HARRIS v Police - [2009] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARRIS v POLICE
[2009] SASC 163
Judgment of The Honourable Justice Kelly
6 June 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS
Appeal against sentence - appellant convicted on plea of guilty to aggravated operating a vessel without due care - magistrate recorded a conviction and appellant sentenced to twenty one days imprisonment, suspended - whether sentence manifestly excessive.
Held: appeal allowed - while the offence of aggravated careless operation of a vessel causing death generally calls for a sentence of imprisonment, the court has a discretion in an appropriate case to impose a non-custodial penalty. Offending at lower end of the scale for an aggravated offence, appellant's culpability mitigated by environmental factors present on night of the offence - appropriate case for alternative penalty - appellant fined $5000.
Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18; Harbours and Navigation Act 1993 (SA) s 69; Road Traffic Act 1961 (SA) s 45, referred to.
Nattrass v Police [2008] SASC 267; Thiele v Police [2009] SASC 159, discussed.

HARRIS v POLICE
[2009] SASC 163
Magistrates Appeal

KELLY J:
Introduction
The appellant was convicted on his plea of guilty to one count of aggravated careless operation of a vessel contrary to Section 69 of the Harbours and Navigation Act 1993 (SA). The offence was aggravated because the appellant’s operation of the vessel caused the death of a seven month old baby.
The maximum penalty prescribed for this offence is twelve months imprisonment. The magistrate sentenced the appellant to twenty one days imprisonment which she suspended upon the appellant agreeing to enter into a bond to be of good behaviour for six months.
The appellant appeals on the ground that the sentence of imprisonment is manifestly excessive.
Background
The offence occurred on the evening of Saturday, 2 June 2007 in the waters off Hindmarsh Island at Goolwa. On board the boat were the appellant, his wife, his two friends and their seven month old baby.
Earlier in the afternoon the two friends had requested the appellant to take them out on his boat, a Bayline Capri 195 bowrider fibreglass motorboat. They motored about in the marina for a short period of time and then drove across to the other side of the river, where they disembarked and spent about 30 minutes at a café on the Goolwa side of the river. After re-embarking they travelled under the Hindmarsh Island Bridge before deciding to return home.
At about this time the weather began to rapidly change. It became very windy and dark due to complete cloud cover and poor lighting in the area. Visibility was consequently poor. At that time the appellant made a decision to return immediately to his house.
He proceeded back to the marina intending to enter via the entrance to the marina between Arcadia Avenue and Excelsior Parade. The appellant was familiar with this approach to the marina as he had undertaken it on many occasions. On the evening in question the appellant intended to proceed according to his usual manner which ultimately involved him slowing the boat to a stop at a certain point in the main river channel, adjacent to the second marina entrance. There he intended to locate a green starboard channel marker (Beacon 16) and then motor back up into the marina by reference to that starboard channel marker.
At about 6.00 pm the appellant reached a point at which he believed was the area adjacent to the entrance of the marina. He commenced to slow down the boat in preparation to locate the starboard channel marker and then turn and proceed up the channel into the marina. Before he could do so, the vessel collided head on with Beacon 16.
In fact the vessel had gone off course by about three to four degrees. The cause of collision was that the appellant did not see Beacon 16. He believed that he was 15 to 20 metres south west of the beacon at the time of the collision.
At the time of the collision, the appellant was not speeding, in fact, the vessel was travelling at considerably less than the speed limit for that area. However, the appellant accepted both in the court below and in this Court, that the speed at which he was travelling in the light of the weather conditions was, in all of the circumstances, not slow enough to allow him to take evasive action in the event that such action was required. It was on this basis that he entered his plea of guilty and upon which the magistrate sentenced him.
There was evidence in the court below that the conditions at the time in the vicinity of the entrance to the marina were unsafe not only due to poor environmental conditions but also due to inherently dangerous situational factors which involved the absence of lighting on the markers, including Beacon 16, at the entrance to that marina. Neither the appellant nor any of the witnesses appear to have seen any lit markers that evening. There is no evidence one way or another as to whether in fact the lighting was operating on that night.
The appellant is an experienced boat operator. When sentencing the appellant, the learned magistrate accepted that he was a man without any prior convictions who had on this occasion failed to take into account the possibility that the poor weather conditions and his own navigational error could take him off course in circumstances which should have alerted him to the need to have slowed down sooner in order to take evasive action if and when required.
The references before the court demonstrated that the appellant has led an exemplary life, both as a family man and a contributor to the community. The evidence also supported the submissions made in the court below that the appellant to that point, had always been a safe and responsible boat owner.
In addition to the enormous grief suffered by the family of the deceased child, the effect of the incident on the appellant and his family has been nothing less than devastating.
In sentencing the appellant, the learned magistrate said:
The prescribed penalty of 12 months’ imprisonment is harsh, even though the offence is one where the consequences, namely the death or other aggravating factor, would invariably be unintended (as is the case here).
Her Honour then, after commenting that a discount of 25 per cent was appropriate, and noting the other mitigating factors, simply recorded a conviction and imposed a twenty one day sentence of imprisonment which she suspended.
The appeal to this Court
The appellant appeals on the basis that the sentence of imprisonment is manifestly excessive. The appellant contends that the offending in all of the circumstances should be categorised at the lowest end of the spectrum of offending for this charge, even taking into account that this is an aggravated offence. The appellant contends that in the light of the magistrate’s acceptance of the mitigating factors, it was appropriate that the magistrate consider a non-custodial penalty. The fact that the she described the “prescribed penalty of 12 months’ imprisonment” as harsh, indicates in the appellant’s submission, that the magistrate did not consider, as she was required to do, that any penalty other than a sentence of imprisonment was appropriate. In this respect, the appellant maintains that the magistrate has not taken into account the provisions of s 11 of the Criminal Law (Sentencing) Act 1988 (SA).
The respondent accepted the factual basis on which the magistrate proceeded to impose the sentence, but submitted nevertheless that the sentence imposed was well within the limits of the sentencing discretion and that there is no other indication that the magistrate has erred.
Discussion
There is no requirement imposed upon a magistrate to articulate every step of the process of reasoning by which he or she arrives at a final sentence. Moreover, an appellate court is entitled to presume, as I do in this case, that the magistrate is entirely familiar with the statutory sentencing regime which governs judicial officers in this State.
However, there are two factors in the circumstances of this case which cause me to entertain some doubt as to whether the magistrate turned her mind to the fact that the imposition of a sentence other than a custodial sentence was available to her. Neither counsel for the appellant nor the prosecutor who appeared in the court below appeared to have any recollection as to whether they had put any submissions to the learned magistrate in support of a sentence other than a custodial sentence. The prosecution remained silent, so it is unlikely that the magistrate obtained any assistance from the prosecution in that regard. Counsel for the appellant quite frankly conceded that he was unable to say one way or another whether he had sufficiently addressed the magistrate as to the alternatives available.
Second, the magistrate appears to have accepted that the appellant should be sentenced on the basis of the agreed facts. Those agreed facts justify a conclusion that the appellant’s offending may be categorised within the least serious category for an offence of this nature.
That, coupled with the magistrate’s evident concern that the penalty was harsh, leads me to conclude that she may not have turned her mind to the alternatives available under the provisions of s 18 of the Criminal Law (Sentencing) Act. In that respect, I consider that there was an error which justifies the intervention of this Court.
In the light of that conclusion, it is necessary for me to consider afresh the appropriate sentence to be imposed for this offending. There is no doubt that a sentence of imprisonment could be imposed for this offence.
Section 69 of the Harbours and Navigation Act was amended in 2005. The new provision prescribes a maximum penalty of twelve months imprisonment in cases where the careless operation of a vessel is aggravated by a number of factors, (including relevantly, in this case), where the careless operation of the vessel causes the death of a person.
Prior to those amendments, the maximum penalty for the careless operation of a vessel was a fine of $2500. The amendments to the Harbours and Navigation Act mirror amendments to s 45 of the Road Traffic Act 1961 (SA) in the same year, which introduced an aggravated offence of driving without due care.
Those amendments were considered by another judge of this Court in 2008.
In Nattrass v Police [2008] SASC 267, Bleby J considered the offence of driving without due care when it was aggravated by the fact that the offending caused the death of a person. He observed at [18]:
The consequences of an offence of this nature will almost invariably be unintended. It may seem harsh, but Parliament has prescribed a maximum penalty of imprisonment for 12 months for an aggravated offence of this nature. Because serious consequences of driving without due care of the nature of what occurred in this case will rarely be intended, and because this section of the Road Traffic Act is not concerned with recklessness, it seems most likely that when Parliament created the aggravated offence and provided for a maximum penalty of imprisonment, it intended that generally the penalty should apply where the aggravating circumstances are as severe as they were in this case, where the driving caused the death of a person. In other words, the only explanation for the more severe penalty is, in a case like this, the severe consequences of the offending.
More recently, Gray J in Thiele v Police [2009] SASC 159 considered the same section. In that case, the driver of a motor vehicle collided with a motorcyclist at an intersection. The motorcyclist died as a result of the collision. The court accepted the evidence that the driver was travelling at an appropriate speed, was aware of the give-way sign, had slowed down, looked both left and right and yet, despite this, had failed to see the motor cyclist.
The court considered whether the driver’s want of due care warranted a term of imprisonment or whether an alternative penalty was more appropriate. In addressing this question, Gray J considered the circumstances surrounding the collision and the moral culpability of the defendant.
He observed at [38] to [39]
Section 45 of the Road Traffic Act was amended in 2005 following on recommendations as a result of the Kapunda Road Royal Commission. One of the recommendations of that Commission was that there should be a new level of culpability between that of dangerous driving causing death or injury and drive without due care, or a graduated scale of aggravation, reflecting more severe penalties for more aggravated versions of the lesser offence.
When introducing the legislation, the Minister noted that the Bill was consistent with the Royal Commission recommendations. Although the legislation does not in express terms address degrees of culpability, it is evidently more serious to cause death through a defective lookout arising from a high blood alcohol reading than a simple case of a defective lookout in circumstances where a motorcyclist is partially camouflaged on an approach to an intersection. The unfortunate sequelae of death does not make the want of care any more culpable; that is, it does not increase the moral blameworthiness of the defendant’s conduct.
His Honour went on to conclude that a suspended sentence in that case was warranted in light of all the circumstances.
Significantly in both Nattrass and Thiele both defendants had prior convictions for similar offences. Mr Nattrass had a prior conviction for driving without due care which also resulted in three people being seriously injured. In Thiele the defendant had previously pleaded guilty to an offence of driving without due care, which also resulted in the death of another person.
Whilst it might be accepted that generally the penalty of imprisonment should apply where the aggravating circumstances are as severe as they were in this case, I cannot accept that Parliament has evinced an intention that in all cases persons convicted of the offence of aggravated driving without due care or, as in this case, aggravated operation of a vessel, must always be sentenced to a term of imprisonment.
Even though the offence itself contains the element of aggravation, namely the fact that the careless operation of the vessel has caused the death of a person, there are a wide variety of circumstances in which the offence can be committed. If Parliament had chosen to prescribe an absolute penalty in the sense that it prescribed only one penalty which the court is empowered to impose, then it could easily have done so. The fact is that in other sections of the Road Traffic Act the Parliament has required courts to impose specific punishments which cannot be departed from; see s 47B, s 47E, s 47EAA and others. This is not the case with respect to the amendments to s 69 of the Harbours and Navigation Act. The court retains a discretion in an appropriate case if it thinks that good reason exists to impose a fine and/or a sentence of community service; see s 18 Criminal Law (Sentencing) Act.
The authorities to which I have referred highlight the importance of assessing each case on its individual merits. The degree of culpability of the appellant is obviously an important consideration in determining the appropriate sentence. Nevertheless, the severe consequences of the offending resulting in the death of a child might be said to justify the imposition of the more severe penalty.
There is no doubt that the ownership and operation of a boat vessel carries with it inherent risks and corresponding significant responsibilities. Sometimes the risks may be described as even greater than those associated with the drivers of motor vehicles. This is because boats do not have seatbelts, air bags or crumple zones. As an experienced boat operator the appellant was no doubt aware or at least should have been aware that weather conditions may change rapidly at any time. The presence of a seven-month old baby on board required an even higher degree of care in light of all the risks associated with operating the vessel.
However, I am mindful that the appellant’s behaviour was not reckless. It was his obvious intention to bring his passengers back to the marina safely. In doing so, the appellant attempted to react to the adverse situation which had arisen as best he could. In particular it was not his fault that Beacon 16 did not appear to have been illuminated on the night in question. Immediately prior to the collision the appellant had been continually on the look out for Beacon 16 which he believed was coming up. If his vessel had not been three to four degrees off course his operation of the vessel and the speed of the vessel would have been appropriate. Nevertheless, the appellant admitted that in all of the circumstances, he should have been travelling at a slower speed in order to allow for evasive action in the event that it was required.
For these reasons I consider in all of the circumstances that the appellant’s offending is to be categorised at the lower end of the scale of offending for this aggravated offence. This factor persuades me that it is appropriate that I consider a penalty other than imprisonment. Unlike both the defendants in Nattrass and Thiele, this appellant is a man without any prior convictions and he was, prior to this incident, considered to be a responsible, experienced boat operator. The appellant’s navigational error that evening has led to the most catastrophic of consequences for all concerned.
In all of the circumstances, I consider that I can utilise the provisions of s 18 of the Criminal Law (Sentencing) Act and impose a penalty by way of a fine. In recognition of the intrinsic seriousness of this offence the fine must be substantial.
For these reasons, I make the following orders:
1.     The appeal against sentence is allowed.
2.     The sentence of the magistrate is set aside.
3.     The appellant is fined the sum of five thousand dollars.