Buckley v The Queen; R v Buckley

[2012] NSWCCA 85

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Buckley v R; R v Buckley [2012] NSWCCA 85

Hearing dates:

17 April 2012

Decision date:

07 May 2012

Before:

Basten JA at 1;
Blanch J at 51;
Beech-Jones at 52

Decision:

(1) Refuse the offender leave under r 4 of the Criminal Appeal Rules to raise grounds challenging the summing up to the jury, in circumstances where no objection had been taken at trial.

(2) Refuse the offender leave to appeal against his convictions.

(3) Dismiss the Director's appeal against the inadequacy of the sentences imposed for the offences of dangerous navigation causing death.

Catchwords:

CRIMINAL LAW - appeal - conviction - offences of aggravated dangerous navigation occasioning death - whether trial judge erred in presentation of evidence during summing up to jury - failure to summarise evidence by reference to issues - whether leave to appeal should be granted - R v Zorad (1990) 19 NSWLR 91 distinguished; El-Jalkh v R [2009] NSWCCA 139; RR v R [2011] NSWCCA 235 applied - Criminal Procedure Act 1986 (NSW), s 161

CRIMINAL LAW - appeal - sentence - offences of aggravated dangerous navigation occasioning death - whether manifestly inadequate - whether trial judge failed to assess adequately the moral culpability of the defendant - whether trial judge erred in assessing the objective seriousness of the offence - whether manifest error

CRIMINAL LAW - appeal - sentence - offences of aggravated dangerous navigation occasioning death - application of guideline judgments - R v Reynolds; R v Small [2010] NSWSC 691; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 applied

Legislation Cited:

Crimes Act 1900 (NSW), s 405AA
Criminal Appeal Act 1912 (NSW), ss 5, 5D
Criminal Procedure Act 1986 (NSW), s 161

Cases Cited:

El-Jalkh v R [2009] NSWCCA 139
Picken v Regina [2007] NSWCCA 319
R v Jurisic (1998) 45 NSWLR 209
RR v R [2011] NSWCCA 235
R v Reynolds; R v Small [2010] NSWSC 691
R v Tillott (NSWCCA, 8 April 1991, unreported)
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
R v Zorad (1990) 19 NSWLR 91

Category:

Principal judgment

Parties:

Sean Kenneth Buckley - Appellant
Crown - Respondent

Representation:

Counsel:

G A Brady/C J Othen - Appellant
F A Veltro - Crown
Solicitors:

Nyman Gibson Stewart - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Crown

File Number(s):

CCA 2010/232297

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-09-09 00:00:00

Before:

North DCJ

File Number(s):

DC 2010/232297

Judgment

1. BASTEN JA: In the early hours of the morning, before dawn on 25 July 2009 Sean Buckley (the applicant) was navigating a six metre aluminium fishing boat across Bate Bay, east of Cronulla. The boat capsized, throwing the applicant and two friends into the water. The applicant swam ashore and raised the alarm, but his friends drowned long before they were found by the searchers.

Background and Issues

1. On 14 April 2011 the applicant was arraigned before a judge and jury on an indictment containing four counts. Each count alleged that he was navigating the vessel under the influence of intoxicating liquor when the vessel was involved in an "impact". Counts 1 and 2 related to the death of Mr Normann Baeger; counts 3 and 4 related to the death of Mr Baeger's partner, Ms Sulia Amoa-Fesolai. In respect of each deceased, the primary count (1 and 3) further alleged that the applicant had "the prescribed concentration of alcohol" present in his blood at the time of the accident. Counts 2 and 4 were in the alternative and made no allegation in respect of the prescribed concentration of alcohol. On 4 May 2011 a jury returned a verdict of guilty with respect to counts 1 and 3.

1. The hearing on sentence took place on 24 June 2011. By arrangement with the parties, the matter was stood over to 9 September for handing down sentence. The judge refused to continue the applicant's bail. In respect of each count, North DCJ sentenced the applicant to a non-parole period of 12 months imprisonment, with a further term of 18 months, giving a total sentence of two years six months. The sentences were accumulated to the extent of six months, the sentence on count 1 commencing on 24 June 2011 and expiring on 23 June 2012, with the non-parole period on count 3 commencing on 24 December 2011 and expiring on 23 December 2012. The minimum period of custody was thus 18 months.

1. Promptly following sentence, the Director of Public Prosecutions gave notice of appeal against the sentences on the ground that they were manifestly inadequate. It was not until 3 April 2012 that counsel for the Director who appeared at the hearing of the appeal gave notice of three additional grounds, to which reference will be made below. Given the relatively short minimum custodial period, the delay requires comment. However, it was not caused, as the Court understood the explanation of counsel, by any dilatoriness on the part of the Director, but rather because the applicant indicated an intention to seek leave to appeal, formal notice of which was only given on 7 March 2012.

1. The applicant identified two grounds on which he based his appeal against conviction, namely that the trial judge:

(1) failed to sum up the facts as they related to the ingredients of the offence in issue and as they related to the statutory defence, and

(2) failed to include in his summing up a collected resume of the evidence as it related to the ingredients of the offence in issue and the statutory defence.

1. Comment is required in respect of the nomenclature used for the parties. Although there was no application for leave to appeal, and the point was not debated, a person convicted on indictment has a right of appeal against conviction on any ground "which involves a question of law alone": s 5(1)(a) of the Criminal AppealAct 1912 (NSW). Otherwise, leave is required. It is, at best, doubtful that these grounds of appeal could properly be characterised as involving questions of law alone; accordingly, it is convenient to treat the matter as one requiring leave. No objection was taken by counsel for the Director in respect of the failure to apply for leave and it is convenient to treat the matter as an application for leave to appeal heard concurrently with the appeal. Mr Buckley will be described as the applicant.

1. The appeal against sentence is brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). In the title to the proceedings, practice in this Court requires that he be referred to by the letter "R", being an abbreviation for the Queen, in Latin. The practice long predates the establishment of the office of Director of Public Prosecutions in 1987.

Appeal against conviction

1. Before dealing with the specific criticisms made by the applicant of the summing up by the trial judge for the jury, it is desirable to identify the principles on which the applicant relies.

1. The starting point for the argument was the decision of this Court in R v Zorad (1990) 19 NSWLR 91 (Hunt, Enderby and Sharpe JJ). The issue of present relevance arose from the failure of the trial judge to direct the jury that an attempt to receive a drug for supply is established only if the inference be drawn that the purpose of receiving the drug was to supply it to another: at 105B. The Court noted that the only matter "really in issue" was the element of purpose and continued at 105E:

"Nor was any of this factual issue ever put to the jury in such terms, as it should have been. A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence.... This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a summing-up is to present for the jury the issues of fact which they have to determine."

1. The statement in Zorad was reiterated by Hunt J, a year later, in R v Tillott (NSWCCA, 8 April 1991, unreported). Although, as the applicant accepted, aspects of these statements have since been qualified, both by legislation and by subsequent case law, the underlying principle is not in doubt. It involves two limbs: first, one composite obligation of the trial judge with respect to the jury is to identify the issues in dispute, identify the evidence relevant to each of the issues and identify any submissions as to how each of the issues should be resolved. Secondly, this function is not usually adequately performed by a chronological recitation of the evidence as presented, witness by witness.

1. The first qualification to the statement in Zorad arose from the insertion of s 405AA into the Crimes Act 1900 (NSW), a provision now found in s 161 of the Criminal Procedure Act 1986 (NSW). In its present form, s 161 reads:

"161 Summary by Judge

(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary.

(2) This section applies despite any rule of law or practice to the contrary.

(3) Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial."

1. The directions in Zorad have also been qualified and restated in more recent case law. In El-Jalkh v R [2009] NSWCCA 139 James J (Spigelman CJ and Simpson J agreeing), after referring to Zorad and the statutory provision noted that it was well open to the trial judge in that case to form the view that a general summary of the evidence was not necessary: at [144]. After reference to earlier authority to similar effect, he summarised the principles at [147] in the following terms:

"It is clear from the authorities to which I have referred that it is an essential function of a trial judge in summing-up to a jury that the trial judge, having identified the issue or issues in the trial, put the defence case on that issue or those issues and that the trial judge make such references to the evidence as may be required to enable the jury properly to understand the defence case and that it is not sufficient for the trial judge to say to the jury that they should give consideration to the arguments which have been put by counsel."

1. Finally, reference was made to the more recent decision of this Court in RR v R [2011] NSWCCA 235, in which Bathurst CJ (with the concurrence and James and Johnson JJ) noted that the principal qualification to the statements in Zorad was that the obligation to identify issues and relate the evidence and argument to those issues was limited to those matters which were actually in dispute in the particular case: at [85].

1. It is easy to state the basic requirements of a proper summing up: it is less easy to apply them in particular cases. Especially in times where every word uttered in the course of a trial is recorded and transcribed, there is considerable pressure on a trial judge to err on the side of excessive caution in referring to the evidence and the issues, lest any misstatement or omission be seized upon by counsel for the purposes of an appeal. The safest course, it may be thought, is to deal with the evidence as it has unfolded, in a largely chronological fashion. Unfortunately, that course is likely to be of less help to the jury than the more demanding course of identifying issues in dispute and relating relevant evidence to each issue in turn. It is clear that it is the latter course which must generally be adopted. Counsel for the applicant made much of the point that the trial judge had opted for the perhaps easier approach of a chronological recitation of the evidence.

1. Even if the criticism were valid, it did not necessarily demonstrate a miscarriage of justice. Further, the preferred approach is not an inflexible rule. There will be cases where, for example, the issues are few, the evidence has been spread over a period of time and the witnesses called in a logical order, having regard to the real issues in dispute. In such a case the trial judge may consider that a chronological highlighting of important evidence, in the order it was received, is likely to assist the jury to an orderly consideration of the issues in dispute.

1. For reasons which will be explained below, there was no miscarriage in the present case. It may also be noted that the formulation of the grounds of appeal, set out above, owed more to the original language used in Zorad than to the obligation as stated in later cases, with appropriate reference to the statutory qualification.

Basis of challenge to conviction

1. The judge's direction to the jury was given in orderly and clear terms. After the usual general directions, the judge turned to what he identified as "the essential elements or ingredients" of each charge: Summing up, 2/05/11, p 12. He commenced with the more serious counts, 1 and 3. Three elements were not in dispute, namely that the accused had been navigating a vessel at the relevant time, that the boat had been involved "in an impact" (a term having an extended meaning) and that two people had died as a result of the impact. Three issues were in dispute, two involving elements of the offences and one a defence. The trial judge identified the elements of the offences in the following terms (p 13):

"Fourthly, that at the time of the impact the accused was under the influence of intoxicating liquor. This is in dispute. A person is under the influence of intoxicating liquor if his ability to manage or control a vessel is impaired. Now in relation to counts 1 and 3, there is also an additional element which the Crown must prove, again beyond reasonable doubt. That is that at the time of the impact the accused had the prescribed concentration of alcohol in his blood. This too is in dispute. The definition of prescribed concentration of alcohol for the purposes for count 1 and 3, which you are considering, is that the accused had 0.15 grams or more of alcohol in 100 millilitres of blood."

1. The trial judge next identified the defence which was in dispute, namely that, even if the elements of the charge were made out, it was open to the accused to demonstrate that "it is more likely than not that the deaths resulting from the impact were not in any way attributable to alcohol": p 14.

1. There was, in substance, one critical issue, which had two limbs. The first concerned the level of inebriation of the accused. The evidence supported the conclusion that he and Mr Baeger had been drinking for several hours before commencing the fishing trip. Ms Amoa-Fesolai had not been drinking. When the three left Mr Baeger's home at about 2.30am to drive from Casula to Yowie Bay, she did the driving. The men took beer with them in the boat. The boat was launched at about 3am and the offender navigated to a point off Bundeena at the mouth of Port Hacking, where they stopped to fish briefly. They then rounded the southern headland of Bate Bay, which they intended to traverse in a northerly direction, motoring across the Bay to Merries Reef, near the northern headland.

1. The boat capsized at some time between 3am and 4am. When the applicant reached the shore, he thought he had been in the water for up to an hour, but that was probably an exaggeration. He raised the alarm at a house behind Wanda Beach at about 4.05am. The first call to police was logged at 4.10am.

1. The applicant was taken to hospital shortly before 5am, and a blood sample taken at 6.40am. The reading of that sample was 0.146 grams per 100 mls. Dr Judith Perl, a clinical forensic pharmacologist estimated the accused's blood alcohol level at 3.30am as being between 0.178 grams per 100 mls and 0.225 grams per 100 mls. There was ample evidence to support the prosecution case that the blood alcohol level of the applicant at the time of the incident was well in excess of the prescribed concentration and at a level which would have involved a substantial impairment of his mental and physical functioning.

1. There was a dispute as to how much beer the applicant had drunk in the course of the night. He claimed to have drunk approximately six bottles, whereas the pharmacologist expressed an opinion that the level of alcohol found in his blood could not have been achieved by drinking fewer than 13 bottles. The defence also raised the possibility that, having been in the water for a significant period, the applicant might have absorbed ethanol from the petrol leaking from the overturned boat. The issues were clearly identified for the jury. That they were satisfied by the prosecution evidence was unremarkable.

1. The second major dispute in respect of the evidence was how the boat came to capsize. In various statements, the applicant had suggested there had been a freak wave, that the boat had hit a whale or had run into a sandbank or reef. There were no reefs in the area and no sandbanks extending more than 50 metres from the shore. Although one witness speculated that the boat capsized by coming too close to the shore, the prosecution case, supported by the evidence of the accused, was that the boat capsized farther out, probably between 500 metres and a kilometre offshore. The evidence did not allow the point of the incident to be identified with any degree of certainty, but there was nothing to support the suggestion that there was any sandbank or reef involved.

1. The possibility that the boat hit a whale was speculative and unverifiable. Evidence was given as to the condition of the hull, including a gouge mark in the aluminium, although there was no agreement as to its likely cause. One of the officers noted the gouge mark , which caused him to have the vessel examined: Summing up, 2/05/11, p 36. The vessel was examined by Senior Constable Daley, however, he was unable to say how the damage had occurred or at what time: Tcpt, 27/04/11, p 348 (35). He agreed there was "a very minor gouge on the bow on the right or starboard side", which would not have been made by a log: p 349 (20). He described it as having been made by a hard object which did not dent the aluminium. His evidence was generally inconclusive, but was summarised by the trial judge in his summing up, at p 46.

1. His Honour spent a little time with the evidence of Mr Rice, a civil engineer specialising in coastal engineering: Summing up, pp 43-45. He reported wave measurements taken from a buoy located off Cape Baily, on the coast north-east of Bate Bay. At the time of the incident, the median offshore wave height was about 1.5 metres: Tcpt, 27/04/11, p 335. Mr Rice concluded it would have been lower off Wanda Beach: p 336 (25). There was no evidence of freak wave activity.

1. The defence case had three basic elements. First, the boat was six metres long and 2.1 metres wide: it should have been stable in normal conditions. Secondly, the applicant had navigated the boat successfully through the channels of Port Hacking, a fact inconsistent with gross impairment of his faculties by alcohol. Thirdly, unusual events can occur in the open sea. The case the defence had to meet was that although the night was dark with no significant moon, the winds were light, the swell was moderating and the boat was navigating well beyond the breaking surf.

1. The issues were not complex and they were carefully and more than adequately explained by the trial judge. The evidence as to the issues in dispute did not readily divide into categories. The contention that the trial judge failed to sum up the facts as they related to the ingredients of the offence and the statutory defence is without substance. The first ground must be rejected.

1. To the extent that a "collected resume" of the evidence is different from a summary of the evidence as it relates to each ingredient of the defence, nothing further was required in this case. The second ground is also without substance and should be rejected.

1. In his written submissions in this Court, counsel for the applicant formulated a two page direction which, it was submitted, should have been put to the jury. Much of it was; other parts were simply tendentious and were matters which one would expect to have been put in submissions for the defence at trial. It is not the task of the trial judge to provide an address in substitution for that delivered by experienced counsel.

1. The applicant conceded, as was the case, that no complaint had been made of the summing up before the jury retired (although counsel were expressly invited to seek further direction - Summing up, 3/05/11, p 34) and that the further direction now proposed was not presented to the trial judge. He further acknowledged that the complaints about the summing up cannot be raised without leave, pursuant to r 4 of the Criminal Appeal Rules. However, counsel submitted that the errors were "fundamental", thereby leading to a miscarriage of justice, relying on Picken v Regina [2007] NSWCCA 319 at [19]-[22] (Mason P).

1. Had the proposed direction been put to the trial judge, it is likely that there would have been debate as to its terms and the respects in which it advanced the defence case. It is by no means obvious that any part of it would have been accepted as requiring further direction. Although the applicant submitted that there was "evidence that supported a finding of not guilty", there was in fact remarkably little evidence which supported the defence, other than the evidence of the applicant. He had made various statements over the months as to the cause of the accident and effectively conceded, in a passage recited in the summing up, that he had no idea how the boat had come to capsize: Summing up, pp 19-21. He denied that he had drunk more than six or seven beers and denied that his consumption of alcohol had contributed in any way to the boat capsizing. He asserted that "on the night I felt quite fine and alert and awake. I could keep a good look out, was able to stand up and function": Summing up, p 22. The jury were left in no doubt as to the effect of his evidence: they did not have to accept it and the verdict demonstrates that they did not.

1. There was no fundamental (or any other) error on the part of the trial judge; leave to rely upon the grounds sought to be raised in the application for leave to appeal against the convictions, pursuant to rule 4, should be refused. The application must be dismissed.

Director's appeal against sentence

1. The second part of the proceedings involved the appeal by the Director of Public Prosecutions against the inadequacy of the sentences imposed by the trial judge. The grounds of appeal identified by the Director asserted error on the part of the sentencing judge:

(1) in failing to assess adequately the moral culpability of the respondent;

(2) in not having appropriate regard to the guideline judgments in R v Jurisic and R v Whyte, and

(3) in assessing the objective seriousness of the offences of aggravated culpable navigation causing death and imposing a sentence that was manifestly inadequate.

It is convenient to deal with the complaint in respect of the guideline judgments first. The other grounds can be addressed as one.

(a) guideline judgments - dangerous driving

1. In R v Reynolds; R v Small [2010] NSWSC 691, Michael Grove J sentenced two persons who had been responsible for navigating a vessel licensed to carry eight persons, but in fact holding 14 partygoers, when it collided in the early hours of the morning with a fishing boat on Sydney Harbour. Six people on the smaller boat died. Mr Small was in control at the time of the collision. Like the present offender, Mr Small was charged with multiple counts of dangerous navigation occasioning death. Grove J stated at [50]:

"The Crown is correct to submit that the offences of which Percy Small is convicted of dangerous navigation causing death are and can be treated as mirror offences of dangerous driving causing death. It is notorious that intense publicity has been given to the risks inherent in driving motor vehicles when affected by liquor or drugs. The circumstances of this case emphasize that the same risks exist when vessels are being navigated upon the waters."

1. Later in his judgment, at [96]-[97], Grove J referred to the guideline judgment in respect of dangerous driving causing death or bodily harm, R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. That case identified a typical offence of dangerous driving causing death as involving a young offender of good character, causing death to an individual, the victim being a stranger, with little injury to the driver or the driver's intimates, accompanied by genuine remorse and a plea of guilty of limited utilitarian value. The sentence will depend upon the level of moral culpability. However, Spigelman CJ (Mason P, Barr, Bell and McClellan JJ agreeing) held that a "custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement": at [214]. Spigelman CJ then noted the second limb of the guideline which had been given in the earlier decision of R v Jurisic (1998) 45 NSWLR 209, in the following terms, at [215]:

"With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) ... should be exceptional."

1. The list of aggravating factors identified by the Chief Justice included the number of people put at risk and the degree of intoxication or substance abuse.

1. In the present case there was a trial and no discount for a plea of guilty was available. Applying the guideline to dangerous navigation in Reynolds and Small, Grove J adopted a sentence of four years imprisonment, with a period of 12 months accumulation in respect of each offence subsequent to the first. As that resulted in an aggregate total term of nine years imprisonment, applying the totality principle, he reduced the overall sentence to a term of seven years and six months. He then fixed an overall period of mandatory custody of five years, with a balance of term of two years six months: at [101]-[102].

1. The sentencing judge expressly referred to the approach of Grove J in Reynolds and Small and the use of the guideline judgments in Jurisic and Whyte. His Honour set out the passage at [50] from Reynolds and Small, noting the differences in approach which might be required in considering a case of dangerous driving as compared with dangerous navigation. He noted the importance of general deterrence and also the need to determine the moral culpability of the offender. After noting various factors including the absence of evidence as to how the boat capsized, his Honour continued:

"The offender is the only one who can throw light on this and from the inconsistencies in his various accounts I accept that he does not really know how the boat capsized. I further accept that this happened to him rather suddenly and was not the result of him intentionally navigating the boat in a dangerous fashion.

...

Looking at all of the circumstances and taking into account the absence of any further aggravating factors such as speeding, driving recklessly, showing off, falling asleep and so forth, I find that the offender's conduct does not involve a high degree of moral culpability but is more towards the middle of the range."

1. The judge noted that the offender had mounted "a strong subjective case" with a number of referees speaking of his "hard work, honesty, trustworthiness and the fact that he is a good family man". He also noted that the offender was 33 years of age and thus did not fit squarely within the typical offence referred to in the guideline judgments. He further accepted that the offender was "unlikely to re-offend in this way in the future". Correctly, his Honour accepted evidence of remorse, which was not to be discounted by the fact that he had pleaded not guilty. He then stated:

"Having considered all possible alternatives I am satisfied no penalty other than imprisonment is appropriate in these matters. In the guideline judgments regarding motor vehicle accidents where moral culpability was held to be high, a full time custodial sentence of less than three years in the case of a death has been held to generally be appropriate. In these matters I have found that the moral culpability is more towards the middle rather than the high, however this is an aggravated offence with the maximum penalty of fourteen years. Taking all the circumstances into account I find that each count deserves the same penalty. In each case that penalty, to adequately reflect the manifold purposes of punishment, should be two and a half years."

1. A degree of accumulation was found to be necessary, given that there had been the loss of two lives. This being the first time that the offender was in custody, the judge appropriately made a finding of special circumstances. The sentence imposed was one of three years with a minimum period of 18 months mandatory custody. He disqualified the offender from holding any boat licence for a period of five years.

1. Ground 2, alleging failure to have appropriate regard to the guideline judgments, must be rejected. The sentencing judge gave careful attention to both the guideline judgments and the sentencing undertaken by Grove J in Reynolds and Small. He imposed sentences less than those imposed by Grove J and than might have been indicated by the general rule identified in Whyte, having regard to the fact that this was an aggravated offence. The principal reason for the variation was the finding that the degree of culpability was in the mid range, rather than the high range for the offences in question. If that finding is accepted, the variation from the guideline was within acceptable limits.

1. It follows that the appeal against sentence depends upon a challenge to his Honour's finding as to the level of moral culpability.

(b) assessment of moral culpability

1. The Director's submission in this respect identified 13 factors which it said the judge appeared to take into account in ameliorating the culpability of the offender. It is not necessary to set them out, as they were all undoubtedly matters taken into account in the process of assessing culpability. However, the judgment did not identify specific factors as those ameliorating or exacerbating the level of culpability. Some were clearly neutral, others clearly operated in one direction rather than another. The one matter of substance raised by the Director was the judge's statement that after the boat capsized, the offender removed his clothing, struggled to the shore and "immediately set out to raise a 'hue and cry' and therefore did everything he could to try and have his two friends located". His Honour further stated that the offender in this regard "did not shirk his responsibilities".

1. The Director criticises this finding in the following passage in the written submissions at par 37:

"The fact that the respondent subsequently swam to shore and raised the alarm is not a matter that could operate to significantly mitigate his moral culpability. At trial the respondent gave evidence that he could see and hear the female victim and had the feeling that he wanted to go over and help her, but did not because 'the way she was panicking, I thought if I went over to her she would take me down as well.' ... The respondent told one of the police officers whilst he was the hospital on the morning of the incident that he new that the victims could not swim .... In his ERISP he told police that he was not too familiar with the swimming ability of the victims and did not ask them .... He was also aware that they were not wearing life jackets...."

1. The sentencing judge expressly referred to the fact that they were not wearing life jackets; the context indicated that this was treated, correctly, as an aggravating circumstance, rather than one mitigating the level of culpability of the offender as the person in charge of the vessel. Further, his statement to police that "they can't swim" may not have indicated actual knowledge to that effect on his part. It may have been an inference drawn from the fact that Ms Amoa-Fesolai appeared to be "panicking" when she was in the water. Nevertheless, the complaint that he should not have been given credit for doing everything he could to assist his friends has merit.

1. However, just as the Director objected to credit being given for the fact that the offender did not drive the vehicle and boat to the launching ramp, so limited weight should be given to his conduct immediately after the incident. It may be inferred from his initial view that he could not swim from the boat to the shore that he was not himself a strong swimmer.

1. The Director further submitted that the absence of an aggravating factor did not lessen the culpability attaching to the offence. That is so, but when assessing levels of moral culpability, it is necessary to undertake a comparative exercise having regard to features which are present and those which are absent in the particular case, but which might occur in other cases. For example, the level of drinking in the present case, though undoubtedly serious, did not seem to equate with the level of drinking and drug taking revealed in Reynolds and Small. Nor did the offender entrust the navigation of his boat to an inexperienced person as did Mr Reynolds; nor was the fishing expedition entirely frivolous, in a way which some of the conduct revealed in Reynolds and Small might properly be so described.

1. It is true that the level of alcohol in the offender's blood demonstrates a degree of irresponsibility which cannot be ignored. On the other hand, the degree of impaired functioning resulting from a particular level of alcohol in the blood undoubtedly varies from person to person. His Honour was entitled to take into account the fact that the offender had successfully navigated the boat from Yowie Bay to a point off Bundeena and at least part of the way across Bate Bay without any known difficulty. Further, the trial judge heard all of the evidence, including the evidence of the offender at the trial. He was in a good position to make an assessment of moral culpability. Neither the facts as found nor the reasoning in the judgment on sentence demonstrate manifest error in that regard.

1. Although the sentence was undoubtedly lenient, it is not one with which this Court should interfere. The Director's appeal against the inadequacy of the sentence should be dismissed.

Orders

1. The Court should make the following orders:

(1) Refuse the offender leave under r 4 of the Criminal Appeal Rules to raise grounds challenging the summing up to the jury, in circumstances where no objection had been taken at trial.

(2) Refuse the offender leave to appeal against his convictions.

(3) Dismiss the Director's appeal against the inadequacy of the sentences imposed for the offences of dangerous navigation causing death.

1. BLANCH J: I agree with Basten JA.

1. BEECH-JONES J: I agree with Basten JA

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Decision last updated: 07 May 2012