R v Wass - [2021] NSWDC 414

District Court

New South Wales

Medium Neutral Citation: R v Wass [2021] NSWDC 414
Hearing dates: 24 September 2020, 27 November 2020, 24 February 2021, 05 March 2021, 18 June 2021
Date of orders: 18 June 2021
Decision date: 18 June 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Head sentence 2 years 4 months NPP 1 year 4 months.

Catchwords:
CRIME – SENTENCE – Assault occasioning grievous bodily harm – Reckless – Use of a snowboard as a weapon – Dressed as Chewbacca – Below mid-range in objective seriousness – Delay in proceedings – Unique personal circumstances of offender – Need for psychiatric treatment of the offender – ICO not available in the circumstances.

Legislation Cited:
Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Mental Health Act (Forensic Provisions) 1990

Category: Sentence
Parties: Regina - Crown
Offender - Keith Melvyn Wass
Representation: Counsel:
Crown – H. Cantor (Solicitor Advocate)
Offender – P. Pearsall
Solicitors:
Crown – I. Fay (DPP)
Offender – I. Chiumento (Eden Legal & Conveyancing)

File Number(s): 2017/00245604
Publication restriction: Nil.

Judgment

HIS HONOUR: Keith Melvyn Wass stands for sentence as a consequence of pleading guilty to the charge that on 12 August 2017 at Thredbo in this State he recklessly inflicted grievous bodily harm to Jordan Rodgers. That is an offence contrary to s 35(2) of the Crimes Act 1900. The maximum penalty is ten years imprisonment. Parliament has prescribed a standard non-parole period of four years.

Facts

The offender has provided an affidavit sworn on 22 September 2020. It provides this outline of his early interaction at the Kosciuszko Thredbo Resort:

“26. I started skiing and snowboarding at the Thredbo Kosciuszko Resort in about 2010.

“27. I began skiing and snowboarding at Thredbo because the resort is located in the Kosciuszko National Park, so it was open to all the public, due to its altitude, as it has the longest runs for extended exercise and because entry to its Recreational Centre was included in the season ticket so I could use the spa facilities on a daily basis to relax after a day on the slopes and which had a positive effect on my rehabilitation.

“28. Skiing and snowboarding always had a positive effect on my condition. It allowed me to exercise in a fun environment and assisted me with a number of my health conditions including weight loss. My time on the fields had made me feel better. I stopped thinking about things and it helped me face life for the remainder of the year. Given the positive effects that this activity had on my condition, my treating doctor provided a report which stated that this activity as therapeutic as any medication that he could prescribe to me and that it was crucial to my general rehabilitation, which I believed wholeheartedly.

“29. Due to a number of other people dressing up in costumes on the slopes at Thredbo, I started wearing a pirate outfit as well Chewbacca outfit on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wass

Details

AGLC: R v Wass [2021] NSWDC 414
Case: [2021] NSWDC 414
Decision Date: 18 June 2021

CaseChat Overview and Summary

In the case of R v Wass, the appellant was convicted of assault occasioning grievous bodily harm. The incident involved the appellant, while dressed as Chewbacca and using a snowboard as a weapon, causing harm to a police officer. The court had to determine an appropriate sentence for this offence, taking into account the unique circumstances of the case, including the delay in proceedings and the appellant’s need for psychiatric treatment. The court also had to consider the objective seriousness of the offence and the need for general deterrence.

The primary legal issues revolved around determining the appropriate sentence for the offence of assault occasioning grievous bodily harm, with particular emphasis on the unique circumstances of the offence and the appellant. The court needed to balance the need for punishment and general deterrence with the appellant's personal circumstances, including the delay in proceedings and his need for psychiatric treatment. Additionally, the court had to determine whether an intensive correction order (ICO) was suitable in the circumstances.

The court found the offence to be below mid-range in terms of objective seriousness, taking into account the use of a snowboard as a weapon and the unique personal circumstances of the offender. The delay in proceedings and the appellant's need for psychiatric treatment were also considered. The court held that an ICO was not appropriate in the circumstances. Ultimately, the court imposed a head sentence of two years and four months, with a non-parole period of one year and four months. This sentence balanced the need for punishment and general deterrence with the unique personal circumstances of the offender.

The court's final orders were that the appellant be sentenced to two years and four months imprisonment, with a non-parole period of one year and four months. This sentence reflects the court's consideration of the unique circumstances of the offence and the offender, and the need to balance punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Head sentence 2 years 4 months NPP 1 year 4 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Wass [2021] NSWDC 414
Hearing dates:	24 September 2020, 27 November 2020, 24 February 2021, 05 March 2021, 18 June 2021
Date of orders:	18 June 2021
Decision date:	18 June 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Head sentence 2 years 4 months NPP 1 year 4 months.
Catchwords:	CRIME – SENTENCE – Assault occasioning grievous bodily harm – Reckless – Use of a snowboard as a weapon – Dressed as Chewbacca – Below mid-range in objective seriousness – Delay in proceedings – Unique personal circumstances of offender – Need for psychiatric treatment of the offender – ICO not available in the circumstances.
Legislation Cited:	Crimes Act 1900 Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Mental Health Act (Forensic Provisions) 1990
Category:	Sentence
Parties:	Regina - Crown Offender - Keith Melvyn Wass
Representation:	Counsel: Crown – H. Cantor (Solicitor Advocate) Offender – P. Pearsall Solicitors: Crown – I. Fay (DPP) Offender – I. Chiumento (Eden Legal & Conveyancing)
File Number(s):	2017/00245604
Publication restriction:	Nil.