Clark v Tasmania - [2023] TASCCA 3

[2023] TASCCA 3

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Clark v Tasmania [2023] TASCCA 3
PARTIES:	CLARK, Joshua George Hector
v
STATE OF TASMANIA
FILE NO:	3236/2022
DELIVERED ON:	16 March 2023
DELIVERED AT:	Hobart
HEARING DATE:	8 March 2023
JUDGMENT OF:	Blow CJ, Jago J, Marshall AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Manslaughter – Child killed by falling tree – Criminal negligence of experienced tree faller – Sentence of 4 years 9 months' imprisonment with non-parole period of half that sentence not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant: K Baumeler
Respondent: H Denton, E Brett

Solicitors:

Appellant: Philippa Willshire
Respondent: Director of Public Prosecutions

Judgment Number:	[2023] TASCCA 3
Number of paragraphs:	14

Serial No 3/2023

File No 3236/2022

JOSHUA GEORGE HECTOR CLARK v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL BLOW CJ JAGO J MARSHALL AJ 16 March 2023
Order of the Court:
Appeal dismissed.

Serial No 3/2023

File No 3236/2022

JOSHUA GEORGE HECTOR CLARK v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

BLOW CJ
JAGO J
MARSHALL AJ
16 March 2023

1             On 17 November 2022 Estcourt J sentenced the appellant to four years and nine months' imprisonment with a non-parole period of 28 ½ months for the crime of manslaughter, backdated to 6 September 2022 after a jury trial.
2             On 22 August 2015, the appellant was cutting firewood. He was an experienced woodcutter. He travelled in a vehicle to where he was to cut wood. The vehicle was also occupied by his then partner and her children. He exited the car and told the other occupants to remain in the vehicle. He took his chainsaw and approached a tree he desired to cut down.
3             When taking a chainsaw into an area where the cutting would occur, the appellant usually adopted a safe practice of parking his vehicle about 100 metres away from a tree which was to be felled by him. On this occasion the particular tree was 32 metres tall and the distance from the vehicle to the base of the tree was 22 metres.
4             The appellant did not take any safety measures which he usually would when engaging in tree felling. Apart from the vehicle containing his partner and her children being in the drop zone of the tree, the appellant did not cut a wedge out of the tree to enable him to control the direction of the fall of the tree. The tree, as a result, fell on the vehicle and a 7 year old boy, a child of the appellant's partner, was hit when the tree fell across the vehicle. The child died the next day.
5             By the jury verdict, it is accepted that the appellant was culpably negligent in relation to the deceased child. He had no prior history of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v Tasmania

Details

AGLC: Clark v Tasmania [2023] TASCCA 3
Case: [2023] TASCCA 3
Decision Date: 16 March 2023

CaseChat Overview and Summary

The appellant, Clark, appealed against a sentence of four years and nine months imprisonment with a non-parole period of two years and five months, imposed by the Supreme Court of Tasmania following his conviction for manslaughter. The charge arose from the death of a child who was killed by a falling tree while the appellant, an experienced tree faller, was undertaking work.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the sentence imposed was manifestly excessive, thereby justifying appellate intervention. This required the court to consider the gravity of the offence, the appellant's culpability, and the principles of sentencing in cases of criminal negligence, particularly where the victim was a child.

The Full Court reasoned that the appellant's experience as a tree faller amplified his responsibility and the foreseeability of the tragic outcome. The court found that the sentencing judge had correctly applied the relevant sentencing principles, taking into account the appellant's criminal negligence, the devastating impact of the death on the child's family, and the need for general deterrence. The court concluded that the sentence was not outside the bounds of what was reasonable or just in the circumstances and therefore was not manifestly excessive.

Orders