R v Wass

Seriousness

1. This crime cannot be justified by the words exchanged between Mr Rodgers and the offender immediately prior to its occurrence. Nothing justifies the infliction of violence. The assault upon the victim was vicious and brutal. I accept that the victim had to undergo dental treatment for well over a year, and that he would have continuing concerns about his dental health because of the possibility that the teeth that have been crowned will die and will need to be replaced perhaps with implants and I accept that there is ongoing psychic trauma suffered by Mr Rodgers. No difference of opinion, no action by someone that amounts only to the use of words, can ever justify such a brutal reaction by any person.
2. The Crown has submitted that the injuries suffered by the victim were at the lowest end of the scale of injuries covered by the concept of grievous bodily harm. I cannot accede to that submission. However, earlier the Crown made the submission: "Injuries are head injuries and the head is the part of the body which was struck. It is a very vulnerable part of the body and it is submitted that any assault to the head is serious." With that I do agree. The head is the seat of the brain. The brain is the source of all cognition and memory and control and coordination of the rest of the body. It is also the seat of the senses, of our sense of sight, our sense of hearing, our sense of smell and our sense of taste. Any serious injury to the head carries with it severe risk of ongoing injury. Had it not been for the intervention of bystanders the offender would have continued to use his snowboard to assault the victim.
3. The law distinguishes between actual bodily harm and grievous bodily harm. Actual bodily harm can be as little as a graze, laceration or abrasion or a bruise. As an example, of actual bodily harm is a black eye or a cut over the eyebrow inflicted by a punch. Grievous bodily harm is any really serious injury. Of course there are many forms of injury that are truly very serious such as injuries leading to quadriplegia and paraplegia and perhaps the loss of a limb such as a leg or an arm or even part of a limb such as a hand. Clearly this trauma was not in that category but by his plea the offender accepts that it was a very serious injury. In my view it is not at the bottom of the range of serious injuries. It is somewhere in the range between the bottom and the middle. I believe it to be otiose to try to put any precise figure on it, although, if this were a claim for personal injury damages, I would be required to do so. Suffice to say it is in the middle of the lower part of the range in my view.
4. This offence involved the use of a weapon. That is an aggravating factor. This offence can be caused without there being a weapon used, a punch can lead to the infliction of grievous bodily harm or other form of physical assault by a person could lead to grievous bodily harm such as throwing a person towards or at something or over a thing such as a fence or eminence. Snowboards are heavy items generally made from a solid wood core or laminated wood and are coated with fibreglass. The use of the snowboard as a weapon increased the amount of damage that the offender's assault caused. It is an aggravating factor. The Crown has not identified any other aggravating factors in s 21A (2) of the Crimes (Sentencing Procedure) Act 1999. However, the Court is acutely aware that this happened on a Saturday in the snowfields during a very popular event. The area was crowded with people of all ages, that is, the people included children and young people and happened in the sight of many people which disturbs the peace substantially.
5. I accept, as the Crown has submitted, that this case falls below the middle of the range of offences contrary to s 35(2). However I do not accept that it is at the bottom of the range. As I said the offence was vicious and brutal and has had ongoing consequences for the victim and had the potential to inflict more damage and yet more damage may occur in the future.

Personal circumstances of the offender

1. The major part of this sentencing hearing has been concerned with the personal circumstances of the offender. I should indicate that at the time of the offence the victim was 55 years old. The offender is currently 54 years old. At the time of the offence he was 50 years old. There are many ways in which Mr Wass could be described. He could be described as an interesting character, a colourful character, or he could be described as a difficult character.
2. He has a criminal history which disentitles him to any leniency but his record does not show him to be a person prone to acts of personal violence. At the age of 21 he was convicted of stealing in Queensland and was fined. At the age of 33 he committed driving offences including exceeding the speed limit by more than 30 kilometres per hour. For those offences he was fined but lodged an appeal to this Court against his convictions but those convictions were confirmed. He committed a speeding offence in 2002 which led to the Local Court at Blacktown imposing a fine which lead to a further appeal to this Court sitting at Penrith. That appeal was dismissed. There was a further speeding offence for which he appeared in the Tamworth Local Court on 29 October 2002 at the age of 37. He was fined but again appeal to this Court sitting at Tamworth and that appeal was also dismissed.
3. On 2 August 2007 he was charged with using a carriage service to threaten to kill. The person to whom he made the threat was Mr John Crockett, an employee of the then Roads and Traffic Authority. The offender has some background with the RTA and has what might be described as an animus against it. That charge was dealt with at the Downing Centre Local Court on 30 January 2008 and was dismissed under s 20BQ of the Crimes Act 1914 (Cth) which is similar to s 32 of the Mental Health (Forensic Provisions) Act 1990 and provides for a dismissal of proceedings provided that the offender undergoes psychological or psychiatric treatment. On that occasion the Court ordered that the offender attend Dr Stanley, a psychiatrist, and comply with all of his directions for a period of six months.
4. On 1 April 2008 the offender was convicted of being a person who was not a police officer wearing or possessing items of a police uniform. For that he was placed on a bond to be of good behaviour for a period of 12 months. On 3 August 2010 the offender was charged with four offences including common assault and affray. However, the offender was not convicted of those offences because he obtained a discharge under s 32 of the Mental Health (Forensic Provisions) Act. The circumstances were that he went to a bank in order to cash some foreign currency which the bank would not do and he became upset and knocked a keyboard off a counter in the bank. A bank employee was concerned and the security screens were raised and the police were called.
5. There was further offending conduct, on 6 August 2010, which was charged at the Penrith Local Court. It had to do with the possession of ammunition without a licence and possession of a replica firearm. Again the offender was discharged without conviction under s 32 of the Mental Health (Forensic Provisions) Act. On 27 July 2018 the offender was charged with destroying or damaging property. For that offence he was fined but lodged an appeal. The outcome of the appeal has never been told to me, but that is probably because the circumstances in which the sentencing has been adjourned from time to time. The final offence with which the offender was charged was one committed after this offence. The offence was alleged to have taken place on 19 August 2018 and was said to be use of a carriage service to menace, harass, or offend. That was an offence against the law of the Commonwealth and was discharged under s 20BQ of the Crimes Act 1914 (Cth) again because of mental health problems. I am told that that involved an argument over the telephone with the offender's public housing provider. As I said the history of the offender's criminal record does not entitle him to leniency but does not show any violent behaviour other than a propensity to speak rashly, rudely and perhaps aggressively to others.
6. Much time has been taken in trying to ascertain the exact nature of the offender's psychiatric or psychological problems. When the matter first came before me there was placed before me a report of Dr Adam Martin, a forensic psychiatrist, dated 17 September 2020. That followed upon an interview on 10 March 2020. Dr Martin was provided with a number of reports from other medical practitioners. He referred to a report of Dr Alex Apler, a forensic psychiatrist, who appears to have examined the offender in March 2006. He diagnosed an adjustment disorder which had previously been diagnosed by Dr Stanley which he thought to be the correct diagnosis. An adjustment disorder is a description of a clinically significant emotional reaction to an identified stressor. Dr Martin also referred to an earlier report of Dr Bruce Westmore, a forensic psychiatrist, who provided as report in November 2007 which made a diagnosis of depression in the context of an adjustment disorder. Dr Westmore thought that the offender had some obsessive or obsessional personality characteristics.
7. Dr Martin also had available to him a general practitioner's mental health care plan made in 2009 which referred to an adjustment disorder with mixed anxiety and depression. Dr Martin also had available to him a letter from Dr Brakoulias who diagnosed an adjustment disorder referring to the offender's experiencing significant frustration and anger in relation to what he perceived were injustices visited upon him by members of the New South Wales Police. The report also referred to an earlier report of Dr Anthony Dinnen, also a psychiatrist, who made a diagnosis of an adjustment disorder. Dr Martin also referred to the general practitioners' reports, there was one of them recently tendered, which again referred to depression and anxiety.
8. Despite all of those diagnoses of a very similar nature, Dr Martin diagnosed schizophrenia, a psychotic condition. However his opinion was qualified. He said this: "While only having seen him cross-sectionally, which obviously gives a somewhat limited view of the clinical issues, on taking a retrospective view of his life trajectory, there has been increasing impairment and disability in his life, with various losses which are likely to be in the context of developing mental illness over the last 15 to 20 years." However, no other medical practitioner diagnoses psychosis and indeed the evidence is that the diagnosis came as a complete surprise to Mr Wass himself. Psychoses often manifest themselves in delusions and hallucinations and though disorder and disorganised behaviour. However, merely having abhorrent thoughts or behaving oddly is not sufficient to diagnose a psychosis.
9. More recently the offender was seen by Dr Sam Calvin, also a forensic psychiatrist. Dr Calvin had available to him Dr Martin's report of 17 September 2020. Under the heading "Psychiatric Diagnosis" Dr Calvin said this: "Mr Wass's psychiatric diagnosis is not entirely straightforward with various psychiatric opinions over the years ranging from an adjustment disorder to, more recently, a diagnosis of major mental illness such as Schizophrenia. It seems to me that the core issue is Mr Wass's inner beliefs of feeling aggrieved, discriminated against, the unjustness of society, and a sense of victimisation by various government organisations. He had problems with his former employer, the RTA, the SES, and the ski resort at Thredbo. I was unable to ascertain any psychotic basis for these persecutory beliefs. I believe it is due to a combination of previous negative experiences, low self-esteem and an inability to cope with stress. It seems to me that he has turned to the Church of the Flying Spaghetti Monster in an attempt to deal with his life stress and his beliefs are a protest against society and authority figures. His views and unusual thought content are not original, and there is no evidence of a delusional basis to his thought content. He presents as highly agitated from time to time, and I believe that this is because of his inability to cope with stress rather than a manifestation of a major mental illness, as averred by Dr Martin. I also note a decline in socio-occupational functioning, which may suggest a major mental illness over the years, but this alone is insufficient to make a diagnosis of Schizophrenia. Previously, he has been assessed as having an obsessional personality, and I would recommend further evaluation of his personality functioning." I should add to the list of persons contained in the second paragraph that I have quoted the offender's interaction with the New South Wales Police. It is unclear to me who diagnosed an "obsessional personality" but that may have been Dr Bruce Westmore who according to Dr Martin thought the offender had some obsessive or obsessional personality characteristics.
10. The weight of the medical evidence is that the offender reacts adversely to what he perceives as threats to him or threats to what he wants to achieve in his life, and his reaction may be due more to his personality structure than to any actual mental health problem such as psychosis or neurosis. For example, Dr Calvin discussed the question of whether there was any link between the current offence and the offender's "psychiatric conditions". He expressed this view: "Mr Wass has difficulty dealing with stress and often misconstrues events using a lens of persecution which is probably related to his underlying personality dysfunction. Mr Wass has experienced several losses; he lost his beloved career in youth work, his relationships had failed, and he had problems with housing. It appears that the attendance at the ski resort had provided some meaning to his life, and he has valued this pass above everything else. The Court Orders [sic, the conciliation agreement] that allowed him attendance at the ski resort probably provided him with a sense of accomplishment, which he could not achieve in other spheres of his life. Hence, when the pass was revoked, Mr Wass has reacted poorly and has catastrophised his situation, leading to an increased arousal state and the subsequent assault. I was unable to ascertain the presence of any psychotic experiences or signs of mania at the time of the offending."
11. As I read the medical evidence there is no mental health reason for the offender's committing the present crime. Rather he reacted poorly to what he perceived as a slight or insult or interference with his ability to live his life as he would and that caused him to grossly overact and commit this assault upon the victim.
12. The offender's personality is such that he still finds it extremely difficult to come to grips with his offending behaviour. For example, in his affidavit of 22 September 2020 the offender said this: "35. However, when he then told me that they were banning me again, I believe that I lost control of myself and hit him. 36. I believe that I didn't deserve this action from the Thredbo Management again and I felt as if everything was now lost and that it was all happening again. 37. At the time, I was not feeling remorseful for my actions. I felt that I was just retaliating after being provoked by Mr Rodgers. 38. On reflection, however, I am now sorry that I hit Mr Rodgers and for the injury that I caused him, not from any fear from facing punishment by the Court, but from remorse at hurting another human being. I do appreciate the value of life and also appreciate the lesson that violence is not the answer to any dispute particularly as this behaviour goes against my core beliefs." No doubt in composing that affidavit the offender was aided by his legal advisers. However, subsequent conduct says that the offender may not be as remorseful or contrite as he would have the Court believe.
13. The Sentencing Assessment Report made on 22 February 2021 contains under the heading "Attitudes" this: "Mr Wass claimed that he was not guilty of this index offence and informed that he feels he's being discriminated against. He claims that he reacted to verbal abuse and vilification in relation to his religion, and threats from the victim to remove him from the area. He claimed that over the period of time that he was at the ski fields, he has been bullied, harassed and 'gas-lighted'. He saw himself more as a victim. Mr Wass acknowledged that he hit the victim with a snowboard as he felt threatened, however he minimised the multiple injuries to the victim." I note that, together with other matter, led the Community Corrections officer, Dawn Hart to say this: "Mr Wass has shown minimal insight into his behaviour, shown little concern for the victim of his offending. He becomes upset and angry claiming that he, himself, was the victim over a period of time." In other words the offender is more concerned with himself than he is with his victim and in many ways still blames the victim for his current position which is solely due to his own violent conduct.
14. When interviewed about his being violent and aggressive the Community Corrections officer said this: "Mr Wass informed that he's not ordinarily a violent or aggressive man, indeed went to lengths to show himself as a gentle and caring man who helps others in need. His support worker informed [that] he and his wife had known Mr Wass for several years and have not witnessed any aggression or violence from Mr Wass. Contrary [to] the above, during interviews at Penrith office, Mr Wass displayed heightened emotions, including the use of aggressive behaviour, shouting and crude language. It would appear that his behaviour is a result of him [sic] feeling threatened or demeaned. Documents suggest that at time of his offence Mr Wass was mentally unwell. Mr Wass claimed that his rights were being removed and he reacted to his fear and anxiety which was raised due to the situation."
15. There is in evidence a report from Dr Ivan Parise a general practitioner at Blaxland where the offender lives. Dr Parise has been seeing the offender since April 2010. He diagnoses a sleep disorder and depressed and anxious mood, and anger which is hardly a diagnosis of any medical condition. He refers to a specified diagnosis by a forensic psychiatrist of depression and possible obsessive personality traits. He has also diagnosed diabetes, lower backpain, hypertension, chronic obstructive pulmonary disease and weight gain, although that may fluctuate.
16. When the matter was first before me in September there was much debate about the impact of COVID-19 and the prospect of the offender's being incarcerated. However, the problem has largely gone away. We have been very lucky in this State and there has been thus far no major outbreak of COVID-19 disease in any correctional establishment and the prospects of there being such an outbreak diminishes with time, especially when more and more inmates, especially older inmates, are being vaccinated. Fortunately that complication has gone away with the effluxion of time.

Delay

1. Two issues arise from the delay between the offence and today's sentence hearing, a period of getting on for four years. The first is that there was no early guilty plea. This is addressed by the Crown commencing on [14] of the Crown's written submissions which are MFI1. The Crown submitted that in a case where the plea was entered after arraignment the appropriate discount for the plea is in the vicinity of 10 to 15%. During today's luncheon adjournment I had cause to look at the records of the Cooma Local Court which was the Court which committed the offender for trial in the District Court, initially at Queanbeyan. They show that there was some delay with the committal proceedings being listed for hearing but eventually that became unnecessary when the offender waived his right to have a committal hearing. He was then committed for trial in this Court on a charge under s 33(1) (a) of the Crimes Act 1900, an offence carrying a maximum penalty of 25 years imprisonment.
2. There seems to have been a delay in the Local Court between the carriage of the prosecution being changed from the local police to the DPP, then at one stage the offender was unrepresented, until Mr Chiumento commenced to represent the offender on 4 July 2018, for a number of months before that time the offender was representing himself. However, there was clearly delay. The offender could have pleaded guilty however to the s 35(2) offence at any time that the matter was before the Local Court.
3. Proceedings in this Court were delayed for a number of reasons, one of them was that the courthouse at Queanbeyan closed for renovations and the matter was transferred for hearing in Sydney, and then there was delay caused by the offender's mental health. His medications were changed and his symptoms increased and there was concern that he may have been unfit to stand trial. Eventually that complication was resolved and on 27 February 2020 the Crown filed an indictment containing a charge under s 33(1)(a) with the alternative charge under s 35(2). There appear then to have been negotiations and on 20 March 2020 the offender was charged on an indictment containing only the charge under s 35(2) to which he indicated that he would plead guilty on 23 March 2020 but the plea was not actually entered until 3 July 2020. That eventually lead to the sentencing proceedings being listed for hearing before me on 24 September last.
4. In all the circumstances I am prepared to allow a discount of 15% for the utilitarian value of the offender's plea of guilty.
5. The other issue to which that history goes is the question of delay. That is addressed in the offender's written submissions which are MFI 2. The relevant portion of the submissions commences at p 4 of the supplementary submissions which are also part of MFI 2. I accept that there has been delay caused by multiple factors, some personal to the offender, some beyond the control of anyone such as the decision of the Government to renovate the courthouse at Queanbeyan and some due to the Crown being late in preparing the brief in the Local Court which the records of the Local Court clearly indicate to me, and by the pattern of events that occurred thereafter. The offender has been kept waiting much longer than ought to have been necessary to stand for sentence and that entitles him to some further reduction in the penalty otherwise to be imposed.

Risk of re-offending

1. One thing the Court is concerned with is recidivism, that is whether this offender will again offend. That has been the subject of further submissions. According to the Sentencing Assessment Report the offender was assessed at being a T1 medium risk of reoffending. In other words, the risk of offending is not low nor is it high. It will depend upon whether the offender gains insight into his own conduct and whether it can be controlled by the sort of treatment advocated by Dr Calvin. He said this: "He will benefit from Dialetcial Behaviour Therapy approaches which utilise mindfulness techniques to increase distress tolerance, regulate emotions and improve relationships." However, the risk is probably medium because there is a risk that untreated, the offender if he be placed in a position similar to that in which he found himself at Thredbo on 12 August 2017 will react adversely, and violently. The problem here is that the offender has been in one way or another under treatment for about a decade and there does not appear to be any great improvement in his overall condition. The type of treatment which he has had in the past needs to be reconsidered and perhaps a fresh approach taken as suggested by Dr Calvin.
2. I accept, as has been submitted on behalf of the offender, that a custodial sentence will interfere with treatment, that the sort of treatment the offender needs is not readily available in custody. The report of Dr Martin expressly says that and one can also infer it from the report of Dr Calvin.

Consideration

1. However, that does not mean that therefore an Intensive Corrections Order must be imposed. And Intensive Corrections Order can only be imposed if the sentence to be passed upon the offender is of two years or less. That is a necessary prerequisite to the imposition of an ICO.
2. Both parties referred me to statistics available from the Judicial Commission referrable to sentences passed in the Local Court. However, I have had regard to the sentences passed in this Court. There have been 65 cases. In one case a Community Corrections Order was imposed, in 13 cases an Intensive Corrections Order was imposed and in 51 cases a sentence of full-time imprisonment was imposed, that is, imprisonment occurred in 78.5% of all cases.
3. Of those sentenced to imprisonment the mean head sentence is four years and the mean non-parole period is two and a half years. In the 80% range, that is knocking off the bottom 10% of the cases and the top 10% of cases the head sentences ranged between six years and two and a half years and the non-parole periods ranged between three and a half years and one and a half years. There is no case that has factors similar to those applicable to this offender.
4. Much time has been spent on the question of whether an Intensive Corrections Order ought be imposed. The Crown has pointed out that the offender is unwilling to undertake Community Service work and since that is the case an ICO may not be an adequate penalty because the ICO will not be as punitive as it ought be. However, the offender has a number of medical conditions as distinct from psychic conditions, which would obviate his performing community service work. In particular are they chronic obstructive pulmonary disease. I note that a recent history indicates the offender is smoking 50 cigarettes a day and that would clearly interfere with his ability to do physical work. Furthermore he has a history of chronic back pain and that again is inconsistent with performing community service work.
5. On the other hand the offender would be subject to fortnightly contact with a Community Corrections officer and thus far his contact with Community Corrections has hardly been satisfactory. I have already quoted what was said about the offender's interaction with Community Corrections when doing interviews at Penrith. Under the heading "Response to Supervision", the Sentencing Assessment Report says this: "Mr Wass has not previously been supervised by Community Corrections. During the assessment period, Mr Wass was difficult to engage in the assessment process. He was frequently argumentative and his language was often crude and/or offensive." I also note that the offender when interviewed by Dr Calvin when challenged on controversial matters could become quite irate and change the subject. In other words, he sought to have avoided unnecessary topics, topics which he did not like being discussed and that tells against adequate compliance with Community Corrections.
6. This is not by any means an easy sentencing matter. However, the purposes of sentencing need to be firmly borne in mind. They are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. They are these: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, and, (g) to recognise the harm done to the victim of the crime and the community.
7. Much of the sentencing hearing, which has now extended over some three days, was concerned with the rehabilitation of the offender. Very little was said about the offender being adequately punished for this vicious and brutal assault. Very little was said about preventing crime by deterring the offender and other persons from committing similar offences.
8. I accept that this offender because of his peculiar personality is not a proper subject for general deterrence but he is a person who must be deterred from committing any similar offence again. Now the offender is required to be made to account for his action. He has escaped on numerous occasions accounting for his actions under mental health provisions. Such diversionary tactics failed to provide a remedy that obviated the current offence.
9. The Court is required by the sentence to denounce the conduct of the offender and that denunciation must ring clear. The harm done to Mr Rodgers must be recognised. Serious injury has been caused to him. The Court's guideposts are the head sentence of ten years and the standard non-parole period of four years as well as such patterns as can be gleaned from the statistics.
10. When I read the papers last night I formed the view that I ought start the sentencing exercise with a head sentence of three years imprisonment. That is a theoretical head sentence before any appropriate discount. Having heard the impassioned submissions by Mr Pearsall, today, but in particular listening to the submissions that he made about delay, I believe that I should ameliorate that view.
11. I have come to the view that the appropriate starting point for this sentencing exercise is a sentence of imprisonment of two years and nine months. I discount that by 15%. It comes to a period of 28 months, or two years and four months imprisonment and that does not permit me to impose an Intensive Corrections Order. Applying the statutory norm between the head sentence and the non-parole period, the parole period ought be seven months. Here there are circumstances justifying a finding of special circumstances. They are first that the offender will not be able to obtain appropriate psychiatric treatment whilst in custody and that this is his first experience of imprisonment, and hopefully his last, and that he will find that because of his age and character a sentence of imprisonment much more onerous than many others. For those reasons I propose a parole period of one year such that the non-parole period will be one year and four months.
12. Keith Melvyn Wass, on the charge that on the 12th day of August 2017 at Thredbo in this State you recklessly inflicted grievous bodily harm on Jordan Rodgers you are convicted, I sentence you to imprisonment. I set a non-parole period of one year and four months commencing today, 18 June 2021 and expiring on 17 October 2022. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 17 October 2023. The total sentence is therefore for two years and four months comprising the non-parole period and the balance of sentence. I have found special circumstances. You are eligable to be considered for release on parole at the expiration of the non-parole period.
13. I direct that a copy of the report of Dr Adam Martin of 17 September 2022 and a copy of the report of Dr Sam Calvin of 16 April 2021 and a copy of the report of Dr Ivan Parise of 10 June 2021 be made forthwith and given to the Corrective Services Officers who will accompany the offender to gaol. Now there are matters on a Form 166? CANTOR: No your Honour I don't believe so. HIS HONOUR: There was a 166 in the file. CANTOR: Your Honour I don't think there is. Certainly the Crown sentence summary doesn't refer to anything. I will double check that. HIS HONOUR: I will hand this document down. CANTOR: Thank you your Honour I do appreciate that. I was not aware of that. Your Honour I note that those are listed as back-up offences and accordingly I withdraw them. I thank the Court. HIS HONOUR: I order that the back-up offences known as sequence 1 and sequence 3 be withdrawn and dismissed.

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