R v McQuire - [2024] NZHC 2160

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-092-4602

[2024] NZHC 2160

THE KING

v

KEVIN ANDREW MCQUIRE

Hearing: 13 December 2024

Appearances:

N E Walker and A Al-Janabi for Crown

R M Mansfield KC and H R Smith for Defendant

Sentenced:

13 December 2024

SENTENCING NOTES OF WILKINSON-SMITH J

Solicitors/counsel:
Kayes Fletcher Walker, Auckland R Mansfield, Barrister, Aucklan

R v MCQUIRE [2024] NZHC 2160 [13 December 2024]

Introduction

[1] Mr McQuire, on 19 September 2024, you pleaded guilty to two counts of manslaughter.1

[2] When you pleaded guilty you accepted a sentence indication that I gave on 19 September 2024.2 I will attach my sentence indication to the sentencing notes as the indication forms part of this sentencing.

[3] My indication was a community-based sentence that would involve community work/and or a fine or reparation. I noted that the exact construction of your sentence would depend upon reports and information provided as part of the sentencing process but I was clear that it would not involve imprisonment.

[4]I will address the additional information in my sentencing today.

Offending

[5] I will briefly outline the facts of this offending. You are familiar with these as are the family in the courtroom today, but it is important that the facts form part of the public record. Outlining the facts in the way that I must is distressing for you and for the family of Gemma and Ryder and I would like to thank those of you who provided victim impact statements. I listened very carefully to them, and I can see and hear still the incredible harm that had been caused to your family.

[6] Mr McQuire, the deceased were your partner at the time and her young son. It is clear they are much-loved, and their tragic passing has devastated their family and I accept, you. I have listened carefully as I said to the victim impact statements and I express my condolences again to Gemma and Ryder’s family.

1 Crimes Act 1961, ss 156, 160(2)(b), 171 and 177. Maximum penalty: life imprisonment.
2 R v McQuire HC Auckland CRI-2023-092-4602, 19 September 2024.

[7] On the morning of 6 November 2022, you decided to take your 4.8 metre boat scalloping around the Manukau harbour. You are an experienced skipper in your sixties. You were accompanied on this trip by your partner, Gemma Ferregel, who was 38 years old, Ryder Ferregel, Gemma’s son who was 10 years old and two friends, Mr B and Ms D.

[8] Prior to launching the boat, you brought fuel, food, alcohol and you picked up a drag net from a friend. There were lifejackets aboard the vessel, but you did not check whether these were sufficient for everyone. You observed the weather and the tidal conditions from your home but did not check the conditions by any other means, including the Metservice marine forecast. The weather was fine at the start of the day but…

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 McQuire

Details

AGLC: R v McQuire [2024] NZHC 2160
Case: [2024] NZHC 2160
Decision Date: 13 December 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Kevin Andrew McQuire was sentenced for two counts of manslaughter. The case involved a tragic boating accident where McQuire, his partner Gemma Ferregel, and her son Ryder drowned after his boat capsized in Manukau Harbour. McQuire had pleaded guilty to the charges. The court had to decide on the appropriate sentence considering the nature of the offence and the circumstances surrounding it. The legal issues included determining the gravity of the offending, the degree of culpability, and the appropriate sentencing principles and purposes.

The court concluded that McQuire's actions fell below the standard expected of a skipper. Although there were some safety measures in place, McQuire failed to adequately check the weather conditions, the number of lifejackets, and other safety equipment. These oversights were pivotal in the tragedy. The court acknowledged McQuire's remorse and efforts to make amends, but also emphasized the need for accountability and deterrence. The sentence was intended to reflect the seriousness of the offence, the loss suffered by the victims' family, and the importance of public deterrence.

The court sentenced McQuire to six months of community detention with electronic monitoring and a curfew, along with one year of supervision under special conditions. Additionally, McQuire was ordered to pay $15,000 in emotional harm reparation to the victims' family. The sentence aimed to balance punitive measures with opportunities for rehabilitation and making amends. The court hoped this sentence would serve as a deterrent to others engaging in similar reckless behaviour.

Orders