Small v R

The Prosecution 14On 22 February 2010, Mr Small was indicted before a judge of the Common Law Division on six counts of dangerous navigation occasioning death, pursuant to s 52B(1) of the Crimes Act. By the indictment, the Director of Public Prosecutions charged in six counts that Mr Small, on 1 May 2008 at Sydney in the State of New South Wales, did navigate a vessel, namely an aluminium workboat registered number 53585, whilst under the influence of intoxicating liquor and drugs, whereby the vessel was involved in an impact as a result of which the death of six individuals was occasioned. Mr Reynolds was indicated on six counts of manslaughter, with six counts of aiding and abetting dangerous navigation occasioning death in the alternative to the manslaughter counts. Both pleaded not guilty to each count charged and they were tried together. 15On 6 April 2010, the jury returned verdicts of guilty in respect of each charge against Mr Small. Mr Reynolds was found guilty on each of the six charges of manslaughter. On 25 June 2010, Mr Small and Mr Reynolds were sentenced. The total effective sentence was 7 years and 6 months with an effective non-parole period of 5 years for each of Messrs Small and Reynolds. 16Section 52B(1)(a) of the Crimes Act provides that a person is guilty of the offence of dangerous navigation occasioning death if a vessel navigated by the person is involved in an impact occasioning death of another person and the person navigating the vessel was, at the time of the impact, navigating the vessel under the influence of intoxicating liquor or of a drug. A person convicted of an offence under s 52B(1) is liable to imprisonment for up to ten years.

The Trial 17It was not in issue that Mr Small was under the influence of alcohol and drugs. Nor was it an issue that, at the time of the collision, he was sitting in the starboard seat behind the helm. His case at the trial was that, nevertheless, he was not navigating the workboat. Accordingly, at the close of the Crown case, he made a submission that no prima facie case had been made out against him and applied for orders that verdicts of acquittal be directed. He contended that his physical control of the helm did not constitute navigating the workboat within the meaning of s 52B of the Crimes Act. Rather, he asserted, it was Mr Reynolds, as the master or skipper of the workboat, who was navigating it. 18The trial judge rejected the application. His Honour considered that the submission advanced on behalf of Mr Small, that he was merely holding the wheel, ignored his capacity to control the direction in which the workboat travelled by his manipulation of the helm. While Mr Small was at the helm, he was in a position, independently, to alter the direction in which the workboat travelled. Further, his Honour said, Mr Small's position at the helm also gave him access to the throttle, which determined the speed of the workboat. Thus, it was Mr Small who was in the position to avoid obstacles by steering clear of buoys, markers and other vessels. His Honour declined to direct acquittal on the six counts upon which Mr Small stood indicted. 19In his summing up to the jury, the trial judge directed that, for the purposes of the trial they should treat the word navigating as meaning controlling the helm of the workboat at the time of impact. His Honour told the jury that the word navigation could have a wide meaning. Thus, for example, on a cruise liner or warship, one of the officers below the bridge, with a pair of dividers and a ruler, might be said to be navigating the ship. It might also be said that the captain on the bridge of a large ship is navigating the ship. His Honour repeated, however, that, in the context of the case before the jury, navigating involved controlling the helm of the workboat. His Honour repeated several times that navigating as charged against Mr Small was being in control of the helm or controlling the helm of the workboat at the relevant time. His Honour told the jury that the question was whether they were satisfied beyond reasonable doubt that, at the time of impact, Mr Small was controlling the helm of the workboat.

Remarks on Sentence 20In his remarks on sentence of 25 June 2010, the sentencing judge, who was the trial judge, observed that the fishing trawler, an extremely well-lit and easily visible displacement vessel, moving at a relatively slow speed, was struck by the workboat, a highly manoeuvrable vessel approaching it at three times its speed. His Honour was satisfied that the cause of the collision was the failure of the workboat to make use of its manoeuvrability in order to pass the fishing trawler to its port, in the appropriate fashion. 21The sentencing judge considered that the culpability of Mr Reynolds stemmed from the circumstances in which he passed the helm of the workboat to Mr Small and his failure to discharge his responsibilities as skipper of the workboat. His Honour considered that an important element in assessing that culpability was what Mr Reynolds knew or ought to have known about Mr Small's condition. 22His Honour found that, before arriving at the Hotel, Mr 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. Mr Small also drank a shot of spirits. Later, he smoked more cannabis when at Pondy's place, and drank more beer on the journey to, and when he was at, Watson's Bay. He had ingested cocaine at the Hotel and he may have done so at Watsons Bay. His Honour found that, at the time when Mr Small took over the helm of the workboat and when the collision occurred, he was significantly impaired by his ingestion of alcohol and drugs. At the time when the collision occurred, the most likely concentration of alcohol was about 0.124 grams per 100 millilitres of blood. Indeed, Mr Small's case advocated a finding that he was considerably affected by the substances that he had consumed. 23The sentencing judge found that the consequent impairments operated on Mr Small's performance skills including motor coordination, ability to maintain vigilance, prudence in decision-making about risk-taking behaviour, perceptions, ability to process information and general alertness. An additional effect was that his vision would have had a tunnel-like limitation and his reaction times to any perceptions would be slowed. His Honour was satisfied that the combined effect of the consumption of alcohol, cannabis and cocaine was so detrimental to Mr Small's physical person that it would have been obvious to Mr Small and to any reasonable observer that he was not in a fit state to perform a task such as steering a vessel. 24The sentencing judge accepted that there was no prior arrangement for Mr Small to take over control of the helm during the trip on the harbour. Mr Small did not inform Mr Reynolds, directly or indirectly, that he was licensed to operate the workboat. Mr Small had a certificate that was required by employers to be held by anyone working on a boat, even as a barman or a deckhand. However, such a certificate is entirely irrelevant to having the training or licence to control a vessel. His Honour did not consider that the short time during which Mr Small was in fact at the helm was a mitigating factor. His Honour cited the analogy of a person who was materially affected by prior ingestion of intoxicating liquor and drugs taking over the driving of a motor vehicle and colliding with another vehicle at the next intersection, resulting in deaths. 25His Honour considered that the offences of which Mr Small was convicted could be treated as mirror offences of dangerous driving of a motor vehicle causing death. His Honour considered that the circumstances of the case emphasised that the same risks exist when vessels are being navigated upon the waters as exist when motor vehicles are driven on a public road. 26Although Mr Reynolds gave some abbreviated oral directions to Mr Small, concerning steering and turning, the sentencing judge did not accept that Mr Small was simply an instrument under the control of Mr Reynolds. Nor did his Honour accept that Mr Small felt obliged to carry out only exactly what he was told by Mr Reynolds, as the skipper of the workboat. His Honour considered that, once Mr Small was at the helm, he was in control of the direction in which the workboat travelled. 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 his Honour put it, "a mere puppet" waiting for Mr Reynolds to manipulate the strings. 27Given the amount and variety of his consumption of substances, which Mr Small realised had the tendency to affect him with attributes of intoxication, the sentencing judge considered that Mr Small's level of abuse of alcohol and drugs was a significant factor in assessing the degree of his culpability. His Honour also considered that it was a significant factor that, while he was in charge of steering the workboat, Mr Small was putting a large number of people at risk. 28Mr Small was aged 26 when sentenced and had no prior convictions. His early life was disruptive and, after his parents divorced, he moved backwards and forwards between households in Queensland and New South Wales. The sentencing judge concluded that Mr Small succumbed to the use of illicit drugs and overindulgence in alcohol partly as a consequence of lack of a consistent source of guidance and partly the fact that he was living independently shortly after leaving school. 29The Crown accepted that Mr Small's prospects of rehabilitation were good and that he was unlikely to re-offend. His Honour observed that the offences were obviously unplanned and unintended, as neither Mr Reynolds nor Mr Small intended to cause harm or death. Nevertheless, the offences for which they were convicted were specifically designed to deal with unintended fatal consequences. Although those consequences may have been unintended, it was Mr Small's decision, in his state of being affected by alcohol and drugs, which he knew he had consumed, to take control of the helm of the workboat, with the risks attendant upon it for those on board, that occasioned six deaths. 30The sentencing judge considered that the circumstances constituted a very high level of irresponsible behaviour. When imposing sentence on Messrs Reynolds and Small, his Honour was conscious of the differences in the maximum penalty for the offences charged. His Honour accepted that the culpability of Mr Reynolds arose out of conduct that was different in detail from that of Mr Small. Thus, Mr Reynolds was culpable for putting Mr Small at the helm, when he ought to have known that he was unfit to control it and, having done so, neither supervised Mr Small nor discharged his own obligation as skipper of the workboat to keep a proper watch. Mr Small's culpability sprang from his patent inability to helm the workboat safely, by reason of his prior ingestion of intoxicating liquor and drugs. Recognising those differences in the foundation for culpability and the different statutory prescriptions for the respective offences, his Honour concluded that it was appropriate that the sentences for Mr Reynolds and Mr Small should be the same.

The Appeal 31On 5 December 2012, Mr Small lodged a notice of appeal and notice of application for leave to appeal against sentence. Since they were filed out of time, he also filed notice of application for extension of time for notice of appeal and notice of application for leave to appeal. The extension was not opposed by the Crown and, on the hearing of the appeal and the application for leave on 21 June 2013, the Court granted the extension of time. 32The ground of appeal against conviction is that the trial judge erred in directing the jury that the term navigate for the purpose of s 52B of the Crimes Act meant merely controlling the helm of the workboat at the time of impact. The ground of the proposed appeal against sentence is that the sentencing judge erred in imposing the same sentence upon Mr Small as he imposed upon the co-offender, Mr Reynolds.

Conviction 33Mr Small contended that mere physical control of the helm of the workboat did not constitute navigating the vessel within the meaning of s 52B of the Crimes Act. He submitted that, in order to be navigating a vessel for the purposes of s 52B, a person must have the management and control of the vessel or the effective control of the vessel. He asserted that it was Mr Reynolds, as master or skipper of the workboat, who was navigating the vessel at the relevant time, rather than Mr Small. 34The words navigate and navigation are not defined in the Crimes Act. The word navigation is capable of wide meaning. In several maritime contexts, a distinction is drawn between care of cargo, on the one hand, and navigation or management of ships, on the other hand (see article IV of The Hague Rules and the The Hague-Visby Rules). 35The meaning of the word navigate has been the subject of several decisions in a variety of statutory settings. For example, the word may include the sailing, steering, directing or managing of a vessel (Frost v Warner [2002] HCA 1; (2002) 209 CLR 509 at [31]). Further, the word is apt to encompass, if the context permits, the controlled movement of a ship to berth with the assistance of tugs (see Elbe Shipping SA v The Ship "Global Peace" [2006] FCA 954; (2006) 154 FCR 439 at [104] and the authority there cited). 36As a matter of ordinary English, the word navigate, when used transitively in relation to a vessel, means to sail, direct or manage the vessel (Oxford English Dictionary) or to direct or manage the vessel on its course (Macquarie Dictionary). The etymology of the word is the Latin verb navigare. The etymology of navigare is a combination of the noun navis, meaning a ship, with agere, meaning, relevantly, to guide and govern or to drive forwards. Little assistance is gained from the etymology. 37Mr Small contends that, absent express legislative definition to the contrary, it is not permissible merely to equate the concept of navigation of a vessel with the concept of driving a vehicle. That contention is advanced in the context of s 52A of the Crimes Act. Section 52A relevantly provides that a person is guilty of the offence of dangerous driving occasioning death if a vehicle driven by the person is involved in an impact occasioning the death of another person, and the driver was, at the time of the impact, driving the vehicle under the influence of intoxicating liquor or of a drug. 38Mr Small contends that, in order to be guilty of an offence under s 52B, a person must be directing the course of the vessel at the relevant time, and it is not sufficient merely to be steering the vessel or having the mere physical control of the helm. He says that that construction follows from the rule that a criminal statute, if ambiguous or doubtful, should be construed strictly in favour of an accused person. He says that it would have been open for the Parliament, had it intended liability for an offence contrary to s 52B to attach to a person who was merely controlling the helm of a vessel, to have defined the term navigation to include such an activity in express terms. He says that the fact that it was not so defined indicates that the ordinary English definition of the term navigate was intended to apply. 39However, the ordinary meaning of the word navigate, as including to direct a vessel, is consistent with steering the vessel. As indicated above, navigating can include steering, albeit that the word may include other activities in relation to a vessel. As a matter of ordinary English, there is no basis for concluding that navigating a vessel such as the workboat would not include being in control of the helm and thereby being in a position to direct the course to be taken by the vessel and to direct the direction in which it will travel. 40I consider that, as a matter of ordinary English, Mr Small, in the circumstances described above, was navigating the workboat at the time of its collision with the trawler. He was the only one that could have taken action to avoid the collision, had he seen the fishing trawler soon enough. The fact that he did not see it is consistent only with his not keeping a proper lookout. He said that his vision to the port side of the workboat was obscured by the presence of Mr Reynolds, who was standing between the two seats. That, however, does not bear on the question of who was controlling the direction of the workboat at the time of the impact. There was no error on the part of the trial judge in the direction that his Honour gave to the jury and for his Honour's reasons for declining to direct a verdict for Mr Small. 41If there were ambiguity as to the meaning of "navigate" in s 52B, the ambiguity would be dissipated by comparison with s 52A. It was clearly the intention of the Parliament to replicate in s 52B the provisions relating to culpable or dangerous driving of motor vehicles in s 52A. In his speech on the second reading of the Bill for the Act that inserted s 52B in its original form, the relevant Minister observed that, in recent times, it had become clear that injuries and deaths caused by the culpable navigation of boats, particularly speedboats, ought to be covered by an offence similar to the law relating to culpable driving of motor vehicles. The Minister said that the proposed s 52B was drafted in terms adapted from the then form of s 52A, with appropriate minor variations. The Minister said that similar penalties would apply to culpable navigation as were to apply to culpable driving (Hansard 30 March 1983, pp 5514 - 5515). 42In 1996, the offence of culpable navigation in s 52B was amended to dangerous navigation, in line with similar amendments that had been made earlier to the offence of culpable driving. In his speech on the second reading of the Bill for that amendment, the relevant Minister observed that the offence of culpable navigation in s 52B was to be amended to make it consistent with the offence of dangerous driving provided for in s 52A. The Minister said that both sections contain the same maximum penalties and varied only as was necessary to reflect differences between driving on roads and navigating on waterways (Hansard 6 December 1995, p 4279). 43It is clear enough that s 52B is directed at persons driving, steering or helming vessels. It may include other aspects of navigating, depending upon the circumstances of a particular case. However, there is no reason to confine the term navigation to the actions of the person with overall responsibility for the management of a vessel, to the exclusion of a person who is actually physically controlling the vessel. 44Mr Small sat in the starboard seat, took the helm and steered the workboat up to the time of the collision. It may be that he did so because Mr Reynolds invited him to do so. Nevertheless, he was exercising his own will in directing the course of the workboat. There was nothing to suggest that his actions were involuntary. I consider that he was navigating the workboat at the time of its impact. It follows that the appeal against conviction must be dismissed.

Sentence 45Mr Small contended that Mr Reynolds' culpability was considerably greater than his. He asserted that he made "a rather stupid error of judgment", consequent upon his intoxication and drug-affectedness. He contended he had no boating experience and therefore no responsibility for either the workboat or the passengers on it. Mr Reynolds, on the other hand, he said, was the master of the workboat, was intoxicated, permitted the workboat to be overloaded, permitted Mr Small, an unlicensed, inexperienced, intoxicated and drug-affected person, to take the helm, failed to assist Mr Small in keeping a proper lookout and at times hindered his ability to keep a proper lookout. Mr Small says that, in those circumstances, Mr Reynolds was grossly negligent in nearly every action he took that night and that the respective sentences imposed upon them left Mr Small with a justifiable sense of grievance. 46The sense of grievance necessary to attract appellate intervention with respect to disparate sentences must be assessed by objective criteria. The application of the relevant principle does not involve a judgment about the subjective feelings of a person complaining of disparity. The Court will not intervene where disparity is justified by differences between co-offenders, such as age, background, criminal history, general character and the part that each had played in the relevant criminal conduct or enterprise. However, in deciding an appeal against the severity of a sentence on the ground of unjustified disparity, the Court must have regard to the qualitative and discretionary judgments required in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, there will be a basis for intervention notwithstanding that the sentence is not otherwise excessive (Green v Regina [2011] HCA 49; (2011) 244 CLR 462 at [31] - [32]). 47Mr Small contends that the culpability of Mr Reynolds extended beyond the facts identified by the sentencing judge. He contends that Mr Reynolds culpability was considerably greater than that of his own. 48The charges upon which Mr Reynolds was convicted certainly carried a higher maximum penalty than those upon which Mr Small was convicted. That was not overlooked by the sentencing judge, who expressly noted the differences. However, his Honour also observed that the range for manslaughter offences, in terms of facts and objective seriousness, is great. Accordingly, the sentencing range is also great. 49The Crown case was presented on the basis that the collision was caused by the combined acts and omissions of each of Mr Reynolds and Mr Small. Having regard to the convictions, it is fair to conclude that the jury found, as a fact, that the collision was caused by their combined acts and omissions. For that reason, it is not inappropriate for them to be treated equally in terms of culpability. The abandonment of responsibility by Mr Reynolds was equalled by the high level of irresponsible behaviour on the part of Mr Small, in taking the helm knowing his state of intoxication and impairment. 50Neither Mr Reynolds nor Mr Small pleaded guilty and no significant difference in their subjective cases was put forward by either of them to justify a divergence in sentences. His Honour found that both had good prospects of rehabilitation and were unlikely to re-offend and found special circumstances in respect of each of them. His Honour took into account the importance of general deterrence in respect of the sentence to be imposed on each of them. His Honour also recognised the need to impose sentences that took into account the separate offences and number of victims and to apply the totality principle to the total effective sentence imposed on each. In circumstances where exactly the same sentence has been imposed on both offenders for what was effectively their joint culpability for an offence that resulted in the death of six victims, there is no basis for a justifiable sense of grievance on the part of Mr Small. In the circumstances, it was open to the trial judge to conclude that the same sentence was warranted.

Conclusion 51The appeal against conviction should be dismissed. Application for leave to appeal from the sentence should be granted but the appeal should be dismissed. 52RA HULME J: I agree with Emmett JA. 53RS HULME AJ: I agree with the orders proposed by Emmett JA and with his Honour's reasons.

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