R v Weismantel (No 2) - [2015] NSWDC 213

District Court

New South Wales

Medium Neutral Citation: R v Weismantel (No 2) [2015] NSWDC 213
Hearing dates: 26 June 2015; 2 - 3 July 2015
Date of orders: 03 July 2015
Decision date: 03 July 2015
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Verdict of guilty

Catchwords:
CRIMINAL LAW – Trial by judge alone – Robbery with offensive weapon and infliction of grievous bodily harm – Crimes Act, s 98 – Whether victim of robbery and victim of grievous bodily harm must be same person – Robbery of restaurant cashier, infliction of grievous bodily harm upon owner – Cash takings of business property of and in custody of owner, despite takings being in immediate proximity of cashier – Owner sought to prevent robbery by physically intervening – Accused attacked owner to stop intervention – Accused only left restaurant when a different employee intervened – Necessary to look at transaction as a whole – Intention to steal continuing and contemporaneous with assault occasioning grievous bodily harm
CRIMINAL LAW – Whether grievous bodily harm – Spiral fracture of fibula at ankle – Required insertion of plate and screws – Favourable prognosis made soon after time of injury – Victim still symptomatic sixteen and a half months later –Injury interferes with ability to work and exercise
Legislation Cited: Crimes Act 1900
Cases Cited: Azzopardi v The Queen [2001] 205 CLR 50
Donnally’s case (1779) 1 Leach 193
Haoui v R [2008] NSWCCA 205
Smith v Desmond [1965] AC 960
Ryan v R (1967) 121 CLR 205
R v Foster (NSWCCA, 7 April 1995, 60325 of 1994)
Category: Principal judgment
Parties: Regina (Crown)
Blake Weismantel (Accused)
Representation:
Counsel:
Mr P Kerr (Crown)
Mr S Schaudin (Accused)
Solicitors:
Solicitor for the Director of Public Prosecutions (NSW) (Crown)
Sydney Criminal Lawyers (Accused)

File Number(s): 14/1109
Publication restriction: No

Judgment

HIS HONOUR: This is a criminal trial by judge alone. The accused was arraigned on an indictment containing one count. That count is this:

“On 31 December 2013 at Pennant Hills in the State of New South Wales, while armed with an offensive weapon, namely, a knife, did assault Sathaporn Wongsamak with intent to rob him and at the time of the assault he, the said Blake Weismantel, did inflict grievous bodily harm upon him.”

That is an offence contrary to s 98 of the Crimes Act 1900. The count in the indictment closely follows the wording of the provision. Section 98 is in these terms:

“Whosoever, be armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon such person, shall be liable to imprisonment for 25 years.”

A business and its owners

Situated at 1A Hillcrest Road, Pennant Hills is a restaurant known as the Tung Tong Roong Thai Restaurant. I shall merely refer to that restaurant hereafter as “the restaurant”.…

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 Weismantel (No 2)

Details

AGLC: R v Weismantel (No 2) [2015] NSWDC 213
Case: [2015] NSWDC 213
Decision Date: 03 July 2015

CaseChat Overview and Summary

The case of R v Weismantel (No 2) involved the respondent being charged with robbery with an offensive weapon and the infliction of grievous bodily harm. The charges arose from an incident in which the respondent entered a restaurant, robbed the cashier, and inflicted grievous bodily harm upon the restaurant owner. The matter was heard by the court, which had to determine whether the victim of the robbery and the victim of the grievous bodily harm were required to be the same person. The court also had to decide whether the grievous bodily harm alleged was indeed grievous bodily harm within the meaning of the Crimes Act.

The court examined the transaction as a whole, considering the respondent's intention to steal and the contemporaneous assault occasioning grievous bodily harm. It found that the cash takings of the business, which were in the custody of the owner, were property of the owner, despite being in the immediate proximity of the cashier. The court held that the owner's physical intervention to prevent the robbery was met with an attack by the respondent, who only left the restaurant when a different employee intervened. The court concluded that the victim of the robbery and the victim of the grievous bodily harm could be different people. The court also found that the grievous bodily harm alleged was indeed grievous bodily harm, despite a favourable prognosis being made soon after the time of the injury.

The court found the respondent guilty of the charges and made a verdict of guilty.

Orders

Orders of the court

Verdict of guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Weismantel (No 2) [2015] NSWDC 213
Hearing dates:	26 June 2015; 2 - 3 July 2015
Date of orders:	03 July 2015
Decision date:	03 July 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Verdict of guilty
Catchwords:	CRIMINAL LAW – Trial by judge alone – Robbery with offensive weapon and infliction of grievous bodily harm – Crimes Act, s 98 – Whether victim of robbery and victim of grievous bodily harm must be same person – Robbery of restaurant cashier, infliction of grievous bodily harm upon owner – Cash takings of business property of and in custody of owner, despite takings being in immediate proximity of cashier – Owner sought to prevent robbery by physically intervening – Accused attacked owner to stop intervention – Accused only left restaurant when a different employee intervened – Necessary to look at transaction as a whole – Intention to steal continuing and contemporaneous with assault occasioning grievous bodily harm CRIMINAL LAW – Whether grievous bodily harm – Spiral fracture of fibula at ankle – Required insertion of plate and screws – Favourable prognosis made soon after time of injury – Victim still symptomatic sixteen and a half months later –Injury interferes with ability to work and exercise
Legislation Cited:	Crimes Act 1900
Cases Cited:	Azzopardi v The Queen [2001] 205 CLR 50 Donnally’s case (1779) 1 Leach 193 Haoui v R [2008] NSWCCA 205 Smith v Desmond [1965] AC 960 Ryan v R (1967) 121 CLR 205 R v Foster (NSWCCA, 7 April 1995, 60325 of 1994)
Category:	Principal judgment
Parties:	Regina (Crown) Blake Weismantel (Accused)
Representation:	Counsel: Mr P Kerr (Crown) Mr S Schaudin (Accused) Solicitors: Solicitor for the Director of Public Prosecutions (NSW) (Crown) Sydney Criminal Lawyers (Accused)
File Number(s):	14/1109
Publication restriction:	No