Nicholas Mouat sentenced for dangerously driving boat, killing diver

A Carrum Downs man was inattentive for 58 seconds when he ran over a diver in Port Phillip Bay, killing him.

A furniture manufacturer who fatally struck a spear fisherman with his boat has avoided prison, instead being handed a fine.

Carrum Downs man Nicholas ‘Nick’ Mouat, 44, faced the County Court for sentencing on Monday, after he earlier pleaded guilty to one charge of dangerous driving causing death.

Last month Prosecutor Stephanie Clancy told the court Mouat had been driving his white motorboat, named ‘Serendipity’, in waters near Mount Eliza on the morning of May 5, 2019.

Heading back from fishing in Woolley’s Reef, Mouat had been driving between five and eight knots as he approached two men freediving and spearfishing around 1pm.

Three professional fishermen witnessed what unfolded next, with one recalling thinking the boat was venturing “way too close” to the divers as it passed through the two orange dive buoys, used to signal that divers were in the area.

At this point one of the divers, Sayoon Hong, was swimming towards the surface and heard the sound of an engine.

“As he broke the surface of the water he saw a vessel pass within one metre of him, close enough to see the bubbles from the vessel’s propeller,” Ms Clancy had said.

“The vessel had passed through the middle of their dive buoys. He observed the vessel had been travelling quickly.”

Mr Hong saw the boat stop about 20m away before the caucasian male skipper with the brown beard looked back towards him and waved, before driving on towards Mornington.

Shortly afterwards Mr Hong found his friend, Geunhee Park, “lying flat and unconscious on the bottom of the ocean”.

He swam down and pulled him back up to the surface, where he cradled him in his arms and screamed out for help.

His cries were heard by the three fishermen who drove over and pulled the two men on board and the unresponsive Mr Park’s serious injuries became clearer — he had deep lacerations through his cheek, eye and forehead.

Paramedics declared the 29-year-old Korean-born man deceased after he was pulled onto Frankston pier.

A search for the offending skipper was launched, with police tasked to obtain details of all boats at surrounding ramps.

The court heard the police airwing had captured Mouat travelling north about 1.44pm, while his trailer was seen parked at the Patterson River Boat Ramp, or Launching Way.

The court heard evidence Mouat had spoken to a friend about a diver being hit by a boat later that afternoon and that he was in the area but “didn’t feel anything on the boat”.

The following morning he turned himself into police, telling them he had been in the area at the time of the incident and had driven through dive flags without noticing them “until it was too late” as he was sounding for fish.

He had been “inattentive” for about 58 seconds when he struck Mr Hong, the court heard.

He said he slowed down and waved his hand at the diver to say ‘sorry’ before continuing on, claiming he did not know anything had happened until he saw a witness appeal in the news the following morning.

He then felt “sick” not knowing if he “did or didn’t hit that person”.

Ms Clancy said Mouat, a regular boat user who frequently fished in Port Phillip Bay, admitted to knowing he needed to stay 100m away from dive markers and the prosecution case was that he failed to keep a proper lookout for the divers in an area he knew was “notorious” for them.

Judge Douglas Trapnell was handed two victim impact statements – one from the victim’s wife and the other from his father.

His wife had detailed the devastation she had felt since the time police officers knocked on her door to tell her of her husband’s death, describing it as a “living nightmare”.

While acknowledging the family’s profound grief and the many ripple effects, Judge Trapnell said he also needed to take into account the benefit of Mouat’s admissions.

“Despite a thorough police investigation, there was no positive identification of your boat as being the one who struck Mr Hong or that you were the driver at the relevant time.

“...Whilst no doubt the prosecution could have constructed a circumstantial case sufficient to justify laying charges against you, it is fair to say your admissions made a very weak case virtually overwhelming.”

Mouat had originally been facing a charge of culpable driving causing death but it was dropped when Mouat agreed to plead guilty to the lesser charge of dangerous driving causing death following a sentence indication.

During this indication Judge Trapnell said he would not send Mouat to prison but would require him to undertake a community corrections order with unpaid community work.

Mouat, who is in the community, was on Monday convicted and sentenced to a community corrections order to last five years.

He must complete 600 hours of unpaid community work and was also fined $10,000.