R v MacIntyre

[2009] NSWDC 209

CITATION:	R v MacIntyre [2009] NSWDC 209
HEARING DATE(S):	August 3-4
JUDGMENT DATE:	6 August 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
CATCHWORDS:	CRIMINAL LAW - Dangerous driving - navigation of boat - causing death of young boy swimming near public beach- speed signs - SENTENCE- Periodic Detention
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing and Procedure) Act 1999 Road Transport (General) Act 1999
CASES CITED:	The Queen v De Simoni (1981) 147 CLR 383 R v Baker NSWCCA (unrep 26/12/92) R v Berg [2004] NSWCCA 300 R v Dinsdale [2000] HCA 54 R v Errington (2005) 157 A Crim R 553 R v Jurisic [1998] NSWSC 597 R v MacIntyre (1988) 38 A Crim R 135 at 139 R v McNaughton (2006) 66 NSWLR 566 R v Musumeci NSWCCA (unrep 30/10/97) R v Pisciuneri [2007] NSWCCA 265 R v Pyritz (1998) 29 MVR 90 R v Samadi [2006] NSWCCA 308 R v Veatufunga [2007] NSWCCA 54 R v Whyte [2002] NSWCCA 343 R v Zamagias [2002] NSWCCA 17
PARTIES:	Regina Lee-Ann MacIntyre
FILE NUMBER(S):	2008/00019330
COUNSEL:	Mr D Williams (for the Crown) Mr G Grogin (for the Offender)
SOLICITORS:	Department of Public Prosecutions (for the Crown) Andrew Hartcher Criminal Lawyer (for the Offender)

Introduction

1 At about 9:30 am on Sunday 18 February, 2007, Adam Day, then aged 14, was killed in a tragic boating accident on Lake Conjola, on the South Coast of NSW. The driver of the powerboat which killed him was the offender, Lee-Ann MacIntyre. Mrs MacIntyre appears for sentence in relation to the offence of driving the boat in a dangerous manner resulting in Adam Day’s death.

Indictment

2 On 3 August 2009, the offender pleaded guilty to the charge that:

on 18 February 2007 at Lake Conjola in the State of New South Wales, she navigated a vessel namely a 5.7m Stejcraft Bahama ski boat (registered “MERCWON”) in a manner dangerous to another person or persons, whereby the vessel was involved in an impact as a result of which the death of Adam Day was occasioned.

3 The count was brought pursuant to section 52B(1)(c) of the Crimes Act 1900 and is subject to a maximum penalty of 10 years imprisonment.

Facts

4 A statement of agreed facts was tendered (Exhibit S1).

5 A summary of the relevant facts is as follows:

Circumstances

6 At about 9 am immediately prior to the collision, Adam Day was water-skiing on a section of Lake Conjola known as Killarney Beach. The weather was clear and sunny. The water surface was calm with no wind. It was a relatively quiet day at the beach with only 6 other vessels in the area.

7 After water-skiing, Adam was swimming with his sister Jessica, then aged 9 years. There are varying accounts of the exact location of where the children were swimming or, treading water. What is clear is that the children had moved into deeper water in the course of, or after, playing a game of catch.

8 Both Adam and Jessica were wearing wetsuits that had distinctive markings. Adam’s wetsuit had distinctive red panels on the shoulder. Jessica’s wetsuit was blue-grey with yellow arms. She was also wearing a pink buoyancy vest. A photograph of that swimsuit was tendered showing that it was quite bright and distinctive (Exhibit S2).

Manner of driving

9 The offender was driving a 5.7 metre motor-boat which had a 200 horsepower engine. Her husband Ken MacIntyre was seated in the rear of the vessel watching a water-skier attached to the rear of the boat.

10 The offender was travelling at a speed of between 20 and 30 knots. The boat was driven in accordance with the apparent practice of other boats in the area by travelling roughly parallel with the beach and then turning at a point where there were 4 – knot markers. Turning towards the beach at that point enabled the boat to travel in an arc thereby enabling towed skiers to coast in towards the beach. The boat then headed out towards the main body of the lake and in the direction of Adam and Jessica Day.

11 The Crown contends, and the defence accepts, that the boat was being driven in a manner dangerous, but not at a dangerous speed. It is on that basis that the plea was entered. It is conceded the speed used was an appropriate speed to drop off water skiers, as any slower speed may have resulted in skiers not being able to remain on top of the water.

Collision

12 As the boat approached, Jessica and Adam Day raised their hands over their heads to alert the boat driver. They had been taught to do this by their parents. The boat headed directly towards the two children. Despite people on the beach – including Adam’s parents - waving and yelling to attract the driver’s attention, the boat continued on its course. The boat struck both children who were within arm’s reach of each other.

13 The victim, Adam Day, was dragged under the vessel and struck by the propeller inflicting instantly fatal head injuries. He was effectively decapitated. Jessica was struck by the starboard side of the boat but was not significantly injured.

Offender’s Statements and Circumstances

14 When the offender’s boat came back to the beach she said ‘What have I done. I didn’t see anyone. No-one dropped off’.

15 The offender was blood tested for alcohol and none was detected. There were no mechanical nor steerage defects on the vessel. The offender had been water-skiing in Killarney Beach and had driven the boat on at least 10 occasions in the preceding 5 years.

Signage

16 A nearby sign – apparently a Maritime Services Board sign - near the boat ramp stated that the speed limit was 4 knots. However, that did not apparently apply to the general area where people often swam – and where Adam and Jessica Day were swimming on that morning.

17 There were marker buoys in the area installed by the Maritime Services Board. Photographs depicting the location of the bouys were tendered (Exhibit S11).

18 Photographs were also tendered of two dilapidated signs apparently on or near the ground near the beach area at the scene (Exhibit S10). They were apparently not Maritime Services Board signs. Those signs included the following words

“Boats/Jet skis leaving the shore are to give way to incoming boats.

Swimmers should stay close to shore line and move out of the path of incoming boats.”

19 It is unclear who put those signs in that area. Since the incident, the Day family have erected clear and unambiguous signs showing the course vessels are to follow in the area.

Offender

20 Mrs MacIntyre is a 48-year-old woman - at the time of the offence she was 45 years old. She has been married for 26 years and has 2 adult children, a daughter and son. She works as the Director of Nursing in a surgical unit of a large Sydney hospital. In that position, she has, and will continue to make, major contributions to the community.

21 Importantly she has no prior convictions of any sort – nor, as I understand it, even any traffic convictions.

Victim

22 The victim, Adam Day, was aged 14 years at the time of his death. His mother Aracely Day, father Lee Day, brother Rodney Day, and sister Jessica Day, who is now aged 11 years survive him. The Day family were frequent visitors to the area, regularly water- skiing and swimming in the vicinity. They were very familiar with the area. Ms Jessica Day was swimming with the victim at the time the accident occurred. Mr and Mrs Day, Adam’s parents, saw the accident occur.

Victim impact statements

23 Victim impact statements were tendered from Adam’s parents Lee Wayne Day and Aracely Day, his older brother Rodney, and younger sister Jessica (Exhibit S7). They are very powerful and evocative statements. Clearly – and as would be expected - this death has had a major and continuing impact on the Day family. It is likely that the family and each of its members will continue to grieve constantly - particularly at both family events - and unexpectedly - for many years. The grief expressed in all the statements was both tangible and harrowing.

24 All of the Day family, along with other members of the community who knew Adam enjoyed life a great deal and who had a great deal of promise and potential - miss him continually and constantly and find it difficult to cope in his absence.

Offender’s evidence

25 Mrs MacIntyre gave the Court a written statement (Exhibit S8). The statement details the offender’s continuing and ongoing feelings of remorse, shock and guilt occasioned by the incident.

Mr MacIntyre

26 The offender’s husband, Mr Kenneth MacIntyre gave evidence.

27 Mr MacIntyre spoke of impact on Mrs MacIntyre. He detailed the vast difference in Mrs MacIntyre and their family since the accident. Mrs MacIntyre is now incapable of running the family household as before. She does not socialise anymore and has effectively become a recluse in the home other then when at work. Mr MacIntyre stated that Mrs MacIntyre cries all the time and continually puts herself in the shoes of the Day family members, lost in their grief at having lost a son. Mr MacIntyre who has bone cancer/myeloma says the whole functioning of the family has irrevocably changed, that Mrs MacIntyre is constantly thinking of what she has done to the Day family.

Mr Ken Hutt

28 Mr Hutt is a family friend of the offender who has known the offender for years. Mr Hutt confirmed other aspects of the evidence particularly that Mrs MacIntyre continually blames herself for the death of Adam Day, as she is aware that she has taken a son from the Day family.

Psychiatric Reports

29 A medico-legal psychiatrist report was tendered from Dr Selwyn Smith dated 13 November 2008. Dr Smith says that Mrs MacIntyre has been persistently preoccupied by what has occurred and what could have been done to prevent the death of Adam Day.

30 A report from Mrs MacIntyre’s treating psychiatrist Dr Marian Coffey was also tendered. Dr Coffey’s address is given as the Bankstown Community Health Centre where presumably she is able to have frequent contact with the offender who works at a nearby hospital. The report stated that the effect of the accident and its consequences on the offender have been extensive.

31 The diagnosis of both psychiatrists is that Mrs MacIntyre is an emotionally fragile person who has expressed some suicidal ideation. Her mother attempted suicide when Mrs MacIntyre was 18 years. At the time, her mother was brought into the hospital where Mrs MacIntyre was then working.

32 Mrs MacIntyre was reported as being continually preoccupied with the grief of the Day family, particularly of Adam’s mother. She has persistent flashbacks about the events surrounding the accident and experiences panic attacks. She cannot cope with driving near to a boat on the road. This matter has also had a significant impact on members of her own family.

Diagnosis

33 Dr Selwyn Smith has diagnosed Mrs MacIntyre as having a post-traumatic stress disorder with the emergence of a major depressive episode. She has become socially avoidant and withdrawn, brooding and depressed about the situation and overwhelmed with feelings of grief.

34 Dr Coffey regards her suicidal ideation as being a moderate to high risk. She is in need of ongoing psychiatric treatment. Currently she is seeing Dr Coffey for a minimum of once per week.

Section 21A Crimes (Sentencing Procedure) Act

Aggravating factors

35 Considering the principles in The Queen v De Simoni (1981) 147 CLR 383, there are no aggravating factors other than the essential elements of the charge itself.

36 “Substantial harm” to the victim’s family is not an aggravating factor under section 21A as the law regards the loss of every life equally: R v Berg [2004] NSWCCA 300 at [42].

Mitigating factors

37 In the circumstances of this case the following mitigating factors are in my view established:

(b) the offence was not part of a planned or organised criminal activity

(e) the offender does not have any record of previous convictions

(f) the offender was a person of good character

(g) the offender is unlikely to re-offend

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age and otherwise

(i) the remorse shown by the offender for the offence, and that the offender has accepted responsibility for her actions and acknowledged the injury caused by her actions

(k) the plea of guilty.

Remorse

38 The offender’s remorse is evident in the plea, and also in terms of what she has told her treating psychiatrist.

39 I do not think the offender’s remorse is due solely to the situation in which she finds herself but is genuine. It extends to both the victim’s family and the particular members of it. Her statement is set against her own part in life as a mother and nurse.

40 At the committal proceedings held on 2 December 2008, the offender said:

“I just want to speak my feelings, I’ve never had an opportunity to say them. They may not be the right time and they might not come out the right way but I am going to say them anyhow. From one set of parents, Ken and I, to the Day family, I’d like to say we’re awfully sorry for the tragic accident that happened and their loss. There is not a day that goes by where I don’t think of it. I’m a mother and a nurse and I feel for these people and it is a set of tragic circumstances that changed many lives. I know they have a Court system to go through and I understand that, but from my emotional side I feel sorry for the Day family, my heart bleeds.”

41 Having observed Mrs MacIntyre during the proceedings, particularly while other witnesses were giving evidence, and having read the reports and her statement, I do not regard her remorse as either feigned or manipulated. This is not a situation where their can be any practical restitution or other demonstration of remorse. Nothing will bring Adam Day back. Nothing - other than possibly the passage of time – can assist the Day family in enduring their grief. Part of the court process is to bring an end to the inevitable harrowing tension that these kinds of issues raise. The loss of Adam Day is, and was, pre-eminent – but there are many other victims here.

Rehabilitation

42 This offence and the death of Adam has had a major impact on Mrs MacIntyre. It is likely to continue for some time.

Plea of guilty

43 Here the plea was entered on the first day of the trial although the Crown and the Court were notified that the matter would be a plea of guilty on Thursday 30 July, 2009, in other words, about two working days before the hearing.

44 In those circumstances it should be classified as a late plea with the utilitarian benefit of saving the time and resources of the DPP and the Court, avoiding a jury trial otherwise estimated to last 5 to 6 days and avoiding members of the victim’s family, in particular, Jessica, the victim’s sister (now 11 years old) having to give evidence. That would have been a harrowing experience for her and her family.

45 In my view, having regard to the time at which the (late) plea was entered or notified but also the utilitarian benefit and the remorse and contrition expressed on various times and occasions, the appropriate discount for the plea should be 25%. There is a measure of leniency in this approach but I consider that the courts need to be aware of the realities of persons in the position and circumstances of the offender having to come to terms with what has occurred and the realities of the court process.

Comparable authorities

46 The guideline judgments of R v Jurisic [1998] NSWSC 597 and R v Whyte [2002] NSWCCA 343 apply to section 52A of the Crimes Act, namely the offence of dangerous driving, and reasonably also apply to the offence of dangerous navigation.

47 The guideline judgments indicate that an assessment of the offender’s moral culpability is relevant to determining whether a custodial sentence should be imposed, as well as to determining the appropriate length of the sentence: Whyte at [214] and [229]. It is the “central inquiry with regard to the objective circumstances of the particular offence”: R v Errington (2005) 157 A Crim R 553 at [26].

48 Jurisic states that, “a non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgement.”

Momentary inattention

49 A non-custodial sentence for an offence against s 52A is almost invariably confined to cases involving momentary inattention or misjudgement: R v Pisciuneri [2007] NSWCCA 265 at [75]. The Whyte guideline provides at [214]: “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”. This aspect of the guideline is premised upon the fact that, since the offence may be committed where the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence.

50 Where the offender’s driving behaviour amounts to little more than momentary inattention or misjudgment, or involves carelessness rather than deliberateness, or involves no sustained pattern of driving that could be described as dangerous, a court may be entitled to conclude that the offence falls within the exception of dangerous driving cases for which a non-custodial sentence is appropriate: R v Pyritz (1998) 29 MVR 90. However, as I understand the authorities, such a finding does not mandate a non-custodial sentence.

Range of criminality

51 Sentencing judges must make a clear finding of where on the continuum of criminality the moral culpability of the offender lies: R v Samadi [2006] NSWCCA 308 at [21]. Here in my view, the criminality and culpability is at the relatively low end – but there is still a degree of culpability involved in driving a vessel of that size and power in an area like that in those circumstances.

52 It must be remembered that the assessment of the objective seriousness of the offence is determined in large measure by consideration of offender’s the moral culpability rather than the (in this case) tragic and far reaching consequences of the offender’s conduct. The Courts have long recognised the distinction between offences of lesser moral culpability and the consequences of their conduct – R v Baker NSWCCA (unrep 26/12/92).

53 Similarly the relationship of cases of momentarily inattention and a lower level of moral culpability justifying a different approach to the determination of questions of meeting the need for public deterrence was recognised in Whyte.

Relevant Authorities

54 The relevant guideline judgement sets out eleven relevant aggravating features. Absent any evidence leading to a finding of inappropriate speed, the only relevant factors may be that of the number of people put at risk. There was no evidence that there were crowds of people in the area where the collisison took place. There were 6 boats in the area at the time, and some other children swimming near the boats, closer to the shore. It is also accepted that it was a relatively quiet day at the beach in terms of the number of people.

Sentencing statistics

55 Judicial Commission statistics show only one matter brought under this section of legislation. That individual received a suspended sentence. The circumstances of that offence and of the particular offender are unknown.

56 For offences under section 52A(1)(c) of the Crimes Act, namely dangerous driving occasioning death – drive manner dangerous, 48% of offenders were sentenced to a period of imprisonment, 18% periodic detention, and 15% suspended sentences.

57 Of the seven cases where there was only one offence, no prior convictions, a plea of guilty, and an offender aged 41-50 years, 29% received a suspended sentence and 29% received a periodic detention order.

Other sentencing options

58 There are a range of other available sentencing options.

Fine

Bond/ supervision

Community service order

59 None of these options in my view are appropriate nor reflect the requirements of a sentence involving the principles of general deterrence.

Suspended sentence

60 The offender’s counsel urges that I consider and impose a suspended sentence. The Crown submits that a non-custodial penalty would not only not be in error, it would not be inappropriate.

61 The relevant issues are whether there are exceptional circumstances as urged by the Defence and based on the circumstances of the offence and, in particular, the finding of low range culpability.

62 The approach to be followed and the factors to be considered are set out in R v Dinsdale [2000] HCA 54 and R v Zamagias [2002] NSWCCA 17. In my view, a sentence of imprisonment is called for – particularly the requirements of general deterrence where a death has occurred. I do not regard the circumstances of the offence as warranting a total suspension of the sentence nor do I consider that a suspended sentence would be appropriate to meet the requirements of general deterrence.

Periodic detention

63 Periodic detention is a form of custodial sentence albeit of not as great a severity as a full time custodial sentence. The benefit of such a sentence to the offender is also that she will be able to continue her employment and her current psychiatric treatment regime.

Consideration

64 I take into account the evidence, the submissions made, and the matters set out above. I also take into account my finding as to the low level of criminality involved and the mitigating factors as I have found them to be as well as the absence of any additional aggravating factors.

65 This tragedy occurred on a summer Sunday morning at about 9:30 am in a popular swimming and water-skiing area. There is no issue but that the victim and his sister were in an area where they were entitled to be, where swimmers and others associated with water-skiing frequently were – and could be expected to be.

66 Although that particular area of the beach is sandy, in common with all such tidal estuaries the bottom of that area of Lake Conjola could be weedy and make for some difficulties in seeing objects on the surface of the lake.

67 There is no applicable speed limit in that area of the beach. In my view the circumstances of this case highlight the need for speed limits to be established for boats in that area and for those limits to be properly and prominently displayed. A nearby sign – apparently a Maritime Authorities Board sign - stated that the speed limit was 4 knots near the boat ramp. From the forensic evidence recovered, the point of impact appears to have been in the vicinity of about 41 metres out from the beach. The tendered photographs indicate the proximity to the boat ramp area.

68 Here the Crown submits that the circumstances of the offence would warrant a finding that the death was caused by casual or momentary inattention, that the appropriate finding should be one of low moral culpability. I agree with that submission and think that it is properly made in these circumstances. I would take a different view had there been any evidence of drink-driving, aggressive or competitive driving or any suggestion that the driving was in the direction of clearly visible groups of people.

69 Accordingly, the offender’s behaviour needs to be assessed in the light of all the prevailing circumstances as I have outlined. The offender’s plea is both appropriate and proper. The essential elements of the offence involve the death of an innocent young boy on the cusp of, and with the promise of, his manhood and his life ahead of him. The consequences for the Day family have been and will continue to be profound, ever-present and distressing. Their lives will never be the same.

70 Clearly what was involved was driving in a manner which did not pay proper regard to the safety of those in the area, including the children who were entitled to be there, as were other members of the public.

Offender’s Character

71 Mrs MacIntryre is a person of unblemished character and service to the community as a nurse and senior nursing administrator in the hospital system and as a mother to her own children and family. Understandably and appropriately it is that aspect of her life which has led to her grief for and guilt over the Day family. Not only does she have no criminal convictions she has, as I understand it, no traffic matters. An offender’s prior driving record is to be largely ignored when assessing the objective seriousness of the offence: R v McNaughton (2006) 66 NSWLR 566 at [25].

72 However, the courts must tread warily in showing leniency for good character in these cases to avoid giving the impression that persons of good character may, by their irresponsible actions, take the lives of others and yet receive lenient treatment: R v MacIntyre (1988) 38 A Crim R 135 at 139; R v Musumeci NSWCCA (unrep 30/10/97) at [18-340].

Assessment

73 I indicated during the course of submissions that I was considering the option of periodic detention. A short assessment report was prepared by the NSW Probation and Parole Service based on the tendered psychiatric reports (the medico-legal report of Dr Selwyn Smith and that of Dr Coffey of the Bankstown CHC) indicating that the offender was unsuitable for periodic detention by virtue of her psychiatric condition, in particular, her suicidal ideation and that appropriate facilities are not available for her should she attempt suicide while completing her sentence.

74 I have had regard to that report for the purposes of s 66 (2) of the Crimes (Sentencing Procedure) Act and the additional report prepared 5 August and dated 6 August, 2009 (Exhibit S 12). I have also had regard to the offender’s presentation during the proceedings and the contents of the report. Mrs MacIntyre and her family have had these proceedings hanging over their heads now for 2 and ½ years. Both reports suggest long-term supervision and treatment which would be available if the option of periodic detention was exercised – including preparing Mrs MacIntyre for the inevitability of that sentence. Such a sentence would not commence for at least ten days. I do not accept that in the circumstances and the evidence that that assessment should be accepted such as to avoid the imposition of the sentence of periodic detention. To do otherwise would mean that an offender by submitting medical/psychiatric reports of the medico-legal and treating psychiatric nature submitted here could avoid the impact of a proper and appropriate sentence.

75 The offender has been interviewed by the Probation and Parole Service. She has signed an undertaking to comply with the obligations of a periodic detention order.

76 I am satisfied pursuant to s 66 (1) of the Crimes (Sentencing Procedure) Act that the offender is a suitable person to be the subject of a periodic detention order.

77 I also consider that the offender needs to face up to the reality of what she has done and the community’s disapproval of her conduct and its consequences. Her behaviour after that option was raised with her by me in Court, while understandable, is of concern. Mrs MacIntyre needs to be aware that one of the purposes of sentencing is that of denunciation of the offence – and that, in the circumstances of what occurred, the loss of a young boy’s life, and the evidence, a sentence of full-time custody was a real option which I was considering.

Special circumstances

78 Given the offender’s age and contributions she will make to the community by her continued employment where she will be in constant contact with a variety of health and related professionals, the absence of any prior relevant convictions and her family circumstances, I am satisfied that there should be a finding of special circumstances such that the statutory ratio of the proportion the non-parole period bears to the head sentence should be reduced to 66.67%.

License disqualification

79 In all cases of dangerous driving, licence disqualification is mandatory and additional to the penalty: Road Transport (General) Act 1999, s 25. The disqualification should have “some real and manifest sting” in terms of general and specific deterrence: R v Veatufunga [2007] NSWCCA 54 at [40]. There is no similar provision in relation to boating licences. In my view there should be. I understand that the procedure to be followed is that the OIC will recommend to the Maritime Services Board that the offender’s licence be suspended. That course is not opposed by the Defence.

Sentence

80 In terms of transparency of sentencing, normally a sentence for an offence of this nature would be of the order of two years imprisonment. The discount of 25 % for the plea and the remorse and contrition expressed would mean a sentence of 18 months imprisonment.

81 My finding of special circumstances and the reduction of the statutory ratio would mean that the normal period of non-parole imprisonment would be 12 months imprisonment. In my view it is appropriate that that sentence be served by way of periodic detention.

Orders

82 The offender is convicted of the offence.

83 The offender, Lee-Ann MacIntryre is sentenced to a term of imprisonment of eighteen months imprisonment to be served by way of a non-parole period of 12 months imprisonment commencing on 15 August 2009, that sentence to be served by way of periodic detention.

84 For those purposes the offender is to report to the Wollongong offices of the Probation and Parole Service by 8:30 am on 15 August, 2009.

Licence disqualification

85 I recommend that the offender be disqualified from holding a boating licence for a period of 3 years

86 A copy of these remarks is to be forwarded to the General Manager of the Maritime Services Board with the recommendation that speed limits for motor boats in the Lake Conjola area and Killarney Beach in particular be established and, be prominently displayed.