Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Causing grievous bodily harm - Criminal negligence - Waving of loaded pneumatically operated spear gun near victim with safety catch disengaged - Sentence of two years five months' imprisonment.

Judgment Number: [2017] TASCCA 6

1. I agree with Brett J that this appeal should be dismissed, for the reasons stated by him.

1. On 3 January 2015, the appellant, contrary to s 172 of the Criminal Code (the Code), unlawfully caused grievous bodily harm to Scott David Syme by discharging a spear from a fishing spear gun which entered Mr Syme's neck and lodged in his chest cavity. The appellant was subsequently found guilty by a jury of that crime, on the basis that, having the spear gun under his care or control, he failed to comply with the duty imposed on him by s 150 of the Code to take reasonable precautions, and use reasonable care to avoid danger to human life. The breach of that duty amounted to culpable negligence. On 22 July 2016, Estcourt J imposed a sentence of 2½ years' imprisonment, with an order that the appellant not be eligible for parole until he had served one half of the sentence. The head sentence was subsequently varied by his Honour, pursuant to s 94 of the Sentencing Act 1997, to two years and five months' imprisonment, to take account of time which the appellant had spent in custody prior to trial. The order relating to parole remained unchanged.
2. The appellant has now appealed to this Court against that sentence. The sole ground of appeal is that the sentence imposed is manifestly excessive.

1. On the day of the crime, the victim and a friend, Mr Fernando, had gone to the appellant's flat in order to purchase some cannabis. All of the men were known to each other, and the victim's evidence was that he had telephoned earlier to arrange the visit. Shortly after their arrival, the appellant produced the loaded spear gun. He was holding it when it discharged. The spear, according to unchallenged medical evidence, entered the left side of Mr Syme's neck, travelled through his body and lodged in the chest cavity just above his diaphragm.
2. The circumstances in which the spear gun was discharged were the subject of variable evidence from the victim and Mr Fernando. The appellant did not give evidence, and there was no one else in the flat at the time. According to the victim, as soon as they arrived, he sat on a couch in the lounge room at the invitation of the appellant. The appellant also sat down and they engaged in conversation for a short time. At that time, the appellant had nothing in his hands. After a short while, the appellant became agitated about the whereabouts of a lighter. He then produced the spear gun, walked around behind the victim, put the spear gun up to the victim's neck and shot him with the arrow while he was seated on the couch.
3. Mr Fernando's version of events also included the fact that the appellant was not holding the spear gun when the men arrived at the flat. He said that 5 to 10 minutes after their arrival, the appellant became agitated and indicated that their visit was "bad timing". Mr Fernando's attention was drawn elsewhere but he heard a verbal exchange between the appellant and the victim. During the course of this exchange, he saw the appellant in possession of the spear gun, although he did not see where it had come from. He saw the appellant waving the gun around. He was still agitated and saying that the visit was "bad timing". The verbal exchange between the appellant and the victim continued, with their voices becoming higher. Mr Fernando says that he then saw the victim step towards the appellant. He saw the spear gun coming around and the victim reach out towards the appellant. Mr Fernando thought that the victim was trying to defend himself. He heard a click and then heard the victim calling out that he had been shot.
4. The learned sentencing judge's findings as to the circumstances of the crime were as follows:

"Insofar as the particulars of culpable negligence are concerned, I am satisfied to the requisite degree that the defendant was culpably negligent in that he had in his possession inside his unit a loaded pneumatically operated spear gun and that either the safety catch was disengaged or alternatively at some point in time prior to Mr Syme's injury it was manually disengaged by the defendant. I find that the defendant also failed in his duty in waving the gun around, in bringing into contact with and or holding it in proximity to another person."

1. At a later point in his comments, his Honour also noted that "the offence was not committed in circumstances of aggression towards Mr Syme".
2. It was not necessary for the learned sentencing judge to make any further findings concerning the circumstances in which the spear was discharged. The fact that the appellant had been found guilty and was being sentenced on the basis of culpable negligence, precluded any finding that the causation of grievous bodily harm was as a result of an intentional or subjectively reckless act. It also precluded a finding based on the version contained in the evidence of the victim. That version was consistent only with an intentional act. It was not necessary for the learned sentencing judge to find whether or not the actions of the victim had played a part in the discharge of the spear gun. On the most favourable view of the facts to the appellant, the gun had discharged accidentally but in circumstances in which it was capable of doing so having regard to the negligent handling of it by the appellant. That view of the facts was entirely consistent with the factual basis of sentencing as determined by his Honour.
3. As soon as he realised what had happened, Mr Fernando used his mobile telephone to call for an ambulance. It seems that the victim did not lose consciousness. According to Mr Fernando, the victim pleaded with him to remove the spear, but he refused to do so, fearing that that would cause further injury. The victim and Mr Fernando both gave evidence that immediately after the victim had been shot with the spear, and while they were waiting for help to arrive, the appellant made comments consistent with an intention to dispose of the victim's body in the Derwent River. Both men said that while the comments were being made, the appellant had a chisel in his hand. Mr Fernando suggested the comments were simply that he would "... dump Scott in the Derwent River". The victim's recollection is that the appellant said, "I think I've killed him. We're going to have to chop him up into pieces and throw him in the river."
4. Police and ambulance arrived shortly afterwards. The victim, with the spear still embedded in his neck, was taken to hospital, where the spear was removed surgically. He spent 29 days in ICU, and a much longer period in hospital. During his time in hospital, he developed pneumonia and suffered a collapsed lung as a result of the injury caused by the spear.
5. The learned sentencing judge was presented with a victim impact statement. In it, the victim says that he suffered pain and terror in the course of enduring the immediate aftermath of being shot with the spear. He has spent months in hospital and suffered ongoing pain and other physical symptoms, such as an inability to swallow properly and difficulty with breathing. He described ongoing emotional and psychological trauma.

1. His Honour accurately summarised the appellant's personal circumstances as follows:

"The defendant is now 41 years old. He is residing at Flint House. He has had a significant long-standing history of drug abuse and at the time of this offending it is apparent that his life was in chaos. He is now, and since his release from prison in respect of unrelated matters, has been dealing with his drug usage and is on a private methadone program which he expects to remain on for the rest of his life. He has not used illicit drugs in recent times. It appears that he is endeavouring to clear up his life. He has a daughter aged 15 years whom he has had the care of, in conjunction with his parents, for some 10 years now and he has good family relations. The defendant has a considerable number of prior convictions, however apart from prior convictions for trafficking and common assault, the prior convictions are not of great relevance and relate significantly to more minor summary offences."

1. In Menichelli v Tasmania [2009] TASSC 111, 19 Tas R 299, Blow J (as he then was), with whom Porter and Wood JJ agreed, noted that given the relatively low number of cases dealing with the causation of grievous bodily harm resulting from culpable negligence in the handling of firearms, it could not be said that a tariff had been established for such cases. My review of past sentences since Menichelli was decided, confirms that that is still a valid observation. A broader review of sentences imposed generally for the crime of causing grievous bodily harm, the majority of which relate to grievous bodily harm caused by an intentional or reckless act, demonstrates the existence of a wide sentencing range. The analysis of sentences imposed for that crime between 1990 and 2000, contained in Sentencing in Tasmania, 2nd ed, Professor Warner, at 11.220, shows a variation in sentences of between less than six months, and as much as six years. Once again, my review of sentences since 2000 indicates that Professor Warner's analysis reflects current sentencing patterns in respect of crimes against s 172 of the Code. The width of the range of sentencing is consistent with the wide variety of circumstances which can arise in such crimes.
2. There is a perception that cases in which death or grievous bodily harm are caused by culpable negligence are generally treated less seriously in sentencing than other examples of the crime of manslaughter or causing grievous bodily harm. (See, for example, Sentencing in Tasmania at 11.217.) However, such a distinction, if, in fact, it does exist, does not constitute a valid principle of general application. Every case must be assessed on its own facts, and each sentence must take into account the circumstances and considerations applicable to the particular case. A finding of guilt based on culpable negligence requires satisfaction by the jury that "the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment": Bateman (1925) 19 Cr App R 8. The mere statement of this formulation implies a high degree of personal culpability on the part of an offender, notwithstanding the absence of actual intent or subjective foresight of the consequences of the negligent conduct. Further, culpable negligence constituted by the breach of the duty specified in s 150 of the Code will always carry with it the potential for grave consequences to the safety and wellbeing of others, irrespective of the actual outcome. For that reason, significant emphasis on general deterrence is warranted in the assessment of sentence.
3. Accordingly, whilst the absence of intent or subjective foresight is a relevant consideration, the focus of the assessment of the offender's culpability must be on the degree of negligence and the foreseeable potential for harm. On this basis, the personal culpability of the appellant in this case is very high. Even on the view of the facts most favourable to the appellant, within the parameters of the findings of the learned sentencing judge, he was waving around an obviously loaded spear gun pointed in the direction of the head or upper body of the victim, with the safety catch disengaged. The potential for grave injury or death was patent. Although the precise mechanism by which the gun discharged was not a matter determined by the sentencing judge, it is an inescapable conclusion from the evidence and his Honour's findings, that the discharge occurred because it was being handled by the appellant in a criminally negligent manner. This was a serious example of a crime contrary to s 172 of the Code, notwithstanding that the conduct of the appellant was constituted by a breach of duty, rather than an intentional or subjectively reckless act.
4. Further, as the learned sentencing judge correctly noted, the objective seriousness of the crime was aggravated by the appellant's immediate post-offence behaviour. The conduct of the appellant distinguishes this case from others involving grievous bodily harm caused by culpable negligence, in which the manifestation of immediate remorse and practical assistance to the injured person has been regarded as a mitigating factor (see, for example, Menichelli). However, the significance of the appellant's conduct goes beyond the absence of a mitigating factor and constitutes a significant aggravating factor. The victim was conscious and heard the comments which were made in his presence. He was also aware that the appellant had picked up a chisel. This conduct understandably induced significant terror and exacerbated the impact of the crime. I endorse the comments of Johnston J in R v Wilkinson (No 5) [2009] NSWSC 432 at [61], which are apposite to this case:

"Care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] VSCA 95; [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: Director of Public Prosecutions v England at 263-264 [18]."

1. There was little available to the appellant by way of mitigation. There was no evidence of remorse, and he was not entitled to claim favourable consideration arising from a plea of guilty. The absence of prior convictions for matters involving serious violence, and his efforts to address his underlying drug problem, were pertinent considerations and properly taken into account in his favour. The learned sentencing judge specifically referred to these matters and was clearly aware of them.

1. Notwithstanding factors personal to the appellant, and the lack of subjective intent or foresight, the fact remains that this was a serious case of a crime against s 172 of the Code. The most pertinent sentencing considerations were the objective seriousness of the crime, the significant and realised potential for harm, the impact on the victim and the need for general deterrence. The sentence was well within established sentencing patterns for this crime and, although it could not be described as a lenient sentence, I am unable to infer error from its severity. I am not satisfied that the sentence was manifestly excessive or "unreasonable and plainly unjust": Dinsdale v The Queen [2000] HCA 54, 202 CLR 321. The single ground has not been made out and I would dismiss the appeal.

1. I agree with the conclusion reached by my brother Brett J that this appeal should be dismissed.