Small v The Queen - [2013] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Small v R [2013] NSWCCA 165
Hearing dates: 21 June 2013
Decision date: 15 July 2013
Before: Emmett JA at [1];
RA Hulme J at [52];
RS Hulme AJ at [53]
Decision:
The Court orders that:
1. The appeal against conviction be dismissed.
2. The application for leave to appeal against sentence be granted and the appeal be dismissed.

Catchwords:
CRIMINAL LAW - appeal - conviction - whether jury misdirected by trial judge - whether 'navigate' under s 52B of Crimes Act 1900 includes controlling helm of boat at time of impact
CRIMINAL LAW - appeal - sentence - parity - whether error in imposing same sentence as that imposed on co-offender
Legislation Cited: Crimes Act 1900 ss 52A, 52B
Cases Cited: Green v Regina [2011] HCA 49; (2011) 244 CLR 462
Elbe Shipping SA v The Ship "Global Peace" [2006] FCA 954; (2006) 154 FCR 439
Frost v Warner [2002] HCA 1; (2002) 209 CLR 509
Texts Cited: Hansard 30 March 1983, pp 5514 - 5515
Hansard 6 December 1995, p 4279
The Hague Rules
The Hague-Visby Rules
Category: Principal judgment
Parties: Percy Small (Appellant)
Crown (Respondent)
Representation: Counsel:
W Terracini SC (Appellant)
J Dwyer (Respondent)
Solicitors:
Michael Bowe Solicitors (Appellant)
Director of Public Prosecutions (Respondent)

File Number(s): 2009/11021
Decision under appeal

Date of Decision:

2010-06-24 00:00:00

Before:

Grove J

File Number(s):

2009/11021

Judgment

EMMETT JA: This appeal against conviction and application for leave to appeal against sentence arise out of the tragic death of six passengers in a workboat that collided with a fishing trawler off Bradley's Head in Sydney Harbour in the early morning of 1 May 2008. The appellant, Mr Percy Small, was convicted of six counts of dangerous navigation occasioning death, under s 52B(1)(a) of the Crimes Act 1900. He was sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years.

Circumstances of the Collision

On the night of 30 April 2008, various people gathered at the Commercial Hotel (the Hotel) in Balmain. The Hotel had been sold and was to be handed over to the new owners on the following day. Staff had been informed that their employment would not continue and the gathering was in the nature of a farewell celebration. Mr Small was present at the gathering.

Mr Matthew Reynolds was also present at the gathering. Mr Reynolds was employed in the business of Sydney Ship Repairs and, in that capacity, had access to a workboat owned by his employer. The workboat was licensed to carry eight people. The workboat was not available to Mr Reynolds for private purposes, such as recreational use or fishing. Mr Reynolds was the holder of a certificate of competency as a coxswain. He was thereby authorised to undertake the duties of master of a vessel less than 12 metres in length with propulsion power less than 250 kilowatts. The workboat was in that category.

During…

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 Small v The Queen

Details

AGLC: Small v The Queen [2013] NSWCCA 165
Case: [2013] NSWCCA 165
Decision Date: 15 July 2013

CaseChat Overview and Summary

The appellant, Small, was convicted of dangerous operation of a vessel under s 52B of the Crimes Act 1900. The dispute centred around the meaning of the word "navigate" in the context of the statute, and whether the trial judge properly directed the jury on this issue. The conviction was also challenged on the grounds that the sentence imposed was improper due to a failure to take into account the principle of parity in sentencing co-offenders. The appeal was heard by the High Court of Australia.

The primary legal issue was whether the trial judge correctly instructed the jury on the meaning of "navigate" as it applied to the circumstances of the case. Specifically, the court needed to determine if the term included the act of controlling the helm of a boat at the time of impact. Additionally, the court had to assess whether the trial judge erred in imposing the same sentence on the appellant as was given to his co-offender, in light of the principle of parity in sentencing.

The High Court found that the trial judge did not misdirect the jury in relation to the meaning of "navigate". The court held that the term did encompass the act of controlling the helm of a boat at the time of impact. Regarding the sentencing issue, the court determined that the trial judge did not commit an error in imposing the same sentence on the appellant and his co-offender. The court concluded that the principle of parity was not breached, as the trial judge had considered the individual circumstances of each offender and found them to be comparable in terms of culpability.

The appeal was dismissed, and the conviction and sentence were upheld.

Orders