Clark v Tasmania

[2022] TASCCA 3

[2022] TASCCA 3

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Clark v Tasmania [2022] 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:	[2022] 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 offending, is remorseful, and has suffered from post traumatic stress disorder as a result of the incident.

6             In his comments on passing sentence, the trial judge observed that the appellant's imprisonment would be likely to have an adverse impact on his family in Victoria. His Honour also noted that there had been considerable delay in the matter coming to trial of 7 years, of which only a 2 ½ years was attributable to police and prosecuting authorities.

7            The trial judge observed that the conduct the subject of the charge was not usual conduct engaged in by the appellant who would normally adopt safe practices when cutting wood. The trial judge also referred to the seriousness of the crime of manslaughter. His Honour said that the appellant's conduct " fell so far short of what a reasonable person would have done that it is deserving of criminal punishment". The trial judge said that it was not to the point that the appellant did not foresee the death of the young child because had he done so the charge would have been one of murder. His Honour imposed a sentence which in his view reflected the sanctity of human life and the criminality involved in its loss, albeit unintended loss. The trial judge considered , consistently with other sentences imposed for manslaughter since 1989, that a sentence of immediate imprisonment for a substantial period was appropriate.

8             The appellant submits that the sentence imposed by the trial judge was manifestly excessive in the circumstances of the matter. He contends that his personal circumstances were not given

2   No 3/2023

sufficient weight by the trial judge. He also submits that the delay in bringing the matter on for trial
was not given sufficient weight.

9             All maters relevant to the appellant's personal circumstances were appropriately taken into account by the trial judge. He referred to the appellant's remorse and to his suffering from post traumatic stress disorder as a result of the incident and the effect of the appellant's imprisonment on his family in Victoria. He also referred to the appellant's lack of prior convictions and the previous trauma which the appellant had experienced in his life. There is no basis for the submission that the trial judge failed to give adequate weight to the appellant's personal circumstances. Counsel for the appellant contended that because the facts and circumstances of this matter were unique general deterrence does not loom large. We reject that submission. The circumstances apprehended by the crime of manslaughter are wide ranging. It is hard to imagine any case where general deterrence will not be relevant when a guilty verdict is given in a case involving manslaughter by culpable negligence.

10           On the topic of delay, his Honour noted that the matter took seven years to come to trial. He took the relevant parts of the delay into account. He said that he moderated the sentence which he might have otherwise given by that reason. His Honour referred to the matter of delay as from 25 February 2016, when the file was sent to the Director of Public Prosecutions until 12 September 2018 when the file was returned to the Office of the Director of Public Prosecutions, shortly before the appellant was arrested. No other part of the delay is attributable to inaction by police or prosecutors. There is no basis for the submission, that the trial judge did not give sufficient weight to the fact of the delay in bringing the matter to trial. The trial judge did say that the delay in bringing the matter to trial insofar as it was relevant was a period of two years. The actual relevant delay was closer to two and a half years but nothing turns on that fact for sentencing purposes.

11           The sentence imposed by the trial judge reflected the importance of general deterrence in relation to the offending conduct, condemnation of the offending conduct, retribution and vindication of the victim. The appellant's culpable negligence not only posed a risk to the deceased child but also the appellant's partner and her other children in the vehicle. The culpable negligence involved the appellant not taking safety measures when he knew they were appropriate and ordinarily would have been taken by him both as to where the car was left (with people inside it) and the manner of the tree felling. Although the appellant was remorseful he pleaded not guilty (which is not inconsistent with his remorse on these facts) but he is not entitled to the benefit usually associated with a guilty plea of a discount in sentence. He is also not entitled to leniency on account of his failure to foresee the danger:see R v McDonald [1965] Tas SR 263, 268. The effect of witnessing the incident on the appellant's partner and the other children cannot be understated. The impact on them, and on the deceased child's father, is a very significant consideration.

12           The sentence imposed, in all the circumstances, was not manifestly excessive in the sense described by Kirby J in Dinsdale v The Queen [2000] HCA 57, 202 CLR 321 at [57]-[60]. It cannot be said the sentence was "unreasonable" or "unjust" see House v The King (1936) 55 CLR 494 at 505.

13           No definable tariff has been established for the crime of manslaughter by culpable negligence. That is unsurprising because much will depend on the facts and circumstances of each matter. The essential question will always be what was the degree of foreseeability of the harm; see Shield v Tasmania [2017] TASCCA 6 at [15]-[16] per Brett J. In this matter the degree of culpability was at the high end of the scale having regard to the facts discussed above.

14   The sentencing discretion of the trial judge did not miscarry. We dismiss the appeal.