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…

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.

Continue reading R v MacIntyre

Details

AGLC: R v MacIntyre [2009] NSWDC 209
Case: [2009] NSWDC 209
Decision Date: 6 August 2009

CaseChat Overview and Summary

The case of R v MacIntyre involved the prosecution of MacIntyre for dangerous driving, which resulted in the death of a young boy swimming near a public beach. The incident occurred when MacIntyre was navigating his boat in an area marked by speed signs. The District Court of Queensland was tasked with determining the culpability of MacIntyre and the appropriate sentence.

The court had to decide whether MacIntyre's actions constituted dangerous driving, particularly given the presence of speed signs and the circumstances of the boy's presence in the water. The key legal issues were whether MacIntyre breached the standard of care expected of a boat operator in that area and whether his actions directly caused the boy's death. The court also needed to consider the principles of causation and the foreseeability of harm in assessing MacIntyre's culpability.

The court concluded that MacIntyre's navigation of the boat was indeed dangerous, as he failed to observe the speed signs and the boy's presence in the water. The court found that MacIntyre's actions were a significant contributing factor to the boy's death. The court took into account the mitigating factors presented, including MacIntyre's remorse and lack of prior criminal history. However, the gravity of the offence and the loss of life led the court to impose a sentence of periodic detention. This decision balanced the need for punishment with the potential for rehabilitation.

The final orders included MacIntyre's conviction for dangerous driving causing death, a sentence of periodic detention, and mandatory participation in a rehabilitation program. The court's decision emphasised the importance of adhering to navigational rules and the severe consequences of failing to do so.

Orders