Wass v R

Case [2022] NSWCCA 143 29 June 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Wass v R [2022] NSWCCA 143
Hearing dates: 23 May 2022
Date of orders: 29 June 2022
Decision date: 29 June 2022
Before: Beech-Jones CJ at CL at [1]
Wilson J at [4]
Dhanji J at [86]
Decision:
(1) Leave to appeal against sentence is granted;
(2) Appeal dismissed.

Catchwords:
CRIME – SENTENCE – appeal against sentence imposed for reckless infliction of grievous bodily harm – whether the sentencing judge erred in finding risk of widespread COVID-19 infection in prison system diminished – whether error in failing to mitigate sentence due to COVID-19 – whether sentence manifestly excessive

Legislation Cited:
COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)
Crimes Act 1900 (NSW), s 35
Crimes Act 1914 (Cth), s 20BQ
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 54A
Criminal Appeal Act 1912 (NSW), s 5
Evidence Act 1995 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases Cited:
BS v R [2021] NSWCCA
Edmonds v R [2022] NSWCCA 103
Farkas v R [2014] NSWCCA 141; 243 A Crim R 388
Hoang v R [2020] NSWCCA 324
JJ v R [2020] NSWCCA 165
McKinnon v R [2020] NSWCCA 106
R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413
R v Wass [2021] NSWDC 414
Rakielbakhour v DPP [2020] NSWSC 323
Scott v R [2020] NSWCCA 81

Category: Principal judgment
Parties: Keith Wass (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Crawford-Fish (Applicant)
E Nicholson (Respondent)
Solicitors:
Eden Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/245604
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 414

Date of Decision:

18 June 2021

Before:

Neilson DCJ

File Number(s):

2017/00245604

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was sentenced by Judge Neilson in the District Court on 18 June 2021 for an offence of recklessly inflicting grievous bodily harm. The applicant entered a late plea before the District Court on 20 April 2020. The applicant was sentenced to 2 years and 4 months’ imprisonment with a non-parole period of 1 year and 4 months.

The offence occurred on 12 August 2017 at Thredbo in the Kosciuszko National Park. The victim, Mr Jordan Rodgers, was the then 55-year-old General Manager of the Kosciuszko Thredbo Pty Ltd (the company). There had been a background dispute between the applicant and the company in the years leading up to the commission of the offence.

On 12 August 2017 the company held its annual “Top to Bottom” ski race. During the event, the applicant attended the ski fields dressed as Chewbacca. He was observed by Mr Rodgers to be standing near the stairs to the Kosciuszko chair lift. Mr Rodgers approached the applicant and told him that the company had received complaints about children having been frightened by him.

The applicant turned away, leading Mr Rodgers…

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 Wass v R

Details

AGLC: Wass v R [2022] NSWCCA 143
Case: [2022] NSWCCA 143
Decision Date: 29 June 2022

CaseChat Overview and Summary

The appeal against sentence was brought before the court by Wass, who had been found guilty of recklessly inflicting grievous bodily harm. The respondent was the Crown, represented by the Director of Public Prosecutions for the Commonwealth. The central issue before the court was whether the sentencing judge had erred in concluding that the risk of widespread COVID-19 infection within the prison system had diminished, and whether this error had led to a failure to sufficiently mitigate the sentence due to the COVID-19 context, and if the sentence was manifestly excessive.

The court examined the sentencing judge's assessment of the risk of COVID-19 infection in the prison system. It considered whether this assessment was reasonable and if the judge's conclusion that the risk had diminished was supported by the evidence. The court also analysed whether the sentencing judge had failed to adequately mitigate the sentence in light of the pandemic, and if the error in this regard warranted a reduction in the sentence. Finally, the court evaluated whether the sentence was manifestly excessive, taking into account the nature of the crime and the need for general and specific deterrence.

The court found that the sentencing judge's assessment of the risk of COVID-19 infection was not unreasonable and that the judge's conclusion about the diminished risk was supported by the evidence. The court also determined that the sentencing judge had not failed to mitigate the sentence due to the COVID-19 context, and that any error in this regard did not warrant a reduction in the sentence. The court further held that the sentence was not manifestly excessive, considering the need for general and specific deterrence. The appeal against sentence was therefore dismissed.

No specific orders were made by the court in the appeal decision. The original sentence imposed by the sentencing judge remained in place.

Orders