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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: HARRIS v Police [2009] SASC 163
Case: [2009] SASC 163
Decision Date: 6 June 2009

CaseChat Overview and Summary

The appellant in this case was convicted on a plea of guilty to the charge of aggravated operating a vessel without due care, and appealed against his sentence. The appeal was heard by the Supreme Court of South Australia. The appellant was sentenced to 21 days imprisonment, suspended, after pleading guilty to the charge of aggravated operating a vessel without due care, which resulted in the death of another person. The appellant argued that the sentence was manifestly excessive and appealed to the Supreme Court.

The legal issue before the court was whether the sentence imposed by the magistrate was manifestly excessive. The court considered whether the sentence was appropriate given the circumstances of the case, including the appellant's culpability and the environmental factors present at the time of the offence. The court also considered whether the sentence was disproportionate to the offence and whether there were any mitigating factors that should be taken into account.

The court found that 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. The court found that the offending was at the lower end of the scale for an aggravated offence and that the appellant's culpability was mitigated by the environmental factors present on the night of the offence. The court concluded that it was an appropriate case for an alternative penalty and imposed a fine of $5000 on the appellant. The appeal was allowed, and the sentence was set aside.

The court ordered that the appellant be fined $5000 in lieu of the suspended imprisonment sentence. The court found that the fine was an appropriate penalty given the circumstances of the case, and that it reflected the seriousness of the offence while also taking into account the mitigating factors present. The court emphasised the importance of considering the individual circumstances of each case when imposing a sentence, and the need for a balanced approach that takes into account both the seriousness of the offence and the culpability of the offender.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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