R v M HC Palmerston North CRI 2009-054-1094

[2010] NZHC 1333

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2009-054-1094

THE QUEEN

v

M

Hearing:         29 July 2010

Counsel:         E McCaughan for Crown

R B Squire QC and P S Coles for Accused

Sentence:       29 July 2010

SENTENCE OF RONALD YOUNG J

[1]      Mr M   you are now for sentence having been convicted by the jury of manslaughter.  I want to tell you at the beginning that I am not going to send you to prison but I do ask you to listen carefully to what I have now got to say to you.

[2]      Prior to the events which gave rise to the manslaughter charge you operated a bridge rope swing at the Ballance Bridge near Woodville for some years.  Unlike a bungee the rope in this bridge swing was static.  As I understand it the jump worked

in this way:

R V M HC PMN CRI 2009-054-1094  29 July 2010

One end of the rope is tied to the bridge at a certain point.  The other end of the rope goes under the bridge and is connected to the jumper.  The jumper has a double harness.  The rope is connected to these double harnesses.  The jumper then walks up the bridge away from the tie on point on the bridge until the rope is taut.   The jumper then jumps off the bridge and swings underneath the bridge.  The lowest point of the jumper’s arc is where the rope is tied onto the bridge.  After the jump the jumper is lowered to the riverbed below using a belay device.  This involves untying the rope from the bridge and using the belay device to slowly lower the jumper on to the riverbed.  For the next jumper the rope must be pulled up to a pre-marked place on the rope and tied off on the bridge. The process can then begin again.

[3]      On the day of Ms Peters’ death a number of members of a Massey University Club had arranged to come out to jump from the bridge.   You initially had two helpers who were helping jumpers into their double harnesses.  Further, you had a young woman on her first day of work experience who wished to work in the recreation industry.  Your process, after each jump, was to pull the rope up to the proper place, tie off the rope on the bridge and then go over to where the jumper was on the other side of the bridge, check the jumper’s harness and supervise the jump. You would ensure the jumper walked along the bridge until the rope was taut ready for the jump.

[4]      Into  the  afternoon  of  that  day the  two  men  who  were  helping  with  the harnesses had left.  Others however seemed to be assisting.  Most jumpers including Ms Peters had already had their first jump.  Some, also including Ms Peters, wanted a second jump.  During the day a female friend of yours arrived at the bridge.  You and she agreed you would do a tandem jump together.  The two of you were to jump shortly after Ms Peters.  After the jumper before Ms Peters had completed his jump you lowered that person to the riverbank.

[5]      I am satisfied at this stage before you had pulled up the rope to the correct place and before you had tied off the rope on the bridge you were distracted by helping your friend into her harness.  During this time the other end of the rope was connected to Ms Peters through carabineers and her harness.  You were then called

over to her to help with her jump.  I am satisfied on the evidence I heard at trial that by then you had forgotten to pull up the rope to the correct place and forgotten to tie it off.  As a result when Ms Peters jumped she fell straight to the riverbed below and ultimately died of her injuries.  The responsibility for her death is therefore properly yours.

[6]      It is clear from the process involved that day that you were in charge.  It was your operation and it was you alone who was making commercial gain from the operation.  The two things that you neglected to do that day; pull the rope up to the correct point and tie it onto the bridge were absolutely fundamental in ensuring the safety of those who jumped.  The jury understandably rejected your defence that you had pulled up the rope to the correct place and had tied off the rope.  Of course as was  obvious  from  the  evidence  if  you  had  done  that  no  accident  would  have occurred.  As the person in sole charge of the operation you undertook to ensure that each part of the process was safe before anyone jumped.  You failed to do this in Ms Peters’ case and the cost to her was her life.

Pre-sentence report

[7]      As to the pre-sentence report that records that you are married with young adult children.   The report confirms you have no previous convictions and understandably it identifies you at being of low risk of re-offending and so no form of rehabilitative sentence is appropriate.

[8]      The report confirms the bridge swing operation has ended and you have lost the business. This was properly so in my view.  You now have new employment.

[9]      I acknowledge that you have a large number of excellent references.   You have lived to date a creditable life without blemish.  The references speak of you as someone who ordinarily operated the swing operation with a high level of safety. You are said by others to be patient and kind and friendly with those who were undertaking the bridge swing.   You have the support of your wife, family, close friends and employer.  You have been to date a good conscientious citizen.

[10]   However what is concerning is your continued refusal to accept full responsibility for what happened.  You continue to claim that the rope attached to Ms Peters was properly tied off to the bridge by you.  That is wrong.  If that was so Ms Peters would not have fallen to her death.  It is overwhelmingly clear that you failed to pull up the rope and tie it off resulting in her death.  Your refusal to accept full responsibility for what happened continues to cause Ms Peters’ family anguish and understandably so.

[11]     I accept that you are genuinely remorseful but that remorse is tempered by this continued claim that you are not fully responsible.  The facts overwhelmingly established that you were.

Victim Impact

[12]     I wish to thank those who have read out their victim impact reports, Mr and Mrs Peters and Jonathan.   I have read those reports and the other victim impact reports.  I wish to especially acknowledge the terrible effect the loss of a much loved daughter, sister and family member has had.  There is nothing that I can say today that will do justice to the content of these victim impact reports.   For those lucky enough to have children of their own what you are going through is beyond imagining.   I want to acknowledge your courage in coming to Court today and reading and presenting these victim impact reports.   I want to acknowledge your deep sadness, the severity of your loss and the lifetime effect on your family.

Crown submissions

[13]     The Crown accept there are no aggravating features other than those inherent in the offending.   They wish to stress that this was a commercial activity which carried an obvious risk of death and that it was your responsibility to ensure the safety of the jumpers.  They say you failed to maintain a professional standard and because of your gross negligence the victim died.

[14]     The  Crown  accept  you  are  entitled  to  credit  from  your  previous  good character.  They say:

a)        it is proper I make an order for reparation; and

b)a sentence in the region of 6 to 12 months home detention would be appropriate.

Defence submissions

[15]     I take into account both the oral and extensive written submissions from your counsel.  In summary he says:

a)       that you have always accepted you were in charge of the swing that day and responsible for its operation;

b)        you were co-operative with the police investigation;

c)       he submits the probability was that you did pull up the rope but didn’t completely tie it off but I have rejected that view of the facts;

d)your counsel stresses, and I acknowledge that you have a long history of supervising safe jumping from that bridge extending to eight to nine years and over 20,000 jumps;

e)        I accept you are devastated as he says by the accident. [16]     In terms of your personal circumstances:

a)       the business that you operated has been sold and you have been left with substantial debts;

b)        but you are now in full time employment;

c)       he says that you did write a letter early in the proceedings expressing your sorrow for the events but felt your bail prohibitions prevented you from sending it;

d)further, there have been additional extensive references and I have already acknowledged your previous good character and repute.

I take these factors into account.

[17]     Before I finally sentence you I have some remarks I wish to make about your responsibility and generally such an operation.

[18]     This bridge jump had a high, indeed almost inevitable, risk of death if you made an error in either tying the rope to the correct place or tying the rope to the jumper.  Given that risk the responsibility on you as the sole person in charge and the sole person carrying out these tasks was grave.  The operation you ran, as far as tying off the rope was concerned, relied solely upon you.  The fact that you had no-one checking your work on each occasion was, in my view, a serious inadequacy in the safety of this process.  I accept this aspect of the operation was not part of the Crown case at trial and I do not take it into account in your final sentence.  But I cannot see how such an operation could ever have been safe without a second person ensuring that before each jump all that should have been done had been done.

[19]     I also agree with the comments of Mr Peters regarding the lack of regulation of  such  activities.    As  this  case  illustrates  a  mistake  in  the  course  of  such  an operation is almost inevitably going to cause a death.   To have this activity unregulated seems remarkable and highly risky to me.

[20]     As I have said I accept you had a long history of safe jumping.  But in a life risking activity such as this there is no room for any mistake to ever be made.  You chose not to have an independent check on your work before each jump.

[21]     And so at the end of the day when you were almost certainly tired, you were momentarily distracted and the repetitive nature of what you were doing all caught up with you, you made the serious errors I have described.

[22]     This case is a very difficult case for sentencing.  No sentence I can impose can bring this young woman back.  No sentence that I can impose can in any sense make up for her death.  You did not of course deliberately cause her death but you did cause her death by a serious failure by gross negligence.  And this was in the context of a commercially run activity where the inherent danger was high.   This required the highest standard of safety.

[23]     As I have said I am not going to send you to prison.  It could be that a starting sentence of imprisonment was appropriate but overall such a sentence would not fit the criminality and your circumstances.  I had considered whether instead I should sentence you to a period of home detention.  In the end I have decided it would not fit the bill here.  You would likely go to work each day but be required to remain in your house after work and each weekend.  There is a punitive aspect in that but I think a better and more appropriate sentence is a long sentence of community work. This will enable you over the next 12 months or so to contribute to appropriate community projects.  I anticipate, given you are in full time employment, that it is likely to take most of that year.  And it will therefore be a continuing reminder to you of the events of March 2009 at the Ballance Bridge.

[24]     I also consider an emotional harm reparation payment is appropriate.   The Peters family are substantially out of pocket as a result of these events and while they have not asked for reparation I take responsibility for ordering it.  I therefore make an order that you pay $10,000 in emotional reparation to Mr and Mrs Peters. You are also sentenced to 400 hours community work the maximum available to me

by law.

Ronald Young J

Solicitors:

B D Vanderkolk, Ben Vanderkolk & Associates, PO Box 31, Palmerston North

email:  [email protected]
R B Squire QC, PO Box 10 157, Wellington