R v Appleton

[2021] NZHC 80

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2020-070-1771

[2021] NZHC 80

THE QUEEN

v

GUY HAYDON CHARLES APPLETON

Hearing:	3 February 2021
Counsel:	A J Pollett for the Crown FCK Wood for the Defendant
Sentence:	3 February 2021

SENTENCING NOTES OF GORDON J

Solicitors:           Crown Solicitor, Tauranga

Tompkins Wake, Rotorua

R v APPLETON [2021] NZHC 80 [3 February 2021]

[1]                 Mr Appleton, you appear for sentence today having pleaded guilty to one charge of manslaughter1 arising out of your conduct causing the death of your friend, Clayton Graves.

[2]                 Before proceeding further with my sentencing remarks I acknowledge the presence of Mr Graves’ family, particularly his mother, Lisa Graves, whose victim impact statement I will refer to shortly.

Factual background

[3]                 In or around 2017, you and Mr Graves met through work and became friends. You are an experienced fisherman and boatie. You are familiar with navigating the Tauranga moana.

[4]                 On the evening of 4 October 2019, Mr Graves returned home from work intoxicated and continued to drink before his flatmate arrived and dropped him off in Bethlehem. Mr Graves briefly visited a friend. He then travelled to your address in Otūmoetai.

[5]                 You were also in an intoxicated state. The two of you decided to go fishing in your Ramco Getaway aluminium boat. Mr Graves drove the boat, hitched to your work vehicle, to the boat ramp at Sulphur Point. You were in the passenger seat. When you arrived at Sulphur Point, Mr Graves reversed the van and trailer down the boat ramp to launch the boat into the water. You then held the boat while Mr Graves parked your vehicle and trailer.

[6]                 At 12.44 am on 5 October 2019, the boat left the shore with you as the pilot. The boat did not have its navigation lights on. You and Mr Graves were not wearing life jackets.

[7]                 The weather conditions were fair. The evening was well lit by the moon and there were no clouds in the sky.  The wind was blowing around  13–24 km/hr with  30 km/hr gusts from the west or southwest. It was high tide.

1      Crimes Act 1961, s 160(2)(a). Maximum penalty (s 177): life imprisonment.

[8]                 You steered the boat towards the harbour channel. You piloted it over the sand bar and steered outside of the channel markers. The boat headed towards the Pilot Bay swing moorings until it made a sharp left-hand turn towards the harbour entrance (which is between the end of Matakana Island and Mauao – or ‘the Mount’ as it is commonly known). You passed Stoney Point (on the Mount) by a few hundred metres and stopped in the mouth of the harbour. For approximately 16 minutes the boat drifted with the tide and the wind.

[9]                 You then restarted the engine and accelerated to 23 knots (42.5 km/hr). The boat headed left of the harbour channel, travelling within 200 metres of the shore and within 200 metres of a structure. Your manoeuvres breached the Maritime Rules.2

[10]              At around 1.14 am, the boat collided with Stoney Point. It travelled up the rocks and smashed the housing attached to a large red beacon with a red flashing light on top. That light was in working order at the time. The front of the boat sustained significant damage from the collision. However, the hull was not punctured, and the boat remained afloat.

[11]              You and Mr Graves were thrown forward into the windscreen of the boat by the force of the impact. The perspex windscreen smashed when your bodies hit it. The force of the impact also caused the batteries inside the boat to slide forward and disconnect. Therefore, the boat’s engine and electronic equipment could no longer operate.

[12]              Mr Graves was thrown into a horizontal handrail. As a result, he sustained substantial internal injuries including fractured ribs, tears to the right lobe of his liver and left kidney. His injuries caused substantial internal bleeding.

[13]              Following the crash, you navigated the boat to a beach nearby. The summary of facts records that Mr Graves crawled into the boat where he later died.

2      Maritime Rules New Zealand 2016, r 91.6(1) provides:

(1)No person may, without reasonable excuse, propel or navigate a vessel (including a vessel towing a person or an object) at a proper speed exceeding 5 knots:

…

(b) within 200 metres of the shore or of any structure

…

[14]              You sat on the beach for the rest of the night. You were hypothermic and in a state of confusion after the incident. You did not have your cell phone in your possession. The boat’s radio was inoperable. Mr Grave’s cell phone was passcode protected but the ‘emergency’ function on his cell phone was able to operate without using the password. You did not call the authorities for help. You did not seek medical assistance for Mr Grave’s injuries. Assistance was only a five-minute walk away.

[15]              Just before 7.00 am a member of the public, who was walking around the base track of the Mount, noticed the boat sitting on the hard sand. He watched you standing next to the boat in a relaxed manner.

[16]              At 7.20 am, two other members of the public noticed the boat and walked down to it to investigate. They asked you if you were alright. You said you were and told them you had hit a rock and were waiting for the tide to come in.

[17]              Around half an hour later, another walker approached the boat and immediately noticed Mr Graves was in a bad way. He described his face as ‘smashed up’ and foam was coming from his mouth. You were nearby and when the person called out to you, you said Mr Graves was “fine” and that he was asleep. The member of the public then double checked on Mr Graves inside the boat and called for immediate help.

[18]              The emergency medical staff who attended the scene at around 8.00 am considered Mr Graves had been dead for 4–6 hours when they arrived.

[19]              Your blood alcohol levels were 20 milligrams of alcohol per 100 millilitres of blood on admission to the hospital. Scientists from the Environment Science and Research Institute have estimated that your blood alcohol levels would have been around 110–220 milligrams per 100 millilitres of blood at the time of the incident.

[20]              GPS data and historical data confirm that you departed from your normal use of your boat on 5 October. Prior to this incident, you did not pilot the boat at that time of night or follow the course from Sulphur Point to the entrance of the harbour.

Victim impact statement

[21]              Lisa Graves, Mr Graves’ mother has read her statement today in open Court. She was in Australia at the time of her son’s death and had to hear the dreadful news by telephone, from her brother who had the terrible task of identifying his nephew’s body.

[22]              Ms Graves describes the insurmountable pain and devastation she felt when she heard of her beloved son’s death. Mr Graves was her only child.

[23]              The effects of your actions on Mr Graves’ family are only  too  clear from  Ms Graves’ statement. Every day, she feels her son’s death. She moved away from close family members and friends in Australia to New Zealand, which has impacted on her financially. But the greater and ongoing suffering is emotional, psychological and physical.

[24]              Your actions have profoundly affected Mr Graves’ family and will continue to affect them for the rest of their lives.

Approach to sentencing

[25]              I now turn to the approach to sentencing. Two steps are required.3 I must first determine a starting point that takes into account the aggravating and mitigating features of your offending. I will then consider factors personal to you including your guilty plea, that may adjust the starting point.

[26]              In determining your sentence, I must take into account the principles of sentencing.4 I may also take into account the purposes of sentencing.5 In terms of sentencing principles, I will have regard to the gravity of your offending, your culpability and the need to maintain consistency with other sentencing levels. I will also consider the seriousness of your offending in light of the maximum penalty prescribed for your offending. In relation to sentencing purposes, denunciation,

3      Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [46].

4      Sentencing Act 2002, s 8.

5      Section 7.

general deterrence, accountability and promoting a sense of responsibility for the significant harm you have caused Mr Graves and his family are particularly important.6

[27]              I will also consider your prospects of rehabilitation and reintegration, and the least restrictive outcome that is appropriate in the circumstances which are also important sentencing principles and purposes in this case.7

Starting point

[28]              The maximum sentence for manslaughter is life imprisonment.8 Manslaughter can include a wide variety of situations that result in a person’s death. These circumstances range from cases of limited culpability through to cases close to wilful murder.9 Therefore, there is no guideline judgment for manslaughter cases.

[29]              There are two possible approaches to a manslaughter sentencing. In a case which does not involve violent offending the approach the Courts adopt is to determine a starting point based on comparable cases.10

[30]              The Crown submits that the appropriate starting point is in the region of four years’ imprisonment. Mr Wood, on your behalf, submits that the appropriate starting point is between two years, nine months’ and three years, three months’ imprisonment. In support of that submission, Mr Wood refers to cases where death resulted and where charges were brought under the Land Transport Act 1998 as opposed to a charge of manslaughter. I will refer to those cases shortly.

[31]              For the purposes of establishing a starting point, I outline the relevant aggravating and mitigating factors of your offending. I note Mr Wood’s submission that a number of the aggravating factors the Crown refers to are not aggravating factors but are inherent in the offence itself. I do not accept that submission in its entirety.

6      Sections 7(a), (b), (e) and (f).

7      Sections 7(h) and 8(g).

8      Crimes Act, s 177.

9      R v Wickliffe [1987] 1 NZLR 55 (CA) at 62; and R v Feleti [2019] NZHC 94 at [19].

10   The alternative approach of determining the sentence by reference to the guideline judgment of   the Court of Appeal in R v Taueki [2005] 3 NZLR 372 (CA) is not appropriate in a case which does not involve violent offending.

You caused Mr Graves’ death by an unlawful act. That unlawful act was a breach of  r 91.6 of the Maritime Rules. You were travelling in excess of five knots within 200 m of the shore and/or a structure.

[32]The aggravating features of your conduct are that:

(a)you piloted the boat while intoxicated, having consumed alcohol to the point  where  it  is  estimated  you  had   110–220 milligrams   per  100 millilitres of blood when you crashed your boat at 1.14 am. As a comparison,  the  proportion  of  alcohol  to  blood   that  contravenes s 61(1)(b) of the Land Transport Act 1998 is 80 milligrams of alcohol per 100 millilitres of blood;

(b)you piloted the boat from 12.44 am. I accept the Crown’s submission that there is an increased danger inherent in piloting a small boat at that time of night;

(c)you were travelling at 23 knots shortly before you collided with the rocks at Stoney Point. Mr Wood submits that this was not a “grossly excessive speed”11 or a “greatly excessive speed”.12 I do not accept this submission. Your speed was over four times the legal limit resulting in the boat travelling up the rocks and smashing the housing on the beacon;

(d)you did not utilise safety equipment available to you while you piloted the boat and proceeded to crash it into the rocks. In particular, you did not use the working GPS system to navigate your boat. You did not use the flares or first-aid kit after the crash; and

(e)finally, you did not seek assistance for Mr Graves following the crash. Instead, you sat on the beach for 4–6 hours. While you did not have a cell phone on you and the boat’s radio was inoperable, you did have

11     R v Skerrett CA236/86, 9 December 1986 at 12.

12     Gacitua v R [2013] NZCA 234 at [25].

Mr Graves’ cell phone available to you. You also could have walked a mere five minutes to houses in Pilot Bay to find assistance. Mr Wood submits that given that you were dazed and confused, this is not an aggravating factor, but rather the absence of a mitigating factor. I would not go that far. You were not diagnosed with any head injury at the hospital. However, I accept you suffered harm in the accident, which may have affected your thinking. Accordingly, while this is an aggravating factor, in the circumstances it is not as serious as it might otherwise have been.

[33]              There are no mitigating factors of the offending. Mr Graves died in circumstances that were entirely avoidable. Your behaviour went beyond carelessness. It was reckless.

[34]              With those findings, I now turn to the authorities relied upon by counsel. As I have said, manslaughter cases vary and often contain unique facts. The facts in this case are unique because your offending involved alcohol consumption and operating a craft on water. I have been unable to find analogous manslaughter cases in the marine context that also involved an intoxicated defendant.

[35]                I refer briefly to the cases the Crown relies on. R v Tomasi concerned the reckless operation of a jet ski at a picnic, which resulted in the death of a young girl in a kayak. Mr Tomasi operated the jetski at grossly excessive speeds and ignored the instructions of the jetski instructor, exhibiting deliberate and persistent reckless conduct. Goddard J adopted a starting point of four to five years’ imprisonment on a charge of manslaughter.13 In R v Hare, Mr Hare also recklessly used a jet ski. Against the advice of his instructor, Mr Hare unsuccessfully tried to turn the jet ski to avoid a runabout boat. The deceased, who was on the boat, died from injuries sustained in the crash. The Court of Appeal upheld an end sentence of 18 months’ imprisonment on a charge of manslaughter.14 Both cases include the aggravating features of excessive speed and poor driving but they do not involve the added – in my opinion serious - aggravating feature of alcohol consumption.

13     R v Tomasi HC Wellington T255/97, 3 July 1998.

14     R v Hare CA 332/99, 15 November 1999.

[36]              Two other cases the Crown referred to in their submissions provide some assistance on the starting point as the defendants in those cases had consumed alcohol and/or drugs. In Brook v R, Mr Brook drove five others in his car after drinking, he fled police intervention and drove off a road. He was driving at a speed well in excess of the 35 km/hr advisory speed for the corner.15 As a result of his reckless driving, one of his passengers died. The starting point of seven years’ imprisonment was not in issue in the Court of Appeal. The aggravating features in R v Breakwell were not as closely related to your offending. However, I note that in that case the aggravating features of excessive speed and significant harm resulted in a starting point of five and a half years’ imprisonment.16

[37]              Finally in terms of the cases the Crown relies on, there is the case of R v T,17 which involved a fatal crossing of the Waitara bar in an inflatable boat. The defendant and his passenger were thrown from the boat and the passenger drowned. Having regard to significant mitigating factors, the High Court adopted a starting point of 300 hours community work.

[38]              Mr Wood submits that the starting point should derive from lesser, but still serious, Land Transport Act offending rather than motor vehicle manslaughter cases. He points to the range of offences under the Land Transport Act that can capture motor vehicle incidents causing death. These offences are not available for marine incidents causing death. Mr Wood refers to a suite of authorities in his submissions.18

[39]              The Court of Appeal has said that while in some cases motor manslaughter sentences will provide an appropriate parallel for causing death through major departure from the statutory duty to take care when in control of a boat or jet ski, in other cases, a better comparison will be with the serious Land Transport Act offences.19

15     Brook v R [2010] NZCA 13 at [3].

16     R v Breakwell [2019] NZHC 3338 at [21].

17     R v T [2017] NZHC 1835.

18   R v Skerrett, above n  11;  Gacitua  v R,  above n  12; R v Hare, above n  14; R v T, above n  17;  R v Tumahai  HC  Hamilton  CRI-2011-019-1692,  8  November  2011;   R  v  Tomasi,   above   n 13; R v Grace [2020] NZHC 3145; and Brampton v Police [2015] NZHC 2618.

19 R v Hare, above n 14 at [35].

[40]              I accept Mr Wood’s submission that in this case the Land Transport Act offences are more suitable to the circumstances of your offending. This is not a case where your passenger urged you to stop or slow down. Nor were you attempting to evade the authorities. While I have found a number of aggravating factors in your offending, the principle aggravating factor was your consumption of alcohol. I consider other aggravating factors flowed from your inebriated state.

[41]              The case of Brampton v Police, referred to by Mr Wood, assists because it involved similar aggravating features at a similar level of seriousness to your offending. Mr Brampton drank for a few hours at a bar. He then left at 9.40 pm and proceeded to drive at 50–60 km/hr on a road. He collided with a cyclist, fatally injuring him. Mr Brampton drove home and fell asleep. When Police took his blood alcohol levels  at  around  11  pm,  Mr  Brampton  recorded  160  milligrams  per  100 millilitres of blood. On appeal, Thomas J considered a starting point of three years’ imprisonment was appropriate.20

[42]              Mr Wood also relies on R v Grace. In that case, Ms Grace left a family social event to travel 130 km home with two family members. None of the passengers were wearing seatbelts. Ms Grace’s car did not have a warrant of fitness and she had been disqualified from driving. Ms Grace fell asleep while driving and the impact of the crash killed her son. The sentencing judge adopted a starting point of four years’ imprisonment.21 I find the offending in R v Grace more serious than your offending because she was disqualified from driving, did not have a licence and her car was in poor condition. I note failures to use safety equipment in that case similar to the failures here.

[43]              Both Mr Brampton and Ms Grace were charged with the offence of driving with excess blood alcohol causing death which carries a maximum penalty of 10 years’ imprisonment,22 rather than manslaughter.

20     Brampton v Police, above n 18, at [53].

21     R v Grace, above n 18, at [13].

22     Land Transport Act 1998, ss 56(2) and 61(1)(b).

[44]              Having regard to all the authorities I have referred to and which counsel referred to the Court, I adopt a starting point of three years, nine months’ imprisonment for your offending.

Personal circumstances

[45]              I will now consider adjustments to the starting point based on your personal circumstances. Mr Wood submits you are entitled to discounts for:

(a)your guilty plea; and

(b)remorse and rehabilitation.

[46]              I will consider each of those factors in turn, but I first address your previous convictions.

Good character

[47]              You have three prior convictions. Two of these convictions are for operating a vehicle carelessly, committed in 1999 and 2007. The penalty in each case was a fine. The third conviction in 2017 is for common assault. The Crown accepts that no uplift should be made for your previous convictions. However, the Crown submits that you should not be entitled to a discount for previous good character because of your prior convictions.

[48]              Mr Wood submits that you should not receive an uplift for your prior convictions. But he also submits your convictions do not disqualify you from a discount for good character.

[49]              I have received a letter from your employer, Mr Bill Beck, regarding your character. I acknowledge that Mr Beck’s letter states you are of good character and you are an asset to your workplace.

[50]              A discount for good character usually arises out of an absence of convictions or evidence of positive contributions to society.23 While I do not add an uplift for your

23     M H D M v R [2013] NZCA 88 at [19].

prior convictions, their existence means that a good character discount would need to be based on positive contributions to society. While you may well be a valued worker, I have not received sufficient evidence to persuade me that you are entitled to a discount for good character.

Guilty plea

[51]              The Crown accepts that you pleaded guilty at the first possible opportunity on 21 October 2020 and that the maximum discount of 25 per cent is therefore available.24 Mr Wood submits that you are entitled to a 25 per cent discount for the same reasons.

[52]              I consider that a discount of 25 per cent is appropriate. You pleaded guilty to the charge of manslaughter after the Crown filed its formal written statements. You saved court time and the costs of preparing the trial in entering your guilty plea early in the proceedings. You also saved the stress of a trial for all who would have been involved.

Remorse and restorative justice

[53]              Calculating the appropriate discount for remorse is a question of fact and judgment. Mr Wood submits you are entitled to a discount for your remorse. He says it is apparent from your guilty plea, participation in a restorative justice process and from the content of your letter and your mother’s letter to the Court. Remorse is a factor I consider separately from your guilty plea as required under the Sentencing Act 2002.25

[54]              The Crown accepts that a discount for attending the Restorative Justice Conference is appropriate, though Ms Pollett submits it should be limited. She notes that Mr Graves’ family left before the conference was completed because they were not satisfied with your responses.

[55]              I accept that your willingness to participate in the conference demonstrates a level of remorse for your offending. However, in the report of the conference, it seems

24     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74]–[75].

25     Section 9(2)(f) and Hessell v R [2010] NZSC 135, [2011] NZLR 607 at [63]–[64].

you minimised your part in the offending. The Provision of Advice to the Court Report (PAC Report) confirms this attitude, as the report writer states you do not recognise the significant and lasting harm you have caused Mr Graves’ family. It is also evident from the PAC report that you were focused on what you characterise as your own suffering. The report writer considers that you do not take full responsibility for your actions on 5 October 2019.

[56]              However, I have received letters from you and your mother regarding your remorse. I note your mother’s comments that you do not always find it easy to express how you feel. That perhaps explains some of your responses in the Restorative Justice Conference. You say that you sincerely regret your decision to operate your boat after drinking and you offer your deepest sympathy to Mr Graves’ family. I consider these letters do demonstrate your remorse.

[57]              In those circumstances, a discount of five per cent is appropriate to take account of your participation in the Restorative Justice Conference and the remorse expressed in the two letters I have referred to.

Final sentence

[58]              For your offending, I have adopted a starting point of three years, nine months’ imprisonment. A 25 per cent discount for your early guilty plea and a five per cent discount for your remorse and engagement in a restorative justice process results in a total discount of 30 per cent (14 months rounded up). Therefore, your final sentence is two years, seven months’ imprisonment.

Sentence

[59]Mr Appleton would you please stand.

[60]I sentence you to two years, seven months’ imprisonment.

[61]Stand down please.

Gordon J