Director of Public Prosecutions v Mouat
[2022] VCC 1546
•19 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00775
Indictment No. L10606074.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS MOUAT |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2022 | |
DATE OF SENTENCE: | 19 September 2022 | |
CASE MAY BE CITED AS: | DPP v Mouat | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1546 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Dangerous driving causing death – Fishing vessel striking surfacing diver on Port Phillip Bay – Momentary lapse in concentration by boat’s operator causing dive buoys to be unseen – Upper end low-range offending – Moderate level of moral culpability – Early plea of guilty – No prior criminal history – Excellent prospects for rehabilitation – Evidence of remorse – Highly significant cooperation with police investigation
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991
Cases Cited:Stephens v The Queen (2016) 50 VR 740 – R v Doran [2005] VSCA 271 – Cameron v The Queen (2002) 209 CLR 339 – Boulton v The Queen (2014) 46 VR 308
Sentence: 5 year Community Correction Order with 600 hours unpaid community work – $10,000.00 fine with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Clancy | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr C Mandy SC Mr H A Rattray | Balmer & Associates |
HIS HONOUR:
1Nicholas Mouat, you have pleaded guilty to one charge of dangerous driving causing death.[1] The maximum penalty for this offence is ten years’ imprisonment.
[1] Contrary to s 319(1) of the Crimes Act 1958.
The Facts
2The prosecution filed a summary of prosecution opening for plea dated 22 August 2022,[2] which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
[2] Exhibit (‘Ex’) P1.
Background
3You were born in September 1977 and were 41 years old at the time of the offending. You held a Victoria Marine licence and had been a regular boat user since you were 25 years old. You regularly fished in Port Phillip Bay.
4In February 2017, you purchased a 575 Haines Signature half cabin vessel bearing the registration of TH990, named 'Serendipitous'. The vessel is a fibreglass seagull grey and white hull with a half cabin that is made up of a collapsible grey bimini with front and side clear plastic windscreens. The vessel is 6.08 metres long and 2.38 metres in the beam.
5The vessel was fitted with a Suzuki 175 HP DF175 outboard engine. The engine had a right handed, 3-blade propeller with a diameter of 21 inches and a pitch of 15 degrees.
6The deceased victim is Geunhee Park. He was 29 years old at the time of his death. Mr Park was born in Korea however he was living in Australia with his wife, Katie Taylor.
7Mr Park was a PADI certified advanced open water scuba diver. He had been free-diving for over a year prior to his death and had commenced spearfishing approximately six months earlier. He was an advanced swimmer.
The forecast conditions on the day of the offending
8On 5 May 2019 at 5:19am, the bureau of meteorology issued a forecast for Port Phillip Bay stating the winds would be south to south-westerly between 10 to 15 knots with seas below one metre and the weather was partly cloudy, with a 50 per cent chance of light showers.
9The coastal weather observations for Frankston at 1:00pm on that day show the wind was 12 knots from a west-south-westerly direction with gusts up to 15 knots.
Relevant Marine Safety Regulations
10In Victoria, the Marine Safety Regulations 2012 provide vessels must not travel at a speed exceeding five knots within 100 metres of a displayed dive flag.
11Although it is not mandatory, it is recommended for divers, not diving from a vessel, to display flags or dive buoys when diving,
Events leading up to the offending
12At approximately 10:50am, you launched your vessel at Patterson River boat ramp also known as Launching Way. You were the sole occupant and operator of the vessel. This was captured on CCTV footage. You were intending to go fishing on Port Philip Bay.
13At 10:54am, your friend, Noel Quantrell, called you via phone and stated he was going to fish in Canadian Bay as he had had no luck at Woolley's Reef. You said you were going to try fishing at Woolley's Reef.
14At approximately 11:30am, Mr Park and his friend, Sayoon Hong, arrived at Earimil Drive, Mt Eliza.
15Mr Hong also had an advanced open water PADI scuba diving qualification and was a more experienced spear fisher than Mr Park, having been spearfishing for approximately six years at the time of the incident.
16Mr Park and Mr Hong had previously dived three times together, after connecting online through the Australia South Korean Community. Both men had previously dived in this area. Spearfishing and snorkelling is common in the area.
17Shortly after 11:30am, they entered the water at Ranelagh Beach, Mt Eliza with their spearfishing equipment, including wetsuits, wetsuit gloves and booties, catch bags, mask, snorkel and dive buoys.
18Mr Park was using an orange dive buoy approximately 750 mm in length, 250 mm to 300 mm in width and 250 to 300 mm in height. The dive buoy had a black stick attached to it and was displaying a dive flag at the time Mr Park entered the water.
19Mr Hong was using an orange dive buoy of similar dimensions. His dive buoy was displaying an alpha (blue and white) dive flag approximately 200 mm in height and 210 mm in length.
20The two divers swam out towards the west cardinal marker located approximately 350 metres off shore. They were free diving and spearfishing on the east side of the marker in approximately seven metres of water.
21West cardinal markers are constructed with two cones, one sitting vertically on the other, with the points touching. West cardinal markers indicate safe water is on the western side of the marker.
22Witness, Bruce Alexander, launched his canoe from Ranelagh Beach between 11:00am and 11:30am to go fishing. When he got on the water, he saw one skin diver and two buoys approximately two thirds of the distance between the shore and the cardinal marker.
23Whilst fishing in Canadian Bay at around 11:30am, Mr Quantrell observed a diver with an orange buoy approximately 300 mm long. At 12:11pm, Mr Quantrell called you on the phone to inform you he had caught his bag limit of squid in Canadian Bay and that he was going to have a look for snapper before heading home. You said you were going to look for fish in Canadian Bay and Ranelagh Beach.
24At approximately 12:30pm, Mr Quantrell saw you heading from Woolley's Reef towards Canadian Bay as he was heading back towards the Patterson River.
25At approximately 12:45pm, three professional fishermen, William Classon, Kelvin Bertachinni and Leendert Vanderwal, anchored their vessel in five metres of water approximately 300 to 400 metres off Ranelagh Beach.
26Mr Classon noticed two divers about 200 to 300 metres north of his location and observed orange dive buoys with blue and white flags bobbing on the surface of the water.
27Mr Vanderwal noticed two large orange dive buoys with blue and white flags and a kayak near them about 80 to 100 metres on the Frankston side of the cardinal marker. He estimated his vessel was about 300 to 350 metres from the dive buoys.
28Mr Bertachinni observed two red dive buoys in the water and recalls the three men discussed the presence of the divers.
The offending conduct
29Approximately 10 to 15 minutes later, Mr Classon observed a boat approach his vessel and the divers from the north. The vessel was travelling south and inshore from Mr Classon's location at a speed of approximately five to eight knots. It is agreed this was your vessel, being driven by you.
30Mr Vanderwal also observed a boat approaching the divers from the north-northwest travelling at a speed he estimated to be about ten knots. He described the following conversation:
I said: ‘Look at this moron he is going to run over these divers.’ Then he said, ‘Fucking hell he has, he has gone right across the top of them.’ Then Kelvin [Mr Bertachinni] said, ‘Shit, he has too.’
31Mr Vanderwal then watched the boat and the dive buoys. He said he thought, ‘What a dickhead, he could have killed someone.’ As the boat went past, he could see the white water of the wash from the boat and motor was directly between the two orange dive buoys. He said, ‘The dive buoys would have only been about eight to ten metres apart.’
32Mr Vanderwal observed one male driver in the boat and it appeared he was looking straight ahead as if he was concentrating on his sounder looking for fish.
33Mr Classon also observed the vessel pass within approximately ten metres of the divers travelling at somewhere between three and eight knots. He noted Mr Vanderwal commented, ‘Way too close’ as the boat approached the dive buoys.
34Mr Bertachinni observed one of the diver's flags was in the boat's wake as it passed between them. The boat was heading in a southeasterly direction before continuing on a southerly course. Mr Bertachinni saw one male person on board the boat. Mr Bertachinni turned to Mr Classon and Mr Vanderwal and said, ‘How the fuck no one got killed then is beyond me.’
35From his position in his kayak, Mr Alexander noticed a white motor boat travel very close to the spear fisherman he had earlier observed. He recalls the vessel going about two to three knots and he thought it appeared to be investigating the dive buoys. He was concerned by what he saw, as he apprehended the proximity of the boat to the divers was dangerous. When he noticed the boat stop right on top of Mr Hong and Mr Park’s dive buoys, he inferred that there must have been a plan between the boat operator and the divers to meet up, which allayed his concerns. When he later looked back to the area, the boat was gone.
36Using the observations of Mr Vanderwal, Mr Bertachinni and Mr Alexander, together with speed, distance and time calculations, investigators determined the approximate time you would have been able to observe Mr Park and Mr Hong in the water was between 58.31 seconds and 1 minute 20 seconds.
37At the time Mr Alexander, Mr Classon, Mr Vanderwal and Mr Bertachinni observed your boat approach the dive buoys, Mr Hong was under the water heading to the surface when he heard the sound of an engine. As he broke the surface, he saw a vessel pass within one metre of him, close enough for him to see the bubbles created by the vessel's propeller. The vessel had passed through the middle of Mr Park’s and Mr Hong’s dive buoys. Mr Hong described the vessel as travelling ‘quickly’.
38Immediately after Mr Hong surfaced, your vessel stopped about 20 to 30 metres away from him. He could see the rear of the boat with you in the middle of the boat looking out over the rear towards him. Mr Hong raised his hands in the air towards you and you, in turn, raised your arms at Mr Hong. You then left the area and headed south towards Mornington. The prosecution accepts you were unaware at that time that your boat had struck a diver and, I find, this exchange was in effect an ‘are you alright’ type of exchange.
39Mr Hong estimates the last time he saw Mr Park alive prior to this encounter was no more than 10 to 15 minutes prior to the incident.
40After your vessel left, Mr Hong started looking for Mr Park, as he wanted to tell him about his encounter with your boat. After a maximum period of no more than 10 to 15 minutes, Mr Hong found Mr Park lying flat and apparently unconscious on the bottom of the ocean at an approximate depth of five to seven metres. Mr Hong swam down and pulled Mr Park to the surface, noting that he had sustained a serious injury to his head.
41About ten minutes after observing the boat in the immediate proximity of the dive buoys, Mr Classon, Mr Bertachinni and Mr Vanderwal heard someone yelling for help. Mr Classon manoeuvred his vessel towards the divers and observed one diver was holding the other diver in his arm. The other diver's head was not visible above the water. Mr Hong and Mr Park were pulled onto the vessel. Mr Park had a deep laceration through his cheek, eye and forehead and he was unresponsive.
42Over the course of the time Mr Classon, Mr Bertachinni and Mr Vanderwal were in the same area as the divers, Mr Classon recalls they were always vigilant to remain at least 100 metres away from the dive buoys, and that their vessel never moved further than 300 to 400 metres away from the dive buoys.
43Mr Bertachinni also recalls they ensured they kept well clear of the dive buoys by maintaining an awareness of their location and through being able to see the dive buoys.
44Mr Classon and Mr Bertachinni do not recall any other boats venturing into the area over the relevant time period, other than the kayak and your boat
45Over the course of his time in the water that day, Mr Hong recalls seeing only the kayak, your boat and the boat which came to his aid. He did not hear the engine of any boat, other than yours.
The immediate aftermath
46Emergency services were notified, whilst Mr Hong and Mr Bertachinni commenced first aid and CPR. Mr Classon travelled towards Frankston Pier where they were met by police and ambulance services. A short time later, Mr Park was declared dead at Frankston Pier.
47Police commenced searching for vessels matching the description provided by Mr Hong and other witnesses. Police units were tasked to boat ramps south of Frankston to obtain details of all boats, vessels and trailers in the immediate vicinity, including Patterson River, Queenscliff, Mornington and Oliver’s Hill. Water police and the police air wing conducted numerous searches in the area for vessels on the water in the vicinity.
48The police air wing CCTV captured you travelling in your vessel in a northerly direction at approximately 1.44pm. The Frankston pier is visible in the background and you appeared to be looking over your right shoulder towards the pier for approximately four to five seconds.
49Your vehicle and trailer were observed and recorded by police patrolling the Patterson River boat ramp car park between 2.02pm and 2.32pm, and a short time later you were captured on CCTV footage retrieving your vessel at the Patterson River boat ramp.
50At approximately 3.02pm, the first media release was released to media agencies from the Victorian Police media unit.
51At 4.52pm, Mr Quantrell called you. You told him about a diver being hit at Ranelagh Beach. You also told Mr Quantrell of your interaction with a diver in the water (Mr Hong) but you said you did not feel anything hit your boat. You said you were going slowly and you confirmed you were sounding for fish at the time. You then said to Mr Quantrell, ‘shit maybe I should go and tell the police.’
52One day after Mr Park’s death, at approximately 9.40am, you disclosed to police you were in the area where the incident occurred at approximately 1.00pm the previous day. You further said you drove through some dive flags without noticing them until it was too late. You said you slowed down and waved your hands at a diver in the water to say sorry, before continuing.
The investigation
53On 6 May 2019 at 11.05am, you were arrested and transported to Mordialloc police station where you participated in a video-recorded record of interview.
54The interview was suspended while investigators attended at your home in Carrum Downs to execute a search warrant. A number of items were seized, including a Haines Signature 575 vessel with Suzuki outboard engine, a Raymarine A98 chart plotter and a Furuno 588 depth sounder, both instruments installed on the vessel.
55The interview was later resumed. During the interview you told police:
(a) ‘I was sounding for fish so I was only doing about five knots at the most and came around the pole and then I don’t know for what reason or the other I looked back and that’s when I saw a dive buoy and I saw a diver and he was gesturing me to, you know, what are you doing, cause you’ve got to be a hundred metres away obviously, but given the conditions and the dive buoy didn’t have a flag on it … Given the conditions I just didn’t … see him at all. When I turned around, I looked at him and I gestured back to him sort of, you know, sorry, you know. I was shocked and then he proceeded … to dive back down again. I then continued on. I had no idea that anything — I mean, I still at this point don’t know that anything happened. It’s just that I was in the right place at the right time that it could well have been me.’
(b) ‘… when I saw the news this morning, I heard what had happened and I just thought, well, if that’s where I was at that time and I instantly began to feel sick to be honest with you and then I googled it and … an Age newspaper came up … Then I read to the bottom … urging people to call Crime Stoppers if they know anything about it and I mean, I’ve got no idea if I did or didn’t hit that person but I was there, you know.’
56On 8 May 2019, Dr Matthew Lynch, a specialist forensic pathologist with the Victorian Institute of Forensic Medicine, conducted a medical investigation into the death of Mr Park. Dr Lynch recorded the following injuries:
(a) On the left side of the forehead and face, a large obliquely oriented elliptical injury with regular edges extending from the midline of the forehead and coursing inferolaterally through the orbit and extending onto the left cheek.
(b) On the forehead, injuries associated with a compound comminuted fracturing of the frontal bone.
(c) In the left parietal region, an elliptical injury with regular edges which was essentially vertically oriented and which measured approximately 8 cm in length. In its depth it extended down to and incised the underlying skull.
57Dr Lynch opined:
(a) ‘I have made an external examination of the body and there are two sharp force injuries to the left side of the head involving the face and scalp. The propellor of a boat would be capable of producing this type of injury.’
(b) The cause of death was ‘head injury’.
58It is noteworthy that, despite a thorough police investigation, there was no positive identification of your boat as being the one which struck Mr Hong or that you were the driver of that boat at the relevant time. Moreover, there was no DNA or other objective forensic evidence that linked you or your boat with this incident. Whilst, no doubt, the prosecution could have constructed a circumstantial case sufficient to justify laying charges against you, it is fair to say your admissions made a very weak Crown case virtually overwhelming, so far as identification was concerned. Undoubtedly, other live issues would have remained in trial, including how observable the dive buoys were at the relevant time and whether your ‘driving’ was dangerous.
Victim Impact Statements
59Victim impact statements (‘VIS’) prepared by Mr Park’s wife, Katie Taylor,[3] and father, Sunyeong Park,[4] were tendered by the prosecutor at the plea hearing.
[3] Ex P3.
[4] Ex P4.
60It is clear your offending has had a devastating effect on Mr Park’s wife and family. The victim impact statements speak eloquently of the tragic and profound grief they continue to struggle with. To Mr Park’s wife and family, I say, on behalf of the Victorian community, how tragic the loss of your husband and son is in these circumstances, or any circumstances for that matter. The sentence I impose is a reflection of a number of factors I am required by law to take into account, one of which is the impact on the victims. I want to make clear, it is in no way a measure of the worth of Mr Park’s life.
61In her VIS, Ms Taylor described the immediate impact of Mr Park’s death. On the day of your offending, she had just finished housework and was expecting Mr Park soon to return home. Instead, she received a knock at the door from two police officers who informed her Mr Park had been killed. She described being in absolute shock and her head spinning. At the time she felt ‘this is a nightmare’ and she describes the days, weeks, months and years following this incident as being a living nightmare.
62Mr Park’s family all live in Korea and Ms Taylor’s family live in Tasmania. As a result, Ms Taylor had to arrange most of Mr Park’s funeral on her own. On the day of the incident, she needed to contact Mr Park’s family to tell them what had happened. She did not have the contact details of Mr Park’s family and described having to try and reach them through a family friend who contacted Mr Park’s cousin.
63Ms Taylor said Mr Park’s cousin did not want to believe he had been killed and wanted to hear it from the police. Ms Taylor asked the police to speak to Mr Park’s family, however, she was told they would not be able to do this. She then had to contact the Korean consulate and have them call Mr Park’s family to confirm he had died. She said this was the most distressing thing she has been through in her entire life.
64The next day, Ms Taylor went to the Coroners Court to view Mr Park’s body. Owing to the extent and nature of his injuries this was particularly distressing. She described struggling to understand where Mr Park had gone. She has continued to struggle with trying to understand his death.
65Mr Park’s father and sister, Seong Jin, arrived in Australia two days after his death. Ms Taylor took them to the Coroners Court to see Mr Park. Mr Park’s sister screamed, cried and begged Mr Park to wake up and then fainted. Ms Taylor described how painful this was to watch.
66Ms Taylor described Mr Park as a very happy man, always joking and laughing. His death has left an empty space in her home and she feels very alone. She said Mr Park loved cooking and seeing all of his ingredients in the cupboard and fridge was extremely painful. She was not able to dispose of this food until a year after his death.
67Ms Taylor struggled to eat for months after Mr Park’s death. Her alcohol consumption increased dramatically and remains problematic. She described writing letters to Mr Park and sending messages to him from her phone. She wondered where he was and what happens to a loved one when they die. Ms Taylor had racing thoughts about the way Mr Park died. Even now, she can still picture the paramedics trying to revive him on the Frankston pier.
68Ms Taylor could not sleep and was prescribed Valium. She said she cried every day for months. She did not want to meet her friends and she did not want visitors to attend her home. She is extremely sad and suffers from depression. She cannot socialise with her friends because she feels too depressed. She regularly consults a psychologist.
69She had to take five weeks’ leave from her employment and only returned then owing to financial pressures. She feels she has not been able to obtain closure owing to the legal process dragging on.
70Six weeks after Mr Park’s death, Ms Taylor went to Korea to visit her father-in-law, sister-in-law and the cemetery where Mr Park’s ashes were buried. This was a particularly difficult time as she does not speak Korean and Mr Park’s family does not speak English. Ms Taylor described the pain of visiting Mr Park’s grave.
71Ms Taylor described the ongoing impact of Mr Park’s death. In 2020, Mr Park’s sister, Seong Jin, took her own life. She left a suicide note in which she said she was not coping with the death of her brother and this was the predominant reason for her taking her life.
72In his VIS, Mr Park senior described hearing of his son’s death and feeling as if the sky had collapsed in on him. He said his son used to tell him how Australia is a great place and that he should come to live with him. Mr Park senior does not earn a lot of money, but he worked hard as a cab driver in anticipation that one day he could live with his son in Australia.
73Mr Park senior also described the passing of his daughter and the suicide note she left behind. He said she refused to believe her younger brother was dead and that she was missing him and was in pain.
74Mr Park senior does not know what he is living for anymore. No one is around him. He said he wished to see his daughter-in-law but it is not easy because of the pandemic.
75He described the difficulty in writing the victim impact statement and not knowing what to say. His thoughts get confused and he is scared to remember the past.
Offence Seriousness
76Dangerous driving causing death is, by its nature, a serious offence. The offence carries a maximum penalty of ten years’ imprisonment and is a Category 2 offence under the Sentencing Act 1991. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence and of Parliament’s intention that a term of imprisonment should normally be imposed.
77In determining an appropriate sentence, I must take into account the objective dangerousness of your driving as well as your moral culpability.[5] In the Victorian Court of Appeal case of Stephens v The Queen,[6] the Court said that both dangerousness and moral culpability are to be assessed by reference to all of the conduct and circumstances of the specific case, including the circumstances of the offender.[7]
[5] Woldesilassie v The Queen (2018) 86 MVR 414, 420 [23], [2018] VSCA 285 (Maxwell P and Kaye JJA).
[6] (2016) 50 VR 740.
[7] Ibid 747 [26] (Redlich, Santamaria and Beach JJA) .
78The prosecution particularised the dangerousness of your driving as failing to keep a proper lookout in an area you knew was notorious for divers. This, they submit, caused your failure to observe two dive buoys in the path and vicinity of your vessel, in circumstances where the dive buoys were clearly visible as indicated by the observations of those on board other vessels in the vicinity at the relevant time.
79Your counsel submitted that the factual circumstances of your offending are extremely unusual and ultimately place it at the lowest level of objective seriousness.
80In written and oral submissions, your counsel emphasised the prosecution’s inability to establish beyond reasonable doubt the period you were inattentive lasted at least 58 seconds and that the dive buoys were clearly visible to you for the duration of that period. This is because, on the evidence, the prosecution cannot exclude the possibility you looked up several times as you approached the scene but did not see the dive buoys or divers as, at the moments you looked up, they were obscured from view, possibly by the chop on the waves. There was some evidence wind speed was increasing at the relevant time.
81Your counsel also submitted the period of your inattention does not demonstrate a high level of dangerousness. They submitted long periods of inattention on the sea, and the foreseeable risk this poses to the public, cannot be equated with cases involving inattention whilst driving on the roads. They submitted dive buoys are far less visible and far less to be anticipated than pedestrians on the road, traffic lights, give-way signs and the like.
82By contrast, the prosecutor submitted this was a case of prolonged inattention and very dangerous driving. The prosecutor referred to a number of surrounding circumstances as relevant to my assessment of the gravity of your offending conduct. These include that the dive buoys and flags were clearly visible, you were an experienced boat user, familiar with the area where the incident occurred, there were a number of other people on the water in the vicinity and, finally, your inattention was due to you sounding for fish at the time. The prosecutor submitted your moral culpability was high.
83In my opinion, I cannot be satisfied beyond reasonable doubt your period of inattention lasted 58 seconds and that throughout that time the dive buoys were clearly visible to you. I have come to this conclusion having carefully reviewed all the evidence contained in the depositions. Ultimately, I accept your counsels’ submission I cannot exclude the possibility the dive buoys were momentarily obscured from view owing to the chop on the water created by the weather conditions. I consider your inattention was more than fleeting, however, it is not possible for me to quantify how long it lasted.
84I also accept your counsels’ submission regarding the environment in which a person operates a vessel on open water is very different from the environment a person drives a motor vehicle on a roadway. The level of dangerousness, and the consequent risk to the public, that periods of inattention pose when operating a marine vessel is not closely analogous to instances of prolonged inattention while driving on a road.
85Moreover, your offending conduct does not possess many of the aggravating features commonly seen in more serious examples of dangerous driving causing death.[8] Two people were put at risk by your operation of the vessel. You were not speeding or driving erratically or aggressively. You were not showing off or acting irresponsibly. You were not affected by drugs or alcohol, nor were you sleep deprived or ignoring obvious warnings. I accept your failure to stop the vessel and render assistance was because you were unaware your boat had struck a diver. There is no charge of failing to stop or render assistance.
[8] See eg DPP v Neethling (2009) 22 VR 466, 473 [31] (Maxwell P, Vincent JA and Hargrave AJA) citing R v Jurisic (1998) 45 NSWLR 209, R v Whyte (2002) 55 NSWLR 252 and DPP v Oates (2007) 47 MVR 483.
86Notwithstanding these considerations, I do not accept your counsels’ submission that this is an instance of dangerous driving causing death at the lowest level of objective seriousness.
87You are a very experienced sailor and fisherman, who was familiar with the area where the offending took place. This reflects upon the level of foreseeability of the particular consequences of your acts. As was said in Stephens:
Offending by a person who has knowledge of the risks associated with particular driving, will ordinarily be adjudged more blameworthy than offending by one who is without that knowledge. The degree to which particular consequences of the offender’s acts were, or should have been, foreseen by him or her will inform the question of moral culpability.[9]
[9] (2016) 50 VR 740, 747 [26].
88It is clear you had a significant enough lack of focus on the task at hand at the time of the incident. You were distracted by an electrical device, having admitted in your record of interview you were sounding for fish.
89In my opinion, your offending is an upper low-range example of dangerous driving causing death and involved a moderate degree of moral culpability.
90Clearly, just punishment, general deterrence and denunciation are significant sentencing considerations in this case.
Personal Circumstances
91You are currently 44 years of age and you were aged 41 at the time of committing the offence. You are single and have no children. You live alone in a home you own in Carrum Downs.
92You were born in South Africa and you are an only child. In South Africa, your father was a successful businessman who had studied at Harvard University, where he obtained a degree in business and accounting. Both of your parents were heavily involved in the anti-apartheid movement. As a result, they suffered threats and hostility. After you were born, your parents decided to move because of concerns for your family’s welfare.
93Your family moved to the United States when you were very young, initially settling in Memphis, then moving to Seattle. Your family migrated to Australia in 1984, when you were seven years old, after your father was head hunted for a management role at the Coles Myer Group.
94After initially moving to Prahran for six months, your family settled in Mount Eliza. You have lived on the Mornington Peninsula ever since.
95You attended a year of primary school in Seattle and then attended schooling in Victoria at Peninsula Grammar School from year 1 to year 5. You completed your secondary schooling at Haileybury College, where you achieved a tertiary entrance rank of 96.95.
96You had a privileged upbringing and maintained a strong relationship with both your mother and father. Your father had a huge influence on your life.
97Your father was a keen sailor and fisherman who taught you to sail and fish from a young age.
98After arriving in Australia and settling in Mount Eliza, you started sailing at the Mornington Yacht Club. You progressed up the club ranks in the Sabot class (an 8ft single handed junior dinghy). You made State teams in this class and attended both State and National competitions.
99You first raced in the Nationals competition when 14 years old in the Sabot Class. You then moved into Sabre class at 17 (a 14ft single handed skiff) and competed in that class for a number of years.
100You won the junior title at State championships and went on to win the Australian championships at age 18. That year you also won the Victorian State Championships and were nominated for the Victorian Youth Yachtsman of the year. You won the Nationals competition again at the age of 20.
101At age 21, you decided to move into the Cherub class, which is a two man skiff you are free to design yourself. You spent many months designing and building your own carbon fibre boat from scratch.
102You took a break from competitive sailing in 1999 to focus on work, however, you continued to drive boats and fish during this period. In 2010, you returned to competitive sailing, competing in the Nationals competition for the following four years. You were also involved in volunteering and coaching throughout this time.
103After finishing secondary school, you commenced an engineering and arts double degree at Melbourne University. You received a full scholarship to attend Ormond College. You instructed your counsel that your mother and father placed a lot of emphasis on education and you felt pressure to attend university. You did not take to the subjects you were studying.
104After a year at Melbourne University, you transferred to Monash University to study the same degrees. You moved home to live with your parents. You struggled with your studies owing to prioritising sailing and work and did not successfully complete either degree.
105Throughout this time, you worked for Moran Furniture, where you were employed for a total period of five years. You were initially employed in the research and development department in a data entry role, but soon commenced work creating a biller management system. You progressed to the position of structural technologist, designing and building the internal timber frames for furniture.
106After a year at Monash University you transferred to RMIT to study industrial design. You enjoyed your studies but again found yourself prioritising sailing and part-time work. After a year at RMIT, you took a break from study to focus on work.
107From 1999, you commenced working full-time at Moran Furniture. After teaching yourself to use design software, you received a promotion to the role of draftsman. After 12 months, you started designing and manufacturing your own furniture. For the last few years at Moran, you designed commercial furniture including designing the original Village Cinema’s Gold Class seats.
108In 2002, you were head hunted by a smaller company, PV Furniture, for the role of manufacturing manager. You were employed by PV Furniture for two years.
109Shortly after commencing employment at PV Furniture, your father was diagnosed with advanced primary lung cancer. Your father received chemotherapy and radiation therapy which unfortunately was not successful.
110This period was made more difficult owing to your extended family residing outside of Australia, which resulted in your isolation. Your father refused to be in hospital and was cared for by you and your mother at your family home. This required you to administer morphine and other medications to your father. Your father’s final 24 hours were extremely traumatic. He died at your family home aged 59 in 2003.
111You struggled to come to terms with your father’s death. At the time you were also under pressure owing to work commitments at PV Furniture.
112On the anniversary of your father’s death in 2004, you went to the Beaumaris Hotel with some friends. You became very intoxicated and made the decision to drive home during which you crashed your car into a parked car. You were charged with careless driving and drink driving and appeared at the Frankston Magistrates’ Court, where you were fined and your licence was suspended for 11 months.
113Shortly after this court appearance, you were involved in a serious accident while riding a bike where you broke your arm and could not work for a period of six weeks. A few weeks after the bike accident, your long term relationship ended. You decided to take some time to go back to South Africa with your mother to meet your family and travel.
114When you returned to Melbourne, you were immediately made redundant. You decided to travel again and upon your return to Melbourne formed a new relationship. After a night out you decided to drive home, despite still being suspended from driving, after your girlfriend told you she had had too many drinks to drive. You were intercepted by police and initially provided a false name before disclosing your full name and that your driver licence was suspended. You appeared at the Melbourne Magistrates’ Court in 2005 on one charge of drive whilst disqualified and state false name and received a fine and further suspension from driving for one month.
115At this time in your life, you realised you needed to make a drastic change and decided to start your own company. In 2005, you started ‘Nickisms Furniture’, a commercial furniture manufacturer. Your business currently employs nine people.
116You started your business in the garage of your rental property in Cheltenham in 2005, initially manufacturing timber frames for upholstery companies. In 2006, you rented your first factory in Clayton after borrowing the money for the bond from your mother. During this period, you lived upstairs in the factory to save money. In 2009, you took up a lease on a bigger factory in Braeside. You lived in the Braeside factory for two years before purchasing your home in 2011.
117In 2014, you moved your business into one of the factories that the business currently operates from in Mordialloc. You obtained a large loan from the bank to purchase machinery and upgrade the business capabilities. In 2016, you purchased a $680,000 machine that necessitated the lease of a second factory. You took on a third factory in 2018. The business has operated from these three factories since. You have a machining factory, a painting factory and an assembly factory.
118You work from 5:30am to 5:00pm on Monday to Friday and Saturday from 6:00am to 2:00pm. On Sundays, you work from home completing invoicing, quoting and ordering.
119You have struggled to come to terms with the possibility you have killed someone. You instructed your counsel that you are pre-occupied with thoughts of the day of the incident. In July 2019, you began seeing a counsellor, Ms Imogen Brown. You continued to see Ms Brown until she returned to live in New Zealand at the end of 2019. From June 2020 until March 2021, you consulted Mr Michael Adeney, a psychologist and counsellor.
Character references
120Character references from your mother, a family friend, a business contact and members of the sailing community were tendered at the plea hearing. The referees are all aware of the charge before the Court.
121Your mother, Janet Mouat, writes the two of you only have each other and have a very close bond. She described how you cared for her after she recently underwent major surgery and how the two of you are in daily contact. She describes you as an intelligent, sensitive and creative person. She believes the success of your business and your sailing success are the result of your skills and your ability to apply yourself.
122Ms Mouat writes, you are measured, cautious and deliberate in both your business and personal life. You are not one to make rash decisions and your actions are always well considered. She also described you as a compassionate man who gives great consideration to others, including your employees and their families.
123Ms Mouat writes of the impact your offending has had on you, as well as on many other people’s lives. It has impacted you emotionally, physically and financially. You battle crippling anxiety on a daily basis. You see a psychologist to help you manage what Ms Mouat described as overwhelming symptoms.
124Your family friend, Michael Howell, writes of how the death of your father affected you and your mother and how you helped each other through what was a very difficult period.
125He writes, you have performed extremely well at sailing and have won a couple of Australian championships. He observes you have given a lot back to the sport by volunteering and running coaching programs. He attests to the high level of your work ethic and your devotion to your business. His perception of you is you have an excellent code of conduct and unquestionable honesty.
126Mr Chris Dance, whom you know through sailing, considers you are a reliable, community focused person and an excellent seaman. He writes you are always sharing your knowledge with new sailors and helping organise class association training events. You are a reliable volunteer and are regularly rostered on rescue and race administration duty.
127Mr Dance writes, that over the many years he has known you, you have always been a competent, reliable and safe seaman and that he has never seen you engaging in anything he would consider as unsafe or risk taking behaviour. He considers you are a kind, caring person and the type of friend that is always happy to lend a hand.
128Mr Barry Eastgate, a member of the sailing community, writes he first met you when you were 16 years of age. Even at that relatively young age, it was clear to him you had exceptional boat handling and sailing skills and this proved so when you won two Open Australian Sabre Championships.
129Mr Eastgate further writes of your success in competitive sailing. He also detailed how you have encouraged inclusiveness in the Sabre Class through your involvement in coaching and training sailors of all ages. You never hesitated to pass on tips on boat handling, tactics, weather and seamanship. He said you are skilled at handling power boats and have demonstrated this on many occasions when conducting coaching sessions.
130He and his family have the highest respect for you as a person, your ethics and your accomplishments building your business from nothing.
131Mr Phillip Phyland, a business contact, has known you since 2002. Your business relationship soon developed into a close friendship. He writes you have worked long and hard to achieve your goals, working six to seven days per week for many years.
132Mr Phyland writes, you commenced fishing with your father at a very young age and, in his opinion, your knowledge and experience of the sea and boating is exceptional. He considers you are a perfectionist in terms of your own safety and the safety of others.
133He writes, it is obvious how your offending has affected you and the enthusiasm you once had for life has changed. He observes, the mental and financial side effects this incident has had on you will never be repaired.
Mitigating Circumstances
134This matter resolved following a sentence indication hearing which was conducted by me on 20 May 2022. There had been an earlier case conference conducted by me on 4 November 2021.
135The prosecution eventually consented to a sentence indication hearing on a charge of dangerous driving causing death,[10] however, it reserved its position by indicating that, if you did not accept the sentence indication given, the matter would proceed to trial on a charge of culpable driving causing death. At a mention hearing, I expressed my strong concern regarding the Crown’s approach which, in my opinion, had the effect of placing you in terrorem. Moreover, if the Crown consented to a sentence indication on a charge of dangerous driving causing death, implicitly this would amount to a prosecutorial decision that this was the appropriate charge; otherwise, the exercise would be rendered nugatory and, possibly, an abuse of process of the Court.
[10] Under the procedure introduced by Part 4 of the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022, the consent of the prosecutor is no longer required – compare s 208 (2) of the Criminal Procedure Act 2009, as originally enacted. The sentence indication hearing in this case was conducted under the new procedure, but with the consent of the prosecutor in any event.
136You pleaded guilty to the present charge on 3 August 2022 after I indicated, on 23 June 2022, I would not impose a custodial sentence.
137I consider you pleaded guilty at the earliest forensically reasonable opportunity, given the significant change in how the prosecution now puts its case against you.[11] The prosecution did not take issue with this conclusion. Your plea has utilitarian benefit, particularly in the COVID-19 environment.[12] It also indicates an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[11] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
[12] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
138Moreover, I accept you demonstrate true contrition and remorse for your offending conduct.
139A significant mitigating circumstance is your degree of cooperation with investigating authorities. Without any pressure from authorities, you came forward and provided inculpatory evidence during your record of interview. But for this evidence, it is doubtful whether the prosecution would have been able to identify you as the offender.
140The courts have recognised that where an offender makes admissions as to facts which otherwise would not have been known to, or capable of being proved by, the prosecution, the offender is entitled to a separate and substantial degree of leniency on sentence. In the decision of the Victorian Court of Appeal in Kennedy v The Queen[13] the Court summarised the principle as follows:
It is well settled, as a matter of sentencing principle, that a judge should take into account, as a relevant and significant mitigating circumstance, any admission made by an offender which provides proof of an offence committed by the offender, or of a relevant fact or matter necessary to establish that offence, which might not otherwise have been known to, or be able to be proved by, the prosecution. That principle is based on the policy of the criminal law to encourage offenders to come forward and disclose the fact of an offence that has been committed, and relevant facts that demonstrate the nature and quality of that offence.[14]
[13] [2019] VSCA 127 [26]–[30] (Priest and Kaye JJA).
[14] Ibid [26] citing R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ, Hunt and Allen JJ agreeing); Ryan v The Queen (2001) 206 CLR 267, 272–3 [11]–[15] (McHugh J), 295–6 [94]–[96] (Kirby J); R v Doran [2005] VSCA 271 [14]–[15] (Buchanan JA); Latina v The Queen [2015] VSCA 102 [12] (Redlich and Kyrou JJA); Williamson v The Queen [2019] VSCA 138 [116] (
141The admissions you made in your record of interview, which occurred at your instigation the day after the death of Mr Park was publicised, alerted investigators to both your identity as the offender and the vessel used in the commission of the offence.
142In my opinion, the degree of assistance you provided to law enforcement authorities engages the provisions of s 5(2H)(a) of the Sentencing Act 1991 and the exception in that provision applies. Your counsel submitted, and the prosecution concedes, it is open for me to find this provision applies and, accordingly, a custodial sentence to be served immediately is not mandatory in this case.[15]
[15] Pursuant to item (eb) of the definition of ‘category 2 offence’ in Sentencing Act 1991 s 3, dangerous driving causing death is a ‘category 2 offence’.
143You are 44 years of age and have no prior criminal history. Although you have two prior court appearances for driving matters, these occurred in 2004 and 2005 and are now spent convictions.[16] I have had regard to the character references tendered on your behalf, which all speak highly of your work ethic and general good character. Accordingly, I accept your offending conduct is an aberration of otherwise good character and I take this into account in your favour.
[16] See Spent Convictions Act 2021 ss 8 and 9(1)(b).
144The effect of delay is a mitigating circumstance in your case. Your record of interview was conducted on 6 May 2019 and you were charged with the offence 9 months later on 25 February 2020. It is now over 2 and a half years since you were initially charged.
145As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[17]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[18]
[17] (2013) 40 VR 436.
[18] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
146There is some evidence before me regarding the efforts you have made towards your rehabilitation during this period of delay. Your counsel submitted you attended a counsellor, Ms Brown, from July 2019 to the end of 2019, and a psychologist, Mr Adeney, from June 2020 until March 2021. I also accept that during the period of delay you have not reoffended.
147So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the very real prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you considerable anxiety and stress. I take the punitive effects of delay into account in your favour.
148In all the circumstances, I am of the opinion I need give no weight to specific deterrence or protection of the community. Moreover, I accept your prospects of rehabilitation are excellent, owing to your strong family support as well as your excellent employment history, contributions to the community and lack of prior criminal history.
Application of Sentencing Principles
149Research conducted by the prosecutor, defence counsel and my associates has failed to discover any comparable cases involving the operation of a vessel at sea. Nonetheless, I have had regard to current sentencing practice in relation to the charge of dangerous driving causing death involving the driving of motor vehicles on the road, as informed by the decisions of the High Court of Australia in R v Kilic[19] and DPP (Vic) v Dalgliesh (a Pseudonym)[20] and the Victorian Court of Appeal decision in DPP v Zhuang.[21]
[19] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[20] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[21] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
150Owing to the unique circumstances of your offending, I have been unable to obtain any real assistance from so-called ‘comparable cases’. I did find the cases provided to me by defence counsel helpful to a limited extent.[22]
[22] DPP v Georgiou [2021] VCC 2165 (Judge Lyon); DPP v Mica [2021] VCC 1876 (Judge Dalziel); DPP v Blake [2021] VCC 1654 (Judge M P Bourke); R v Hackett [2021] VSC 773 (Croucher J); DPP v Georgiou [2021] VCC 2036 (Judge Lyon); DPP v Quinlan [2022] VCC 29 (Judge Smallwood); DPP v Lombardo [2022] VCC 93 (Judge Cahill); DPP v Contacolli [2022] VCC 32 (Judge Cahill); DPP v Liang [2022] VCC 170 (Judge Gucciardo); DPP v Aboueid [2022] VCC 205 (Judge Wraight); R v Lu [2022] VSC 258 (Fox J).
151While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[23]
[23] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
152Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of dangerous driving causing death and the myriad of personal circumstances pertaining to individual offenders.
153The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the impact of the offence on the victims, and your personal circumstances.
154I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
155Just punishment, denunciation and general deterrence are the primary sentencing considerations in this case. I consider no weight need be given to specific deterrence or protection of the community in sentencing you for this offence. I assess your prospects for rehabilitation as being excellent.
156Your counsel submitted a sentence involving the imposition of a community correction order (‘CCO’) is within range and is appropriate in all the circumstances of your case. The prosecutor submitted a term of imprisonment to be immediately served was the only appropriate sentencing disposition.
157Following the arraignment and plea hearing, I ordered the preparation of a Brief Pre-Sentence Outcome Report.[24] I received a report dated 3 August 2022,[25] to which I have had regard.
[24] Pursuant to Sentencing Act 1991 (‘SA’) s 8A.
[25] Ex C2.
158In the report, the author, Ms Mikaela Morphett, assessed you as having a low risk of reoffending. She assessed you as suitable for a CCO. During your assessment you told Ms Morphett you feel ‘sickened and saddened’ by what has happened. Ms Morphett recommended community work as the sole condition of your CCO. Because you are assessed as having a low risk of general reoffending, Ms Morphett did not recommend the imposition of a supervision condition, so as to minimise the level of intervention you receive from the service.
159As the Victoria Court of Appeal observed in Boulton v The Queen:[26]
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[27]
[26] (2014) 46 VR 308.
[27] Ibid 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
160In all the circumstances, I consider a lengthy CCO together with a substantial fine[28] is the appropriate disposition in your case.
[28] See SA s 43.
Stand up, Mr Mouat.
On the charge of dangerous driving causing death (Charge 1), you are convicted and sentenced to a Community Correction Order for five years commencing today, with the following condition:
Pursuant to s 48C of the Sentencing Act 1991 you are to perform 600 hours of unpaid community work.
Additionally, on Charge 1 you are convicted and fined $10,000.00. That fine is referred to the Director, Fines Victoria for management and collection.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a term of imprisonment of two years with a non-parole period of 12 months.
Pursuant to s 171(2) of the Marine Safety Act 2010, as you have been convicted of an offence against s 319(1) of the Crimes Act 1958, any marine licence you hold is cancelled, and you are disqualified from obtaining a further one for a period of six months effective from today.
Pursuant to s 33(1) of the Confiscation Act 1997 the property referred to in the schedule to the Order is forfeited to the Minister. I made that order on 23 August 2022.
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