R v MacKinnon
[2015] VSC 619
•23 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0032
BETWEEN:
| THE QUEEN | |
| and | |
| TORIE SANDRA MACKINNON | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2015 | |
DATE OF SENTENCE: | 23 October 2015 | |
DATE OF REASONS: | 6 November 2015 | |
CASE MAY BE CITED AS: | R v MacKinnon | |
MEDIUM NEUTRAL CITATION: | [2015] VSC 619 | |
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CRIMINAL LAW – Sentence – Dangerous driving causing death – Accused operating twenty-one-metre domestic commercial sightseeing vessel on Port Phillip Bay – Deceased killed when struck by vessel’s propeller after jumping into water while vessel reversing – Deceased’s actions contrary to earlier instruction of crew member – Deceased may have misunderstood exchange with crew member – Accused not aware deceased in water when reversing – Accused could not see deceased on rear area of vessel from upper controls but would have been able to see from lower controls – Low moral culpability – Plea of guilty following sentence indication – Remorse – No prior convictions – Positively good character – No risk of re-offending – Excellent prospects of rehabilitation – Particular hardship of imprisonment for accused – Risk that imprisonment would worsen her psychological condition – Unusual offence – General deterrence, denunciation and just punishment of less weight than usual – Specific deterrence and protection of community of no weight – Rehabilitation important – Imprisonment inappropriate – Sentenced to a community correction order for 18 months with conditions as to mental health assessment/treatment and unpaid community work – Whether order can be made in respect of marine licence – No power to make order – Marine Safety Act 2010 (Vic), ss 3, 4A, 4B, 53, 54 & 171 – Marine Safety (Domestic Commercial Vessel) National Law (Cth), ss 6 & 7.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC with Mr A Grant | Office of Public Prosecutions |
| For the Accused | Mr C Heliotis QC with Ms O Trumble | Tony Hargreaves & Partners Lawyers |
HIS HONOUR:
Prelude
Two Christmases ago, Hetty Blum did a thoughtful thing for Paul McVeigh, her partner of 31 years. She bought him a gift certificate for a swim with dolphins on Port Phillip Bay. Mr McVeigh was a lover of the sea. He had participated in several Pier-to-Pub swims. She knew he would be thrilled with the gift. And he was.
On the morning of Friday 13 December 2013, Ms Blum drove Mr McVeigh to the pier in Sorrento so that he could board the boat that would take him on the tour. They were happy and excited. As Mr McVeigh headed down the pier, he looked back, grinned and repeatedly waved goodbye, while Ms Blum did three laps of the roundabout.
Sadly, that was the last time Ms Blum saw her partner. A short while later, he was killed in what one of the other passengers on the boat described as “a tragic accident”. It was, however, an accident that led to a conviction and sentence for a serious criminal offence committed by Torie MacKinnon, the Master of the vessel. This is how it happened.
Circumstances giving rise to the offence
At the end of the pier, Mr McVeigh and several others boarded Moonraker, a twenty-one-metre twin-propeller vessel used by a company called Moonraker Charters Pty Ltd to take passengers out on Port Phillip Bay to swim with seals and dolphins.
Torie MacKinnon is the 31-year-old Managing Director of the family-run company. She was also the Master of Moonraker that morning, as she had been on countless previous occasions in recent years. Ms MacKinnon had been involved in boating all her life. She was an experienced and capable Master. Never had she been involved in an incident the likes of which was about to occur.
As part of the tour, Moonraker took passengers to see a colony of seals at Chinaman’s Hat, which is a man-made structure out in the middle of Port Phillip Bay. Upon arriving at Chinaman’s Hat, a number of passengers, including Mr McVeigh, entered the water from the rear platform of the vessel and swam towards the structure.
After their swim, Mr McVeigh and another passenger, Christopher Towers, returned to Moonraker. Mr Towers sat on the edge of the vessel’s rear swim platform with his legs dangling in the water, while Mr McVeigh stood on the rear platform. A crew member, Jacqueline Schafer, was at the rear deck of the vessel supervising swimmers. Ms MacKinnon came to the same area and asked if the two men wanted to go back into the water. Both men indicated that they did.
In the meantime, a strong current had caused Moonraker to drift some 60 metres away from Chinaman’s Hat and the remaining swimmers. As it was too far for the men to swim, Ms MacKinnon told Ms Schafer that she would reverse the vessel closer to Chinaman’s Hat. She then went upstairs to the controls in the wheelhouse in order to undertake that manoeuvre.
Ms Schafer told both men that the vessel was about to reverse and to stay where they were. Earlier, she had told the passengers that “no-one is allowed to hop into the water whilst the boat is reversing or unless your crew member has said it’s okay to hop into the water”. She had reiterated, “But if the boat is moving, don’t hop in because we don’t want to run anyone over.”
As Ms MacKinnon began to reverse the vessel, Ms Schafer obliged Mr McVeigh’s request that she take a photograph of him. He was standing on the rear swim platform at that time. He then asked Ms Schafer if she would take his photograph while he was in the water. Ms Schafer said, “Of course I will.” Without any indication he was about to do so, Mr McVeigh then immediately jumped into the water.
None of the three persons at the rear of the vessel – neither Ms Schafer nor Mr Towers nor his wife Elaine Towers – anticipated that Mr McVeigh would jump into the water at that point. Mr Towers said that Mr McVeigh:
essentially turned and, basically [in] the same movement, turned and jumped straight in. He didn’t look, didn’t pause, didn’t look at me or anything. He just turned and jumped in in one movement.[1]
[1]Depositions at 254.
Similarly, Mrs Towers said that she “did not anticipate [that Mr McVeigh] was going to turn around and jump straight back into the water – it was incredible – it was just so fast”.[2]
[2]Depositions at 267.
While we shall never know what caused Mr McVeigh to jump, I think it is likely he mistakenly believed that, when Ms Schafer agreed to take his photograph in the water, she meant she would do so immediately rather than when the vessel had finished reversing, despite her earlier instructions. It is hard to explain his actions in any other way. He was, after all, an experienced swimmer aged 60.
Whatever motivated his actions, once in the water, Mr McVeigh almost immediately was pushed underneath Moonraker by a combination of the current and the reversing vessel. He was struck by a rotating propeller and suffered life-threatening injuries.
Mr McVeigh was brought back to the vessel and given first aid. The remaining passengers and crew also returned to the vessel. Ms MacKinnon rang Triple-0 and headed back to the pier at Sorrento, where paramedics tried to revive Mr McVeigh. Unfortunately, however, he suffered a cardiac arrest and died as a result of the injuries he suffered.
Later that day, Ms MacKinnon was interviewed by a police officer, Sgt Adrian Sinclair. Amongst other things, Ms MacKinnon said she believed Mr McVeigh and Mr Towers were seated on a bench at the rear of the vessel when she engaged reverse gear. She believed she could see the rear swim platform and the top of Mr McVeigh’s head from her position in the wheelhouse. She did not use the lower rear-facing controls because it was quicker to go inside the cabin, where the wheelhouse controls were located. She accepted, however, that she used the lower rear-facing controls after the incident had occurred so that she could ensure safety. She said she was not distracted by anything when operating the vessel; could not have done anything to prevent what happened; and did not understand how it occurred.
Four days later, on 17 December 2013, Sgt Sinclair conducted a recorded “walk-though” of the incident with Ms MacKinnon on board Moonraker. Amongst other things, Ms MacKinnon demonstrated where she saw Mr McVeigh and Mr Towers seated on the bench. She said that it was the job of Ms Schafer as supervisor to ensure that no passenger was standing or sitting on the rear swim platform when the vessel was reversing. She agreed that Mr McVeigh and Mr Towers should not have been in the position they were in while the vessel was reversing, and maintained that Ms Schafer should have ensured that the appropriate procedure was followed.
On 23 December 2013, Sgt Sinclair sought to interview Ms MacKinnon again. On this occasion, she acted on legal advice and exercised her right to make no comment on the allegations put to her.
On 13 February 2014, investigators examined Moonraker. They found no mechanical fault that could have contributed to the incident. The examination also revealed that a person standing at the wheelhouse controls could not see any person standing on the rear swim platform. Had Ms MacKinnon been at the lower rear-facing controls, she could have seen that area.
Procedural history
Originally, Ms MacKinnon was charged with manslaughter and various alternative offences. That charge was withdrawn at the committal hearing. Subsequently, she was committed for trial on a charge of culpable driving causing death and, as an alternative, a charge of dangerous driving causing death. The matter was listed for trial in this Court later this year.
On 19 October 2015, I heard an application by Ms MacKinnon, pursuant to s 207 of the Criminal Procedure Act 2009 (Vic), for a sentence indication on the alternative charge of dangerous driving causing death. A pre-condition to the making of such an application is the consent of the Director of Public Prosecutions,[3] which consent was given. Following the application, I indicated that, if Ms MacKinnon were to plead guilty to dangerous driving causing death, I would be unlikely to impose a sentence of imprisonment that commences immediately. Mr Rochford QC, who appeared with Mr Grant on behalf of the Director, filed a new indictment charging dangerous driving causing death. Ms MacKinnon pleaded guilty.
[3]See s 208(2) of the Criminal Procedure Act 2009 (Vic).
The matter was adjourned to 23 October 2015 for a plea in mitigation. Having heard and considered the submissions of the parties and the materials that morning, later that day, I sentenced Ms MacKinnon to a community correction order (“CCO”) of 18 months’ duration with conditions.
With the concurrence of the parties, I gave only brief ex tempore reasons for sentence and deferred until today both the giving of more detailed written reasons and the consideration of what orders, if any, should be made in respect of any marine licence held by Ms MacKinnon, upon which the parties desired to make written submissions. These are those reasons. I shall deal with the issues concerning the marine licence later in these reasons.
Victim impact statements
I received five victim impact statements on the plea – one each from John McVeigh, Darren Blum, Reece Young, Wilma Paasse and Joanne Paasse. They are all profoundly moving documents. All authors speak of the terrible grief Mr McVeigh’s family has suffered as a result of his untimely death.
John McVeigh is Paul McVeigh’s brother. His statement was read by Mr Grant. Mr McVeigh’s death is the second unexpected death of a sibling in the family. As a result of the injuries Mr McVeigh suffered, the family were advised not to view his body, which advice they heeded. It is a great source of sadness that his family were unable to say goodbye to Mr McVeigh and see him one last time. There is a sense of unreality about his death. Some family members cannot bring themselves to remove his phone number or email address from their phones or computers.
Reece Young is Mr McVeigh’s nephew. He read his statement to the Court. He misses an incredible friend and says that there is now a hole at family gatherings. Mr Young was married recently and, while it was an amazing day, Mr McVeigh’s absence was hard to ignore. It has been devastating for Mr Young to lose someone so important to him.
Wilma Paasse also read her statement to the Court. She wrote it on behalf of her sister Hetty Blum. In 2008, Ms Blum suffered a stroke which left her with a physical disability. Mr McVeigh ensured she had the best possible care, spoiled her and was her “rock”. The hardest part for Ms Blum is missing her lifelong love. She struggles with the fact she was unable to say goodbye to him.
Darren Blum is the son of Hetty Blum. Mr McVeigh was a father figure to him during childhood. He misses Mr McVeigh’s friendship. He feels that he struggles to provide the same care for his mother that Mr McVeigh provided.
Joanne Paasse is Hetty Blum’s sister. Mr McVeigh was much-loved and his death has left a void in their family. Ms Paasse believes Hetty will never recover from her partner’s death.
I had regard in sentencing to the contents of the victim impact statements.
Nature and gravity of offence
Dangerous driving causing death is a serious offence. As the name of the offence suggests, it involves the causing of another human being’s death by the driving of a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case. It carries a maximum penalty of ten years’ imprisonment.[4] Usually, commission of the offence will result in a term of imprisonment.
[4]See s 319(1) of the Crimes Act 1958 (Vic).
Until recently, the offence concerned the driving of cars, motorcycles, trucks and other motor vehicles. In 2009, however, the relevant provisions were amended to include the operation of vessels on water. The amendment appears to have been directed principally at hoonish behaviour on jet-skis, but it is common ground that it applies also to the operation of a vessel like Moonraker in the present circumstances.[5]
[5]See ss 1(j) and 44-46 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 (Vic); s 317B of the Crimes Act 1958 (Vic); and the definition of “vessel” in s 3 of the Marine Safety Act 2010 (Vic).
The conduct which the parties agreed was the dangerous driving in this case was Ms MacKinnon’s reversing of the vessel from the wheelhouse, rather than the lower rear-facing controls, in circumstances where Mr McVeigh was on the swim platform and about to re-enter the water. It was not, however, part of the prosecution case that Ms MacKinnon knew Mr McVeigh was about to re‑enter the water at that time.
Nevertheless, the prosecution’s position was that this was a serious criminal offence and that it was not a momentary lapse of concentration that caused the death of Mr McVeigh. It was Ms MacKinnon’s responsibility to ensure that Mr McVeigh was not on the swim platform before she moved the vessel.
Mr Heliotis QC, who appeared with Ms Trumble for Ms MacKinnon, submitted that there were two particular features of this offence that reduced his client’s moral culpability to the lowest level. First, he submitted that Ms MacKinnon was entitled to rely on Ms Schafer to ensure that passengers were instructed on safety and kept in a safe position. There was a good deal of force in that submission. Ms Schafer was an experienced crew member who in fact had administered instructions not to enter the water when the vessel was reversing. Ms MacKinnon had no reason to believe that that instruction would not be given.
Secondly, it was submitted that, for the same reasons, Ms MacKinnon had no cause to believe that Mr McVeigh would jump into the water while the vessel was reversing. Again, there was force in that submission. Sadly, Mr McVeigh’s own unexpected behaviour – whether precipitated by a misunderstanding or not – was, to a very large extent, the cause of his own horrible death.
While every death caused by dangerous driving is, by definition, an offence with tragic consequences, which consequences are amplified eloquently by the victim impact statements in this case, I accepted that the two factors relied on by Mr Heliotis compelled the conclusion that Ms MacKinnon’s offence involved a very low level of moral culpability and was to be placed very much towards the lower end of the scale of seriousness for the offence of dangerous driving causing death.
Mitigating factors
I turn now to the mitigating factors on which Ms MacKinnon was entitled to rely.
Co-operation with authorities
First, Ms MacKinnon co-operated with police on 13 and 17 December 2013 by answering all questions and explaining what she believed had occurred.
Plea of guilty
Secondly, Ms MacKinnon pleaded guilty immediately after the indictment charging only dangerous driving causing death was filed following the sentence indication hearing.
The plea of guilty came some period after the contested committal proceeding. At the conclusion of the committal, Ms MacKinnon pleaded not guilty when facing charges of culpable driving causing death and, in the alternative, dangerous driving causing death. Ms MacKinnon’s solicitors subsequently requested the Director’s consent to an application for a sentence indication on dangerous driving causing death. As I understand it, the solicitors made clear that, if the sentence indication precluded imprisonment, Ms MacKinnon would plead guilty.
While the plea of guilty therefore was not entered or indicated at an early stage, nevertheless, it was important because it obviated the need for what would have been a distressing trial for all concerned. It also signified an acceptance of responsibility by Ms MacKinnon
Further, the plea of guilty was entered in what I consider to be very meritorious circumstances. It is plain that Ms MacKinnon could have run a trial and submitted to a jury, with some considerable justification, that either or both of the two key elements of the offence – dangerous operation of a vessel and the causation of death by such operation – had not been established.
For example, Ms MacKinnon could have argued that it was not dangerous to reverse, even from the wheelhouse, when she had an experienced crew member at the rear of the vessel who was supervising the passengers and who had administered the necessary safety direction.
Similarly, Ms MacKinnon could have argued that Mr McVeigh’s decision to jump in the water was so unexpected and so divorced from her behaviour that it could not be said that her operation of the vessel, whether dangerous or not, caused his death. It seems likely that, even if Ms MacKinnon had been at the lower rear-facing controls, she could not have prevented him from jumping, given that he moved so quickly and unexpectedly. On the other hand, it might be said that, had she been at the rear controls, Ms MacKinnon would have seen that Mr McVeigh was on the rear swim platform and therefore would not have begun reversing in the first place. Yet that points up the importance of her reliance on Ms Schafer.
In any event, it can be seen that there would have been reasonable arguments to be made for an outright acquittal. Whether a jury would have agreed or not will never be known. The point is that a plea of guilty entered in circumstances where there were reasonable arguments to be had for an acquittal, as there were in this case, is, in my view, a very significant matter in mitigation.[6]
[6]See, e.g., R v De Macedo (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 4 February 1992) at 5-7 per Phillips CJ (with whom Beach and Gobo JJ agreed).
I should note at once that, in making these observations, I am in no way critical of either the prosecution or the defence for the approach they have taken in settling this case. On the contrary, it was a responsible approach to take for all concerned. There was material in the depositions that justified the Director’s position. Equally, from the defence perspective, there was a risk that, if the matter went to a jury, Ms MacKinnon might be found guilty, in which case she would not have the benefit in mitigation of a plea of guilty, which in turn would have placed her in jeopardy of a heavier sentence. These are among the many considerations that must be weighed in the balance by the parties in deciding what course to take.
Remorse
Thirdly, I was satisfied that Ms MacKinnon is profoundly remorseful. Her remorse is apparent not just from her plea of guilty and the circumstances in which it was entered but also in the observations made of her by psychologist Mr Newton and general practitioner Dr Peter Meggyesy, as recorded in their reports. Further, I have had the opportunity of observing Ms MacKinnon in this Court. The way in which she carried herself added to my view that she is utterly devastated by what she has done.
Absence of prior convictions
Fourthly, Ms MacKinnon, at the age of 31, is a person without any prior or subsequent convictions of any kind, including for driving matters.
Previous good character
Fifthly, Ms MacKinnon is a person of positively good character.
She left school part-way through Year 11 and has been in work in the boating and tourism industry in Sorrento ever since. In fact, Ms MacKinnon has received several awards and commendations for her work. In particular, I was told of the following:
a) In 2011, she received the Victorian Tourism Award by Ecotourism and the Australian Green Travel Leaders Award.
b) In 2012, she received the Australian Tourism Award, the Victorian Tourism Award and the Young Business Woman of the Year, and was the Responsible Tourism Awards international winner.
c) In 2013, she received the Victorian Tourism Award, again, and was recognized in the Victorian Tourism Award Hall of Fame.
d) In 2014, she was awarded silver medals in the Australian Tourism Award and also in the Tour and Transport category.
The numerous character references tendered to the Court also showed that Ms MacKinnon is a hard-working and decent person who has contributed to her community not just through her business but also through community service. For example, in her reference, Marilyn Cunnington, a 71-year-old woman who for nine years has been the President of Nepean Friends of Hospice, explained how Ms MacKinnon had been “highly supportive of the work of [her organization]”. Ms Cunnington said that Ms MacKinnon “has been a great volunteer”, has helped “organize … events to benefit this caring service”, “has also donated the services of Moonraker, and the crew, for fundraising cruises”, and is “always there to offer assistance”.
In my view, a person who has contributed as much to the community as Ms MacKinnon has, and has led as blameless a life as hers, is entitled to rely heavily on those traits in mitigation of sentence for an offence of the type to which she has pleaded guilty.
Excellent prospects of rehabilitation
Sixthly, I was satisfied that Ms MacKinnon has excellent prospects of rehabilitation. I was compelled to that conclusion in light of her assistance to police, plea of guilty, remorse and lack of prior convictions, and her positively good character. I formed the view that there is no realistic risk that Ms MacKinnon would re-offend.
Hardship of imprisonment
Seventhly, I was satisfied on the basis of the psychological and medical evidence, which was unchallenged, that Ms MacKinnon would find gaol very difficult because of her fragile mental state. Further, I was also satisfied that there was an unacceptable risk that imprisonment would make her mental state worse – first, because of the rigours of prison and, secondly, because she would not have access to the sort of counselling that she has been having in recent times to assist her.
Sentencing purposes
General deterrence, denunciation and just punishment are often regarded as important purposes in sentencing for dangerous driving causing death.
General deterrence, however, is usually informed at least in part by the prevalence of an offence. This particular example of the offence of dangerous driving causing death is, so far as I am aware, unique. Further, I doubt whether the offence would be established in many other cases in which the deceased contributed so heavily to his own demise. That said, anyone minded to operate a vessel capable of causing such grave harm should understand that, depending upon the particular circumstances in which an incident occurs, conviction and stern punishment, including imprisonment, may well follow an offence of dangerous operation of a vessel causing death.
As for denunciation and just punishment, Ms MacKinnon’s low moral culpability meant that these purposes were of substantially less weight than is commonly the case.
Given Ms MacKinnon’s plea of guilty, remorse, previous good character, lack of prior convictions and excellent prospects of rehabilitation, and my view that there is no realistic prospect that she will re-offend, I considered that specific deterrence and protection of the community were purposes of no relevance in sentencing.
Those same factors, and her low moral culpability, drove me to the conclusion that far more important in the present case was the sentencing purpose of rehabilitation.
Current sentencing practices
In so far as I have been able to determine them, I have had regard to current sentencing practices for dangerous driving causing death.
These days, the offence often results in a prison sentence. On the other hand, as counsel pointed out, statistics show that, in the eight years to 2014, around 46 per cent of all dangerous driving causing death cases have attracted suspended sentences (when such sentences were available) or CCOs (since they became available) or some other form of non-custodial sentence.
Submissions
Mr Rochford’s submission on behalf of the Director was that, while there were powerful mitigating factors, since this was a serious criminal offence that did not involve a momentary lapse of concentration, a term of imprisonment to be served immediately was the appropriate sentence in all the circumstances.
Mr Heliotis submitted that the offending should be categorised as a single unfortunate act in an otherwise blameless life. In particular, he submitted that, in light of Ms MacKinnon’s low level of moral culpability and all of the mitigating factors, imprisonment was not justified. Instead, the appropriate sentence was a CCO, with conviction, and with special conditions as to acceptance of treatment for Ms MacKinnon’s psychological condition and the completion unpaid community work. He relied on Boulton v The Queen[7] in support of that submission.
[7]Boulton v The Queen [2014] VSCA 342.
Assessment as to suitability for CCO
Following the sentence indication hearing and with the concurrence of the parties, I had Ms MacKinnon assessed as to her suitability for a CCO. The author of the report subsequently provided assessed Ms MacKinnon as suitable for such an order. I agreed with that assessment.
Sentence
Section 36(2) of the Sentencing Act 1991 (Vic) provides that, without limiting when a CCO may be imposed, it may be an appropriate sentence where, before the ability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspended it in whole. A suspended sentence was not available in the present case.
Had I been of the view that a prison sentence was warranted, I would have considered that this was a case in which that sentence should be wholly suspended. Further, absent the power to suspend a sentence, I would have acted on the permissive injunction in 36(2) and found this to be an appropriate case in which to impose a CCO.
However, I considered it unnecessary to have resort to s 36(2) in the present case because I reached the firm conclusion that a term of imprisonment, whether suspended or not, was not warranted in the present case. While Ms MacKinnon pleaded guilty to a serious offence involving, by definition, the killing of another person by her dangerous operation of a vessel, for the reasons I have explained, the circumstances of the offence were such that her moral culpability was at a very low level. I accepted Mr Heliotis’s submission that the offending should be categorised as a single unfortunate act in an otherwise blameless life. In my view, Ms MacKinnon’s moral culpability was so low and the factors in mitigation were so compelling that a term of imprisonment was simply not open.
Instead, I formed the view that the only appropriate sentence was that she be placed on a CCO for 18 months, with conviction, and with special conditions that she perform 200 hours of unpaid community work and that she undergo mental health assessment and treatment as directed. Ms MacKinnon consented to such an order.
Accordingly, I made an order to that effect.
Marine licence
An issue arose as to what order, if any, must be made pursuant to s 171(2) of the Marine Safety Act 2010 (Vic).
Section 171(2) provides that, upon conviction for an offence against s 319(1) of the Crimes Act 1958 (Vic) (i.e., dangerous driving causing death) in connection with the operating of a vessel, a court must: (a) in the case of an offender who holds a marine licence, cancel that licence and disqualify the offender from obtaining a marine licence for the period of time (not being less than six months) that the court thinks fit; and (b) in the case of an offender who does not hold a marine licence, disqualify the offender from obtaining a marine licence for the period of time (not being less than six months) that the court thinks fit.
Initially, one or other limb of s 171(2) was thought by the parties to be applicable to the present case. Mr Heliotis was instructed that Ms MacKinnon does not have a marine licence but, rather, operated Moonraker pursuant to a certificate of competency issued under the Marine Safety (Domestic Commercial Vessel) National Law (Cth). Thus, initially, the question was thought to be whether there must be an order under s 171(2)(b) rather than s 171(2)(a).
Upon closer analysis at the return of the matter this morning, however, the parties accepted that s 171 had no application in any event. The steps to that conclusion are as follows.
While the definitions of “drive”, “motor vehicle”, “operate” and “vessel” in s 317B of the Crimes Act are broad enough to capture the use of Moonraker for the purposes of a charge of dangerous driving causing death under s 319(1), by dint of s 171(8) of the Marine Safety Act, the definition of “vessel” in s 171(2) is narrower than the definition in the Crimes Act. Section 171(8) provides that “vessel”, in s 171, means a “registered recreational vessel” or a “regulated hire and drive vessel”. Moonraker, however, is not a “registered recreational vessel” because the definition of a “recreational vessel” in s 4B expressly excludes from its ambit a “domestic commercial vessel”, which, the parties accepted, is the description which applies to Moonraker.[8] Similarly, the parties accepted that Moonraker is not a “regulated hire and drive vessel” within the meaning of s 4A because it does not fall within the definition of a “hire and drive vessel” and Ms MacKinnon was not the hirer of the vessel.
[8]By dint of s 3 of the Marine Safety Act 2010 (Vic), “domestic commercial vessel” has the same meaning as in the Marine Safety (Domestic Commercial Vessel) National Law (Cth). Section 7 of the National Law (which is in Schedule 1 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth)) defines “domestic commercial vessel”. As I say, the parties accepted that Moonraker fell within that definition.
In those circumstances, Mr Rochford withdrew the submission that there must be an order under s 171(2). Mr Heliotis agreed that the Court had no power to make any such order.
Accordingly, I made no order under s 171(2).
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