R v Jones - [2017] NZHC 1835

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2016-043-000275 [2017] NZHC 1835

THE QUEEN

v

JONES

Counsel:
J Marinovich for Crown

R Mansfield for Defendant

Sentencing:

3 August 2017

SENTENCING NOTES OF WILLIAMS J

Introduction

[1] Mr Jones on 30 July 2015, you and Erka Xu went fishing off the north Taranaki coastline in your inflatable rubber boat. This necessitated crossing and re- crossing the Waitara bar. [I should say incidentally I’m going to speak very slowly. The reason I’m doing that is so that Jenny can translate. So it may seem a little strange but I’m doing it on purpose.] When you returned from fishing, the re- crossing of the bar went wrong. Both of you were thrown out of the craft. Mr Xu drowned but you were rescued.

[2] You pleaded guilty on 22 February to the manslaughter of Mr Xu – that is you admitted that, while in charge of your inflatable rubber craft, you caused Mr Xu’s death by failing to take reasonable precautions against, or to use reasonable care to avoid endangering his life. That failure, the law says, must amount to “a major departure from the standard of care expected of a reasonable person”. So by
pleading guilty, you necessarily accepted that:

R v JONES (Sentencing Notes) [2017] NZHC 1835 [3 August 2017]

(a) the bar crossing at Waitara involved a major departure from the standard of care expected of the skipper of a recreational craft;

(b)that major departure was dangerous in the sense of being likely to cause harm to others on board; and

(c) that it was a substantial and operative cause of Mr Xu’s drowning.

[3] Following a two-day disputed fact hearing, I made findings of fact relevant to your sentencing. I know you’ve read and been aware of these findings but for the sake of the record I am going to read them out. I will do so under the following general headings: neuro-psychiatric evidence; the Waitara River and bar; weather conditions; tide and sea conditions; a conclusion on those conditions; safety equipment; and then the accident itself.

Neuro-psychiatric evidence

[4] On the issue of neuro-psychiatric evidence, I found that as a result of your traumatic head injury in 2013 your personality changed such that you are now prone to fixation and find it difficult to shift mental track. I found that you are also more prone to anxiety and panic when multiple unplanned events conspire against you. And I found further that Mr Xu’s drowning had caused you to suffer from post traumatic stress disorder.

[5] These findings follow from the evidence of Dr Newburn whose diagnosis was not contested.

[6] I found these new character traits contributed to the wrong choices you made about equipping the boat for the trip and executing the return crossing of the bar. Your reduced ability to shift mindset meant you adapted poorly to unexpected events such as the boat’s flat battery and Mr Xu’s sea sickness. And your anxiety and…

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 Jones

Details

AGLC: R v Jones [2017] NZHC 1835
Case: [2017] NZHC 1835
Decision Date: 3 August 2017

CaseChat Overview and Summary

The defendant, Jones, was convicted of manslaughter after he and Erka Xu went fishing off the north Taranaki coastline in an inflatable rubber boat. The pair were thrown out of the craft when they re-crossed the Waitara bar and Xu drowned. Jones pleaded guilty to the charge of manslaughter, which required him to accept that he had caused Xu’s death by failing to take reasonable precautions against, or to use reasonable care to avoid endangering his life. The failure to take precautions amounted to a major departure from the standard of care expected of a reasonable person. The court heard evidence that Jones had a brain injury which affected his ability to make quick shifts of mindset, cope with unexpected situations, and led to him being more prone to anxiety and panic. Jones’s brain injury was found to be a mitigating factor in the offending. The court rejected Jones’s application for discharge without conviction on the basis that the consequences of a conviction were not disproportionate. The court accepted that Jones was remorseful and had provided great service to various communities in which he had lived as a music teacher, band leader and choir master. Jones was sentenced to pay reparations of $5,000 to Xu’s widow.

The court considered the gravity of the offending, the consequences of the conviction, and whether those consequences were disproportionate. The court found that the gravity of the offending was very serious, but Jones’s failures were omissions to take proper precautions rather than an active wrongdoing. The court also considered the consequences of the conviction, including the potential impact on Jones’s international travel and his teaching career. The court found that the consequences of the conviction were not disproportionate and dismissed the application for discharge without conviction. The court concluded that public acknowledgement of Jones’s responsibility for Xu’s death through the entry of a conviction was a proportionate response to the reality of the situation.

Jones was sentenced to pay reparations of $5,000 to Xu’s widow, Hou Huijing. The court considered that community work would add little to the satisfaction of the community and that reparations would be of practical assistance to Hou and her daughter at a difficult time in their lives. The court ordered that Jones make such payments as and when he was able.

Orders