Wass v R [2022] NSWCCA 143 (29 June 2022)

Last Updated: 11 July 2022

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Wass v R
Medium Neutral Citation:	[2022] NSWCCA 143
Hearing Date(s):	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 to think that he was leaving the area. Instead, the applicant picked up his snowboard from the snow where it had been lying and swung it at Mr Rodgers, striking him to the left side of his jaw with the board’s edge. Mr Rodgers collapsed to the ground, where he lay face down in the snow. The applicant, standing over Mr Rodgers, continued to swing the snowboard at the victim, striking him. He stopped only when three bystanders came to Mr Rodgers’ aid, physically restraining the applicant. Initially the applicant struggled against the rescuers, one of whom headbutted him. Eventually the applicant desisted. Whilst waiting for the arrival of police, the applicant told a staff member: “I just decked Jordan and [it] made me feel so good and I hit [him] with my snowboard as well. I would have kept going too”.

The applicant was arrested by attending police. He declined to answer any questions.

Mr Rodgers, who was barely conscious after the assault, was taken to a medical centre for treatment. He had sustained facial wounds and suffered a number of broken teeth, with tooth fragments that had been embedded in his cheek needing to be surgically removed.

The applicant sought leave to appeal from his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912. The principal issues on appeal were:

(1) Whether the sentencing judge erred in finding Covid-19 to be ‘a complication that had gone away with the deflection [sic: effluxion] of time’; and

(2) Whether the sentence was manifestly excessive.

The applicant had abandoned a ground of appeal which complained of the way in which the sentencing judge dealt with the question of his mental health.

The Court held (Beech-Jones CJ at CL, Wilson and Dhanji JJ), granting leave to appeal against sentence and dismissing the appeal:

As to issue (1), per Wilson J (Beech-Jones CJ at CL and Dhanji J agreeing):

1. Judge Neilson’s comment concerning the complication that had “gone away” over time was not one referable to the Covid-19 pandemic itself, but rather to the prospect of widespread infection in the custodial system adversely affecting a large proportion of the prison population. The comment must be read in the context of the whole of the paragraph in which it appears – as to the early fears of widespread infection with the virus within the prison population; not the existence of the virus itself. The ground as pleaded and argued must fail. The sentencing judge was not in error in making the observation he made at [36] of his remarks: see [2]-[3]; [65]-[77]; [87]-[88].

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 applied.

As to issue (2), per Wilson J (Beech-Jones CJ at CL and Dhanji J agreeing):

2. Having regard to the unchallenged findings of the sentencing judge with respect to the gravity of the offence, and the subjective case, the Court is unable to conclude that the sentence imposed is outside the available range so as to evidence the misapplication of principle. There was, as the sentencing judge observed, a strong need to denounce the applicant’s crime and his immediate use of violence to deal with a dispute. Equally, there was a need for the harm done to be recognised, and for the sentence imposed upon the applicant to operate as a deterrent to him in future. This ground also fails: see [78]-[84].

JJ v R [2020] NSWCCA 165 applied.

JUDGMENT

1. BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Wilson J. I agree with the orders her Honour proposes. Save for what follows I agree with her Honour’s reasons.
2. In relation to the applicant’s complaint about the sentencing judge’s reference to COVID-19 pandemic on infections amongst prisoners set out at [61], that “finding” needs to be placed in context. Without evidence, the applicant sought an amelioration of any custodial sentence that might be imposed by reference to the likelihood that he might be infected if he was incarcerated. The sentencing judge rejected that contention by reference to three matters that were not in dispute at the time sentence was imposed namely that at that time COVID 19 was not circulating in the community, there had not been outbreaks within the prison system and prisoners were being vaccinated. As events transpired after sentence those matters changed and changed dramatically. However, that does not demonstrate error on the part of the sentencing judge in relation to this issue.
3. There are established categories of cases that deal with the amelioration of sentences by reference to changes in a prisoner’s medical status after sentence is imposed (Hoang v R [2020] NSWCCA 324). There was no attempt to bring this matter within those categories. Otherwise, I note that this matter does not concern the treatment by sentencing judges of the hardship that are occasioned to prisoners in custody by pandemic restrictions or the potential hardships that might be occasioned arising from the possibility that they maybe reintroduced or increased.
4. WILSON J: Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) Keith Melvyn Wass, the applicant, seeks leave to appeal against the sentence imposed upon him in the District Court of New South Wales on 18 June 2021 for an offence of recklessly inflicting grievous bodily harm: R v Wass [2021] NSWDC 414. The maximum penalty for this offence, one contrary to s 35(3) of the Crimes Act 1900 (NSW), is a term of 10 years’ imprisonment; a standard non-parole period (“NPP”) of 4 years’ imprisonment is specified by Table 1 of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
5. The sentence the applicant challenges is a term of 2 years and 4 months’ imprisonment, with a NPP of 1 year and 4 months. The applicant argues that his Honour Judge Neilson erred in determining the sentence, and advances the following (amended) grounds of appeal:

“Ground 1: Abandoned;

Ground 2: The sentencing judge erred in finding Covid-19 to be ‘a complication that had gone away with the deflection [sic: effluxion] of time’; and

Ground 3: The sentence is manifestly excessive.”

The Proceedings in the District Court

6. The applicant had been committed for trial from the Local Court and his plea, entered before the District Court on 20 April 2020, was a late one. Delay was occasioned during the course of the sentence proceedings due to a late request by the applicant for a Sentence Assessment Report (“SAR”) to be prepared to facilitate his submission that an intensive corrections order should be made. The sentencing court having ordered a SAR, there was then further extensive delay because of the applicant’s perception that his “Pastafarianism”^[1] was not taken seriously by the court, leading to an asserted state of “turmoil” and a perceived need for further psychiatric assessments to be obtained on his behalf. The matter ultimately proceeded to final hearing and ex tempore judgment on 18 June 2021.
7. The offence to which Mr Wass pleaded guilty was described in an agreed statement of facts that was before the sentencing court as part of the Crown case on sentence.

Facts of the Offence

8. The offence occurred on 12 August 2017 at Thredbo in the Kosciuszko National Park; the victim of it was Jordan Rodgers, the then 55-year-old General Manager of the Kosiuszko Thredbo Pty Ltd (”Thredbo P/L” or “the company”). There had been a background of dispute between the applicant and Thredbo P/L in the years leading up to the commission of the offence, with the applicant at one point filing a complaint against the company with Anti-Discrimination New South Wales. The complaint was dealt with through conciliation (without admissions), and an agreement was reached in 2015 between the applicant and Thredbo P/L which, in substance, required the company to allow the applicant to use the ski fields and other facilities in the area of the Ski Village, on the basis that permission to him to do so could be revoked if there were any instances of violence, or threatening or intimidating behaviour by the applicant. The applicant used the facilities thereafter, frequently skiing in costume, such as that of the Star Wars character, Chewbacca.
9. During the ski season of 2017, Thredbo P/L received two emails from customers who expressed concern at the safety of children around the person using the ski fields dressed as Chewbacca, being the applicant.
10. On 12 August 2017, Thredbo P/L held its annual “Top to Bottom” ski race, attracting many contestants of all ages and skiing abilities. 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, posing for photographs with other skiers. Mr Rodgers, who was wearing staff uniform, approached the applicant and told him that the company had received complaints about children having been frightened by him. The applicant responded, “You’re always doing this”. Referring to the terms of the 2015 conciliation agreement, Mr Rodgers told the applicant that other skiers had found his behaviour intimidating. The applicant asked if his pass to use the ski slopes was being revoked; Mr Rodgers told him it was.
11. The applicant turned away, leading Mr Rodgers to think that he was leaving the area. Instead, the applicant picked up his snowboard from the snow where it had been lying and swung it at Mr Rodgers, striking him to the left side of his jaw with the board’s edge. Mr Rodgers collapsed to the ground, where he lay face down in the snow. The applicant, standing over Mr Rodgers, continued to swing the snowboard at his victim, striking him. He stopped only when three bystanders came to Mr Rodgers’ aid, physically restraining the applicant. Initially the applicant struggled against the rescuers, one of whom headbutted him. Eventually the applicant desisted. One of those who intervened asked the applicant, “What the hell have you done? What were you thinking?”. The applicant responded:

“Mate, he does this all the time. What was I supposed to do?”.

12. Whilst waiting for the arrival of police, the applicant told a staff member:

“I just decked Jordan and [it] made me feel so good and I hit [him] with my snowboard as well. I would have kept going too”.

13. The applicant was arrested by attending police. He declined to answer any questions.
14. Mr Rodgers, who was barely conscious after the assault, was taken to a medical centre for treatment. He had sustained facial wounds including a full thickness – that is, through and through - laceration extending sideways for about 5 centimetres from the corner of his mouth, which had to be repaired. He also suffered a number of broken teeth, with tooth fragments that had been embedded in his cheek needing to be surgically removed. A tooth also had to be removed, with others requiring crowns to repair the broken portions. These teeth may lose vitality in the future due to the significant damage done.
15. The day after the assault and after he had been released to bail the applicant made a post to Facebook which said:

“Been banned from Thredbo by the ceo Jordan Rogers for riding in the Chewbacca costume, so i dropped him, he lost consciousness and some teeth. Coped a head but to the bridge of the nose and been having some difficulty with balance. Been ordered not to have contact with Thredbo staff (even if I know them) about what happened and must stay 15klm away from Thredbo” (reproduced as in original).

Other Evidence in the Crown Case

16. In addition to the agreed facts, the Crown tendered photographs of the injuries to Mr Rodgers, a Victim Impact Statement from him, and the applicant’s criminal histories. A SAR was also before the sentencing court.
17. In his Victim Impact Statement Mr Rodgers described the serious facial and dental injuries occasioned to him, and the treatment required for those injuries. The dental injuries necessitated extensive ongoing treatment over a period of about a year. Apart from the physical injuries Mr Rodgers sustained, he referred to the insomnia and anxiety that had resulted from the attack upon him, symptoms he still suffered at the time of writing his statement, 3 years after the offence.
18. The applicant’s criminal histories showed that he had appeared before the criminal courts in both New South Wales and Queensland, from 1988 to 2018. In this State, and setting aside traffic matters, the applicant has a conviction from 2009 for possessing or wearing a police uniform, for which offence he was placed upon a 12-month bond pursuant to (the then) s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), conditional upon him accepting drug and alcohol counselling and rehabilitation. He also had a number of entries for violence and firearms charges where the applicant was diverted from the criminal justice system under mental health legislation. A charged offence of using a carriage service to threaten to kill was dealt with in 2007 pursuant to s 20BQ of the Crimes Act 1914 (Cth), on condition that the applicant accept and comply with treatment from a psychiatrist for 6 months. A second charge of using a carriage service to menace was similarly dealt with in 2018.
19. In 2010, the applicant was conditionally discharged pursuant to s 32 of the former Mental Health (Forensic Provisions) Act 1990 (NSW) with respect to charges of assault, affray, destruction of property, offensive behaviour, possessing an unregistered firearm (two counts), purchasing an unregistered firearm, possessing ammunition without a licence, possessing an unauthorised firearm (three counts), and possessing a prohibited weapon.
20. In Queensland the applicant had recorded a 1988 conviction for stealing.
21. A SAR noted that the applicant, (who was aged 50 years at the time of the assault on Mr Rodgers and 54 when sentenced) was unmarried, had no children and, although he was one of nine children, he had no contact with his parents or siblings. The applicant told the author of the report, Ms Dawn Hart, that he had not held paid employment since 2000, and was in receipt of a disability pension.
22. Despite having entered a plea of guilty the applicant told Ms Hart that he was not guilty and had reacted to “verbal abuse and vilification in relation to his religion”, and threats to remove him from the ski field. He saw himself as the victim and, whilst he acknowledged having struck Mr Rodgers with a snowboard, he minimised the injuries he had caused him. He was upset and angry during his interview with Ms Hart.
23. The applicant denied being an aggressive or violent person, but he was difficult to engage when interviewed by Ms Hart and was observed, by her, to conduct himself in an aggressive way, shouting, being argumentative, and using “crude language”. He was resistant to a sentence involving any sort of supervision from the Community Corrections Office, or one that required him to undertake community service work. An updated SAR, requested after delay in the sentence proceedings, could not be provided to the sentencing court, as the applicant refused to co-operate in a further assessment, telling Ms Hart that he was changing his plea.
24. The SAR noted that the applicant had had multiple psychiatric assessments with varying diagnoses, including “complex psycho-social mental health issues”.

The Applicant’s Case on Sentence

25. The applicant tendered a quantity of documentary material, including psychiatric and medical reports. He did not give evidence, although an affidavit sworn by him on 23 September 2020 was read. In the affidavit, the applicant asserted that he had been truthful when speaking to Dr Adam Martin, forensic psychiatrist, in March 2020. He disputed, however, the accuracy of some aspects of the history recorded by Dr Martin.
26. The applicant deposed that he was one of six children to his parents, had enjoyed a generally happy childhood, and saw family from time to time. He had not told his parents of the offence, as he believed they would be upset and ashamed. He had been married, but the marriage had ended amicably after six months.
27. The applicant said that he had left school at the end of year 10 and gone into paid work, studying part time for a diploma in Social Science and a degree in Adult Education. He worked in different capacities over the years, including as a self-employed “motorcycle instructor”. This work ended when the relevant authority revoked the applicant’s licence after he had been involved in a dispute with a police officer. The dispute came about, the applicant said, after the police officer had defamed the applicant and acted unjustly.
28. The applicant said that, although he held other positions after that, he was not able to work as a trainer because he could not face groups of people. He was dismissed from his last paid employment, and thereafter received the disability support pension because of what the applicant referred to as his “condition”. The applicant felt that he had been unfairly treated over the years because of his condition, and this had made him feel very low, and angry at the perceived injustice.
29. The applicant said that he enjoyed skiing and snowboarding and regarded it as a form of therapy for his condition. The interest that others showed in him when he began skiing in pirate and Chewbacca costumes led him to feel accepted and confident, despite his condition. When Thredbo P/L “tried to stop” the applicant using its facilities in 2015 the applicant felt that he was being discriminated against. He had been happy with the conclusion of his complaint of discrimination and, when told by Mr Rodgers that he was to be “banned”, the applicant deposed that he lost control of himself and hit Mr Rodgers. He said that he felt no remorse at the time. The applicant continued:

On refection [sic: 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.

I have been reprimanded by both my Church and my local Pastafarian community for my behaviour given it goes completely against our beliefs. I have also been ridiculed by other Pastafarian groups around the world, some of whom will no longer communicate with me.

30. The applicant said that he was receiving support to maintain his home environment and was continuing appropriate medical treatment. He had taken up other sports to assist in maintaining his health.
31. Finally, the applicant deposed that he was very anxious that, if incarcerated, he might be infected with COVID-19, which he thought would have a much greater deleterious affect on him than on other prisoners, because of his asthma, a lung condition, and other health complications. He expressed the view that if the virus entered the prison system – there being no instances of infection in the custodial system at the time the affidavit was sworn – it would spread at a faster rate than in the community. The applicant was worried that he would die from the virus if he contracted it. This was the only evidence before the sentencing court concerning the COVID-19 pandemic.

Medical Reports

32. Dr Martin prepared a report on 17 September 2020, having seen the applicant in his rooms on 10 March 2020. The doctor regarded interviewing the applicant as “challenging” because his conversation was disordered, and he seemed preoccupied with persecutory themes. The applicant made “spontaneous comments of feeling under threat” and referred to groups, such as police and aboriginals, in negative, persecutory, terms.
33. The applicant told Dr Martin that he had been treated for depression in the past and suffered from chronic lung disease. He said he had enjoyed an excellent childhood, having been raised by his mother and stepfather with his two half-brothers. Dr Martin had difficulty obtaining any further personal history from the applicant because he became “hyper-aroused”. He was able to give an account of himself as a member of the Church of the Flying Spaghetti Monster, which Dr Martin thought to be an “absurdist protest movement emanating from America from 2005 in response to the mandated teaching of Intelligent Design / fundamentalist Christianity in American schools”.^[2] The kitchen colander the applicant wore on his head to his interview with Dr Martin was described by the applicant as a “religious uniform” related to his status as a “Pastafarian”.
34. As to any mental illness, Dr Martin noted that his own opinion was that the applicant was schizophrenic, although he outlined other differing diagnoses made over the years, usually in the context of stress caused by some interaction with the legal system. In 2006, the applicant was diagnosed by Dr Alex Apler, forensic psychiatrist, as having an adjustment disorder, consistent with the same diagnosis previously made by Dr O. Thomas Stanley. Dr Apler thought the applicant had a “stress reaction” and thought that he would benefit from treatment with an anti-depressant and counselling. In 2007, Dr Bruce Westmore, forensic psychiatrist, diagnosed depression and an adjustment disorder, noting that the defendant may have some obsessive or obsessional personality characteristics. In 2009, the applicant was recorded as having an adjustment disorder with mixed anxiety and depression, after an altercation with police. In 2010, Dr Brakoulias observed that the applicant experienced significant frustration and anger with respect to perceived injustices at the hands of police.
35. Noting his own belief that the applicant suffers from schizophrenia, Dr Martin observed:

“I appreciate that different opinions have been offered historically by other psychiatrists and clinicians, with multiple references to anxiety, depression, post-traumatic stress disorder, adjustment disorder and some references to personality dysfunction. I can also appreciate that unusual expressions of religious beliefs are not necessarily evidence of mental illness itself and that complex cultural issues might be at play.”

36. Despite that and acknowledging the limitations upon a “cross-sectional” consultation with the applicant, Dr Martin thought that the applicant was thought disordered and preoccupied by paranoid themes, both symptoms of schizophrenia. He suggested that the applicant’s increasing interpersonal difficulties might be associated with mental illness.
37. Dr Sam Calvin, forensic psychiatrist, was also asked by the applicant’s legal representatives to assess the applicant and provide a report to the sentencing court. In his report of 16 April 2021, Dr Calvin noted that he had seen the applicant that day and taken a history from him. The applicant described himself to the doctor as “a missionary of the Pastafarian Church” and “a pirate”, who was supported by a disability pension and a National Disability Insurance Scheme (“NDIS”) grant.
38. Like Dr Martin, Dr Calvin found it “challenging” to obtain a coherent account of relevant information from the applicant, whom he described as “a problematic historian” who often provided conflicting information. The applicant detailed many grievances against society, stating that his response to these varied disputes was to join the Church of the Flying Spaghetti Monster, attractive to him because of its rejection of dogma. The applicant’s adoption of a colander as headwear was a sign of his allegiance to the church, whilst also allowing him to meet new people and spread awareness of the beliefs of the church.
39. Whilst the applicant said that he had twice been admitted to psychiatric facilities involuntarily, Dr Calvin could not “ascertain the presence of first-rank or other characteristic psychotic symptoms” that would indicate an enduring psychotic disorder, such as Schizophrenia.
40. On assessment the applicant presented as “preoccupied with injustices and grievances” although the doctor thought this was seemingly “motivated by secondary gain rather than a delusional process”. Dr Calvin noted that there was no evidence of delusional thought content or hallucinations. He observed:

“[The applicant] seemed to have no insight into his behaviour and presentation, and his judgement was impaired. However, the lack of insight was not due to a psychotic process.”

41. Referring to the varied psychiatric diagnoses given over time, Dr Calvin concluded that the “core issue” for the applicant is his feeling of being aggrieved, discriminated against, victimised, and treated unjustly by society, former employers, and Thredbo P/L. Dr Calvin 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 life stress.”

42. The doctor concluded that the applicant has problems dealing with stress and misconstrues events through “a lens of persecution”. He found no evidence of psychosis or mania at the time of the assault upon Mr Rodgers.
43. A report from Dr Ivan Parise, the applicant’s general practitioner, dated 10 September 2020, noted that the applicant’s “illness consists mainly of sleep disorder, depressed and anxious mood, anger”. Dr Parise referred to the many and differing psychiatric opinions over time. He noted that the applicant had been involved in conflict with neighbours and multiple legal actions, and with threatened eviction from public housing, observing that:

“The medications he is on will not change all these problems, nor change his personality.”

44. Of the applicant’s physical health, Dr Parise said that the applicant had been diagnosed with diabetes, lower back pain, hypertension, and chronic obstructive pulmonary disease.
45. In another undated note, evidently prepared to support a loan application made by the applicant, Dr Parise referred to the applicant as suffering “asthma, back pain, and depression/anxiety”^[3].

Other Material

46. A character testimonial from a skiing friend of 6 years, Ian Peake, referred to the applicant as a gentle if eccentric loner who was misunderstood by others. Acknowledging that the applicant presented as a “stubborn, argumentative” individual with an “offbeat religious choice”, Mr Peake maintained that the applicant was, nevertheless, a kind and genuine person who was “instafamous” as a skiing Chewbacca, with whom others loved to take “selfies”. A neighbour also wrote in support of the applicant, explaining his problems with his landlord, the Department of Housing, as the fault of the Department; whilst another regarded the applicant as a well-respected, helpful person.
47. Other documents went to establish that the applicant had approval for a plan under the NDIS; was a client of the Justice Advocacy Service; and of National Disability Coordination. Mark Ptolemy, a Supports Coordinator with the latter, said in a letter to the sentencing court that the applicant had been diagnosed with “complex psycho-social mental health issues” which could manifest as “[a]n inability to appropriately react to conflict, provocation, and difficult or complicated social situations”. Various certificates evidenced the applicant’s ordination as “a minister of the Church of the Flying Spaghetti Monster”, his employment history, and some vocational training courses – among them, a course in 2002 in “Conflict Resolution” – that he had completed in the past, amongst other things.
48. An affidavit from the applicant’s solicitor that had been previously read in support of one of the many applications for adjournment of the sentence proceedings was also relied upon. It sought to explain the lengthy delay in readying the matter for sentence, including by recording a conversation with the applicant in which he demanded that a complaint be filed against the author of the SAR because she did not accept that Pastafarianism was a genuine religion.

The Submissions of the Parties

49. The sentencing court had the benefit of both written and oral submissions on sentence.
50. The Crown submitted that the applicant’s crime was a serious one that fell below the middle of the range for an offence of its type. It referred to the use of a snowboard as a weapon, the vulnerability of the part of the body struck, being Mr Rodgers’ head, and the necessity for others to intervene to stop the attack, as features relevant to the gravity of the crime. It otherwise pointed to the late plea, attracting a limited discount on sentence; and the applicant’s criminal history which disentitled him to leniency. The Crown accepted that the applicant’s mental health detracted from the application of the principle of general deterrence but argued that because of it, he posed a danger to the community.
51. The Crown outlined some of the authorities relevant to the COVID-19 pandemic, including McKinnon v R [2020] NSWCCA 106 and Scott v R [2020] NSWCCA 81.
52. The applicant emphasised his poor mental health and the importance to his treatment and recovery of access to the facilities provided by Thredbo P/L. He criticised the company for the action it took in seeking to exclude him from the Village, noting that he found it provocative. The attribution of blame to Thredbo P/L for creating the conditions in which the applicant felt himself provoked was a point repeatedly made in oral submissions.
53. The applicant described the injuries occasioned to Mr Rodgers as at the bottom of the range and the offence as one of low seriousness.
54. Although no evidence had been tendered concerning the effect of the COVID-19 pandemic on the conditions of custody, the applicant devoted 15 paragraphs of his written submissions to that subject, contending that prisoners were affected by the virus because of an apprehended danger of infection, an actual danger of infection, and greater isolation from family and friends due to restrictions on visits to inmates. It was argued that, for the “foreseeable future” additional hardship would be occasioned to prisoners. An analogy was drawn between the effect on conditions of custody of the virus, and that caused by a prisoner’s protection status.
55. In supplementary written submissions filed later in time during the long running proceedings, the applicant submitted that the appropriate penalty was an intensive corrections order (“ICO”). He referred also to the effect of delay in the proceedings, and the prospect that the matter could have been dealt with summarily as mitigating features.

The Remarks on Sentence

56. The sentencing judge accepted the facts of the applicant’s crime to be as outlined in the agreed statement tendered to the Court. His Honour described the assault upon Mr Rodgers as “vicious and brutal”, noting that only the intervention of others stopped the applicant from continuing the attack, an attack that was particularly dangerous because the blows were struck to Mr Rodgers’ head. The court accepted that Mr Rodgers had sustained both physical and psychological trauma. His Honour rejected the contention that the actions of Thredbo P/L in revoking the applicant’s permission to use the Village facilities could in any way justify or explain the assault. The court concluded that, having regard to the injuries occasioned to Mr Rodgers, the area of the body struck, the use of a solid wooden implement as a weapon, and the location in which the assault occurred – a busy ski slope in view of others, the offence fell below the mid-range of seriousness, but not at the bottom of the range.
57. His Honour regarded the applicant’s criminal history as one which disentitled him to leniency, although it did not establish him to be a person with a tendency towards violence.
58. The question of any psychiatric disorder from which the applicant might suffer was considered at length, with the sentencing judge concluding (at [30]; R v Wass) that:

“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.”

59. Having referred to the report of Dr Calvin, his Honour observed, at [31]:

“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 over[re]act and commit this assault upon the victim”.

60. His Honour was not persuaded that the applicant was remorseful. He quoted the applicant’s claim of his remorse made in his affidavit of 22 September 2020, but contrasted that with the applicant’s description of himself to the author of the SAR as the victim, concluding, at [33]:

“[...] 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”.

61. With respect to the significance of the COVID-19 pandemic, raised in submissions, the sentencing judge said, at [36]:

“When the matter was first before me in September [2020] 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.”

62. The utilitarian value of the applicant’s late plea was acknowledged by a discount on the sentence that would otherwise have been imposed of 15%. His Honour was prepared to further mitigate the sentence to reflect the delay in finalising the proceedings, not all of which was attributable to the applicant.
63. Although his Honour accepted that the applicant should not bear the full weight of the effect of the principle of general deterrence, he was conscious that the sentence imposed must reflect the strong need for specific deterrence, make the applicant accountable for his crime, denounce it, and recognise the harm done to Mr Rodgers. Favourably to the applicant, there was a finding of special circumstances to reflect the interruption to the applicant’s psychiatric treatment in the community that a gaol sentence would involve, his inexperience of a custodial environment, and the more onerous conditions of custody that would apply to him because of his age and character.

The Proposed Appeal

64. Having abandoned a ground of appeal complaining of the way in which the sentencing court dealt with the question of his mental health, the applicant takes issue with the conclusion of the sentencing court with respect to COVID-19; and what is asserted to be a manifestly excessive sentence.

Proposed Ground 2: The sentencing judge erred in finding Covid-19 to be “a complication that had gone away with the effluxion of time”

65. With respect to this proposed ground, and referring to what the sentencing judge said at [36] of the remarks on sentence (quoted at [59] above), the applicant’s written submissions were very brief, arguing only that:

“There being no evidence that Covid-19 had gone away with the deflection [sic: effluxion] of time, such a finding of fact was not open to the sentencing judge.”

66. The Crown in its submissions pointed out that his Honour’s comment concerning the complication that had “gone away” over time was not one referable to the COVID-19 pandemic itself, but rather to the prospect of widespread infection in the custodial system adversely affecting a large proportion of the prison population.
67. That reading is plainly correct. The impugned sentence, “Fortunately that complication has gone away with the effluxion of time”, must be read in the context of the whole of the paragraph in which it appears. It derives its meaning from what preceded it in the paragraph; it does not stand alone. In paragraph 36 of the remarks, his Honour was referring only to the very limited issue concerning the early fears of widespread infection with the virus within the prison population; he was not referring to the existence of the virus itself.
68. In noting that the fears of widespread infection in the custodial system had “gone away” over time his Honour was doing no more – in an ex tempore judgment - than stating the generally known position; he was not purporting to make a factual finding on evidence. His Honour could not have done so since neither party had placed any evidence before the sentencing court as to the incidence of infection amongst prisoners with the COVID-19 virus, or of the absence of infection. Both parties had referred to the subject in submissions, but neither had sought to establish by evidence the actual effect of the pandemic upon prisoners, either at the time when the sentence hearing first came before his Honour, on 24 September 2020, or on the date upon which the last of the evidence and submissions was taken and sentence imposed, 18 June 2021. Whilst the applicant had deposed to his own fear of infection in September 2020, there was nothing put before the sentencing court to suggest that the applicant’s fear was still held nine months later, or that it had any foundation in risks that objectively presented at that time.
69. If an offender asks a sentencing court to ameliorate the sentence to be imposed because of some particular feature, including a feature that has an adverse impact upon the conditions of custody, there must be some evidence placed before the court to support the submission. When the COVID-19 virus first emerged in the community there was widespread concern about the prospect of mass infection and death, evidenced by the onerous public health legislation that severely restricted the movements of members of the community, and the activities in which community members could engage. Reflecting those concerns and the laws quickly implemented to deal with them, including the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), the criminal courts accepted evidence that prisoners were also adversely affected by the advent of the virus, and could be or were at particular risk of infection.
70. The effect was an ameliorating one upon sentences and bail decisions, as the applicant noted in his written submissions on sentence, citing a bail judgment, Rakielbakhour v DPP [2020] NSWSC 323 as authority for his argument.
71. The position, however, is not an unchanging one. To the contrary, applicable public health legislation has been frequently passed, amended, and repealed, evidencing the fluidity of the COVID-19 situation. Since the position is not fixed, there must be current and reliable evidence of any adverse consequence contended for if a sentencing court is to take the feature into account when determining the sentence to be imposed; it is not enough to point to the existence of the virus generally, or to decisions of this or other courts handed down at the height of the pandemic, to seek amelioration of sentence. See generally Scott v R at [158] - [164].
72. Here, his Honour’s reference at [36] of his remarks to that which was widely known about infection in prisons may have been prompted by the applicant’s comment in his September 2020 affidavit concerning his fear that he would contract COVID-19 if sent to prison and likely die of the virus, that being the only evidence adduced before the sentencing court as to the impact of the COVID-19 virus on the applicant in a custodial environment. His Honour’s comment, like the applicant’s fears, appears to have been based upon general knowledge of the situation with the virus as it was at the relevant time. In September 2020, when the applicant swore his affidavit, the pandemic was a grave concern. By June 2021, when sentence was imposed, the objective basis for such fear had much diminished. Restrictions imposed upon the community by public health legislation had eased substantially from the position in 2020. The stringent infection control policies adopted by Corrections NSW – which are at the heart of complaints about the onerous conditions of custody - and the availability of vaccines had changed the COVID-19 custodial landscape significantly, minimising the likelihood of widespread and destructive infection amongst prisoners.
73. The observation of the sentencing judge broadly to that effect was not factually incorrect, and the ground as pleaded and argued in written submissions must fail.
74. Although the sentence extracted at [63] above was the totality of the applicant’s written submissions with respect to ground 2 as pleaded, at the hearing of the application before this Court, counsel for the applicant, no doubt with the benefit of the Crown’s written submissions on this aspect of the matter, sought to expand the ground by contending that it encompassed the failure of the sentencing court to refer to the effects of the virus in any sense when determining the sentence to be imposed. There was no application for leave to amend the pleading of the ground.
75. I would not, retrospectively, grant that leave, even had it been sought. As already observed, there was no evidence put before the sentencing court as to the position with respect to COVID-19 in mid-2021, and there is none before this Court. Submissions on sentence prepared in September 2020 must be distinguished both from evidence, and from evidence of the position in the middle of 2021.
76. I am not persuaded that the sentencing judge was in error in making the observation he made at [36] of his remarks. His Honour did ameliorate the sentence to be imposed upon the applicant by making a finding of special circumstances, based in part upon the likelihood that the applicant would experience a custodial environment as an onerous one due to his age and character. Any further reduction in sentence because of his fears that he may be fatally infected with COVID-19 was not warranted.
77. This proposed ground is not made out.

Ground 3: The sentence is manifestly excessive

78. The applicant’s submissions in support of this ground are also brief. Having referred to the principles that apply to the determination of such a ground, the applicant argued that, for an unplanned crime committed by a 50-year-old man with a long history of mental health issues, the sentence imposed was unjust and “well outside the range of sentences reasonably available”.
79. The range of sentence is determined having regard to the statutory guidance provided by the maximum penalty specified for an offence contrary to s 35(3) of the Crimes Act, 10 years’ imprisonment, and the standard NPP that applies, one of 4 years’ imprisonment.
80. The applicant’s crime involved an unprovoked episode of significant violence using a snowboard as a weapon, with more than one blow struck to the victim’s head, in circumstances where the applicant had to be physically restrained by three bystanders who forced him to desist. The injuries inflicted, whilst at the lower end of those comprehended by the element of grievous bodily harm, were still serious, and occasioned both ongoing pain and psychological trauma to the victim, as well as the prospect of later deterioration of his dental condition.
81. The asserted significance of the applicant’s mental illness was a matter not fully accepted by the sentencing judge, a finding not now challenged by the applicant, the proposed ground 1 having been abandoned. His Honour was presented with a quantity of conflicting expert opinion; it was open to him to accept the opinion of Dr Calvin, who regarded the applicant’s difficulties as stemming from low self-esteem, prior negative experiences, and an inability to deal with life stresses. The sentencing judge was not persuaded that the applicant had schizophrenia or any other major mental illness. His Honour accepted that the applicant’s unusual personality made his life difficult and would make his experience of a custodial sentence difficult, and made a finding of special circumstances in the applicant’s favour on that basis.
82. There was, as his Honour observed, a strong need to denounce the applicant’s crime and his immediate use of violence to deal with a dispute. Equally, there was a need for the harm done to be recognised, and for the sentence imposed upon the applicant to operate as a deterrent to him in future.
83. Having regard to the unchallenged findings of the sentencing judge with respect to the gravity of the offence, and the subjective case, I am unable to conclude that the sentence imposed evidences some misapplication of principle, or that it was so far outside the range of sentence that there must have been error: JJ v R [2020] NSWCCA 165 at [14] (Hoeben CJ at CL, Fagan and Cavanagh JJ).
84. This proposed ground fails.

Conclusion

85. The orders I propose are as follows:

(1) Leave to appeal against sentence is granted;

(2) Appeal dismissed.

86. DHANJI J: I have had the benefit of reading the reasons of Wilson J and the additional reasons of Beech-Jones CJ at CL. I agree with the orders proposed by Wilson J. I also agree with her Honour’s reasons subject to the additional reasons of Beech-Jones CJ at CL, and subject also to what follows.
87. As Wilson J points out (at [66]) the sentencing judge’s observation that the complication had “gone away” was not referable to the COVID-19 pandemic itself, but was a reference to the danger of a widespread infection in the custodial system adversely affecting the prison population. This danger, to the extent it existed, was significant in the context of the applicant’s particular anxiety of infection as a result of his various medical conditions. The sentencing judge in making this observation was responding to submissions that had been prepared on the applicant’s behalf some months prior to the sentence proceedings being resolved. As Beech-Jones CJ at CL points out, amelioration of the applicant’s sentence based on this concern was rejected by reference to three matters which were not in dispute by the time the sentence was imposed – that is, COVID-19 was not circulating in the community (at least at a level that had caused the previous concerns), there had been no outbreaks in the prison system, and prisoners were being vaccinated. The sentencing judge was entitled to sentence the applicant on this basis and to therefore conclude the issue had “gone away”. It is important in this regard to bear in mind the nature of sentence proceedings. The Evidence Act 1995 (NSW) does not apply in the absence of a direction given pursuant to s 4 of that Act. No such direction was sought or given in the present matter. As a result, the common law of evidence applied: R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413 at [61]; Farkas v R [2014] NSWCCA 141; 243 A Crim R 388 at [14] and [89]; BS v R [2021] NSWCCA 39 at [56]; Edmonds v R [2022] NSWCCA 103 at [25]. In R v Bourchas, Giles JA (Levine and Sperling JJ agreeing) said (at [61]) that while the common law of evidence applies:

“... In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no-one’s interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies.”

88. In Edmonds v R, I observed, with the concurrence of Macfarlan JA and Rothman J, that the “efficient operation of the courts in sentencing offenders is heavily dependent on such an approach” (at [26]). Here, the sentencing judge rejected the applicant’s submission, made in writing some months earlier and not repeated in oral submissions at the sentencing hearing, based on matters that were, as Beech-Jones CJ at CL points out, not in dispute. In these circumstances the complaint that the sentencing judge erred by rejecting the submission “without evidence” cannot be sustained.

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Amendments

11 July 2022 - Typographical amendment to [65] and [74].

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^[1] The word is a portmanteau derived from “Pasta” and “Rastafarian”.
^[2] The “church” has a website, on which it says of itself, “Some claim that the church is purely a thought experiment or satire, illustrating that Intelligent Design is not science, just a pseudoscience manufactured by Christians to push Creationism into public schools. These people are mistaken — The Church of FSM is legit, and backed by hard science. Anything that comes across as humor [sic] or satire is purely coincidental” (https://www.spaghettimonster.org/about/; 7 June 2022).
^[3] In both written and oral submissions, the applicant attributed this note to June 2013.