R v T
[2017] NZHC 1414
•23 June 2017
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE DEFENDANT PROHIBITED BY S 200 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2016-043-000275 [2017] NZHC 1414
THE QUEEN
v
T
Hearing: 13-15 June 2017 Counsel:
J Marinovich for Crown
R Mansfield for DefendantJudgment:
23 June 2017
JUDGMENT ON DISPUTED FACTS OF WILLIAMS J
Introduction
[1] On 30 July 2015, T and Erka Xu went fishing off the north Taranaki coastline in T’s inflatable rubber boat. This necessitated crossing and re-crossing the Waitara bar. When the pair returned from fishing, the re-crossing of the bar went wrong. Both T and Mr Xu were thrown out of the craft. Mr Xu drowned but T was rescued.
[2] T pleaded guilty on 22 February to the manslaughter of Mr Xu – that is he admitted that, while in charge of his inflatable rubber craft, he caused Mr Xu’s death by failing to take reasonable precautions against, or to use reasonable care to avoid endangering Mr Xu’s life (see ss 156, 160(2)(b), 171 and 177 Crimes Act). By the
terms of s 150A(2) such failure must amount to “a major departure from the standard
R v T [2017] NZHC 1414 [23 June 2017]
of care expected of a reasonable person”. By pleading guilty, T necessarily accepted that:
(a) the bar crossing 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 major departure was a substantial and operative cause of Mr Xu’s
drowning.
[3] There was however, considerable dispute between the Crown and T over elements of the major departure. This disagreement raised fundamental issues relevant to sentencing and a disputed fact hearing was therefore required to determine what factor or factors contributed to the major departure.
[4] Section 24 of the Sentencing Act governs disputed fact hearings. It is for the prosecutor to prove beyond a reasonable doubt the existence of a disputed aggravating fact.1 The prosecutor must also negate beyond a reasonable doubt any plausible mitigating fact raised by the defence, although it is for the offender to prove, on the balance of probabilities, any disputed mitigating fact unrelated to the offending itself.2 When this process is set alongside the guilty plea, it is axiomatic that the elements of causation, danger to the deceased and major departure may not be contested. But it is in the nature of negligence-based offences, that there will remain wide scope for argument around just what the components of the departure are.
[5] In this case, T argued for a major departure that is, in the circumstances, the minimum capable of satisfying the standard, while the Crown argued for a multi-
factorial departure that is significantly more serious.
1 Section 24(2)(c).
2 Section 24(2)(d).
[6] T argued that his (out of character) failure to carry lifejackets on board (and insist on them being worn) was the only element of his major departure. The Crown submitted that the major departure comprised a number of failures on T’s part. First, weather, wind and tide conditions meant that T should never have decided to go out on the day in question. Second, the failure to carry lifejackets on board and to require them to be worn, while significant factors, were aggravated by T’s failure to attach himself by a lanyard to the engine kill switch. This would have prevented his craft motoring away unpiloted when he and Mr Xu were thrown overboard.
[7] The gap between Crown and defence narrowed as the evidence rolled out over the course of the two and a half day hearing.
[8] I turn now to set out my essential findings of fact including those arising from agreement or non-contest between the parties. I will do so under the following general headings: neuro-psychiatric evidence; the Waitara River and bar; weather conditions; tide and sea conditions; conclusion – tide and weather; safety equipment; and the accident.
Neuro-psychiatric evidence
[9] I find that as a result of T’s traumatic head injury in 2013 his personality has changed such that he is now prone to fixation and finds it difficult to shift mental track. I find that he is also more prone to anxiety and panic when multiple unplanned events conspire against him. I find further that Mr Xu’s drowning has caused T to suffer from PTSD.
[10] These findings follow from the evidence of Dr Newburn whose diagnosis was essentially not contested.
[11] I find these new character traits contributed to the wrong choices T made about equipping the boat for the trip and executing the return crossing of the bar. His reduced ability to shift mindset meant T would adapt poorly to unexpected events such as the boat’s flat battery and Mr Xu’s sea sickness. And his anxiety and panic at the crossing itself contributed to the poor choices made. These factors are mitigating in effect not exculpatory.
Weather conditions
[12] I accept the evidence of Messrs T, Smith and 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. T described it as “bitterly cold”.
[13] I rely 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 wind conditions at the Waitara bar.
[14] The wind was a south easterly off-shore breeze averaging around 14 kms p/h with gusts as high as 28 kms p/h (8 and 15 knots respectively). When the pair prepared to re-cross the bar, according to T, the prevailing slight chop on the water became “a brisk chop”.
[15] I am bound therefore to reject the evidence of Mr Deakin and his friend Mr Ward, 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 truthful, it was 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
[16] 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. 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.
[17] 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.
[18] It is notorious that tree trunks and branches will collect at the mouth of the river and at the bar when the river is in flood.
Tide and sea conditions
[19] The pair attempted to re-cross the bar at some time around 11.45 am. 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.
[20] Thus, the re-entry was just outside three hours after high tide, the very edge of acceptability by local custom. Hours three and four of an outgoing tide are the times when outflow is fastest, and at this bar water speed on a falling tide can reach
20 kms p/h.
[21] Sea conditions were otherwise calm with a 1 to 1.5 metre swell breaking on 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
[22] The day was fine but cold and the swells were not overly large or more dangerous than usual, as the Crown alleged originally. 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 “stood up” more than usual, ran more quickly and sets closed up at the bar. This meant that the bar was still a very dangerous place to navigate. Care needed to be taken over safety equipment and the crossing itself.
Safety equipment
[23] T owns a 4.7 metre inflatable rubber boat (IRB) powered by a 40 horsepower, two stroke Yamaha. He 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;
(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 etc);
(d) T did not take his phone; and
(e) a boogie board was used by T as a seat replacement for the centre console on his craft but it was neither perceived nor generally used as a marine safety personal flotation device.
[24] I do not accept that it was T’s invariable practice to wear lifejackets when boating or when crossing the bar. Rather, his practice was inconsistent. Although T was adamant that he always carried and wore lifejackets; and although his evidence in this respect was corroborated by the evidence of two of his fishing buddies (Messrs Adlam and Burnett), there were too many other independent and reliable witnesses who recalled incidents where they saw T and his 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 Messrs Toa and
Dodunski.3 Mr Mansfield submitted that I should set all of that evidence to one side
as unreliable being momentary or passing recollections from relatively distant and occasional observers who were unlikely to have made careful and detailed observations at the time. I do not accept that submission for two reasons.
[25] 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
3 Mr Toa’s evidence was that T was wearing a lifejacket but his passengers were not.
resource. In short, they made a point of knowing who is using the bar and how it is being used. Second, Mr Dodunski recalled that on an earlier occasion he had a conversation with T at the ramp about the fact he (T) was not wearing a lifejacket. T denied this, but I much prefer the evidence of Mr Dodunski in this respect. It was detailed, specific and credible.
[26] I find that T often carried lifejackets on his boat and required passengers to wear them when crossing the bar, but this was not his consistent practice. It may well be that his brain injury contributed to this failure. It may have meant he 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
[27] T and Mr Xu arrived at the ramp about 8.30 am intending to go out on the high tide but the IRB’s battery was flat. T went to an auto-electrician and obtained another battery. On the way back they stopped at Mr Xu’s accommodation so he (Mr Xu) could speak to his wife. Then they returned to the ramp. They arrived back at the ramp some time between 10 am and 10.30 am. This interruption required a mindset shift which since his accident T was not particularly adept at. This may have contributed to the failure to ensure lifejackets were on board and worn.
[28] T and Mr Xu put out on the Waitara river at some time between 10am and
10.30am, tested the new battery and then crossed the bar safely with plenty of water under the boat. They headed out in the direction of the Todd rig but no more than a few hundred metres past the bar. They stopped at one of T’s favourite spots, dropped anchor and began fishing, riding the moderate swell. Mr Xu became ill with motion sickness and it was decided that they should return to shore. The pair attempted to re-cross the bar some time around 11.45 am. T was in a hurry because of his ill passenger. He entered the bar in 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.
[29] T crossed the bar at an angle to the waves intending to make the line of the groyne on the river’s east bank and turn in on a line parallel to the groyne on the river side. He saw a log in his path at the point in the channel (as he saw it) that he needed to access. He needed to take evasive action but could not cut right as it would be too shallow in that direction, so he cut left. He avoided the log and then tried to make a hard right in order to cut back inside the groyne. Before he could properly straighten, he was caught by a wave on his rear starboard side. This happened because he either overshot the wave in front of him in his haste to correct his direction and catch the back of that wave (Mr Smith’s observation), or he was caught broadside by the wave behind him (T’s recollection). It does not matter which was the case.
[30] A contributor to the situation may well have been T’s greater propensity to anxiety and panic. A crossing at this time required a cool head and T may have struggled to maintain that. This means he either came in far too quickly after his correction (causing the craft to overshoot) or after correcting his angle of entry into the set was too oblique and 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 the pair out of the boat and into the surf. They were immediately caught in the outgoing tide and sucked back out past the bar along with the craft that was still right side up.
[31] T had the presence of mind to grab the boogie board he 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 he swam to capture the craft. But its outboard motor was still running as there was no ability to activate the kill switch. In the more even sea past the bar, the boat simply slowly circled but T 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. Mr Xu was retrieved and the pair returned to shore but Mr Xu could not be resuscitated. It is not known how long Mr Xu and T 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.
Conclusion
[32] I will sentence T on the foregoing factual basis. It is unnecessary for me to address other aspects of T’s background at this juncture (for example, contributions to the community) as these are not the subject of dispute.
Williams J
Solicitors:
Crown Solicitor, New Plymouth
R Mansfield, Barrister, Shortland Street, Auckland
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