R v Reynolds R v Small [2010] NSWSC 691 | Case summary

1 HIS HONOUR: Each of Matthew Reynolds and Percy Small stands for sentence following trial and findings of guilt by a jury. 2 Matthew Reynolds is convicted of six counts of manslaughter. 3 Percy Small is convicted of six counts of dangerous navigation causing death. 4 They were jointly tried but must be considered individually in relation to sentence. 5 Although different factors giving rise to culpability apply to each, the offences stem from the same events which led to the deaths of the same six persons. 6 I turn first to some matters which are applicable in common to them both. 7 On the night of 30 April 2008 various people attended the Commercial Hotel in Balmain which was scheduled to be handed over to new owners on the following day. Staff had been made aware that their employment would not be continued. Although people participated to different extents, I am satisfied that a type of celebratory atmosphere generally prevailed. 8 A manager of the hotel, Gene Robson needed to deliver the keys to people at Watsons Bay in connection with the handover. As he had been drinking alcoholic liquor, he assessed that he should not drive a vehicle to Watsons Bay and he requested Matthew Reynolds to transport him there by water. Matthew Reynolds agreed to do this. 9 He was understood to be able to do this because he had been residing with his uncle in somewhat spartan accommodation on Goat Island provided by Sydney Ship Repairs, for which company or for an executive of which, they were carrying out some work. One of the boats available for transit between the island and the mainland was a work boat which was licensed to carry eight people. Matthew Reynolds had access to the work boat for the purposes of that transit or for other requirements related to the employment. It was not made available to him for his own purposes otherwise than in connection with that employment. 10 At the hotel closing time a gathering developed in a nearby residence which has been referred to as Pondy's house. Matthew Reynolds did not go there. Accompanied by his girlfriend Ashlie Ayres, he went to fetch the work boat from its berth and brought it around to the East Balmain Wharf, which was close to Pondy's house. 11 There were no formalities such as explicit invitations but I am satisfied that it became generally known to the gathering that there was to be an excursion on the harbour and eventually twelve people proceeded to the wharf and boarded the work boat. Some of them brought liquor with them and a bong, an implement used for the ingestion of marijuana, was also brought on board. As later events demonstrated, an amount of cocaine was available as well. 12 Some fishermen who were on the wharf expressed their concern about an apparent overloading of the boat which, including Matthew Reynolds and Ashlie Ayres, totalled fourteen persons. What the fishermen warned was not heeded. 13 With Matthew Reynolds at the helm, the boat proceeded east through the harbour towards Watsons Bay. For part of the journey one of the passengers Jarrod Chivers was permitted to steer the boat. At that time Matthew Reynolds stood behind him and in that position he could obviously exercise any necessary supervision. As they approached Watsons Bay, Matthew Reynolds took back the helm and he manoeuvred the boat into the wharf there. 14 The occupants of the boat disembarked. Mr Robson took the keys which he was to deliver and he was accompanied by the female passengers who apparently wished to use the facilities in the house to which he was going. Others went into a nearby park. On the journey to Watsons Bay some of the passengers drank liquor and, at the park, there was more consumption of it and some ingestion of illicit drugs. I should record that not all passengers were participants in these consumptions but, for present purposes, it is the conduct of the offenders which is to be examined. 15 Eventually the fourteen people re-embarked on the work boat, and Matthew Reynolds took it out from the wharf and stopped at a harbour light marker which was described, by reference to its shape, as the wedding cake. 16 Some of the males got off the boat and climbed onto this structure. An air of frivolity prevailed. At some point Matthew Reynolds raised the outboard engine so that the propeller was close to the surface and, by applying power, he caused a spray effect which was described by Percy Small as rooster tailing. Those who had climbed onto the wedding cake reboarded. There was some discussion, although it is not entirely clear, about where the boat would go next, but I am satisfied that the effective decision was that it would return to East Balmain. 17 The work boat was fitted with two forward facing seats in the partly enclosed cabin. The starboard seat was located so as to enable a person sitting in it to operate the helm. Behind the forward seats were inward facing benches and most of the passengers were seated along them. Matthew Reynolds was at the helm when the boat departed the wedding cake. It headed across the harbour towards the northern shore and in particular towards the turn at Bradley's Head. 18 As the boat got underway, Percy Small was sitting on the starboard bench immediately behind Matthew Reynolds. Shortly afterwards Matthew Reynolds transferred the helm to him. The detail of how this occurred according to the latter was that he was directed by Matthew Reynolds to "sit there" indicating the starboard forward seat and he was told to "head towards that green marker." There is a green marker light at Bradley's Head which promontory would need to be rounded by vessels moving westwards within the harbour. 19 Matthew Reynolds sat between the two forward seats after Percy Small took the helm and positioned himself facing generally towards the rear of the work boat. To an extent his attention was directed towards the port side where Ashlie Ayres was seated in the other front seat and he was chatting to her. When Percy Small took over the helm it was getting towards 2.30 am on 1 May 2008. 20 At 2 am a fishing vessel, the Jordons, had departed Blackwattle Bay and was outbound through the harbour intending to operate in fishing grounds off the coast. At the helm was its skipper Peter Evans and also on board was a deckhand Douglas Seiffert. At about 2.30 am Jordons rounded Bradley's Head on a course which took it between a safe water marker, which is located within the harbour, and the Bradley's Headland. It appears that this safe water marker is the only one of its kind in New South Wales waters anywhere and at trial much debate took place about what was required of vessels passing by it. Many views were expressed by numerous witnesses who had a variety of nautical backgrounds. 21 I find that each of the work boat and Jordons were showing the required navigation lights. In addition, as Mr Seiffert was, at the time, on the after deck of the Jordons baiting lines under a long fluorescent light attached to a beam or spar, I would adopt as accurate the description by Percy Small that Jordons was "lit up like a Christmas tree." 22 I further find that after Jordons rounded Bradley's Head, it and the work boat were on courses with their respective bows generally approaching each other. I reject the suggestion canvassed during the trial that at the relevant time the work boat was approaching the Jordons from its starboard aspect so as to require the Jordons to yield way in order to avoid collision. When vessels approach each other bow to bow, the applicable rule for the prevention of collision is that vessels should pass each other "port to port." 23 On the evidence neither helmsman, Peter Evans nor Percy Small sighted the other vessel in time to take action to avoid collision. I am satisfied that Jordons was proceeding at about eight to nine knots and that the work boat was travelling at between twenty and twenty five knots. Jordons was a displacement vessel and was appropriately described by the Crown Prosecutor as chugging along through the water whereas the work boat was a planing hulled vessel and it was travelling on the plane, that is, with its bow raised and at speed. 24 The vessels collided and the fairlead on the Jordons swept along the port side of the work boat. The fairlead is part of the working equipment of the fishing boat located at the point of the bow. It is made of metal. All of the fatally injured victims were seated along the port side bench of the work boat with the exception of Ashlie Ayres who was in the port front seat. 25 In the foregoing description I have made no separate reference to the ingestion of alcohol or drugs by either of the offenders. Most but, I repeat, not all of the occupants of the work boat had been partaking of intoxicating liquor and some of them had also been partaking of drugs. The consumption of such substances is germane to the culpability of the offenders and I shall refer to some detail when making remarks about them individually. 26 Before I turn to them individually I consider it is appropriate to make some reference to matters which were explored at trial, some of them at considerable length. Not all of them are necessarily relevant to weighing or assessing the culpability of one or other of the offenders. 27 It was contended, particularly on behalf of Matthew Reynolds, that it is relevant to culpability that failures to take care by Peter Evans, the skipper of the Jordons was contributorily causative of the collision. Suggestions were made that he had allowed his vessel to run on automatic pilot rather than he being personally at the helm and that, in any event, the course of the Jordons had it travelling on the wrong side of the harbour. 28 Mr Evans denied that he had quit the helm but he agreed that he did not see the work boat until it was in front of him and so close that he did not have time to turn the wheel or take any avoiding action. Percy Small testified that when he saw the Jordons the lights within it were such that he could see the wheel house which he described as like an office, and he said it was plain that there was nobody in it. In cross examination he explained "I am not saying that there wasn't anybody in the wheel house, I am saying I didn't see anybody in the wheel house in the split second that I looked into it." 29 I am not persuaded, even on the balance of probabilities, that Mr Evans left the wheel house. I accept however, that if he was keeping a proper lookout he should have seen the work boat before he did. That said, it does not follow that his failure to see the work boat was causative of the collision. As I have said, Jordons was a displacement vessel moving slowly through the waters whereas the work boat was a craft, travelling on the plane, at somewhere between twice to three times the speed of the Jordons. The evidence is clear that Jordons was not only carrying its navigation lights but so well lit that it provoked the description by Percy Small which I have quoted. 30 Even if Mr Evans had seen the approaching high speed work boat I am unpersuaded that it would have been prudent to alter the course of the fishing boat. Such action would have an obvious potential to confuse any person at the helm of the work boat and it would be reasonable to anticipate that the fast moving and highly manoeuvrable work boat would alter course to avoid collision with the relatively slow and highly lit fishing boat. I am satisfied that there was ample navigable water to enable the vessels to pass each other port to port. 31 The other contention submitted to give rise to sharing of responsibility for the collision is the circumstance that the Jordons was making outbound passage on the left side of the harbour and passed the safe water mark with that mark to its starboard side. That is the basis for the argument that Jordons was on the wrong side of the channel, by which I intend to refer to the deep and therefore safe water on either side of the indicating marker. 32 It is unnecessary for present purposes to recite all the various views which were expressed. Notably, a handbook issued to candidates for recreational boating licences proclaims that the safe water mark can be passed on either side. On the other hand, a publication called the Port Procedures Guide specifies that it is to be passed on the south side if outbound and on the north side when inbound. However, the witness who was the Harbourmaster as at 1 May 2008 testified that, although the words in the guide do not contain any expressed qualification, that requirement was directed at large vessels and not at small vessels such as fishing boats and recreational vessels. There is no evidence that the guide was distributed to operators of fishing boats. No doubt a fishing boat operator could look up the Port Procedures Guide on the internet as a comment by counsel suggested, but there was no evidence that such operators were urged or advised to do so. 33 Several experts said that they viewed the safe water marker as a channel marker and that therefore a general "keep right" rule applied. In that context Jordons was on the left. Other witnesses adhered to the "small boats, either side" rule. 34 Irrespective of opinion, the overwhelming evidence was that anyone who in fact had made any observations in and about the safe water mark at Bradley's Head would be aware that small boats including fishing boats passed on either side of the marker. There was no evidence that the skipper of any boat had ever been cautioned against it or penalised in any way for so doing. Those observations and that circumstance are entirely supportive of the Harbourmaster's testimony that, irrespective of any detectable drafting deficiency in the Port Procedures Guide, it was well appreciated that it was not directed at small vessels such as recreational craft and fishing boats. I reject the contention that Jordon's was on "the wrong side of the harbour." 35 In any event to make the claim that the Jordons was on the wrong side of the harbour relevant to a diminution of the culpability of the offenders I consider it would need to be concluded that they, or either one of them whose culpability was being examined, had some expectation that there would not be outbound vessels passing between the safe water mark and Bradley's Head. There was no such evidence at trial. Matthew Reynolds gave no evidence himself nor was it otherwise disclosed that he had a state of mind which held such an expectation. 36 Percy Small did give evidence but he made no claim to any knowledge about the requirements for vessels passing the safe water mark. I note that subsequent to conviction, Percy Small told a psychologist Ms Duffy that "Matt did not expect any outgoing traffic on this side of the harbour" but he gave no evidence to this effect at trial and I am not prepared to place any weight upon this somewhat self serving statement, made afterwards and echoing submissions which he no doubt heard during the course of the trial. 37 In summary, an extremely well lit and easily visible displacement vessel, moving at a relatively slow speed was struck by a highly manoeuvrable vessel approaching it at twice to three times its speed and, in terms of the manoeuvring of the vessels I am satisfied that the cause of the collision was the failure of the work boat to make use of its manoeuvrability and pass the fishing boat to its port in the appropriate fashion. 38 Before passing from this topic, I refer to allegations made that the crew of Jordons was derelict in its duty to assist mariners in distress in accordance with well accepted precepts. The evidence was not objected to and I do not suggest that it should not have been received as material upon which the offenders might seek to rely in argument. However, it should be observed although there were requests for help which may or may not have been heard in their entirety by Mr Evans, the evidence does not establish how aware he was, at the time, of the extent of injuries to people on the work boat. For all I know, having regard to the evidence of the considerable ingestion of liquor or drugs by many of the occupants of the boat, their calls may have impressed, if they were heard, as emanating from persons so affected. Of course neither Mr Evans nor Mr Seiffert made such a claim but it is hindsight which enables appreciation of what was correctly described as the carnage which had occurred on the work boat and I am simply saying that I am not persuaded that that carnage would have been necessarily apparent to those on the fishing boat in the chaos which followed the collision. 39 There were other matters canvassed although I do not understand that they are now relied upon but in case my impression is incorrect I will mention them. Mr Evans was questioned about requests to turn on his GPS and inform of its reading. I pause at this stage to make a public commendation of the three fishermen who were in Taylors Bay at the time of the collision in a small boat who, hearing the collision, came to see if they could render aid. They are Nasser Farache, Samar Owek and Ahmed Awik. The community should rightly be grateful for their admirable conduct which gratitude I seek to express on its behalf by this acknowledgement. Their action rescued one occupant of the work boat who had been thrown into the water and, Nasser Farache in particular, boarded the work boat to see if he could render assistance. 40 Returning to the question of a GPS reading, it is now known that the demand for it emanated originally from an insistent Triple 0 operator. I comment only that it is a somewhat astonishing proposition that a GPS reading is necessary, or even likely to be useful, when trying to identify a location in Sydney Harbour. In the present instance a much more practical description was the nearby location of the HMAS Sydney Memorial and, if one didn't know the name of Bradley's Head, the proximity of Taronga Zoo Ferry Wharf. I find nothing pertinent to assessment of sentence for the offenders in the failure of Peter Evans to turn on the GPS. 41 It was contended on behalf of Matthew Reynolds that "misjudgement and recklessness by other people, the most significant being Gene Robson" was relevant to assessing his culpability. Obviously, if Mr Robson had not made the request to be taken to Watsons Bay there would have been no water trip at all. The culpability of Matthew Reynolds stems from the circumstances in which he passed the helm of the work boat to Percy Small and his failure to discharge his responsibilities as skipper of that boat. I do not accept the submission that the mere making of a request to which Matthew Reynolds agreed, is a factor in somehow diminishing his culpability. 42 An important element in assessing that culpability is what Matthew Reynolds knew or ought to have known about Percy Small's condition, and it is convenient first to turn to what that condition was, and in so doing to the issue of Percy Small's culpability. 43 On 30 April before arriving at the hotel, Percy Small had smoked cannabis. While at the hotel he had eight to ten beers served in schooner glasses although he may not have consumed all of the contents. He also drank a shot of spirits. He later smoked more cannabis when at Pondy's house. He drank more beer on the journey to, and when he was at, Watsons Bay. He had ingested cocaine at the hotel and in evidence he said he might have done so also at Watsons Bay. 44 Having regard to the evidence of Dr Perl, an expert on the effects of alcohol and drugs on human beings, which I accept, I find that at the time Percy Small took over the helm of the work boat and when the collision occurred Percy Small was significantly impaired by his ingestion of those substances. A blood sample was taken from Percy Small at 5.30 am on 1 May. Analysis showed that there were detected alcohol, the metabolite of cocaine, the active constituent of cannabis and the metabolite of its breakdown. The alcohol reading was .079 grams of alcohol in 100 millilitres of blood. As at 2.30 am when the collision occurred, Dr Perl testified that the most likely concentration of alcohol was about 0.124 grams per 100 millilitres of blood. It can be noted that the case, as presented on behalf of Percy Small, advocated a finding that he was considerably affected by the substances which he had consumed. 45 The consequent impairments operated on his performance skills including motor coordination, ability to maintain vigilance, prudence in decision making about risk taking behaviour, his perceptions, his ability to process information and his general alertness. An additional effect would be that his vision would have a tunnel like limitation and his reaction times, to any perceptions which he did form, would be slowed. 46 I am satisfied that the combined effect of the consumptions of alcohol, cannabis and cocaine were so detrimental to his physical person that it would have been obvious to any reasonable observer that he was not in a fit state to perform a task such as steering a vessel. 47 I accept that there was no prior arrangement of any sort for Percy Small to take over control of the helm during the trip on the harbour. I accept that he did not inform Matthew Reynolds, directly or indirectly, that he was licensed to operate a boat. It emerged in evidence that he had a TAFE certificate which was required by employers to be held by anyone working on a boat even as a barman or a deckhand. Such a certificate is entirely irrelevant to training for or licence to, control a vessel. I am not satisfied that any mention of it was made to Matthew Reynolds by Percy Small but even if it was it would have been entirely irrelevant. 48 I have mentioned earlier the circumstances in which Percy Small recounted how he took over the helm at the behest of Matthew Reynolds. It is the only resource which I have which contains any detail and for present purposes I rely upon it. Such observations as were made by surviving passengers do not contradict what Percy Small said about this aspect. 49 Attention was directed to the short time during which Percy Small was in fact at the helm but I find this scarcely to be mitigating. By way of analogy, if a person materially affected by prior ingestion of intoxicating liquor and drugs took over the driving of a car and at the next intersection collided with another vehicle resulting in six deaths, I would not perceive that the shortness of the journey created a matter of mitigation. There is no essential difference from the present circumstances in that regard. Obviously, it could be an aggravating factor if the length of the journey extended as there would be elevation in the period of risk, but that such an elevation did not occur is not a matter of mitigation. To postulate a factor which might make an offence worse does not mean that its absence lessens its seriousness. 50 The Crown is correct to submit that the offences of which Percy Small is convicted of dangerous navigation causing death are and can be treated as mirror offences of dangerous driving causing death. It is notorious that intense publicity has been given to the risks inherent in driving motor vehicles when affected by liquor or drugs. The circumstances of this case emphasize that the same risks exist when vessels are being navigated upon the waters. 51 Although Matthew Reynolds gave some abbreviated oral directions to Percy Small concerning steering and turning, I do not accept the proposition that Percy Small was simply an instrument under his control nor do I accept that Percy Small felt obliged to carry out only what he was exactly told because Matthew Reynolds was the skipper of the work boat. 52 Once Percy Small was at the helm, he was in control of the direction in which the work boat travelled, and having that control, he could steer it clear of obstacles whether they consisted of other vessels, structures on the harbour or the shore itself. He was not, as it were, a mere puppet waiting for Matthew Reynolds to manipulate the strings. 53 Although Percy Small claimed in his evidence that he was able to hold conversations, move around and was aware of his circumstances he conceded that he felt "significantly affected". As confirmed by the evidence of Dr Perl, I have no doubt that he was. 54 Given the amount and variety of his consumption of substances, which he must have appreciated had the potential to affect him with attributes of intoxication, his level of abuse of alcohol and drugs is a significant factor in assessing the degree of his culpability. It is also a significant factor that while he was in charge of steering the vessel he was putting a large number of people at risk. The prescribed maximum penalty for a single offence of dangerous navigation causing death is imprisonment for ten years. It was not contended that a sentence other than full time imprisonment would be appropriate and I agree. 55 Percy Small is a young man aged twenty six. He has no prior convictions. As was recorded by Ms Duffy, whose psychological report was tendered, his early life was disruptive as his parents divorced and after each remarried, he became possessed of two half brothers through his father and three half brothers and four half sisters through his mother. He moved backwards and forwards between households in Queensland and New South Wales. I note his close relationship with an aunt with whom he has resided from time to time, who I infer has provided him, at least, with some stability. 56 I conclude that, as was likely contributed to by lack of a consistent source of guidance and the fact that he was independently living shortly after leaving school, Percy Small succumbed to the use of illicit drugs and over indulgence in alcohol. This behaviour led to conflicts, earlier on with his father, and later on with girlfriends. 57 To the extent that anything positive might emerge from this tragedy of the death of six young people, Ms Duffy recorded that Percy Small has perceived that his previous life was carefree and with relatively few recognized responsibilities and that he is chastened and saddened by what has happened and eager to address drug and alcohol issues. I accept her comments. Ms Duffy's report further comments that what has happened has had a huge impact and fundamentally altered Percy Small's life, values, attitudes and behaviour. 58 I note that in written submissions the Crown accepts that Percy Small's prospects of rehabilitation should be assessed as good and that it is estimated that he is unlikely to re-offend. It is also noted that the offences were unplanned as obviously they were. I shall later mention they were obviously also unintended. I would make assessments in accordance with those Crown concessions. 59 As I have just remarked it is plain that neither offender intended to cause harm or death but the offences for which they have been convicted are specifically designed to deal with unintended fatal consequences. Although the consequences may have been unintended it was Percy Small's decision in his state of affectation by alcohol and drugs, which he knew he had consumed, to take control of the helm of the work boat with the risks attendant upon it to those on board which conduct, as the jury found, occasioned six deaths. The circumstances constitute a very high level of irresponsible behaviour. 60 The multiplicity of victims leads me to conclude that there should be some cumulation of sentence but the extent of that cumulation has to be restrained having regard to ultimate totality of sentence. 61 It will necessary to set a non-parole period which effectively is a minimum time to be served before consideration can be given to release on parole. Parliament has prescribed that the balance term is not to exceed one third of the non-parole period unless special circumstances are found. In regard to Percy Small I find special circumstances, the reasons being my acceptance of submissions by counsel that they should be derived from the combination of age, prior good character, good prospects of rehabilitation, the availability of family support and the likely benefits to the community of supervision during a sufficiently substantial period after release from custody. It is promising to observe that, whilst under the constraints of bail during a long period before conviction, Percy Small did not re-offend in any way. 62 Despite the reservations expressed by counsel, I regard general deterrence as an important factor in assessment. I refer to my earlier remarks concerning the need for an appreciation of the similar risks which dangerous navigation creates to those more publicised risks created by dangerous driving. 63 I turn to issues relating to Matthew Reynolds other than those to which I have already made reference. 64 The offences of manslaughter of which he is convicted are based upon what lawyers call criminal negligence, that is a breach of duty of care to such a degree that a tribunal of fact, in this case, the jury, found that it should be treated as criminal conduct. It was not disputed at trial that Matthew Reynolds was in every sense the skipper of the work boat and as such owed a duty of care to all the passengers on board. 65 The issue of breach of duty was left to the jury on the bases of three alternatives, that Matthew Reynolds permitted the navigation of the work boat by Percy Small when he knew or ought to have known that Percy Small was affected by the prior ingestion of liquor or drugs, that he failed to supervise Percy Small whilst he was at the helm of the work boat and that he failed to keep a proper look out himself for other vessels which might have been navigating the harbour waters, and to warn Percy Small of the presence of an oncoming craft. It is submitted on behalf of Matthew Reynolds that, for the purpose of sentence, I should be satisfied to the necessary standard only of the breach of the third of those stated reasons. I reject that submission and I am satisfied of his breaches of all three. 66 I accept that Matthew Reynolds would not have known the exact quantities of Percy Small's ingestions of alcohol or drugs prior to his asking him to take the helm and that Percy Small did not say anything to him about it. I recognize that Percy Small himself claimed that he was not staggering but, having regard to the evidence of Dr Perl, I am satisfied that the level of Percy Small's drug and alcohol induced intoxication was such that he would have been manifesting signs that a reasonable observer in the position of Matthew Reynolds must have appreciated Percy Small's unfitness to control the helm of the vessel. 67 Matthew Reynolds' blood analysis (from a sample taken at 4.30 am on 1 May) was 0.051 grams per 100 ml and some trace of cocaine. Dr Perl calculated that at 2.30 am the alcohol level was likely to be in the order of 0.071 grams per 100 ml. In the context, I agree with counsel's submission that the quantity of cocaine was apparently small and that the alcohol ingestion was not (in a broad sense) excessive although I note that it would still lie within the low range of offending if he had been driving a motor vehicle. The essential issue, noting that Dr Perl said that he may have had some impairment, is whether or not Matthew Reynolds should have perceived Percy Small's unfitness. I have discussed Percy Small's situation earlier and am satisfied that his impairment would have been obvious and that Matthew Reynolds ought to have appreciated it. 68 The second alternative relied on as breach concerned lack of supervision. It was submitted that Matthew Reynolds sat close to Percy Small and that the work boat was travelling comfortably in the water. That latter perhaps may offer an explanation for the circumstance that Matthew Reynolds did not watch Percy Small at the helm but rather turned his attention towards Ashlie Ayres who was sitting in the other front seat. Reference was made to Matthew Reynolds saying, according to Percy Small, words to the effect of making a hard left because they were approaching a peninsula. It does not appear that Percy Small in fact precisely made such a turn. The evidence falls far short of demonstrating that Matthew Reynolds was actually supervising him. I am satisfied that he was not so doing because his attention was being directed, as I have already said. The mere fact that Matthew Reynolds was sitting close to Percy Small did not amount to supervising him. 69 The third alternative was conceded by counsel on behalf of Matthew Reynolds. Matthew Reynolds was seated with his back to the direction in which the work boat was travelling. He probably was slightly inclined to port where Ashlie Ayres was sitting. I find this slight turn to be of no significance. Although experts testified, as referred to in written submissions, that there is no requirement only to look ahead when keeping a proper lookout I am abundantly satisfied that Matthew Reynolds was not positioned where he was, generally looking rearwards for the purpose of seeing whether other vessels were approaching from behind. 70 Those breaches of duty in cumulation demonstrate a serious departure from the standards which Matthew Reynolds ought to have observed as skipper of the work boat. 71 I deal with some specific submissions. 72 It was contended that there was no flagrant disregard for the obligations which Matthew Reynolds had, for example, he did not go to the rear of the boat and leave Percy Small on his own at any time. That is true. Had he done so, his breach of duty would be magnified in its seriousness to some extent. That he did not do something which would make his breach worse does not diminish the seriousness of what he did do or, in his obligations to supervise, did not do. 73 It was put that, accepting failure to exercise proper care, Matthew Reynolds' actions did not involve abandonment of his responsibilities as master of the vessel. I recognize "abandonment of responsibility" as a phrase which is frequently used in respect to misconduct on public roads, however I find, contrary to the submission, that it is an appropriate phrase to describe in a compendious way the conduct of Matthew Reynolds as reflected in the combination of the three aspects of breach previously identified. 74 The time between hand over to Percy Small and the collision was short and there is no need to repeat what I have earlier said concerning this when referring to the conduct of Percy Small. 75 By reason of the fact that one of the victims, Ashlie Ayres was Matthew Reynolds' girlfriend, it is said that he has suffered extra curial punishment. I do find that he is genuinely remorseful and contrite. I am sure that her loss is painfully felt. However that is not what such a concept inheres and I do not find that the feelings which he has amount to extra curial punishment. 76 It is stated that Matthew Reynolds suffered very serious injuries as a result of the collision. The most recent information which I have is in a history note by Ms Robilliard a psychologist who mentioned a back injury in the lumbar region "which is still painful". She added that he was treated in hospital for a week and he arranged his own discharge so that he could attend Ashlie Ayres funeral. That he was himself injured I take into account but, on available information, it can only be a matter of modest weight. 77 What I have earlier said concerning general deterrence is equally applicable to Matthew Reynolds recognizing, of course, that he is convicted of different offences based upon different elements from those concerning Percy Small. 78 Matthew Reynolds is thirty three years of age. As canvassed at trial he has prior convictions arising out of one occasion in 2002, those convictions being for assault occasioning actual bodily harm and common assault. I accept that these convictions represent aberrations from an otherwise commendable prior life and I do not consider that they should operate to deprive Matthew Reynolds from lenience which otherwise might be extended to him. I am fortified in that view by the numerous expressions of good opinion in the letters of reference which have been tendered. I acknowledge receipt of all of them and have read the contents. I do not need to summarize their content but note that all of them in different detail speak of a range of admirable conduct in which Matthew Reynolds has engaged over many years. 79 It is convenient to mention that two of the references which have been tendered are from the mother and father of Ashlie Ayres. When Matthew Reynolds met her, she had left a violent relationship and she had two sons who were, at the time, aged twelve and four. The father of the boys died soon after her death, Ms Robilliard reports apparently by suicide. Whilst at liberty prior to charging or on bail, Matthew Reynolds established a relationship with these boys and assisted the grandparents with their care and upbringing. The Ayres family maintains contact and visits him in custody and obviously they appreciate his support and assistance. 80 In a victim impact statement Joanne Ayres confirmed feelings towards Matthew Reynolds saying, among other things, he has "made our pain a little less just by being there". Obviously there were five other victims but, in the circumstances, Matthew Reynolds' behaviour in regard to the family of that one victim is a powerful indication of a wish to make amends which in turn points to a genuine remorse and contrition. 81 There is, however, one piece of evidence which tends to indicate that he continues to seek to shift blame from himself. 82 In Ms Robilliard's report she states: "The client is very critical of his own behaviour in relation to the accident of 1 May 2008. He said he should not have agreed to do a favour for friends who wanted to drop the key of the Commercial Hotel off to an address at Watsons Bay. He said he should not have taken Percy Small's word that he was appropriately licensed to handle the work boat, nor did he realize the extent of Small's level of intoxication." 83 Obviously if there had been no request there would have been no boat trip and no consequential deaths, however Matthew Reynolds must bear his own responsibility for his decision and it lay entirely within his own power to reject the request. The choice to take the work boat was not something that could have been made by anyone else. 84 There was no evidence at the trial, nor in the sentencing proceedings, that Percy Small ever told Matthew Reynolds that he was appropriately licensed to handle the work boat. Counsel submitted that I should draw an inference to that effect but I am unable to identify any evidence from which such an inference could be drawn and I do not do so. Percy Small had no such licence. He denies that he told Matthew Reynolds that he had one. He described the allegation that there was some pre-arrangement that he take over the vessel as mythical. 85 The acceptance of responsibility is usually a first step to the demonstration of true remorse, and it is more difficult to perceive it when there are unsubstantiated attempts to shift at least part of the blame to others. The remarks to Ms Robilliard seem to be of that character. Assuming the accuracy of Ms Robilliard's recording, Matthew Reynolds appears to have said to her that he realized that Percy Small was intoxicated but what he did not realize was the level of it. I do not repeat my findings about Percy Small's observable condition but what Ms Robilliard records is inconsistent with counsel's submissions that the evidence "does not establish beyond reasonable doubt that the defendant permitted Small to navigate the work boat when he knew or ought to have known that Small was affected by alcohol or drugs". For reasons which I have already expressed I find to the contrary of that submission. 86 In Crown written submissions it was accepted that Matthew Reynolds has good prospects of rehabilitation and is unlikely to re-offend and I make findings to those effects. The matters to which I have referred do not operate to cause me not to find that Matthew Reynolds has feelings of remorse and contrition. What he has said to Ms Robilliard causes me to have some reservations about whether such feelings are as unqualified as they might otherwise be. 87 Although using certain statutory provisions as a check list has been criticized, as counsel on both sides have made references to one in particular, I formally find that the offending was not part of planned or organized criminal activity. Whilst I recognize that as a legislated possible matter of mitigation it is plainly not relevant to the instant circumstances. 88 A written submission on behalf of Matthew Reynolds stated that partially concurrent and partially cumulative sentences of imprisonment should be imposed. I agree with that proposition. 89 For reasons similar to those which I applied to Percy Small, I will depart from the setting of a non-parole period in accordance with the formula in sentencing legislation by finding special circumstances in favour of this offender. Those reasons are: Matthew Reynolds' age, his generally prior good character, his good prospects of rehabilitation, the availability of family support and the community's benefit in supervision of him upon release for a reasonably substantial period. In relation to both offenders, the circumstance that there will be some cumulation of sentences is an additional factor contributing to the findings of special circumstances. 90 The prescribed maximum penalty for manslaughter is imprisonment for twenty five years. There is an obvious difference between the prescription for offences upon which Percy Small has been convicted and for the offences of Matthew Reynolds. It is my duty to take into account the expressed will of Parliament in the prescriptions applicable to each offender and deal with them independently. Nevertheless in regard to Matthew Reynolds it is readily accepted that, of all criminal offending, manslaughter probably encompasses the widest range of responsibility. At one level there are manslaughters just short of murder and at the other extreme a responsibility resulting from circumstances not far above what would otherwise amount to accident. 91 It is submitted that Matthew Reynolds' offending fell below the middle of the range of objective seriousness for offences of manslaughter. Given the range of different offending which constitutes the offence, identification of a middle of the range is not a particularly practical exercise and I find it is more instructive to assess the objective seriousness of the particular conduct involved. This must be done against well established principle, that not only must conduct be assessed but that assessment must be done bearing in mind that manslaughter on any basis involves the felonious taking of human life. 92 Before turning to the imposition of sentences I should acknowledge receipt of victim impact statements on behalf of the families of three of the deceased. That no representative of the families of the other three victims has chosen to make such a public statement does not imply to my mind that the losses of those families are any less keenly felt. The statements which were made reveal deeply felt grief and sense of loss and such comfort as I can offer is limited to making this public acknowledgement. 93 Obviously nothing can alter the situation of death and loss but it is important that it be understood that I am not in any sense evaluating the lives of the respective deceased. Every life has a value beyond description in mere words. Nor is it my task in some way to avenge the deaths which have occurred and the memory of each of them can never be gauged against any penalty which is ultimately imposed. 94 I add that it is important to appreciate that the culpability of neither Matthew Reynolds nor Percy Small depends upon any intentional act or omission on the part of either of them. Neither of them intended the collision to happen. Neither of them intended the deaths to follow but the law requires that, even so, they must answer for their respective culpabilities in causing the deaths. 95 A search for impositions of sentences in possibly similar cases has revealed no precedential guidance for circumstances comparable to the present, nor have counsel directed my attention to any case of reasonably precise similarity. What has been done, to the effect that it might be of some utility, is to refer to cases in the far more commonly occurring situations of dangerous driving of a motor vehicle causing death, or manslaughter arising out of the use of such a vehicle. 96 There is some express guidance in a reported case concerning an offender named Whyte which was referred to by counsel and from which I have drawn the following expression of guidance. Where there is a plea of guilty and there is present to a marked degree any aggravating factor in the conduct of the offender, a total custodial sentence of less than three years in the case of dangerous driving causing death should be exceptional. In the case of Percy Small there are present aggravating factors in two suggested categories, first, the large number of people put at risk and second, the degree of alcohol and substance abuse in which he had indulged prior to the commission of the offences. 97 In referring to the figure just mentioned in Whyte it should not be overlooked that it assumed a plea of guilty, which was not here present. Pleas of guilty are themselves likely to have attracted and therefore built into the suggested figure, a significant discount for the utilitarian value of such plea. 98 As I have previously observed, of course a driver liable to that sentence no more ventured upon the road in an unfit state with an intention of killing or causing harm any more than the present offenders harboured such intention. That lack of intention was however necessarily factored into the assessment of the guideline. 99 My initial sentence assessment for Percy Small would be that, giving due regard to the will of Parliament in setting the maximum penalty, a sentence of 4 years imprisonment for each offence would be appropriate. His culpability for each of the deaths is identical and I should emphasize that when I come to structure the sentences I do not intend to imply that there is any difference in culpability in relation to the identity of any victim compared with any other victim. 100 A structural precept to which I must pay heed is that I should fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. As I have said, I would assess an appropriate total sentence for each offence to be imprisonment for 4 years. I also consider that there should be substantial concurrence because the offences arose out of the same acts and omissions but there should, nevertheless, be some cumulation to reflect the criminality which is involved in the commission of multiple offences. 101 My provisional assessment, taking into account the matters just mentioned, would be to impose terms of 4 years imprisonment on each count cumulated by 1 year in the case of each count. That would lead to an aggregate total term of 9 years imprisonment. However taking into account the principle of totality I would reduce that calculation to an overall term of 7 years 6 months. 102 In addition to the precept which I just mentioned I am also obliged to pay heed to legislative provisions regarding the setting of a non-parole period and the proportionality of it to a balance term. If the formula in the Act of Parliament were applied to total sentences of 7 ½ years, it would result in the imposition of a non-parole period of 5 years 7.5 months and a balance term of 1 year 10.5 months. However, to implement the finding of special circumstances which I have made, I would vary that to an overall non-parole period of 5 years with a balance term of 2 ½ years. 103 I have expressed the foregoing in order to reveal the processes by which sentence has been assessed. In an arithmetical sense it is not easy, nor is it particularly tidy when multiple offences are involved which inhere the same degree of criminality, to express impositions without creating some obscurity if seeking to apply both the, not altogether compatible, concepts which I have mentioned. 104 To maintain clarity I propose to impose fixed terms on each of the first five counts and attach the balance term to a non-parole period set in respect of the sixth count. Although this gives an appearance that the total terms on counts 1 to 5 are 4 years and the total sentence on count 6 is 6 years 6 months, I stress that this is done merely to give a structure reflecting the findings which I have made. 105 I turn to assessment of sentence upon Matthew Reynolds. I am conscious of the difference in prescription of available maximum penalty when compared with that prescribed for the offences of Percy Small, and I am sensitive to the need to recognize the legislative expression in the prescription which applies to Matthew Reynolds. 106 It hardly needs to be said that the culpability of Matthew Reynolds arises out of conduct which is different in detail from that of Percy Small. Without returning to what has already been said, in short Matthew Reynolds is liable for putting Percy Small at the helm when he ought to have known that he was unfit to control it and, having done so, he neither supervised him nor discharged his own obligation as skipper of the work boat to keep any proper watch. Percy Small's liability has sprung from his patent inability to safely helm the vessel by reason of his prior ingestion of intoxicating liquor and drugs. 107 Recognizing those differences in the foundations for liability and the statutory prescriptions, and that I must independently assess sentence to reflect the culpability of Matthew Reynolds, I have in the event come to the conclusion that appropriate sentences for Matthew Reynolds should be reflected in impositions of terms which are the same as those imposed on Percy Small. 108 It will not be necessary to repeat what I said about structure and special circumstances. Where fixed terms are imposed the reason is that they will be subsumed wholly within the non-parole period of a term imposed on the final count.

R v Reynolds R v Small

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Cited By (3)