Citation: R v Wass [2021] NSWDC 414
Court: District Court of New South Wales
Date: 18 June 2021
Judge: Neilson DCJ
Background
The offender was a regular visitor to the Thredbo ski resort who had attended for several years, finding the activity therapeutic for a range of health conditions. He was known for wearing a Chewbacca costume on the slopes and posing for photographs with resort guests. A prior dispute with resort management over his attendance had been resolved through a conciliation agreement at the Anti-Discrimination Board in 2015, which reinstated his resort pass on the condition that threatening or intimidating behaviour could lead to its revocation.
On 12 August 2017, during the resort's annual Top to Bottom ski race, the general manager of the resort approached the offender, who was again dressed in his Chewbacca costume. The manager cited complaints from guests and invoked the conciliation agreement to revoke the offender's pass. When the offender appeared to be walking away, he instead picked up his snowboard and struck the manager across the jaw with its edge, causing him to collapse unconscious in the snow. The offender continued striking the victim with the snowboard until bystanders intervened and restrained him.
The victim suffered a concussion from the assault. The offender later made remarks to a resort compliance officer indicating satisfaction at what he had done. He was charged with recklessly inflicting grievous bodily harm, an offence under s 35(2) of the Crimes Act 1900, carrying a maximum penalty of ten years imprisonment and a standard non-parole period of four years. He pleaded guilty.
Legal Issues
- What was the appropriate sentence for an offence of recklessly inflicting grievous bodily harm in these circumstances?
- Where did the offence fall on the spectrum of objective seriousness?
- What weight should be given to the offender's personal circumstances, including his psychiatric conditions, age, and the significant delay in proceedings?
- Whether an Intensive Corrections Order (ICO) was available as a sentencing option.
- Whether special circumstances existed to justify departing from the statutory norm for the ratio between the non-parole period and the balance of sentence.
Decision
Neilson DCJ assessed the offence as falling below the mid-range of objective seriousness. Although a snowboard was used as a weapon and the attack continued after the victim had fallen, the court noted the offender's significant personal circumstances, his psychiatric history, and the background of ongoing conflict with the resort as relevant context. The unprovoked nature of the physical attack and the vulnerability of the victim in a public, crowded setting nonetheless weighed against the offender.
The court found that the delay between the offence in August 2017 and sentencing in June 2021 was a relevant consideration in the offender's favour. The offender's unique personal circumstances, including his psychiatric conditions and the therapeutic significance of the skiing activity to his wellbeing, were also taken into account.
The total head sentence was set at two years and four months imprisonment. The court found this length precluded the imposition of an ICO, as that option is not available for sentences exceeding two years. The court did, however, find special circumstances justifying a departure from the statutory norm for the non-parole period to parole period ratio. The grounds were that the offender would be unable to obtain appropriate psychiatric treatment in custody, that this was his first period of imprisonment, and that his age and personal circumstances made imprisonment more onerous than it would be for many others.
As a result, the non-parole period was set at one year and four months, with a balance of sentence (parole period) of one year, giving a total sentence of two years and four months. The court directed that copies of three psychiatric reports be provided to corrective services officers accompanying the offender.
Orders Made
- The offender was convicted and sentenced to imprisonment for two years and four months.
- Non-parole period of one year and four months, commencing 18 June 2021 and expiring 17 October 2022.
- Balance of sentence of one year, commencing on expiration of the non-parole period and expiring 17 October 2023.
- Special circumstances found; the offender eligible for parole consideration at expiration of the non-parole period.
- Back-up offences (sequence 1 and sequence 3) withdrawn and dismissed.
- Copies of psychiatric reports directed to be provided to corrective services officers.
Key Takeaways
- The District Court assessed the offence as below the mid-range of objective seriousness, notwithstanding that a snowboard was used as a weapon in a sustained attack in a crowded public area.
- A total head sentence of two years and four months rendered an Intensive Corrections Order unavailable, as ICOs cannot be imposed for sentences exceeding two years under the Crimes (Sentencing Procedure) Act 1999.
- Special circumstances were established on the basis of the offender's inability to access appropriate psychiatric treatment in custody, his age, the fact this was his first period of imprisonment, and the added burden that imprisonment would impose given his personal circumstances.
- Significant delay between the commission of the offence (2017) and sentencing (2021) was treated as a mitigating consideration in favour of the offender.
- The court directed that psychiatric reports be forwarded to corrective services, reflecting the practical significance of the offender's treatment needs in the administration of the sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(2) (recklessly inflicting grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Crimes Act 1914 (Cth)
Cases: No cases were cited in the portions of the judgment provided.