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 panic at the crossing itself contributed to the poor choices you made.  These factors are mitigating in effect but not exculpatory.  That is not a complete answer but a partial answer.

Weather conditions

[7]      As to weather conditions, I accepted your evidence and that of Mr Smith and Mr Dodunski in relation to the climatic conditions prevailing at the time of the accident.   That is the weather at the Waitara bar was fine but very cold.   You described it as “bitterly cold”.

[8]      I relied on data provided by the NZ Met-service sourced from the weather station at New Plymouth airport, a few kilometres from Waitara, as generally reflecting correct wind conditions at the Waitara bar.

[9]      The wind was a south easterly off-shore breeze averaging around 14 kms p/h with gusts as high as 28 kms p/h.  When you prepared to re-cross the bar, according to you, the prevailing slight chop on the water had became “a brisk chop”.

[10]     I rejected the evidence of Mr Deakin and his friend Mr Ward who said that there was a strong onshore wind with heavy sea conditions when the boat put out and returned.  Though the evidence of both men was genuine and from their perspective truthful, I found it to be unreliable.  Their wind speed and direction estimates were inconsistent with contemporaneous meteorological data; their timing estimates were too obviously incorrect, and their recollection of detail (such as a small or medium sized dog being on board) was plainly incorrect.

The Waitara River and bar environment

[11]     The mouth of the Waitara River faces roughly north at the end of a two kilometre reach passing through the township of Waitara.   For the most part, the width of this reach varies between 70 and 100 metres by my estimate.  There is an old rock and cement groyne extending out in a dogleg alignment from the east bank at the river mouth. This groyne extends perhaps 150 metres into the sea.

[12]     Between 50 and 100 metres further out from the end of the groyne is a natural shingle bar which defines the outer limit of the river mouth environment.  Like all bars, it is subject to regular changes in shape and height in response to varying sea

and river conditions.  Those crossing the bar must therefore be constantly vigilant for the effects these changes may have on the manner in which the bar is to be crossed.

[13]     It is notorious that tree trunks and branches will collect at the mouth of the river and at the bar when and after the river is in flood.   This fact will become important as we shall see.

Tide and sea conditions

[14]     As to tide and sea conditions, you attempted to re-cross the bar at some time around 11.45 am that morning.  It was a full moon two days later on 1 July 2015 so the tides were building to spring-tide peaks and troughs.  High tide at Waitara was at

8.32 am reaching a maximum height of 3.2 metres on the day.   Low tide was at

2.48 pm falling to 0.5 metres.

[15]     Thus, the re-entry was just outside three hours after high tide, the very edge of acceptability for crossing the bar according to local custom.  Hours three and four of an outgoing tide are the times when outflow is fastest, and at this bar the evidence was that water speed on a falling tide can reach as much as 20 kms p/h.

[16]     Sea conditions were otherwise calm with a 1 to 1.5 metre swell breaking at the bar.  Sets were even and regular with a 10 second period between swell peaks. Water temperature was likely to be about 12 degrees Celsius, cold enough to cause hypothermia reasonably quickly.

Conclusions – tide and weather

[17]     So I conclude that the day was fine but cold and the swells were not overly large or more dangerous than usual.   But the combination of a gusting off-shore breeze, fast out-flowing tide and 1 to 1.5 metre swells meant that the waves coming onto the break were made to stand up more than usual, they ran more quickly and the sets closed up sharply at the bar.  This meant that the bar was still a very dangerous place to navigate at the time of re-crossing.   Care needed to be taken over safety equipment and the crossing itself in this inherently dangerous environment.

Safety equipment

[18]     That brings me to safety equipment.

[19]     Mr  Jones  you  own  a  4.7  metre  inflatable  rubber  boat  powered  by  a

40 horsepower, two stroke Yamaha.   You had purchased the boat second-hand six months earlier. The boat was in average condition for its age (it was manufactured in

2001). As to equipment available in the boat, it is common ground that: (a)  there were no lifejackets available at the time;

(b)the boat had no lanyard engine kill switch although the ignition was set up so that one could be easily attached;

(c)      there was no other safety equipment on board (including flares, radio and the like);

(d)      you did not take your phone; and

(e)      you used a boogie board as a seat replacement for the centre console on this craft but it was neither perceived nor generally used as a marine safety personal flotation device, although it fulfilled that role in this case.

[20]     I do not accept that it was your invariable practice to wear lifejackets when boating or when crossing the bar as you had said.  Rather, in my view, your practice was inconsistent.   Although you were adamant that you always carried and wore lifejackets; and although your evidence in this respect was corroborated by that of two of your fishing buddies (Mr Adlam and Mr Burnett), there were too many other independent and reliable witnesses who recalled incidents where they saw you and your passengers on the water or just off it without lifejackets to make it likely that the failure on the day was a complete aberration.   I refer in this regard to the

evidence of Mr Toa and Mr Dodunski.1   Mr Mansfield submitted that I should set all

of that evidence to one side as unreliable being momentary or passing recollections

1      Mr Toa’s evidence was that you were wearing a lifejacket but your passengers were not.

from relatively distant and occasional observers who were unlikely to have made careful and detailed observations at the time.  I did not accept that submission for two reasons.

[21]     First, all of those individuals are regular (often daily) visitors to the bar, and all struck me as locals who made it their business to note carefully the behaviour of those at the bar out of a sense of ownership or stewardship of a very important local resource.  In short, they made a point of who is using the bar and how it was being used.  The second point is that Mr Dodunski recalled that on an earlier occasion he had a conversation with you at the ramp about the fact you were not wearing a lifejacket.     You  denied  this  took  place,  but  I  much  prefer  the  evidence  of Mr Dodunski in this respect.  It was detailed, specific and credible.

[22]     I find that  you often carried lifejackets on  your  boat  and often required passengers to wear them when crossing the bar, but this was not your consistent practice.  It may well be that your brain injury contributed to this failure on the day. It may have meant that you quickly lost focus on detail such as safety equipment when preparations for fishing did not follow the usual predictable pattern.  It is very likely this contributed to the events of 30 July 2015.

The accident

[23]     I turn now to the accident.

[24]     You and Mr Xu arrived at the ramp that morning about 8.30 am intending to go out on the high tide but the IRB’s battery was flat.   You went to an auto- electrician and obtained another battery.  On the way back you stopped at Mr Xu’s accommodation so that he could speak to Ms Hou.  Then you returned to the ramp. You  arrived back  at  the ramp  some  time between  10  am  and  10.30  am.   This interruption required a mindset shift which since your accident you were not particularly adept at.  This may have contributed to the failure to ensure lifejackets were on board and worn.

[25]     You and Mr Xu put out on the Waitara River at some time between 10 am and

10.30 am, tested the new battery and then crossed the bar safely with plenty of water

under the boat.  You headed out in the direction of the Todd rig but no more than a few hundred metres past the bar.  You stopped at one of your favourite fishing spots, dropped anchor and began fishing, riding the moderate swell.   Mr Xu became ill with motion sickness and it was decided that  you should return to shore.   You attempted to re-cross the bar some time around 11.45 am.   You were in a hurry because of your ill passenger.  You entered the bar at the middle of a set.  In open water there was a 10 second period between waves in a set but closer to the bar the waves closed up reducing that gap appreciably.

[26]     You crossed the bar at an angle to the waves intending to make the line of the groyne on the river’s east bank and then turn in on a line parallel to the groyne on the river side.  You saw a log in your path at the point in the channel (as you saw it) that you needed to access.  Logs in this area, as I have said, were not uncommon.  You needed to take evasive action but could not cut right to avoid the log because it would be too shallow in that direction towards the bar.  So you cut left instead.  You avoided the log and then tried to make a hard right in order to cut back to the inside of the groyne.  Before you could properly straighten, you were caught by a wave on your rear starboard side.   This happened because you either overshot the wave in front of you in your haste to correct your direction and catch the back of that wave (which was the observation of the witness Mr Smith), or you were caught broadside by the wave behind you (which was your recollection).  It does not matter, frankly, which was the case.

[27]     A contributor to the situation may well have been your greater propensity to anxiety and panic.  A crossing at this time required a cool head and you may have struggled to maintain that.  This means you either came in far too quickly after your correction (causing the craft to overshoot) or after correcting, your angle of entry into the set was too oblique and the boat speed too slow (causing the craft to broach on the following wave). As the waves were standing up at this point, they caused the stern to lift and heel sharply, flipping you both out of the boat and into the surf.  You were immediately caught on that fast outgoing tide that I mentioned, and sucked back out past the bar along with the craft that was still right side up, engine running.

[28]     You had the presence of mind to grab the boogie board you had been using as a seat which must have been floating in the water at that time and swim it to Mr Xu to cling to while you swam to capture the boat.   But its outboard motor was still running as there was no ability to activate the kill switch, there being no lanyard on board to which you could attach yourself.  In the more even sea past the bar, the boat simply slowly circled but you could not catch it.  A surfer eventually did and the craft was brought under control again.  By this time a rescue helicopter was hovering over the boat and an ambulance and police were onshore because Mr Smith who was watching had made a call to emergency services.   Mr Xu was retrieved and you returned to shore but he could not be resuscitated.   It is not known how long you both were in the water before the craft was recaptured but it was likely long enough for Mr Xu to be overcome with hypothermia, lose his grip on the board and drown.

[29]     Now, those are basic facts.   Through your counsel you have applied for a discharge   without   conviction   because,   you   argue,   the   consequences   of   a manslaughter  conviction  would  be  out  of  all  proportion  to  the  gravity  of  your offence.

[30]     Before  I consider that  application,  I will first  go through the process  of assessing the gravity of the offending.  I am going to set out the circumstances of the offending,  compare  your  case  with  other  cases,  and  then  discuss  your  personal factors.  At the end of that, I will come to a conclusion as to appropriate sentencing category, and then move to your application for discharge without conviction.

Aggravating and mitigating factors of the offending

[31]     So  I  am  going  to  start  with  aggravating  and  mitigating  factors  of  the offending. That simply means the pluses and minuses of the offending itself.

[32]     The relevant elements of your “major departure from the standard of care

expected of a reasonable person” were as follows.

[33]     The failure to carry lifejackets on board and ensure that both you and Mr Xu wore them for the bar crossing.  While New Zealand boaties cross river and harbour bars every day, they are inherently dangerous places in which the margin between

safe   passage   and   life   threatening   catastrophe   can   be   very   narrow   indeed. Rule 91.4(6) of the Navigation Safety Rules require lifejackets to be worn when crossing a bar.  That is because they are places where “tides, river flows, visibility, rough seas, adverse weather, emergencies or other situations caused danger or a risk to the safety of a person on board any vessel …”.  If Mr Xu had been wearing an appropriately fitted lifejacket, his chances of survival would have been greatly increased both because of the additional warmth and protection from hypothermia that a lifejacket provides, and also because it would have kept his mouth and nose out of the water.

[34]     Next, you did not have on board an emergency kill switch lanyard.  This is a device by which the skipper is attached to the ignition switch.   It is designed to prevent just what happened here, which is that it took you too long to recapture the boat after being ejected from it.  A rubber inflatable craft sits low in the water with very low gunwales.  It is difficult to flip one and impossible to sink one, but it’s very easy to be thrown out of one in surf conditions.  Such a switch serves two important purposes.  One, it stops the boat running away, as it did here; and two, it prevents the boat in that runaway state, from running over and killing those who have been thrown into the water.  There is no doubt that if you had had a kill switch lanyard on board, Mr Xu would still be alive today.

[35]     Compounding these two leading factors was the third factor of timing and conditions.  You re-crossed the bar at a bad time: strong outgoing tide, fighting a moderate swell – three hours from high tide – right at the edge of local acceptability for re-crossing.   So there was real risk in the choice you made.   And the related factor was air and water temperate.  By your own admission both were very cold. This meant you entered an inherently dangerous zone (the bar), without protection, in circumstances where even a small mistake was very likely to have catastrophic consequences.

[36]     There are two mitigating aspects of your offending, in my view.  The first is the psychological vulnerabilities from which you suffered following your traumatic brain injury in 2013.  That is your accepted difficulty with making quick shifts of mindset to cope with unexpected situations, and the fact that the injury had caused a

shift in personality towards someone more prone to anxiety and panic.  There is a further element and that is, according to the clinician who gave evidence in this respect, you are not necessarily aware of these personality shifts.  As far as you are concerned you are simply an experienced and competent boatie who loves fishing. As I have said, I am satisfied that these characteristics contributed to the mistakes you made both in terms of safety equipment on board and in terms of the manner in which you dealt with the unexpected flat battery problem, Mr Xu’s unexpected sea sickness and, most importantly, the unexpected presence of a log blocking your re- entry into the river mouth.  You made judgement errors that were contributed to, if not entirely explained by, your brain injury.  I cannot give a proportional percentage. I simply find that its contribution was material.   And I will come back to that subsequently under personal factors only because it is easier to do it there.

[37]     A second mitigating factor of the offending was that having been thrown into the water you immediately moved to help Mr Xu.  You did not just think of yourself. You carried the only flotation device available on the craft to him and you ensured that he was safe as could be before you returned to the inevitably hopeless task of pursuing the boat.  In short, you did what you could in the circumstances to limit the impact of your error.

The cases

[38]     Now Mr Jones it is not my practice to discuss case law in sentencing remarks. I view this sentencing, indeed every sentencing, as an opportunity primarily to speak directly to you rather than to the lawyers in the room.   But this case is a little different  because  it  is  the  first  time  that  facts  such  as  these  have  led  to  a manslaughter charge.  I must therefore turn briefly to consider how other cases have been approached by the courts in the past.   I will keep this discussion, though necessary, to a minimum.

[39]     Two marine accidents causing death have led to manslaughter charges in the past.  Both involved jet ski accidents.  In R v Tomasi,2 the 18 year defendant was at a

picnic where jet skis and kayaks were available for use.  He was given instructions

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

on use of the jet ski but disobeyed all of them.  The instructor saw his dangerous behaviour and ordered him back to shore but he refused, struck a kayak and killed one of the people on board.  A starting point of four to five years’ imprisonment was adopted in that case before deductions were made.

[40]     In R v Hare,3 Mr Hare who was a novice with a jet ski failed to read a notice written on the jet ski that it could not be turned except when the throttle was on and he hit a runabout having throttled off in a misconceived attempt to turn and evade it. The Court of Appeal found the offending to be very serious – the jet ski speed was too high, Mr Hare had failed to read the warning notice on the jet ski and had failed to keep a proper look out for others in the area.  He had also gone into a rocky area and so restricted his options for evasion before he struck the boat.   The Court of Appeal upheld the High Court sentence of 18 months’ imprisonment in that case.

[41]     In   this   case,   and   I   am   referring   here   to   your   written   submissions Mr Marinovich, not what you said to me orally, the Crown argued that Hare is the best comparison to your facts.  I am unable to agree with that.  I do not think your case is near as serious as Hare.  Mr Hare’s sins were sins of commission.  He rode too fast and he did not understand how to operate the jet ski properly. Your sins were of omission.   You failed to take proper precautions in circumstances where those precautions were very much necessary.  I see the culpability between your case and Mr Hare’s as very different.

[42]     In my view, your case is similar to but somewhat worse than that of Maritime New Zealand v Newlands,4 subject to what I am going to say about the brain injury issue shortly.  There, the defendant took his runabout through a dangerous reef with his son and two friends on board.  Weather conditions were bad.  The children were wearing lifejackets and he checked that they were correctly fitted but did not check again 15 minutes later before actually going through the reef.  A large wave flipped

the boat and one of the boys was lost.   His body was found later without the lifejacket on him.   The Judge found as a fact, that the top clip of the jacket was

undone and the bottom of the jacket had only been loosely fitted.  Of course it is not

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

4      Maritime New Zealand v Newlands DC Tauranga CIV-2005-047-286, 3 March 2006.

exactly the same as your case Mr Jones, life jackets were at least worn in Newlands. But no two fact situations are ever exactly the same, and it is the elements that are important.  In Newlands, the skipper went out in bad conditions to a dangerous place with children on board whose flotation devices he did not fastidiously check.   I consider the similarity is the lack of appropriate care over boat safety in potentially dangerous circumstances leading to an accident which itself was not the fault of the skipper.  Your case is somewhat more serious than Newlands because you had no safety equipment on board at all, but it is within the band occupied by Newlands, in my view, and certainly not that occupied by Hare.

[43]     In Newlands the charge was not manslaughter but merely operating a ship in a manner causing unnecessary danger or risk in breach of s 65 of the Maritime Transport Act 1994.   The maximum penalty for that offence is 12 months’ imprisonment or a $10,000 fine.   Obviously the charge in that case is much less serious than manslaughter.   The penalty imposed in that case was 150 hours community work and $1,800 emotional harm reparations.

[44]     While  I  acknowledge  the  difference  in  charge  between  your  case  and Newlands, there is still much to be said for broadly consistent penalties where there are  strong  factual  similarities  even  in  the  context  of  different  but  overlapping charges.

Aggravating and mitigating factors of the offender

[45]     I turn now to any relevant factors relating to you personally.  I find there are no aggravating factors.

[46]     As to mitigating factors Mr Jones, you have pleaded guilty and accepted responsibility.  You have no prior convictions of any kind and have led an essentially exemplary life.  You have provided great service to various communities in which you have lived as a music teacher, band leader and choir master.  In particular, you have, on a purely voluntary basis, established choirs and bands in Waitara with a view to introducing the community to the joy of music and singing.  And you teach music therapy to disabled children, or at least you have in the past.  I do not consider

it to be an overstatement to say that through teaching and music you have led a life of service to your community.

[47]     There is also the discount appropriate for your brain injury.   This may be discounted either as an aspect of your offending culpability, or as an aspect personal to you.  It does not really matter which as long as it is not double-counted.

[48]     You are full of remorse of that there can be no question.   I consider this remorse to be completely and unconditionally genuine.  You had become fast friends with Mr Xu over the course of a couple of days.   I had the opportunity to watch Mr Xu sing Chinese opera while fishing at the bar, or at the river mouth at least, on one of the videos that you have provided me Mr Jones.   Some may say this development of firm friendship fast to be a little strange but I don’t doubt it.  In fact I see it as a part of your outgoing personality, at least on my assessment of you as a witness.

[49]     It is also relevant in this context that Mr Xu’s widow Hou Huijing (or Judy) holds no ill-will towards you and wishes you only well for the future.   This is, I think, a testament to the regard Mr Xu’s family holds you in despite what happened. I was struck by her victim impact statement.  She said: “Straight up, as they say, I would like to say I have forgiven the offender Teiron.”  She continued: “Teiron is lucky to be alive and I do not want him to be tortured by what happened to my deceased husband.  I do not want Teiron’s family to suffer the pains and sorrows our family have gone through.  I only want to say to be living is wonderful and please treasure our lives.”

[50]     This is, if I may say so, an extraordinary act of forgiveness.   It is a tribute both to Ms Hou and to yourself if I may so Mr Jones.

[51]     Another mitigating  factor is  you  are of  course  not  a  young man.    So  I consider that a sentence of imprisonment cannot be justified even as a starting point in this case.  Rather, the gravity of the offending would ordinarily be reflected in a community-based sentence other than imprisonment.

Discharge without conviction

[52]     That brings me to discharge without conviction.

[53]     A three-stage test is to be applied.   I must first assess the gravity of the offending; then the consequences of the conviction; and then assess whether those consequences are disproportionate.5

[54]     I have discussed the offending at length.  Its gravity is of course very serious, a life was lost.  And your role in it is accepted to be a major departure from the standard of care that should have been exhibited.  This is inherent in the charge.  But as I have said, your failures were omissions to take proper precautions rather than an active wrongdoing, and that reduces culpability.   So do your own personal circumstances that I have already discussed.

[55]     As  to  the  consequences  of  a  conviction,  there  can  be  no  doubt  that  a conviction for culpable homicide is a serious consequence in and of itself.   Your counsel  suggests  you  could  lose  your  teacher’s  registration  and  may  well  be prevented from travelling to the United States or the Philippines – both places you wish to visit for personal reasons.

[56]     For myself, I do not think these are the problems you suggest that they will be.  First, any ramifications for your registration as a teacher will be for the Teachers’ Registration Board and not this Court, and it is generally seen as inappropriate for the court to attempt through discharge without conviction to shield an offender from the consequences of that formal quasi judicial inquiry.   May I say however, that I would be most surprised indeed if these circumstances led to any negative consequences for you as a registered teacher.

[57]     As to travel, US immigration requires disclosure not just of convictions but of charges.   So a discharge without conviction actually would   not practically assist you.  I do not know about the Philippines government’s rules are, but I suspect they

will be the same.

5      DC (CA47/13) v R [2013] NZCA 255 at [31].

[58]     I would say this Mr Jones, I am very sympathetic to your situation.   The events that led to Mr Xu’s death should not affect your international travel because those events say nothing about your credibility or your reputation as a New Zealand traveller.  Nor did they say anything about your appropriateness or safety as a visitor to other countries. The facts demonstrate this clearly.

[59]     Other consequences you point to are the need to confront and explain the position  to  your  choirs  and  bands  and  pupils,  and  there  may be  issues  around teaching music to local children with special needs and disabilities through music therapy.  Again, I think that is possible, but I have to say I find it difficult to accept that your small community in Waitara is unaware of your current predicament and the  circumstances  that  have  led  to  it.    I cannot,  for  myself,  see  how  a  formal conviction as opposed to a discharge without conviction is going to change any of that.  Your community, including your musical community, will judge you for what you have admitted to doing, not whether the court adds its imprimatur by entering a formal conviction, in my view.

[60]     There is also the potential impact on your daughter who as we have seen has significant  mental  health  issues.    Once  again,  I  cannot  see  the  logic  of  this submission.  Your daughter has been significantly affected by these events as have been you.   Formal conviction I cannot see will make any difference to that.   For myself, I say respectfully, that I think that issue is overstated.

[61]     So turning finally to proportionality, I do not consider that a conviction for manslaughter is disproportionate in your case Mr Jones.   Rather, despite your deserving background, I consider it to be a proportionate consequence.  Let me tell you why.

[62]     I read you as a man with strong values.  A man with a strong sense of right and wrong.  I read you as a man willing firmly to take responsibility.  Frankly that is a  relatively  rare  thing  in  this  forum.    I  expect  you  deep  down  to  accept  that conviction is a necessary response to that responsibility.   It does not necessarily reflect negatively upon you once the facts are understood.

[63]     Mr Xu drowned on your watch.  You put him in harm’s way by crossing that bar at a problematic time without the necessary safety equipment.   You are responsible for putting both him and you in a situation where even the slightest mistake would have the most serious consequences.   I consider that public acknowledgement of those facts through the entry of a conviction is a proportionate response to that reality.

[64]     I therefore dismiss the application for discharge without conviction. And I do that not because I have some view that the community needs to be educated about water safety and bar crossings, I do it out of an intimate assessment of you as a man and these facts.

[65]     So my conclusion, if I can put it this way, is ironically a deeply respectful one.

Sentence

[66]     That leaves me with what the appropriate sentence should now be.

[67]     Bearing in mind your culpability is closer to Newlands than Hare, a starting point of around 300 hours community work would be appropriate.

[68]     I consider that you should be entitled to a full discount for guilty plea.   I realise this case has not been one in which the guilty plea was entered at the earliest possible time, but given the justifiable contention over the factual basis for sentencing, and the fact that this tended to spill over into the question of whether the charge  was  appropriate  at  all,  I do  not  think  your  late  plea  should  be  to  your prejudice.

[69]     From a starting point of 300 hours community work, I would deduct 25 per cent  for  your  psychological  issues.    And  a  further  discount  of  15 per  cent  is appropriate for remorse, previous good character, service to the community and the informal restorative justice that led to Ms Hou’s supportive victim impact statement. You are also entitled to a 25 per cent discount for your guilty plea.  That leaves a prima facie end sentence of 135 hours community work.

[70]     That’s what the calculator would say.  But stepping back it seems to me there is a more just and fitting penalty in your case Mr Jones.  I consider that instead of doing  community  work  you  ought  to  be  required  to  provide  Ms  Hou  with reparations.  In my view anything more to cite Justice Baragwanath would do more harm than good.  Ms Hou is now a solo mother with a young daughter, a 13 year old daughter entering those difficult years.  Reparations will be of practical assistance to her at a difficult time in her life and in the life of her daughter.  The community will have had satisfaction simply through the entry of a conviction that, in my view, is enough.  Community work will add little to that.  But reparations for Ms Hou and her daughter will be of enormous benefit to her.

[71]     Please stand.

[72]    Mr Jones after that lengthy discussion, you are therefore convicted and discharged and ordered to pay reparations of $5,000.  You will make such payments as and when you are able.

[73]     Please stand down.

Williams J

Solicitors:

Crown Solicitor, New Plymouth for Crown

R Mansfield, Barrister, Shortland Street, Auckland for Defendant