Maritime New Zealand v Wilson [2019] NZDC 3584 (14 November 2018)

Last Updated: 21 July 2021

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2018-085-000932

[2019] NZDC 3584

MARITIME NEW ZEALAND

Prosecutor v

IAIN DAVID WILSON Defendant

Hearing:	14 November 2018
Appearances:	A Van Echten for the Prosecutor G Ballara for the Defendant
Judgment:	14 November 2018

NOTES OF JUDGE P A H HOBBS ON SENTENCING

[1] Mr Wilson, you appear today for a sentence on a charge of operating a ship in a manner causing unnecessary danger or risk to other persons.

[2] The maximum penalty is a fine of $10,000 or 12 months’ imprisonment, and nobody is suggesting today that you should be sentenced to imprisonment or anything of that sort. The argument has been about the level of fine that should be imposed today.

[3] In terms of the offending you are employed as a master of the passenger ferry the City Cat. On 16 April this year you were carrying 16 passengers and other crew members and at approximately 10.45 am the City Cat grounded on a rock located

MARITIME NEW ZEALAND v IAIN DAVID WILSON [2019] NZDC 3584 [14 November 2018]

approximately 17 metres from the shore in Karaka Bay in Wellington Harbour. The vessel at that time was travelling at 17 knots, well in excess of the speed restriction of 5 knots within 200 metres of the shore.

[4] The summary tells me that it was a fine and clear morning. The impact with the rock caused significant damage to the City Cat. The keel was splintered, and the port rudder was damaged. However, the vessel remained watertight and the incident did not result in any immediate danger to the passengers as a result of the damage that was caused. The vessel did require repair and was unusable for approximately two weeks.

[5] At the time of the impact with the rock passengers were located on both the top deck and inside the ferry itself. The impact was sufficient to jolt passengers in their seats. One passenger fell off her seat and hit her back and neck but did not require any medical attention or treatment.

[6] The prosecution point out to me that the principle legislative purpose of the Maritime Transport Act 1994 is to ensure public safety.

[7] The prosecution represented by Ms Van Echten today reminds me to bear that in mind when sentencing you today.

[8] In terms of the aggravating features advanced by Ms Van Echten, Ms Van Echten says that you failed to ensure on this occasion that the appropriate nautical chart was aboard. The chart that you did have onboard did not show the rock that you struck. Ms Van Echten says you failed to keep a proper look out. Ms Van Echten says you also failed to proceed at a safe speed. Ms Van Echten has included in her submissions the previous breaches by you of the Maritime rules in relation to speed.

[9] Ms Van Echten submits that you exposed the passengers onboard the vessel to risk of injury as a result of your actions. Ms Van Echten has referred me to two cases in particular. Ms Van Echten submits that based on the aggravating features in those cases, a starting point of $5000 fine is appropriate.

[10] In contrast Mr Ballara on your behalf says that is too high. In terms of the aggravating features identified by Ms Van Echten, Mr Ballara points out that the chart that you had on the vessel was a chart provided by your employer and habitually used by you and other crew. I am told there is a chart that does, in fact, show the rock, but that clearly was not a chart provided to you.

[11] In terms of what happened on the day in question you accept without reservation that you were going too fast and you now accept that you were too close to the shore. Those two features in combination seem to me to be the most significant aggravating features. You were within 200 metres of the shore clearly exceeding the five knot speed limit.

[12] In terms of what you could or could not see Mr Ballara says the sea was cloudy or murky as a result of recent rain and no doubt water from the Hutt River which at times does affect the harbour itself. Mr Ballara says the rock was therefore not visible to you at the time and nor could you see the seaweed or kelp that obviously surrounded the rock.

[13] In terms of the cases that Ms Van Echten has referred to, Mr Ballara submits to me that they are more serious cases than the present case. Ms Van Echten referred me to Police v Leck1 which involved a collision by the defendant and a pleasure craft. Both vessels sustained severe damage and occupants in the other vessel sustained significant injury.

[14] The District Court Judge in that case adopted a starting point of $5000 assessing the culpability as mid-range. That is the starting point as I have noted that Ms Van Echten urges me to adopt today.

[15] Ms Van Echten has also referred to Pittar v Maritime Safety Authority2 which again Mr Ballara says is a more serious case than yours.

1 Police v Leck [2010] DCR 772

2 Pittar v Maritime Safety Authority HC Blenheim AP 3/98, 8 July 1998

[16] Mr Ballara has suggested that your case falls in the lower band of culpability rather than the mid-band suggested by the prosecution. Mr Ballara has referred to the recent appellate authority of Stumpmaster v Worksafe New Zealand3 and suggests if he is correct about that assessment then a fine of approximately 16 to 17 percent of the maximum of $10,000 is appropriate, not the $5000 suggested by Ms Van Echten.

[17] I acknowledge what Ms Van Echten says about you exposing the passengers on your vessel to some risk. That is obvious. However, one has to bear in mind that nobody was injured and you, in fact, thought that you had struck a submerged log and reported that.

[18] I do not think your case is as serious as the two cases that have been referred to me by Ms Van Echten. As I have already noted it seems to me that the significant aggravating features are the speed at which you travelled in proximity to the shore.

[19] There is some explanation for the lack of an appropriate chart. You have co-operated throughout with the investigation and you have now modified your practice in terms of the way you conduct your operations.

[20] I am satisfied, as I have said, that $5000 is too high. In my view your culpability is lower than as suggested by the prosecution. While it might not fall strictly into the mathematics that Mr Ballara has referred me to in terms of Stumpmaster, I think a fine of two and a half thousand dollars is the appropriate starting point.

[21] You are entitled to credit for the fact that you have no previous convictions.

[22] As I have said you have co-operated throughout the investigation. You have modified your practice and those things need to be taken into account. You are also entitled to credit for your guilty plea, whether it is 20 percent or 25 percent makes little difference in terms of the ultimate outcome when one considers the starting point fine. An argument has been made to me by both counsel about whether full credit is appropriate or available.

3 Stumpmaster v Worksafe New Zealand [2018] NZHC 2190

[23] I am going to give you full credit. You have pleaded guilty. You have saved everybody the trouble and cost of a trial, and Mr Ballara has explained the timing of your plea.

[24] So, with a full credit for your guilty plea you are now fined $1688.

P A H Hobbs District Court Judge