Scott v R [2014] NZHC 1598 (10 July 2014)

Last Updated: 1 August 2014

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-015 [2014] NZHC 1598

BETWEEN	PAULA MICHELLE SCOTT Appellant
AND	THE QUEEN Respondent

Hearing:	30 June 2014
Appearances:	K Pascoe for appellant C E Clarke for respondent
Judgment:	10 July 2014

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] Following a fatal accident on the outskirts of Oakura, Taranaki, on 30 June

2013, the appellant, Paula Scott, pleaded guilty to one charge of driving dangerously causing death and one charge of driving dangerously causing injury, contrary to ss 36AA(1)(b) and 36(1)(b) of the Land Transport Act 1998. Judge Roberts sentenced Ms Scott in the District Court at New Plymouth on 20 May 2014 to three years’ imprisonment, and disqualified Ms Scott from driving for three years.¹

[2] Ms Scott now appeals against her sentence as being manifestly excessive. She says the Judge:

(a) adopted an excessive starting point and, in doing so, failed to properly assess the aggravating and mitigating features of her offending; and

_{(b) failed to provide a discount for remorse.}

¹ _{Police v Scott DC New Plymouth CRI-2013-043-002587, 20 May 2014.}

SCOTT v R [2014] NZHC 1598 [10 July 2014]

Ms Scott’s offending and her personal circumstances

[3] Ms Scott underwent major abdominal surgery on 29 May 2013. She was discharged from hospital on 4 June 2013. Ms Scott’s recovery was affected by post- surgery complications. Those complications interrupted Ms Scott’s sleep patterns. In a letter in April this year confirming those matters, and that there was no surgical reason Ms Scott should not go to prison, Ms Scott’s surgeon recorded his advice to Ms Scott that, following such surgery, patients should wait between four and six weeks before driving again. In addition, her surgeon confirmed that following such major abdominal surgery patients can take a long time to recover and can be fatigued and unwell for up to two or three months. Ms Scott would, he opined, very much have been suffering from ongoing fatigue.

[4] On 30 June, Ms Scott decided to drive to Oakura, where her mother lives. Ms Scott was intending to stay with her mother so that her mother could help her in her recovery.

[5] The distance from New Plymouth to Oakura is approximately 20 kilometres, and involves, again approximately, a 25 to 30 minute drive.

[6] Ms Scott left her residence in New Plymouth shortly after three o'clock on the afternoon of Sunday 30 June 2013. A short while later, at approximately 3.15 pm, she was observed weaving in and out of the lane as she drove. The driver of the following car was so concerned that they followed Ms Scott. Ms Scott continued to drive erratically, crossing the centre lane on a number of occasions, veering back sharply into her own lane and narrowly avoiding a collision with an oncoming vehicle. She was also observed braking erratically, driving in the passing lane, although not passing any other vehicle, and weaving within the passing lane.

[7] Approaching the outskirts of Oakura, some 20 minutes after she was first observed driving erratically, Ms Scott crossed the centre line completely, on an easy and slight corner, into the path of an oncoming courier van which did not have any time to react. The courier van was driven by 56 year old Christopher Peters. Also in the van was Christopher Peters’ 82 year old father, Roland Peters.

[8] As a result of the head-on collision Roland Peters was severely injured. He died some four days after the crash. Christopher Peters suffered significant chest injuries, and was off work for some six weeks.

The challenged sentencing decision

[9] In sentencing Ms Scott, the Judge applied the Court of Appeal decision of

Gacitua v R and, in turn, the English authority R v Cooksley.²

[10] The Judge first identified the following aggravating circumstances of Ms Scott’s offending: highly culpable driving, the consequences of that driving – death and serious injury, and the impact on the family of Roland Peters. In terms of Ms Scott’s culpability, the Judge observed that Ms Scott must have been aware her driving was seriously impaired before the crash: she knew she had not slept for

24 hours before she even started driving and, once driving, was affected for some

20 minutes by that fatigue. Her offending involved an extended period of poor decision-making with fatal consequences. There were, therefore, two culpability factors from Cooksley: a prolonged, persistent and deliberate course of very bad driving and driving when knowingly deprived of adequate sleep or rest. In fixing the starting point sentence of four years, the Judge had particular regard to the extended period of extremely bad driving by Ms Scott which led up to the fatal collision at Oakura.

[11] In considering personal circumstances, the Judge noted that Ms Scott had two previous careless use convictions, one in 1989 and one in 2011. He initially appeared of the view that no uplift was required with respect to that previous offending.

[12] The Judge acknowledged the personal health issues Ms Scott faced, and discussed remorse. He noted that Ms Scott had expressed considerable remorse (albeit, he said, focussed on the impact of these events on her), and had been prepared to take part in a restorative justice programme. That had not, as a matter of

_{fact, transpired. The Judge did not comment on the reasons for that outcome. The}

² Gacitua v R [2013] NZCA 234; R v Cooksley [2003] 3 All ER 40.

Judge recorded that the family felt aggrieved that Ms Scott had not interacted with them. The Judge then observed:

[32] Any concession I afford you for remorse is restricted to the fact that still the family feel that they have been denied an apology. It would be confined to months.

[33] In electing not to elevate to accommodate the careless use charges, I am cancelling out the remorse that would have only been for a maximum term of three months.

[34] Thus without elevation, there is no need to deal with that remorse.

[13] Allowing a 25 per cent discount for Ms Scott’s guilty plea, the end sentence of three years’ imprisonment was arrived at. The Judge imposed a concurrent sentence of two years for the dangerous driving causing injury charge, and disqualified Ms Scott for three years. No issue is taken with the period of disqualification.

Approach to this appeal

[14] Section 250 of the Criminal Procedure Act 2011 governs the grounds on which an appellate court can intervene with a sentence. It states:

The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

Acceptable grounds for intervention by the first appeal court include: (a) the sentence was manifestly excessive or lenient;

(b) the sentence was inappropriate in a particular case;

(c) the sentence involved an error of law or principle (eg, failing to apply or wrongly applying a statutory factor, or taking into account an irrelevant consideration);

(d) relevant facts before the sentencing court were incorrect or incorrectly assessed;

[15] Section 250 codifies the approach taken by appeal courts before the enactment of the Criminal Procedure Act by providing that the “error principle” is the basis for allowing an appeal against sentence.³

Case on appeal

[16] For Ms Scott, Ms Pascoe emphasised the health issues causative of Ms Scott’s fatigue. She also emphasised that, on 30 June, the reason Ms Scott was driving was to seek her mother’s help: she did not, in that sense, deliberately drive dangerously – as happens when dangerous or reckless driving involves deliberate speed or, perhaps more seriously, racing other drivers. Moreover, alcohol played no part in Ms Scott’s offending. The Judge’s failure to consider those factors had led to the erroneously high starting point. The two Cooksley culpability factors that the Judge identified overlapped each other considerably. The Court of Appeal in Gacitua had expressly noted that it did not necessarily endorse the suggested sentencing bands in Cooksley which the Judge here had adopted when he fixed the four year starting point. That that starting point was too high could be seen from a comparison of the facts of this offending with those in Gacitua itself and another

reckless driving causing death sentencing, Roberts v Police.⁴ It was informative,

Ms Pascoe submitted, to consider cases such as Eades v Police, where driver fatigue caused a fatal accident and the driver faced a charge of careless driving causing death.⁵

[17] In terms of the Judge’s treatment of remorse, Ms Pascoe argued that the Judge had been wrong not to allow a discount for remorse because of Ms Scott’s prior careless use convictions.

[18] Ms Scott had, as the Judge acknowledged, been willing to engage in a restorative justice process. In the period from June to when charges were laid in December, Ms Scott had, Ms Pascoe explained to me, been cautioned by the investigating officer from having direct dealings with Mr Peters’ family. When

_{charges were laid, Ms Pascoe had asked formally to engage in a restorative justice}

³ _{Vae v Police [2013] NZHC 2664 at [28].}

⁴ _{Roberts v Police [2013] NZHC 2233.}

⁵ Eades v Police HC Christchurch CRI-2009-409-135, 3 December 2009.

process. The police did not, however, convey that request to the family. In those circumstances, an appropriate discount for remorse should have been allowed.

[19] For the Crown, Ms Clarke supported the Judge’s reasoning. The Judge had correctly identified, and responded to, the highly culpable driving in question. He was aware of the possibility of double-counting between the Gacitua/Cooksley culpability factors. Rightly, the Judge had noted that Ms Scott had, at the outset, known she was affected by fatigue: she had not slept for 24 hours. Not only that, she continued driving once the impact of that fatigue started to actually affect her.

[20] Given the family’s view on Ms Scott’s lack of remorse, the Judge was entitled to consider that, in the circumstances and taking account of the previous convictions, no deduction should be provided for remorse.

Analysis and outcome

[21] In May 2011, as part of a package of reforms, Parliament increased the maximum penalty for dangerous or reckless driving causing death from five years’ imprisonment to 10 years. In its 2013 decision in Gacitua, the Court of Appeal reviewed the approach to sentencing in this class of case following that law change. In doing so, the Court placed considerable reliance on the 2003 English Court of Appeal decision in R v Cooksley.⁶ Cooksley was itself a review of English sentencing practice in this area following a similar law change.

[22] At the beginning of the judgment in Cooksley, Lord Woolf CJ referred to the difficulties of sentencing in cases where death is caused by dangerous driving by quoting the Chairman of the Sentencing Advisory Panel which had recommended the new sentencing guidelines under consideration. The Chairman said:⁷

... This offence causes particular difficulty for sentencers. By definition, it is one which always give rise to extremely serious harm: the death of at least one victim (and in some cases serious injury to others). Understandably this often leads to calls from victims’ families, and from the wider community, for tough sentencing. On the other hand, an offender sentenced for causing death by dangerous driving did not intend to cause death or serious injury,

⁶ _{R v Cooksley, above n 2.}

⁷ At [1].

even in the extreme case where he or she deliberately drove for a prolonged period with no regard for the safety of others. ... (emphasis added)

[23] These considerations apply in this case with particular force.

[24] In Cooksley, some 16 aggravating factors overall were identified, arranged in groups under the headings:

Highly culpable standard of driving at time of offence; Driving habitually below acceptable standards;

Outcome of offence; and

_{Irresponsible behaviour at time of offence.}

[25] Included in the group under the heading “Highly culpable standard of driving at time of offence” were the factors identified by the Judge here, that is, a prolonged, persistent and deliberate course of very bad driving and driving when knowingly deprived of adequate sleep or rest. That second factor was new. In commenting on that factor, the Chairman of the Sentencing Advisory Panel commented:⁸

The second point is the inclusion of “driving when knowingly deprived of adequate sleep or rest” in the list of factors that would aggravate the seriousness of an offence. Under previous sentencing guidelines, “briefly dozing at the wheel” was seen as an example of a “momentary dangerous error of judgement”, indicating a less serious offence. The Panel’s view (again supported by consultees) is that falling asleep is more likely to aggravate than mitigate the seriousness of an offence, because drivers do not normally fall asleep without warning, and the proper course of action for a motorist who feels drowsy is to stop driving and rest.

_{[26] In Cooksley the following sentencing bands were also identified:}

no aggravating circumstances – 12 to 18 months;

_{intermediate culpability – two to three years;}

⁸ R v Cooksley, above n 2, at [1].

higher culpability, highly dangerous driving evidenced by one or two factors listed under the heading “Highly culpable standard of driving at

_{time of offence” – four to five years; and}

_{most serious culpability – six years.}

[27] In setting those guidelines, the English Court emphasised, as did the Court of Appeal in similar circumstances in R v Taueki, that a mechanical approach was to be avoided.⁹ There could be cases with three or more aggravating factors which were not as serious as a case providing a bad example of one factor.

[28] The Court of Appeal did not adopt the Cooksley sentencing bands in Gacitua and emphasised that the weight to be attached to a Cooksley aggravating factor needs to be determined in each individual case.¹⁰ Nevertheless sentences applying the Cooksley factors, including Gacitua, itself have resulted in starting point sentences broadly in line with those indicated in Cooksley.¹¹

[29] Assessing Ms Scott’s challenge to the Judge’s reference to those bandings and to his starting point, I do not think he fell into error. Applying the approach taken by the Court of Appeal in Gacitua, I conclude that the Judge was correct when he identified that there were two relevant aggravating factors in Ms Scott’s offending. These were her decision to drive when she knew she was tired from lack of sleep, and her tragic and very poor decision to keep driving for some considerable period of time (20 minutes or thereabouts) once that fatigue was clearly affecting her driving, and making her driving dangerous in the extreme. I accept there may be some overlap between those two factors: that is, it is possible that her tragic decision to keep driving was itself influenced by her fatigue. The Judge also recognised that overlap, properly considered the weight to be attached to the relevant aggravating

_{factors and did not mechanically apply the Cooksley banding.}

⁹ _{R v Taueki [2005] 3 NZLR 372 (CA).}

¹⁰ _{Gacitua v R, above n 2, at [22].}

¹¹ See for instance R v Murcott [2014] NZHC 971 where three “highly culpable” factors were identified and a six year starting point adopted, or McMillan v Police [2014] NZHC 150 where one “highly culpable” factor was identified and a starting point of three and a half years adopted.

[30] I acknowledge that two commonly present aggravating features of this type of offending, namely excessive speed and the consumption of alcohol, were not present. But, in terms of comparing instances of this offending, that is the absence of an aggravating factor here, not itself a mitigating factor.

[31] It is also appropriate, as Ms Pascoe submitted, to assess the significance of the ultimate causative factor of Ms Scott’s fatigue, namely her difficult medical condition and that, as was accepted at the sentencing, she had, albeit by a narrow margin I observe, followed her surgeon’s advice not to drive before the minimum period of four weeks had passed. Given, however, that Ms Scott was, as she admitted, aware of the fact of her fatigue before she started driving, I do not think that that fatigue was caused by her difficult medical condition becomes a mitigating factor.

[32] Ms Pascoe supported her argument that the starting point was manifestly excessive by reference to Gacitua itself and to the New Zealand cases of Eades v Police,¹² Roberts v Police¹³ and McMillan v Police.¹⁴

[33] In Gacitua, by reference to relevant Cooksley aggravating factors, the Court of Appeal upheld the starting point sentence of five years, noting the presence of the factors of excessive speed, racing and competitive driving, a prolonged, persistent and deliberate course of very bad driving, and aggressive driving. There were more Cooksley factors than here but the Court recognised that there were considerable overlaps between those factors. On that basis, a starting point for Mr Gacitua’s culpability was, the Court of Appeal said, in the four to five year range. There was, by my assessment, less overlap in the aggravating factors identified here so that, by comparison to Gacitua, Ms Scott’s sentence is not manifestly excessive.

[34] In Eades, a careless driving charge was imposed where a visitor to New Zealand, suffering from jet lag some two days after their arrival from the United Kingdom, fell asleep at the wheel and hit a lamppost. As a result, the three

_{occupants of the car (relatives of the driver) were killed. The charge of careless}

¹² _{Eades v Police, above n 5.}

¹³ _{Roberts v Police, above n 4.}

¹⁴ McMillan v Police [2014] NZHC 150.

driving causing death was laid. On appeal, and under the previous sentencing laws, Panckhurst J reduced a term of community work from 250 hours to 60 hours. The facts in that case are, in my view, so different as to be of little, even indirect, assistance here.

[35] In Roberts, Panckhurst J upheld a sentence for dangerous driving causing death of two years and eight months. Alcohol and speed were involved. The Judge set a starting point sentence of four and a half years, the top end of the range proposed at sentencing by the Crown. In dismissing the appeal, Panckhurst J found that the four and a half year starting point was not beyond the available range, although stern. Ms Scott’s lower four year starting point can be seen as reflecting the absence of alcohol and speed.

[36] In McMillan, there were charges of driving with excess blood alcohol causing death and injury. A six year starting point sentence was identified which, following discounts for guilty plea, exceptional remorse and reparation, resulted in an end sentence of four years’ imprisonment. Having considered a number of cases, on appeal Cooper J concluded that the starting point was too high “by a considerable margin”. He reached that conclusion on the basis that there was only one aggravating factor, namely the consumption of alcohol, there had not been a prolonged period of bad driving, nor had the offender been speeding. The Crown’s submission on sentencing, and on appeal, was that a starting point in the vicinity of three to three and a half years was appropriate. The Judge allowed the appeal and substituted a starting point sentence of three and a half years. The factor that distinguishes the sentencing in McMillan from that of Ms Scott is, as Ms Clarke submitted, that there are, in Ms Scott’s case, two “high culpability” aggravating features and only one in McMillan.

[37] By my assessment, therefore, those cases do not by comparison establish the proposition that the four year starting point here was manifestly excessive

[38] Taken overall, by my assessment the Judge’s identification of a four year starting point was a stern response to this offending, and one therefore towards the top of the range. I say stern in acknowledgement of the fact that on the day,

suffering ill health, Ms Scott was driving to Oakura to get assistance from her mother. But, given the bad decision to drive initially, the tragic decision to keep driving when that fatigue started to affect her, and – as recognised by the charge itself and the maximum sentence that applies – the tragic consequence of the loss of Mr Peters’ life, I do not think that four year starting point is excessive.

[39] I therefore turn to the question of mitigation for remorse.

[40] In the circumstances that applied, I think the Judge was wrong not to recognise Ms Scott’s remorse, and her willingness to be involved in a restorative justice process, by way of a discount from that starting point. As best as I can assess, Ms Scott – but for the advice from the investigating officer – may well have approached the family before charges were laid. Certainly, once charges were laid, the police failed to convey to Mr Peters’ family her willingness to engage in the restorative justice process. That was not Ms Scott’s responsibility. I accept that the Peters family were disappointed when they did not receive an approach from Ms Scott, particularly as I understand Ms Scott had a previous acquaintance with that family. But in the circumstances, that disappointment should not count against Ms Scott. Nor, in the circumstances, do I think that Ms Scott’s previous offending could, as the Judge appears to have concluded, offset any allowance for remorse. In my view, that offending was, in one instance, simply too old to be relevant and in the other too minor to warrant an uplift.

[41] On that basis, I think it is appropriate to allow Ms Scott a discount for her remorse. I accept that, in the circumstances, it cannot be great. I consider a discount of four months is an appropriate allowance.

[42] On that basis, I allow Ms Scott’s appeal and reduce her sentence from one of

three years’ imprisonment to one of two years and eight months.

“Clifford J”

Solicitors:

Nicholsons, New Plymouth

C&M Legal, New Plymouth