case where guidance was offered by the guideline judgment. Having raised a comparison with Henry, it was necessary for her Honour to explain how much less serious objectively this case was than that considered in the guideline, including because there was no use of a weapon like a knife, capable of killing or causing grievous bodily harm. To draw the comparison without making this clear involved material error.
The second component of the first ground of appeal is not necessary to resolve, given the error in relation to ground 1(iii). I am not prepared to indicate that comparison with the guideline judgment (particularly the more extended considerations of the core criteria referred to) is not an adequate recognition of the objective seriousness of an armed robbery offence. The problem here is that the comparison was not factually open. I would not uphold ground 1(ii).
As to the first component of the appellant’s first ground of appeal, I am not of the view that the decision of this Court in Towers assists the appellant. The ground as pleaded in Towers was that the sentencing judge erred in taking into consideration irrelevant considerations when determining the objective seriousness of the offence, one of aggravated stealing from a person. Under the heading of “Objective Gravity” the sentencing judge set out the relevant factors from Henry that were present in the case from the facts as found. The sentencing judge had observed there were also differences, namely the applicant’s criminal history and age. His Honour then assessed the objective seriousness as falling within the mid-range.
The sentencing judge in the matter now before the Court did not include the discussion of Henry under a heading concerning objective gravity, with all thereunder purporting to relate to that topic. Her Honour did not indicate that her assessment of the level of objective seriousness was “obvious” from everything said up to the point in the judgment, nor everything said in the preceding sentences. A fair reading of her Honour’s judgment as a whole indicates that her Honour’s recitation of the facts, and determination that these fell broadly within the Henry parameters, confirmed her Honour’s view that objectively the case was broadly equivalent with the objective features of the Henry guideline. The appellant’s contention that her Honour took his age, guilty plea and antecedents into account in assessing objective seriousness is not accepted.
Error having been established, the Court will proceed to re-sentencing. There is thus no need to consider the third ground of appeal asserting manifest excess.
In the circumstances of this case I am of the view that ground 2 (asserted error in failing to find, or consider whether, the appellant’s mental health would make a full-time custodial sentence more onerous) does not require formal resolution. However it can be responded to quite briefly rather than addressing it in the resentencing exercise.
The matter emphasised on the appellant’s behalf at first instance was hardship in custody because of the traumatic incident in the appellant’s youth, and her Honour clearly took this into account. Hardship in custody because of mental illness was only faintly referred to. Her Honour was not clearly asked to take it into account. Although the relevant comparison is between the onerousness of the conditions of custody for the relevant offender and other inmates (because, amongst other things, this affects how harshly the offender is being punished, and thereby bears upon the sentencing purpose of adequacy of punishment), this case was difficult. The evidence supported the proposition that the appellant was more frightened in custody than other inmates without his mental illness – but it also proved that he was more frightened still in the community. I am of the view that in the circumstances of this case it was open to her Honour, and the appellant’s representative at first instance, to focus on the appellant’s institutionalisation and preference for incarceration over liberty, as the salient manifestation of the appellant’s mental illness, relevant to his conditions in custody and the appropriate sentence to impose. Had determination been required, I would have dismissed ground 2.

Two affidavits sworn by the solicitor for the respondent were read on the usual basis. The Court was thereby provided with updated copies of the appellant’s criminal and custodial history. On 13 August 2025 the appellant was convicted in the Local Court of an offence of attempting to escape from lawful custody. For this offence he was sentenced to a Community Correction Order for 18 months from 13 August 2025 to 12 February 2027.
The facts on which he was sentenced were that on 12 June 2025, whilst a patient at Prince of Wales Hospital, being treated for self-inflicted lacerations to his arms, he was placed in a small “safe room” with his hands cuffed to the front of his body, after a number of occasions of pushing past two Corrective Services Officers who were guarding him, attempting to run out the hospital doors. When one of the officers removed his firearm holster from his belt to pass it to the other officer, the appellant lunged towards the doorway in another attempt to escape. The firearm landed on the floor and the appellant was further restrained. The facts state “It is unknown if the Accused was making attempts to take possession of the firearm.” The appellant was sentenced on the basis that auditory hallucinations had caused him to self-harm. There was a submission advanced suggesting these may have been continuing at the time of the attempted escape but the Magistrate did not make a positive finding on this issue.
Custodial disciplinary action was taken against the appellant in relation to an instance of disobeying a direction in custody, and on another occasion where he damaged his cell. He started a fire, responsive to hearing voices.
The appellant’s evidence for re-sentence included his own affidavit affirmed on 30 September 2025. He explained that his mental health goes up and down and he is “triggered by things in here”. He stated that he was hearing voices when he self-harmed a few months earlier, and that when he was hospitalised and handcuffed for a long time the voices told him to run, and he attempted to escape.
The appellant explained positive steps taken by him in custody such as a period of employment as the laundry sweeper, which he enjoyed. He had reverted to Islam which he described as transformative, as it focuses on abstinence from drugs. He expressed a wish to turn his life around and not go back to his old ways. He had been supported in custody with suggested medication changes, and said he was feeling good as the voices had subsided, although he was more tired in the mornings as a result of the new medication. He expressed a commitment to staying on this medication when released and attending medical appointments.
An NDIS coordinator had been in contact with the appellant, and he has a fresh plan which started on 29 August 2025 which will continue for three years. He had also organised accommodation for him on his release from custody in a group home, after which independent accommodation will be worked towards. Part of the funding will also be used for psychological help and assistance in finding part-time employment or enrolling in a course at TAFE.
An affidavit affirmed by the appellant’s solicitor addressed a number of the issues raised in the appellant’s affidavit. His analysis of custodial records demonstrated instances of the appellant hearing voices, not feeling safe, self-harming and threatening self-harm. A stated willingness to participate in programmes and interventions was recorded. A record dated 3 June 2025 noted that the appellant had recently converted to Islam which he stated brought him peace and purpose.
Multiple custodial notes recorded the appellant’s stated commitment to bettering himself and staying off drugs, and not coming back to custody. He expressed concern for the victim of his offence, and indicated that he did not have to do what he did and should have asked NDIS for help.
The appellant’s solicitor annexed documentation confirming the funding of the appellant’s NDIS plan.
Section 24 of the Act provides:

Whether the concession at first instance by the appellant’s representative that the threshold in s 5 of the Act was met was correct, and whether an Intensive Correction Order instead of full-time imprisonment should have been sought if it was, were at the stage of the appeal being heard academic questions. The appellant had spent close to two years in custody at the time the Court made orders. This time in custody was required to be taken into account. Doing so, there was no basis for any further punishment of the appellant. That time in custody had by a significant extent already completely addressed all the punitive, deterrent and denunciatory purposes of sentencing, or justifications for which a sentence may be imposed. A sentence disproportionate to all the circumstances relevant to the offending could not at that point have been imposed in an attempt to assist the appellant’s rehabilitation.
There was accordingly no alternative to imposing a sentence other than imprisonment, and no method available of serving that sentence other than on a full-term basis.
Taking into account the circumstances of the offence and the offender demonstrated by the evidence adduced at first instance, and the additional material placed before the Court to consider on resentencing, an appropriate starting point prior to discount for the utilitarian value of the guilty plea is 2 years imprisonment. This was objectively a very low level offence of armed robbery, committed by a man whose moral culpability for it was greatly reduced, and who was not a suitable vehicle for general deterrence. Although the appellant was subject to three forms of conditional liberty at the time of offending, and her Honour’s determination that it was unrealistic to be anything other than guarded about his prospects of rehabilitation was plainly well founded, there is cause for some hope on the basis of the material relied upon for resentence in this Court.
A finding of special circumstances should be made for the same reasons as provided by her Honour. Although the appellant is not in fact to receive an extended period of supervision in the community, the non-parole period on his criminal record should reflect the true minimum time in custody necessary, referable to this offending, in his circumstances.
Reducing the sentence of 2 years imprisonment by 25% results in a sentence of imprisonment of 18 months. Maintaining approximately the ratio between head sentence and non-parole period utilised by her Honour results in a non-parole period of 10 months imprisonment. There was no reason to vary the commencement date selected by her Honour.