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District Court 6 August 2009

R v MacIntyre

[2009] NSWDC 209

Traffic & driving
CRIMINAL LAW DANGEROUS DRIVING NAVIGATION OF BOAT SPEED SIGNS SENTENCE PERIODIC DETENTION

Citation: R v MacIntyre [2009] NSWDC 209
Court: District Court of New South Wales
Date: 6 August 2009
Judge(s): Knox SC DCJ

Background

On 18 February 2007, a 14-year-old boy, Adam Day, was killed at Lake Conjola on the NSW South Coast when a powerboat struck him while he was swimming with his nine-year-old sister near Killarney Beach. The offender was driving a 5.7-metre ski boat with a 200-horsepower engine, travelling at between 20 and 30 knots. Her husband was seated at the rear watching a water-skier being towed behind the vessel.

Both children were wearing distinctive wetsuits and raised their hands above their heads to alert the driver, as their parents had taught them to do. People on the beach also waved and yelled to warn the driver, but the boat continued on course and struck both children. Adam Day was dragged under the vessel and struck by the propeller, suffering instantly fatal injuries. Jessica Day was struck but not seriously injured.

The offender, a Director of Nursing at a Sydney hospital with no prior convictions of any kind, pleaded guilty to navigating a vessel in a manner dangerous to another person, contrary to section 52B(1)(c) of the Crimes Act 1900. The matter came before the District Court for sentencing.

  • Whether the manner of navigation (as distinct from speed alone) constituted dangerous driving under section 52B(1)(c) of the Crimes Act 1900
  • What weight to give the offender's guilty plea, remorse, contrition, and personal circumstances in determining the appropriate sentence
  • Whether special circumstances existed to justify a reduction in the statutory ratio between the non-parole period and the head sentence
  • Whether the sentence should be served by way of periodic detention rather than full-time custody
  • Whether disqualification from holding a boating licence was appropriate, given no statutory mandatory disqualification provision applied to vessels

Decision

The court accepted that the boat was being driven in a manner dangerous to others, although the prosecution and defence agreed the speed itself was not dangerous: it was an appropriate speed for dropping off water-skiers. The dangerous manner arose from the overall conduct of navigation, including the failure to keep a proper lookout in an area where swimmers were present and visible.

Knox SC DCJ identified the starting-point sentence for an offence of this nature as approximately two years' imprisonment. A 25 percent discount was applied for the guilty plea combined with the genuine remorse and contrition expressed by the offender. The court noted the sustained and devastating impact on the Day family, describing the victim impact statements as powerful and harrowing.

The court found special circumstances under the Crimes (Sentencing and Procedure) Act 1999, relying on the offender's age, her absence of prior convictions, her significant community contributions through her nursing career, and her family circumstances. These factors justified reducing the statutory ratio so that the non-parole period represented two-thirds of the head sentence rather than the usual three-quarters.

On the question of periodic detention versus full-time custody, the court acknowledged that full-time custody had been a real option under consideration. Ultimately, the sentence was ordered to be served by way of periodic detention, reflecting the totality of mitigating factors. Because no statutory provision mandated disqualification of a boating licence (unlike motor vehicle licence disqualification for dangerous driving offences), the court recommended to the Maritime Services Board that the offender's boating licence be suspended for three years. The court also separately recommended that speed limits for motor vessels in the Lake Conjola area be established and prominently displayed.

Orders Made

  • The offender was convicted of navigating a vessel in a manner dangerous to another person contrary to section 52B(1)(c) of the Crimes Act 1900.
  • Sentenced to 18 months' imprisonment, with a non-parole period of 12 months commencing 15 August 2009, to be served by way of periodic detention.
  • The offender was directed to report to the Wollongong offices of the Probation and Parole Service by 8:30 am on 15 August 2009.
  • The court recommended a three-year disqualification from holding a boating licence, to be forwarded to the Maritime Services Board.
  • A copy of the sentencing remarks was ordered to be forwarded to the General Manager of the Maritime Services Board with a recommendation that speed limits for motor boats in the Lake Conjola and Killarney Beach area be established and prominently displayed.

Key Takeaways

  • Under section 52B(1)(c) of the Crimes Act 1900, the dangerous character of navigation can arise from overall manner of driving, even where the speed being maintained was accepted as appropriate for the activity being undertaken.
  • A guilty plea combined with genuine and sustained remorse can attract a 25 percent sentencing discount, and both factors may be weighed together where the contrition is clearly established on the evidence.
  • Special circumstances justifying a reduction in the statutory non-parole ratio can be found where an offender has no prior convictions, maintains meaningful community contributions, and has particular personal and family circumstances warranting consideration.
  • No statutory provision in the Road Transport (General) Act 1999 mandated disqualification of a boating licence upon conviction for dangerous navigation, in contrast to the mandatory licence disqualification that applies to motor vehicle offences. The District Court noted this gap and proceeded by way of recommendation to the Maritime Services Board.
  • The sentencing court explicitly flagged that full-time custody was genuinely considered before periodic detention was ultimately ordered, signalling that offences causing death by dangerous navigation are treated as serious matters warranting imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52B(1)(c)
- Crimes (Sentencing and Procedure) Act 1999 (NSW)
- Road Transport (General) Act 1999 (NSW), s 25

Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- R v Baker NSWCCA (unrep 26/12/92)
- R v Berg [2004] NSWCCA 300
- R v Dinsdale [2000] HCA 54
- R v Errington (2005) 157 A Crim R 553
- R v Jurisic [1998] NSWSC 597
- R v MacIntyre (1988) 38 A Crim R 135
- R v McNaughton (2006) 66 NSWLR 566
- R v Musumeci NSWCCA (unrep 30/10/97)
- R v Pisciuneri [2007] NSWCCA 265
- R v Pyritz (1998) 29 MVR 90
- R v Samadi [2006] NSWCCA 308
- R v Veatufunga [2007] NSWCCA 54
- R v Whyte [2002] NSWCCA 343
- R v Zamagias [2002] NSWCCA 17