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Court of Criminal Appeal 29 June 2022

Wass v R

[2022] NSWCCA 143

Assault & violence
CRIME SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Wass v R [2022] NSWCCA 143
Court: Court of Criminal Appeal, New South Wales
Date: 29 June 2022
Judges: Beech-Jones CJ at CL, Wilson J, Dhanji J

Background

The applicant pleaded guilty in the District Court to recklessly inflicting grievous bodily harm, contrary to s 35(3) of the Crimes Act 1900 (NSW). The offence occurred in August 2017 at a ski resort in the Kosciuszko National Park, where the applicant attended a public ski event dressed as Chewbacca. When the resort's General Manager approached him regarding complaints from children, the applicant struck the victim across the jaw with a snowboard, then continued striking him while he lay face down in the snow until bystanders intervened. The victim suffered facial wounds and multiple broken teeth requiring surgical removal of tooth fragments.

The applicant was sentenced in the District Court by Judge Neilson in June 2021 to 2 years and 4 months' imprisonment with a non-parole period of 1 year and 4 months. The maximum penalty for the offence is 10 years' imprisonment, with a standard non-parole period of 4 years.

The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal. One ground of appeal concerning the treatment of his mental health was abandoned before the hearing.

  • Whether the sentencing judge erred by finding that COVID-19 represented a complication that had "gone away with the effluxion of time," and whether that finding should have operated to reduce the sentence
  • Whether the sentence was manifestly excessive

Decision

Ground 2: COVID-19 as a mitigating factor

The applicant argued that the sentencing judge had made an error in characterising COVID-19 as a complication that had passed. The Court of Criminal Appeal rejected this ground. Wilson J, with whom Beech-Jones CJ at CL and Dhanji J agreed, held that the sentencing judge's comment referred specifically to the early fears of widespread infection within the prison population, not to the existence of the pandemic itself. Read in its proper context, the remark was not in error.

Beech-Jones CJ at CL added important context. At the time of sentencing, COVID-19 was not circulating in the community, there had been no outbreaks within the prison system, and prisoners were being vaccinated. The applicant's submission seeking an amelioration of sentence on COVID-19 grounds had been made in writing months earlier and was not repeated in oral submissions. It was made without supporting evidence, and the sentencing judge rejected it by reference to factual matters that were not in dispute at the relevant time. Although conditions changed dramatically after sentence was imposed, that did not establish error at the time of sentencing. The Chief Judge also noted that the established categories for ameliorating sentences by reference to changes in a prisoner's medical status after sentencing had not been engaged.

Ground 3: Manifest excess

The Court held that the sentence was not manifestly excessive. Having regard to the unchallenged findings of the sentencing judge on the gravity of the offence and the applicant's subjective circumstances, the Court could not conclude that the sentence fell outside the available range in a way that would evidence a misapplication of principle. The sentencing judge had identified a strong need for denunciation of the applicant's immediate resort to violence, recognition of the harm caused to the victim, and specific deterrence.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's reference to COVID-19 as a "complication that had gone away" must be read in its full context; the Court of Criminal Appeal confirmed that a remark directed at early fears of widespread prison infection does not amount to error simply because pandemic conditions later worsened.
  • Where an applicant seeks a reduction in sentence on COVID-19 grounds without supporting evidence, and the sentencing judge rejects that submission by reference to undisputed facts prevailing at the time of sentencing, no error is established even if conditions change significantly after sentence is imposed.
  • Dramatic post-sentence changes in prison conditions do not automatically demonstrate error in a sentencing decision, though the judgment notes without deciding that established categories for post-sentence changes in medical status may be relevant in appropriate cases.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal affirmed that strong denunciation, recognition of victim harm, and specific deterrence were all legitimate and weighty considerations in sentencing for a deliberate and sustained act of violence in a public place.
  • Submissions advanced only in writing and not pressed at the oral sentencing hearing carry diminished weight; the Court noted the applicant's written COVID-19 submission was not repeated orally and was unsupported by evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35
- 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
- COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)
- Crimes Act 1914 (Cth), s 20BQ

Cases
- R v Wass [2021] NSWDC 414 (sentence under appeal)
- Hoang v R [2020] NSWCCA 324
- Scott v R [2020] NSWCCA 81
- R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413
- Farkas v R [2014] NSWCCA 141; 243 A Crim R 388
- BS v R [2021] NSWCCA 39
- Edmonds v R [2022] NSWCCA 103
- JJ v R [2020] NSWCCA 165
- McKinnon v R [2020] NSWCCA 106
- Rakielbakhour v DPP [2020] NSWSC 323