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District Court 3 July 2015

R v Weismantel (No 2)

[2015] NSWDC 213

Assault & violenceTheft & property
CRIMINAL LAW TRIAL BY JUDGE ALONE CRIMES ACT, S 98 WHETHER GRIEVOUS BODILY HARM SPIRAL FRACTURE OF FIBULA AT ANKLE REQUIRED INSERTION OF PLATE AND SCREWS

Citation: R v Weismantel (No 2) [2015] NSWDC 213
Court: District Court of New South Wales
Date: 3 July 2015
Judge: Neilson DCJ

Background

On New Year's Eve 2013, the accused entered a Thai restaurant in Pennant Hills armed with a knife and attempted to rob it. The restaurant was co-owned by the complainant and his wife, who employed several family members and other staff including a cashier.

When the complainant attempted to physically intervene to stop the robbery, the accused attacked him. The complainant sustained a spiral fracture to his fibula at the ankle, which required open reduction surgery with a plate and screws, followed by an extended period in a cast and physiotherapy.

The matter proceeded as a judge-alone trial. The central legal questions turned on whether the statutory elements of the offence under s 98 of the Crimes Act 1900 were satisfied, particularly given that the accused had targeted the cashier for robbery but inflicted the serious injury on the owner.

  • Whether s 98 of the Crimes Act 1900 requires the victim of the robbery (or assault with intent to rob) and the victim of the grievous bodily harm to be the same person
  • Whether the cash takings held by the cashier were the property of the restaurant owner, placing the owner within the scope of the robbery
  • Whether the injury sustained (a spiral fracture of the fibula requiring surgery) constituted "grievous bodily harm" within the meaning of the Act

Decision

The identity of the victim under s 98

The section creates an offence where a person, while armed, robs or assaults with intent to rob "any person" and, before, during, or after that robbery or assault, wounds or inflicts grievous bodily harm "upon such person." The grammatical reference to "such person" meant the question arose whether both the robbery victim and the grievous bodily harm victim had to be the same individual. The court found that the transaction must be looked at as a whole, and that the accused's continuing intention to steal remained operative at the time he inflicted harm on the owner. The assault on the owner was directly connected to, and contemporaneous with, the robbery.

Ownership and custody of the cash takings

The court found on the evidence that the restaurant's cash takings were the property of the owner, Mr Wongsamak, and remained in his custody even though a cashier was in immediate physical proximity to the till. The owner's intervention to protect the takings was consistent with that proprietary interest. Accordingly, the accused's assault with intent to rob was properly characterised as directed against the owner's property, bringing the owner squarely within the operation of the charge.

Whether grievous bodily harm was established

The court considered the nature and consequences of the injury in detail. The spiral fracture required open reduction surgery, insertion of a plate and screws, and an extended period in a cast followed by physiotherapy. Sixteen and a half months after the incident, the complainant continued to experience pain at rest and symptoms affecting both his ability to stand for extended periods at work and to exercise. The court was satisfied beyond reasonable doubt that this constituted grievous bodily harm, characterising it as a "really serious injury."

Orders Made

  • The accused, Blake Weismantel, was found guilty of the offence charged under s 98 of the Crimes Act 1900
  • The matter was stood over for sentencing on 1 October 2015

Key Takeaways

  • Under s 98 of the Crimes Act 1900, the court must look at the transaction as a whole when assessing whether the assault causing grievous bodily harm was connected to the robbery, particularly where the accused's intention to steal continued and was contemporaneous with the infliction of harm.
  • The District Court held that cash takings belonging to a business remain in the custody and ownership of the proprietor even where a staff member is in immediate physical control of the till at the time of an attempted robbery.
  • A spiral fracture of the fibula requiring open reduction surgery, a plate and screws, extended immobilisation, and producing ongoing symptoms more than sixteen months later was sufficient to constitute "grievous bodily harm" within the meaning of the Act.
  • Where a business owner physically intervenes to stop a robbery of their own property and is attacked in the course of doing so, the elements connecting that attack to the robbery can be established even though the accused initially targeted a different person.
  • The absence of any evidence from the accused did not shift the onus of proof; consistent with Azzopardi v The Queen, the court directed itself that the Crown retained the burden of establishing guilt beyond reasonable doubt throughout.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 98

Cases
- 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)