STATE OF TASMANIA v KENT MATTHEW HAYES 25 MARCH 2021
COMMENTS ON PASSING SENTENCE BRETT J
Mr Hayes, a jury has found you guilty of one count of assault.
As the jury was effectively left with two pathways to a finding of guilt, it is necessary for me to make findings of fact for the purpose of sentencing. In order to sentence on the basis of the more serious version of the facts, I would need to be satisfied of those facts beyond reasonable doubt.
I am satisfied beyond reasonable doubt that the complainant has given a substantially accurate version of the events which constituted the assault. Having said this, I was not particularly impressed with Mr Davis generally, and I consider that he was an unreliable and evasive witness in respect of the context of this matter, in particular, the debt that he owed you. However, I accept his evidence about the manner in which the assault was committed, and it is my view that the jury would have come to a similar conclusion. It is highly likely that the jury would have acquitted you on the basis of self-defence if it had accepted your version of these events as a reasonable possibility. I think it is highly improbable that the complainant would have actually attacked you with the chainsaw as you described in evidence, and, further, that he would have simply fallen from the tree, particularly having regard to his vast experience in the industry. Further, the bruising to his face is consistent with the administration of more than one blow and this can only be explained on the basis that you punched him in the face. This, of course, is inconsistent with your version of events.
Accordingly, my findings of fact are as follows. It is common ground that the complainant had been indebted to you for a significant sum, in excess of $12,000, for a prolonged period of time. This debt had arisen because of work which you had performed for him in respect of his business as a tree feller. He had been paid for the work performed by you, but had spent the money and fallen into financial difficulty and was, therefore, unable to pay you. It is clear that he had deflected your queries in relation to payment by making promises to pay which he had no intention of honouring. Eventually, he blocked your number on his telephone and avoided all other contact with you. This had been going on for a long time and you were understandably upset about this issue.
The relevant events occurred on 9 October 2019 at a bush worksite near Lake Leake. You had been working on an adjoining site for about 12 months. The complainant had commenced work there that day. You had not seen nor spoken to him since he cut off contact with you. However, as you were driving to your worksite, you noticed his vehicle, realised that he must have been onsite, and decided to speak to him about the money he owed you. You walked up to the location where he was felling a tree and waited for the tree to fall before speaking with him. I do not accept the complainant’s evidence about your demeanour when you approached him. I am sure that you were concerned about payment and were being assertive and firm with him. This is understandable because I am satisfied that he had deliberately avoided his lawful obligation to pay you, and was probably upset and uncomfortable that you had come across each other in this unexpected way. The complainant claimed in evidence that your attitude was arrogant, but also said that this was based on you assertively demanding payment for what he owed you. I am satisfied that he again attempted to fob off your demands for payment and in the end, when you persisted, he turned and climbed onto the log of the tree he had just felled, and walked away from you. He was carrying his chainsaw, but had not restarted it at that time. You told him not to walk away from you. I am satisfied that, at this point, your frustration boiled over and you attacked him in the way that he described in evidence. You pushed him with both hands to the back, causing him to fall from the tree. Then, when he was lying on the ground, you punched him in the side of the face about three times. You then pulled his jumper up his back, which resulted in it compressing his neck. I do not think that you intended this result. He was struggling to breathe but was able to say that if you did not stop, you would kill him. This caused you to come to your senses and you desisted and let him go. You and he then had a further conversation about the money and, in the end, he agreed to pay you. You shook hands and that was the end of the matter. You were subsequently paid a substantial part of what he owed you.
The assault resulted in the injuries described in the medical evidence. The complainant suffered three separate fractures in the area of his cheekbone and eye socket, as well as bruising and swelling to his face and minor bleeding in the eye. The fractures were left to heal without the need for manipulation or surgery, and the other injuries also resolved. I am not able to make any specific finding about the precise cause of the facial fractures, but I am satisfied that all of the injuries resulted from your assault on him. The facial fractures are consistent, according to the medical evidence, with one or more blows, and this trauma could have been inflicted either by the punches or when he fell from the tree after you pushed him. Of course, as I have already pointed out, I think that there is more extensive bruising than is consistent with only one blow. Ultimately, none of this makes any real difference to the assessment of the seriousness of the crime, because it is clear that all of the injuries resulted from the assault.
In evidence, the complainant claimed that he was still suffering headaches as a result of his injuries. I have not been presented with any medical evidence which would support this claim. Further, the complainant has declined to make a victim impact statement. I am not satisfied that the injuries have had this or any other long-term impact. However, they would clearly have caused some temporary pain and discomfort.
You are 39 years of age, married with four children aged 15, 13, 13 and 10. You are the primary breadwinner for the family and you are self-employed as a tree feller. Your prior convictions are limited to traffic offences and one minor street offence committed when you were 19 years of age. You have not committed any offence since 2008, and you have no prior convictions for offences of violence. In short, I am satisfied that, apart from the commission of this crime, you are a person of good character and that your conduct on this occasion was out of character and occurred in the particular circumstances which I have described.
However, I cannot ignore the fact that, notwithstanding the context in which the crime was committed, the crime itself has some serious aspects. It was obviously dangerous to push this man off the tree from behind when he was not expecting that attack, was carrying a chainsaw and fell in an uncontrolled way onto rocky ground. It was also extremely dangerous to punch him in the head and to restrict his breathing, although this only occurred for a short time. I think the violence manifested considerable rage but again I take into account that you voluntarily desisted from pursuing the attack. Finally, this violence occurred on a worksite in a relatively remote location. This may have had concerning consequences had the injuries been more serious.
Having regard to all of these considerations, I am satisfied that the appropriate sentence is a modest term of imprisonment. However, given the mitigating factors and your prior good character, I am prepared to wholly suspend the sentence and thereby give you an opportunity to avoid actually serving it. However, I think it is appropriate that you perform a significant amount of community service as a condition of suspension.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime of which you have been found guilty;
2 You are sentenced to a term of 9 months’ imprisonment. The whole of the sentence will be suspended for a period of 30 months on the following conditions:
(a) That you are not to commit another offence punishable by imprisonment during that period.
(b) That you will perform community service for a period of 175 hours. The Court notes that the sections referred to in s 24(5A) of the Sentencing Act apply to this condition. For the purpose of those provisions:
(i) you must report to a probation officer at the office of Community Corrections in Launceston within 3 clear days of today; and
(ii) the operational period of the order is 30 months.