R v McQuire
[2024] NZHC 2160
•13 December 2024
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 it deteriorated from late morning.
[9] At approximately 11.30 am, you launched the boat from the Te Toro Bay boat ramp and headed towards the Wairarapa Channel. All of the adults on board consumed alcohol but not to the point of intoxication.
[10] By midday the northeasterly winds had strengthened and began gusting from 20 to 25 knots, and the tidal flow opposed the wind direction steepening the waves — this continued throughout the afternoon. That meant that the boat was exposed to the full strength of the northeasterly winds and waves after it rounded Karaka Point and entered Manukau Harbour. These worsening weather conditions were reflected in progressive updates to the Metservice marine forecast for Manukau Harbour — but you did not check that and so you were not aware of any forecast.
[11] While in the Harbour you used the drag net to do some scalloping. Ryder had been wearing a lifejacket until this point, but he asked to take it off while he was scalloping. No one else was wearing or had been wearing a lifejacket. You allowed Ryder to steer the boat in the last drag and consequently realised that the boat was considerably off course.
[12] You then took control and accelerated in an attempt to bring the boat back on course. During this time the boat was struck by two waves in quick succession causing it to capsize and throw all its occupants into the water. Ryder was initially trapped under the boat but was rescued by Mr B.
[13] Despite several attempts you were unable to right the vessel. The lifejackets were inaccessible after capsizing; and there were not enough for all the passengers. You were unable to call for help as the boat had no radio and your cell phones were submerged in a pocket of the boat.
[14] All five of you remained with the capsized boat for approximately four to five hours, until Mr B and Ms D swam to shore to raise the alarm. It took them two and a half hours to reach the shore. You, Ms Ferregel and Ryder remained with the boat until you discovered that you were on a sandbar and could touch the bottom. The three of you decided to walk along the sandbar. You towed the boat until it became lodged on the sandbar. You elected to leave the boat and continued to walk along the bar carrying Ryder on your back. Of all the decisions you made that day, I imagine that is the one you most regret.
[15] The sandbar then abruptly ended causing the three of you to fall into deep sea water. You all unsuccessfully attempted to swim back onto the sandbar.
[16] Ms Ferregel and Ryder struggled to stay afloat. You described attempting to keep them above water by diving down to stand on the seabed and hoist Ms Ferregel up, who in turn supported Ryder. You were unable to keep Ms Ferregel and Ryder afloat, who both went under the water and subsequently drowned.
[17] You treaded water for a further 30 minutes before you were rescued by the Police Air Support Unit and the Coast Guard. Ms Ferregel’s body was recovered, but despite a 15-day extensive search and rescue operation, Ryder’s body was never found.
[18] You acknowledged that you were aware that it is the skipper’s responsibility to keep all passengers on board safe. You said that the weather had been choppy but not too bad. You admitted that you failed to check the number of life jackets or other safety equipment such as flares before setting out.
[19] Your failure to undertake several safety precautions, in breach of the maritime regulatory framework, constituted a failure of your obligation to take reasonable precautions and use to reasonable care to avoid danger when in charge of a dangerous thing.3 These precautions included:
(a)Failing to ensure that adequate lifejackets were onboard and that passengers were wearing lifejackets.4
(b)Failing to ensure that you had adequate forms of communication.5
(c)Failing to check the weather conditions, beyond assessing the Harbour as “flat” and “calm” from your terrace, on any of the available applications or websites that provide such information.
Principles and purpose of sentencing
[20] As I said in my sentence indication, no sentence can reflect what you, Ms Ferregel and Ryder’s family have lost.
[21] In sentencing you, I must have regard to the purposes and principles of sentencing. I consider the relevant purposes of sentencing in your case include: holding you accountable for the harm you caused; promoting in you a sense of responsibility for, and an acknowledgement of that harm; denouncing
3 Crimes Act 1961, s 156.
4 Maritime Rules, r 91.4; and Auckland Council Navigation Bylaw 2021, rr 19 and 20.
5 Auckland Council Navigation Bylaw 2021, r 34.
and deterring your conduct; and assisting in your rehabilitation and reintegration.6
[22] The relevant principles of sentencing include: taking into account the gravity of the offending, including your degree of culpability. On the degree of culpability, I note that the culpability justifies the charges of manslaughter, but there were many points in this incident where bad luck came into play, and I do acknowledge that. It is absolutely tragic that Ryder and Gemma died within half an hour of rescue, having survived five hours. I take into account the level of seriousness of your offending; the general desirability of consistency with appropriate sentencing levels in similar cases; the impact of the offending on the victims; and the need to impose the least restrictive outcome in the circumstances.7 I must also take into account your personal, whānau, community and cultural background in imposing sentence.8
Sentence indication
[23] In my sentence indication, I disagreed with the Crown’s assessment of the aggravating factors of your offending instead viewing them as factors that elevated this incident from a tragic accident to manslaughter. I noted that the incident was preventable and that you had several opportunities to prevent it.
[24] I also noted that whilst your offending involved misjudgement of the weather conditions and oversight of safety equipment, you did not overtly risk the lives of your passengers and did not altogether ignore safety precautions.9 I considered that your actions fell below the required standard of a skipper — as I said at the sentence indication, you failed to plan for or consider the worst- case scenario where the boat capsized leaving what safety precautions you did have, the life jackets in the boat and the cell phones, inaccessible.10
6 Sentencing Act 2002, s 7(1)(a), (b), (e), (f) and (h).
7 Section 8(a), (b), (e), (f) and (g).
8 Section 8(i).
9 R v McQuire, above n 2, at [31].
10 At [33].
[25] I considered that starting point of imprisonment sought by the Crown was unrealistic and noted the availability of a 20 per cent guilty plea reduction. No uplift was imposed at the indication for your previous convictions. I recorded my view that this matter would not attract a sentence of imprisonment.
[26] I determined that your end sentence would be community-based involving community work and/or a fine and reparation.11
[27] I turn now to determine the exact construction of your community- based sentence.
Personal circumstances
[28] You participated in a restorative justice conference with Gemma’s sister who is of course also Ryder’s Aunt and Gemma’s brother, also Ryder’s uncle. At the conclusion of the conference, you acknowledged the damage that your actions had caused, your love for the victims, and your hope for the future. The resulting report does indicate remorse for the harm that your offending has caused, and as I indicated to your counsel, there is a real disconnect between the person I see in the letters you have written to me and in the information provided by your family, your son and your daughter; and the face you presented to Gemma and Ryder’s family. I am not entirely sure of the reason for that, but it may come down to your inability to communicate, the guilt and shame you felt and inability to dealt with the grief the family were feeling. I do not see a lack of remorse in the letters you have written, I see considerable remorse and it is a shame that has not been able to be expressed to the family.
[29] Your counsel says that your engagement in the restorative justice process demonstrates your desire to take steps to address your offending and acknowledge the impact that it has had. I was disturbed to discover that you had been involved in an incident of drink driving after this because it is another form of behaviour that shows a lack of awareness of consequences and that
11 At [40].
endangers the public, but since that you have taken responsibility. You have gone to AA and you now describe yourself as 200 days sober. I think in your case staying sober is a very good idea.
[30] The pre-sentence report notes you accept that you failed to do your due diligence as the boat owner and skipper. You said that you were “old-school” and preferred to assess the weather with your own eyes rather than look at what an app says, you also said that lifejackets slipped your mind, which is something no skipper should ever say. I note though that there was a life jacket available for Ryder and he was wearing it initially.
[31] The report writer assessed you as being a low to moderate risk of re- offending and notes that since offending you accumulated a further conviction for driving with excess breath alcohol. The writer considered that your lack of consideration for others and lack of consequential thinking has been a consistent factor in your offending. I see that lack of consequential thinking in the way that the funeral progressed. I do not think you appreciated at all what that funeral was like for the family. I think that your lack of consequential thinking is probably something that is simply in the way that you are and not entirely your fault, but you need to be aware of it. Your ability to comply with a sentence imposed by the Court is assessed as high. Your compliance with previous community-based sentences was satisfactory.
[32] The report says that a sentence of community work is not recommended as: you have recently undergone a knee replacement and are due to have another soon meaning that you will be unable to attend community work for an extended period of time; and there are no community-based placements in your area — limiting your ability to be placed on light duties. The report recommends a sentence of home detention noting that such a sentence would allow you to continue working with your counsellor and access necessary services and departmental programmes. The report notes that the same programs could be achieved on a sentence of supervision and suggests an alternative of community detention and supervision.
[33] Your counsel says that recognition must be given for your response to the offending. He says that you have taken responsibility for your failures, by pleading guilty, and have apologised to the victims’ family during the restorative justice conference. You have also sought professional help and support and I accept that is indeed the case. You have taken responsibility, you have shown remorse — the way in which you deal with that, I think Gemma Ferregel and Ryder’s family struggle to accept, and I think there was ill feeling before this happened that still remains.
[34] I have also seen a letter that you have written. You describe the life you had built with Gemma, Ryder and his brother, and many positive aspects of that life. You also describe your efforts to improve including attending AA and at the time of writing the letter you were 199 days sober. You have attended regular counselling.
[35] Your son and daughter have written letters and spoken of you as a father in the highest possible terms. It is clear that you are an excellent father to them, and they love you very much.
[36] I was and am impressed by the tangible efforts you have made to look after Ms Ferregel’s surviving son financially. From what I have seen of the trust and heard in your letter, you have set him up financially and he is the beneficiary of a trust which owns a house. You tell me you continue to pay money into his account each week and that money that had been put in Ryder’s account has been transferred to him. I consider that he is well provided for but of course that cannot make up for the loss of his mother and brother.
Discussion
[37] Mr Mansfield, on your behalf, says that the indicted sentence of community work in combination with reparation remains appropriate. He says that your knee replacement does not prevent you from engaging in less physically arduous contributions to the community, and that the fact that Franklin Community Corrections centre are unable to offer light duties is not a reason to depart from a sentence of community work. Mr Mansfield says
that you are able to travel to other community locations, and that alongside your probation officer you will be able to identify a suitable supervised community work opportunity.
[38] Mr Mansfield submits that, if necessary, a sentence of supervision may provide oversight and an additional level of accountability over your continued engagement in counselling. It is further noted that the Court should have regard for the mechanism of your family trust for Ms Ferregel’s surviving son to receive what was the family home.
[39] The Crown indicates that the least restrictive outcome may involve a combination of sentences including: an order to pay emotional harm reparation to the victims’ family; and a service of community detention and supervision.
[40] The Crown notes the unsuitability of a sentence of community work given the restrictions raised in the pre-sentence report but does not take as firm a stance on that today having seen Mr Mansfield’s submissions. You are willing to pay a “substantial amount of reparation”. Reparation in cases of manslaughter varies but general falls between $5,000 and $20,000 — often in cases of motor manslaughter, where in my view the actual behaviour is worse than your behaviour. Emotional harm reparation is always difficult because it is in no way a payment or compensation, it simply recognises emotional harm to the extent that it can be recognised. In this case there is significant emotional harm that comes out of the ill feeling towards you by the victims’ family and a feeling that Gemma and Ryder were not properly honoured in their funeral.
[41] The Crown submits that it would be appropriate for your end sentence to include a financial component and I agree with that. The Crown emphasises that should the Court impose emotional harm reparation in lieu of a fine, the financial component of the end sentence should go entirely to the victims’ family. The Crown says that you appear to be in a healthy financial state, and you have confirmed that and confirmed you are in a position to make a payment of $15,000 in emotional harm reparation.
[42] It is submitted that the community detention part of your sentence would hold you accountable for the harm caused by your offending and denounce and deter others from offending in a similar way; and that the supervision part would ensure that you receive necessary assistance from Corrections.
[43] As identified in my sentencing indication, I considered your offending most comparable with that in R v Jones,12 Maritime New Zealand v Newlands,13 R v Scott,14 and R v Parson.15 In both Newlands and Parson a combination of both community service and reparation was awarded. In Jones and Scott reparations of $5,000 and $16,800 were awarded respectively. In this case I have to take into account that two lives were lost and one of the lives was a child which increases the emotional harm component and also increased your culpability because of the vulnerability of the child that was in your case.
[44] I indicated that your end sentence would be community based, involving community work and/or a fine and reparation. In sentencing you I must take into account particular circumstances that would mean that a sentence that would otherwise be appropriate would be inappropriate or disproportionate.
[45] I have considered whether a sentence of community work should be imposed despite your physical limitations. However, given the potential difficulties you would face serving a sentence of community work and the fact that it is not recommended I do not consider community work to be appropriate.
[46] There must be a punitive element. Supervision is a sentence that is largely rehabilitative and that is appropriate, because it is important that you do have the opportunity to rehabilitate. But it is important for the family of Ryder and Gemma that there is a punitive element. It is important that I do not
12 R v Jones [2017] NZHC 1835.
13 Maritime New Zealand v Newlands DC Tauranga CIV-2005-047-286, 3 March 2006.
14 R v Scott [2015] NZHC 3239.
15 R v Parson HC Christchurch CRI-2003-025-4488, 4 June 2004.
lose sight of the fact that the charge is manslaughter, and two lives were lost including a child. There is also a need to remind the community through this sentencing process of the tragedy that can result from a she’ll be right attitude. As we go into summer there will be so many men just like you with years of boating experience behind them heading out with their families. Those same families put complete trust and confidence in them and while you and others like you would do anything for your loved ones if you recognise danger – there is a risk of over confidence and a failure to plan for the worst-case scenario. I know what you would now say to other old school boaties and I hope that those who read about what has happened will think twice letting kids take life jackets off, heading out without checking the weather and failing to carry life jackets and make sure they are used. The publicity which makes you feel ashamed and as you said in our letter, like a pariah, is important – it could prevent another tragedy. That is a consequence that you must accept in the hope it reminds other skippers to take more care this summer.
[47] You are financially secure, and I do not consider that a purely financial sentence would in any way meet the principle and purposes of sentencing and that is not suggested. I also consider that you have made sufficient and in fact very generous financial reparation to Ms Ferregel’s surviving son.
[48] I come to the conclusion that the Crown position in its written submissions is correct. The sentence will be community detention coupled with supervision. I also intend to order emotional harm reparation to be paid to Gemma and Ryder’s family and to be shared between Ryder’s father, Gemma’s siblings and her parents.
Result
[49]Mr McQuire would you please stand.
[50] You are sentenced to community detention for a period of six months. You will be subject to electronic monitoring and to a curfew at your address at 217 Lees Gully Road from 7 pm to 7 am, seven days a week. First curfew to begin tonight.
[51] You are sentenced to supervision for a period of one year on the special conditions set out in the PAC report.
[52]You are ordered to pay emotional harm reparation in the amount of
$15,000.
[53]Stand down.
Wilkinson-Smith J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-092-4602
THE KING v
KEVIN ANDREW MCQUIRE
Hearing: 19 September 2024 Appearances:
A Al-Janabi for Crown
R M Mansfield KC and H R Smith for Defendant
Sentence indication:
19 September 2024
SENTENCE INDICATION OF WILKINSON-SMITH J
Solicitors/Counsel:
A Al-Janabi, Kayes Fletcher Walker, Auckland R Mansfield, Auckland
H R Smith, Auckland
Introduction
[54] Mr McQuire, you are charged with two counts of manslaughter.16 The parties have provided an agreed statement of facts, and you now seek a sentence indication on the basis of those facts.17
Offending
[55] The facts of this offending are tragic. The deceased are a much-loved mother and her 10-year-old son: your partner at the time and her son. I want to acknowledge again Gemma and Ryder’s family who are in Court and thank them for the victim impact statements which I have read. Sentencing, and sentence indications, in this sort of tragic situation can never account for the kind of loss that is suffered. I know that you will find the process distressing and I am sorry for that.
[56] I must set out what happened. Again, I know that is distressing to those listening, but it is a requirement that I do so.
[57] On the morning of Sunday 6 November 2022, you decided to take your boat out scalloping around the Manukau Harbour.
[58] You are an experienced skipper in your sixties, and you owned a 4.8 metre boat. Your partner Ms Gemma Ferregel, who was 38 years old, and Ms Ferregel’s 10-year-old son Ryder went with you in the boat together with two of your friends, Mr B and Ms D.
[59] Before launching the boat, you bought fuel, food, alcohol and picked up a drag net from a friend. You had some life jackets on board, but you did not check whether there were sufficient life jackets for everyone. You observed the weather and tidal conditions from your home, but you did not check the conditions by any other means, including the Metservice marine forecast.
16 Crimes Act 1961, ss 156, 160(2)(b), 171 and 177. Maximum penalty: life imprisonment.
17 R v McQuire HC Auckland CRI-2023-092-4602, 17 July 2024 (Minute of Andrew J).
[60] Although the weather was fine at the start of the day, it deteriorated from late morning.
[61] At approximately 11:30 am, you, Ms Ferregel, Ryder and your friends launched the boat from Te Toro Bay boat ramp and headed towards the Wairarapa Channel. All the adults consumed alcohol while on board, but no one was intoxicated.
[62] By midday the northeasterly winds had strengthened and were gusting from 20 to 25 knots, which continued throughout the afternoon. Once the boat rounded Karaka Point and entered the Manukau Harbour, it would have become exposed to the full strength of the northeasterly winds and waves. The worsening weather conditions were reflected in progressive updates to the marine forecast for the Manukau Harbour by the Metservice, but you did not check the marine forecast.
[63] While out on the Harbour, you put out the drag net and did some scalloping. None of you were wearing a lifejacket at this stage. Ryder had been wearing one but had asked to take it off when he was scalloping. You allowed Ryder to steer the boat in the last drag, resulting in you realising the boat was considerably off course.
[64] You then took control and accelerated in an attempt to bring the boat back on course. During this time, the boat was struck by a wave, quickly followed by a second wave, causing the boat to capsize and all the passengers to be thrown into the water. Ryder was initially trapped under the boat, but your friend Mr B swam under the boat to rescue him.
[65] Despite several attempts, you and your friends were unable to flip the boat over. The lifejackets on board were inaccessible after the capsizing, and there were not enough on board to go around. You were also unable to call for help as the vessel had no radio on board and your cell phones were submerged in a pocket of the boat.
[66] All five of you remained with the boat for approximately four to five hours, before your friends Mr B and Ms D decided to swim to shore to raise the alarm. It took them around two and a half hours to reach the shore.
[67] You, Ms Ferregel and Ryder stayed with the boat for some time before you discovered that you were on a sandbar, and you could touch the bottom. You decided to walk along the sandbar towing the boat until the boat became lodged on the sandbar. You decided to leave it there and continued walking with Ryder on your back.
[68] As you walked along the sand bar, it ended abruptly causing all three of you to fall into deep sea water. You all unsuccessfully attempted to swim back onto the sandbar.
[69] Ms Ferregel and Ryder were unable to stay afloat. You describe attempting to keep them above the water by diving down to stand on the seabed and hoist Ms Ferregel up, who in turn supported Ryder. You were unable to continue to keep them afloat. Ryder and Ms Ferregel went under the water and subsequently drowned. You continued to tread water for 30 minutes before being rescued by the Police Air Support Unit and the Coast Guard. Ms Ferregel’s body was recovered but, despite 15 days of an extensive search and rescue operation, Ryder’s body was never found.
Mr McQuire’s comments
[70] Subsequently, you explained that the weather had been choppy but not bad from what you could see. You said you had prepped the boat before heading out but admitted to not checking the number of lifejackets or other safety equipment, such as flares. You stated that Ryder was wearing a lifejacket during the scalloping, but it was riding up, so he asked Ms Ferregel to take it off. No one else wore lifejackets.
[71] The boat’s original radio was not working and had not worked since you acquired the boat 10 years ago. You didn’t check the sea/weather online, you relied on what you could see from your deck and it looked calm to you.
[72] You acknowledged that you were aware it is the skipper’s responsibility to keep all passengers on board safe.
Maritime regulatory framework
[73] Crown counsel submit that you failed to undertake a number of safety precautions, in breach of the maritime regulatory framework, that constituted a failure of your obligation to take reasonable precautions and to use reasonable care to avoid danger when in charge of a dangerous thing pursuant to s 156 of the Crimes Act 1961. In particular, the Crown emphasise the following three omissions:
(a)no one was wearing a lifejacket at the time of the incident nor had you checked how many lifejackets were on board.18
(b)you failed to ensure there were adequate means of communication with land in the event of an emergency.19
(c)you had not checked the weather conditions prior to going out that morning, although you described the harbour as being “flat” and “calm” after looking out from your terrace that morning. You did not consult any of the widely available mobile applications or websites which provide that information.
Purposes and principles of sentencing
[74] I need to say at the outset that it is obvious no sentence can bring back Gemma and Ryder and no sentence can reflect what they and their family, and indeed you, have lost.
[75] The relevant purposes of sentencing include holding you accountable for the harm caused; promoting in you a sense of responsibility for, and an acknowledgement of, that harm; denouncing and deterring the relevant conduct; and assisting in your rehabilitation and reintegration.20 Public deterrence and knowledge of the dangers of this sort of activity is also important.
18 Crown counsel submit this breached r 91.4 of The Maritime Rules and rr 19 and 20 of the Auckland Council Navigation Bylaw 2021 [the Bylaw].
19 The Crown submit this breached r 34 of the Bylaw and the recommendations of Maritime New Zealand’s “Safer Boating Guide”.
20 Sentencing Act 2002, s 7(1)(a), (b), (e) and (h).
[76] The relevant principles of sentencing include taking into account the gravity of the offending, including your degree of culpability; the seriousness of the type of offending; the general desirability of consistency with appropriate sentencing levels in similar cases; the impact of the offending on the victims; and the need to impose the least restrictive outcome in the circumstances.21
Construction of the sentence
Starting point
[77] The Crown seeks a starting point of around four years’ imprisonment. Your counsel does not expressly suggest any specific starting point but submits that it is doubtful the starting point should, or could, be a term of imprisonment.
[78] I must consider the aggravating and mitigating factors of this case and I must consider sentences imposed in other cases with similar features.
Aggravating features of the offending
[79]The Crown identifies three factors as aggravating, namely that:
(a)You did not check the number of lifejackets on board, did not require your passengers to wear lifejackets and you were aware that Ryder who, was only 10 years old, took off his lifejacket during the journey.
(b)There were insufficient means of communication with land. The original radio on the boat did not work and had not worked since you acquired the boat. Moreover, although you carried a cell phone with you, you did not place it in a waterproof covering, which would have enabled you to use it after capsizing.
(c)You did not check the weather conditions that day. If you had done so, you would have been aware of the escalating weather conditions as well as the movement of the tide.
21 Sentencing Act 2002, s 8(a), (b), (e), (f) and (g).
[80] All of these factors are not really aggravating factors — they are the factors that resulted in this being manslaughter rather than a tragic accident. It was preventable and there were a number of opportunities that you had that could have prevented it. I am sure that you are aware of that and think about that often. Crown counsel is correct though that there was more than one failing and that has to be reflected at some point in the sentencing.
[81] Aggravating factors set out in the Sentencing Act include things that mainly don’t apply, with the exception of the extent of harm and the vulnerability of Ryder as a 10-year-old child who relied on you to keep him safe. Two people died and it is really only luck that more didn’t die — I do not overlook the fact that you also almost died. I accept that once the boat sank you did what you could to support Gemma and Ryder in the water.
[82] There is no tariff or guideline sentencing case for manslaughter as the offence can be committed in such a wide variety of circumstances.22 That is reflected in the fact that sentences imposed for manslaughter range from terms of imprisonment verging on life to discharges without conviction. Accordingly, sentencing in manslaughter cases has typically proceeded on the basis of comparison with other comparable cases (particularly where there is no violent offending).23
[83]Crown and defence counsel rely on the following seven cases:
(a)R v Jones:24 a starting point of 300 hours community work.25 One charge of manslaughter. Mr Jones and an associate went fishing in an inflatable rubber boat with insufficient safety gear. Their return crossing was hazardous, and both were thrown out of the boat. Jones was rescued, but his associate drowned. Williams J considered that: Mr Jone’s prior brain injury may have impacted his culpability; the weather conditions were fine but very cold; the return crossing occurred before the outflow of the tide reached its fastest; and there were no
22 Murray v R [2013] NZCA 177 at [20].
23 Murray v R, above n 9, at [20]; see also R v Appleton [2021] NZHC 80 at [29].
24 R v Jones [2017] NZHC 1835 also referred to as R v T [2017] NZHC 1835.
25 At [67].
lifejackets available, no kill switch, nor other important safety equipment (such as flares, radios and so on).
(b)R v Appleton:26 starting point of three years and nine months’ imprisonment.27 One charge of manslaughter. Mr Appleton and a friend went fishing at night. Both were intoxicated. The weather was fair, but the boat got too close to the shore and a structure, eventually colliding with Stoney Point at speed. Mr Appleton’s friend sustained extensive internal injuries and, although Mr Appleton navigated the damaged (but still afloat) boat to shore, his friend died in the boat. Mr Appleton spent the rest of the night on the beach, hypothermic and confused. He did not have a cell phone; the radio was inoperable and he did not call emergency services with his friend’s cell phone (which was available). This is despite the fact that assistance was only a five-minute walk away from the beach. A member of the public discovered the scene the next morning and, although Mr Appleton said his friend was fine, this person checked his condition and immediately called for help. Gordon J identified the following aggravating features: intoxication above the limit in the Land Transport Act 1998; the increased danger of navigating the boat at night; speeding four times over the legal limit; no utilisation of the safety equipment available, including the GPS system, flares and first-aid kit; and no search for urgent assistance for the friend following the crash (although, given the possibility the crash might have affected Mr Appleton’s thinking, this was not as serious as it might otherwise have been).
(c)R v Tomasi:28 sentence of three years’ imprisonment imposed for one charge of manslaughter.29 Mr Tomasi drove a jet ski during a sports/picnic day organised by numerous Open Polytechnics and similar institutions. He flouted instructions, driving at an excessive speed from the shore, causing the instructor to pursue him in a separate
26 R v Appleton, above n 8.
27 At [44].
28 R v Tomasi HC Wellington T255/97, 3 July 1998.
29 At 7–8.
jet ski. He then sped towards the shore where other students and families were gathered. To avoid colliding with a jetty, he veered off and collided with the deceased’s kayak, causing her death. Goddard J identified the following aggravating features: Mr Tomasi drove the jet ski at a grossly excessive speed, showing off at the time; he flouted instructions given at the outset, and demonstrated continued and deliberate disregard for the orders of the instructor who pursued him; he persistently and deliberately operated the jet ski in a dangerous manner in close proximity to the shore, jetty and other people; and his gross reckless behaviour caused a death.
(d)Maritime New Zealand v Newlands:30 no specific starting point was expressed, but the end sentence was 150 hours’ community work and reparation of $1,800.31 As the Crown pointed out, the charge was not manslaughter but the much less serious charge of operating a ship in a dangerous manner which carried a 12-month maximum.32 Mr Newlands took his son and two of his son’s friends out fishing in bad conditions. A safer launch-point was only five minutes away, but Mr Newlands decided to go out fishing from a bay with a dangerous reef. While attempting to navigate the dangerous reef, the boat flipped, and everyone fell overboard. The three children were wearing lifejackets which had been properly fitted, checked and adjusted before leaving twenty minutes prior. However, Mr Newlands did not personally recheck that the lifejackets were being worn properly immediately before leaving but instead relied on the children’s assurances to that effect. Consequently, at the time of the incident one of the children’s lifejackets was not fitted properly and that child drowned.
30 Maritime New Zealand v Newlands DC Tauranga CIV-2005-047-286, 3 March 2006.
31 At [16].
32 Maritime Transport Act 1994, s 65.
(e)R v Scott:33 no specific starting point was expressed, but the end sentence was an order to pay reparation of $16,800.34 One charge of manslaughter. Mrs Scott owned a farm and allowed children and family friends to use her quad bikes under adult supervision. One day, a six-year-old boy rode one of the quad bikes at excessive speeds, struggling to control it, and was told to slow down. Later that day, Mrs Scott allowed the boy and his brother to ride the quad bikes again. After heading out of sight, the boy crashed through an electric fence into a watery ditch and drowned, pinned down by the quad bike. The Judge identified the following aggravating features of the offending: the objective dangerousness of the quad bike, especially for a six-year-old; the extent of Mrs Scott’s omission in overly relying on the electric fence and allowing the boys to go away from where they could be under Mrs Scott’s direct supervision; and the fact that the offending led to a child’s death. The Judge also identified numerous significant mitigating features personal to Mrs Scott, which contributed to the end sentence.
(f)R v Parson:35 no specific starting point was expressed, but the end sentence was 350 hours’ community service and reparation of
$10,000.36 One charge of manslaughter. Mr Parson ran hang-gliding
flights for tourists in Queenstown. One day, after numerous aborted flights before which he performed the hang test (the purpose of which is to ensure a passenger’s harness is securely attached to the frame) he eventually found an opening but forgot to perform the hang test. Consequently, he did not ensure that the passenger was correctly attached to the frame, and she fell to her death.
[84] I find that the alleged offending is most comparable to the offending in Jones, Newlands, Scott and Parson. As in those cases, your offending involved misjudgement (of the weather conditions) and oversight (of safety equipment); you
33 R v Scott [2015] NZHC 3239.
34 At [38].
35 R v Parson HC Christchurch CRI-2003-025-4488, 4 June 2004.
36 At [22] and [29].
did not overtly risk the lives of your passengers and did not ignore safety requirements altogether — there were some lifejackets and phones on board which became inaccessible after capsizing. I think that you wrongly relied on your long experience of boating to think that you knew what was safe.
[85] Some of the cases relied on by the Crown involved much more overtly dangerous acts. In Jones, Williams J drew a distinction between crimes of omission and crimes of commission. Many of the cases cited by the Crown involve offenders whose behaviour was worse than yours — they were drunk, driving at speed or persistently reckless. Appleton can be distinguished as it involved drunk and dangerous driving at night and an outright failure to even try to help the deceased after the accident. Tomasi can be distinguished as involving deliberate flouting of clear instructions and dangerous driving at excessive speeds.
[86] Your case is closer to Jones, Newlands, Scott and Parson — your actions fell below that required of a skipper — which is why the crime is properly charged as manslaughter. But your failings were of omission. You were not careful enough. I accept that you and the other adults were not intoxicated, there were some lifejackets on board, and you did have means of communication. If you had lost power, you could have called for help and ensured that at least some of your passengers had lifejackets. You failed to plan for or consider the worst-case scenario where the boat capsized, and when that happened your failure resulted in the loss of two lives.
Uplifts (aggravating features of the defendant)
[87] You have some previous convictions. Crown and defence counsel agree that they are historic, different in kind, and do not warrant an uplift.
Credits (mitigating features of the defendant)
[88] The Crown accepts a guilty plea credit of approximately 20 per cent is available on a starting point of imprisonment. Credit for guilty plea is more complicated if the starting point is not imprisonment. I also accept that you have made financial arrangements for Ms Ferregel’s surviving son, which should, if carefully managed, ensure financial security for him. He is the sole beneficiary of a trust which
owns a residential property worth in excess of $1 million and which is rented. I think that you have struggled to express your remorse to Ms Ferregel’s family but I accept you are remorseful.
Decision
[89] The Crown seeks a starting point of around four years’ imprisonment with a 20 per cent discount for guilty plea. The Crown position would result in a sentence of imprisonment.
[90] Defence counsel submits that you are emotionally tortured by the events, and that criminal sanctions in this case would serve little if any useful purpose for you personally — although your counsel does accept that deterrence is engaged as a sentencing factor given the popularity of recreational boating. Accordingly, defence counsel submits that:
(a)a conviction and community-based sentence such as community work would best serve the principles and purposes of sentencing; or, in the alternative,
(b)an order to pay reparations to a suitable charity or recipient would be appropriate.
[91] In my view, the starting point sought by the Crown is not realistic. I am afraid that Ms Ferregel and Ryder’s family have been given an unrealistic expectation of the likely outcome of this sentencing process and I am very sorry if that has occurred. I do not want to add to their distress.
[92] This case is simply not in the same category as the cases cited by the Crown which involve much more culpable behaviour. This case is much more similar to Jones, Scott, Parson and Newlands.
Result
[93]The end sentence, were I to sentence Mr McQuire, would be community-based
— involving community work and/or a fine and reparation. I do not see this as a matter which would attract a sentence of imprisonment. The exact makeup of the sentence would depend upon reports and upon information provided as part of the sentencing process. Some opportunity for you, Mr McQuire, to express the remorse you feel and to make amends to Ms Ferregel and Ryder’s family, as far as you can, will be important.
[94] I regard the two convictions for manslaughter as part of the penalty and those convictions record your wrongdoing and carry consequences which will remain for life, and which are appropriate to mark your carelessness. I accept that you did not mean this to happen, but by failing to take the care you should have, you allowed this tragedy to happen.
[95] This is an indication of the sentence you would receive if you enter a guilty plea in the near future. I can’t be more specific about the exact make-up of it without the information that will be available as part of the sentencing process.
[96] If you decline to accept the indication and are found guilty at trial, the trial Judge will sentence you on the basis of the facts as the Judge finds them to be. This sentence indication has no effect, and you will obviously lose any credit for a guilty plea.
Wilkinson-Smith J
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