R v Scott

[2015] NZHC 3239

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-025-1225 [2015] NZHC 3239

THE QUEEN

v

CARA ELIZABETH SCOTT

Hearing:	15 December 2015
Appearances:	E L Higbee for Crown W N Dawkins for Defendant
Judgment:	15 December 2015

SENTENCING NOTES OF DUNNINGHAM J

[1]      Mrs Scott, you are for sentencing today, having pleaded guilty to, and been convicted on, a charge of manslaughter.

Facts

[2]      The victim, Charlie Vercoe, was aged six.  His family was friendly with your family, and had been for about a year, after first meeting through the Southern Miniature Horse Club.

[3]      As a result of this friendship, Charlie and his 12 year old brother would visit your  farm  from  time  to  time.    This  was  the  time  at  which  the  brothers  were introduced to quad bikes, which, at the time of the accident, they had ridden about

twice each, with adult supervision.

R v SCOTT [2015] NZHC 3239 [15 December 2015]

[4]      In the two weeks before Christmas in 2013, the brothers visited your farm regularly to help you and your husband out.  They took their BMX helmets along with them, in order to ride the quad bikes.

[5]      On 6 January 2014 the two boys were dropped off at your farm by their parents.  Charlie rode one of the two quad bikes throughout the morning.

[6]      The two bikes were 400cc and 420cc respectively.  This enabled the boys to travel at such speeds that resulted in one of your employees on the farm telling Charlie to slow down.  During this period of Charlie riding the bike, you were in close proximity, largely centred at the milking sheds.

[7]      After briefly losing partial control of the bike upon driving over a pot hole, your employee commented to you that she was concerned that Charlie might hit an adjacently parked tractor, if he lost control of the bike.

[8]      When Charlie travelled past you, you yelled at him to slow down, or he would have to get off the bike.

[9]      Much later that day, after 5.15 pm you, your husband, and your employee were standing at the implement shed, discussing the calves that you had worked on that afternoon.  You were asked by the boys again, whether they could ride the quad bikes, and you assented to their request, saying that they could ride down a fenced lane.

[10]     Charlie took the 420cc bike, and his brother the 400cc bike.

[11]     Both bikes were affixed with a warning plate, which instructed prospective riders not to ride the bike if they were under 16 years of age.

[12]     Both boys mounted the bikes, and rode away from you, until they were out of your sight.

[13]     Between five and ten minutes later, Charlie’s older brother returned at speed on his bike and told you that Charlie had crashed into a ditch.

[14]     He later reported that he had seen the ditch and was able to stop, but although he shouted at Charlie to warn him of the ditch, Charlie was unable to brake in time.

[15]     When you were made aware of this situation, you got onto the bike that the older brother had been riding and drove up the lane.  You found that the boys had gone in through the gate at the end of the lane, which led into one of the paddocks. They had  driven  into the paddock.   When  you went to  the paddock’s northern boundary you that found that Charlie had crashed through an electric fence and had ended up in a drainage ditch with water in it.

[16]     He was pinned in the ditch under the bike, with his head under the water. The bike had been overturned and its wheels faced towards the sky.

[17]     Your  husband  then  arrived,  lifted  the  bike  off  Charlie  and  CPR  was administered to him, but those attempts at resuscitation were unsuccessful.

Victim Impact Statements

[18]     Charlie’s  parents,  Lisa  and  Robbie Vercoe,  have  jointly written  a  victim impact statement.  They recorded that the boys loved going to your farm and that when they went on holiday at the end of 2013, all the boys could think about was getting a chance to go back to the farm on their return.

[19]     Lisa said that she had reminded the boys that  they were to follow  your instructions, and that they were to wear helmets.

[20]     The Vercoes recount the events of the day itself, and its aftermath, and I do not need to repeat that here.  But it is clear from their statement that Charlie’s loss has been very difficult for them.  They both required counselling, as has his brother, and there has been understandable pressure on their relationship, as they are both liable to have bad days when the thought of Charlie arises.

[21]     Crucially,   the   Vercoes   comment   about   their   wishes   regarding   these proceedings. They say:

Right from the word go we both have never felt any blame nor animosity towards Cara and Owen Scott and were against any charges ever been laid [sic].  So we believe there should not be any punishment for Charlie’s death as we believe it was an accident- boys being boys- given an inch and took a mile [sic].  It would destroy another family unit.

Living with Charlie’s death is enough punishment for all involved and we

both do not want Cara to be sentenced to imprisonment for this.

[22]     As I said at the earlier sentencing indication, the wisdom and the perspective they have shown on this whole matter, does them huge credit.

Appropriate sentence

[23]     You already know, as a consequence of the sentencing indication process, that I am not proposing a custodial sentence.  Apart from the inevitable penalty that a conviction of manslaughter will have on you, the only additional penalty I propose is a  significant  order  to  pay  reparation,  and  you  have  shown  your  willingness  to comply with that.  However, it is important in this public process that I set out my reasoning, including the relevant purposes of sentencing which are engaged in this process, and the aggravating and mitigating features of the offending and  those which relate to you, which have contributed to the end sentence arrived at.

[24]     As you will have heard the offence of manslaughter ranges so markedly that there are no guideline cases on the sentence to be imposed.  It really does depend on the facts of the case, and the purposes and principles of sentencing which arise in those circumstances.  In your case I consider the relevant purposes are to hold you accountable for the harm done, to denounce the conduct in which you were involved, and most important of all, to deter you and other people from committing the same or similar offence.  The danger posed by quad bikes is real, and there is a wider issue at stake here of community education.

[25]     In  deciding  your  sentence,  I  consider  the  aggravating  features  of  the offending are:

(a)      the objective dangerousness of the bike.  In this regard I note that the bike had clearly visible warning stickers saying:   never operate the ATV if you are under age 16.   Charlie was aged only six years and

10 months and it is clear that, due to his size and age, he was neither physically nor cognitively able to safely ride the bike unsupervised. The Crown has submitted expert reports on the physical and cognitive difficulties the child would have been under when trying to control the quad bike.  However, I simply focus on the danger that should have been appreciated by a non-technical person, such as yourself.  In that regard, there is of course the evidence in your own evidence, and that of  your  employees,  that  you  recognised  that  Charlie  was  having trouble in properly controlling the bike and was willing to speed, before the accident occurred.

(b)This leads to the next factor to consider in assessing culpability, which is the extent of your omission.  You relied on restricting the boys to driving down the lane which you said was bumpy and you hoped would slow them down.  The paddock was also separated off by an electric tape.   The Crown says, and I accept, that reliance on the electrical tape restricting the areas the boys could access and on the supervision of the victim’s 12 year old brother, was clearly misjudged. I do not think this was a case of momentary inattention or distraction as in some manslaughter cases, but of willingly allowing the boys to go away from where they could be under your direct supervision and where you knew they had engaged in risk taking behaviour on the bikes, shortly before then.

(c)      There is then of course, the unavoidable fact that the offending led to a  child’s  death  and  that  cannot  be  omitted  when  considering  the gravity of the offending.

Mitigating features of the offence

[26]     In terms of mitigating features of the offending, your lawyer has pointed to what he describes as extenuating circumstances which reduce the gravity of the offence.  These include that the boys had been gradually introduced to the bikes, that rules were put in place, such as requiring them to wear their helmets, the warning

you gave to the boys to slow down earlier in the day, and the fact that the boys disobeyed the instructions that were given.

[27]     I accept too, that the boys’ use of quad bikes was authorised by their parents and you were not the only adult condoning this activity, although you were of course, the person in charge at the relevant time.

[28]     However, I agree with the Crown that these factors go both ways.  They also indicate your awareness of the risks at play and the need to avoid them, or, at the very least, to keep the boys under your direct supervision.  In my view, they do not go to reduce the gravity of the offending.

Aggravating and mitigating factors of the offender

[29]     In assessing the appropriate sentence, I also have to look at aggravating and mitigating features which relate to you.  I am absolutely satisfied that there are no aggravating features here, and there are powerful mitigating features.  These include your previous good character, and your acceptance of responsibility as demonstrated by  your  guilty  plea  and  also  the  matters  which  your  counsel  traversed  today, including the expression of your remorse.

[30]     In terms of your good character, not only have you never had a conviction before, but you have had an extensive and illustrious career in teaching which has demonstrated your diligence, commitment and leadership skills.  You have been a head of science at Cargill High School, you have also been in the role of acting assistant principal at that school in 1996.

[31]     You have been heavily involved in teacher training and working with what is now the Ministry of Education, on developing and implementing teacher training programmes for other biology teachers on the use of standard-based assessments. You have been a chief examiner, writing examination papers in biology and science and a chief marker in those subjects.  You have been involved in the moderation of student assessments in the areas of biology and human biology.  You have assisted in Samoa to develop the curriculum and resources for the teaching of science and agricultural science in that country.  Your more recent roles include lecturing at the

Dunedin College of Education, writing biology and science text books and teaching via the Ministry of Education funded website called Study It.

[32]     Being someone who is so involved in the growth and development of young people, I can see that it is devastating to be involved in an incident where the death of a young person eventuated.  I have absolutely no doubt that, notwithstanding this event, you are of good character and it does not reflect on your future fitness to be a teacher.   Indeed, ironically, you are now probably more acutely aware than most people of how readily a lack of supervision in a situation involving risk can lead so quickly to tragedy, and you would more likely be more vigilant as a consequence of your experience than most people would be.

[33]     I also have no doubt about your remorse.  You have said that you and your whole family are devastated at Charlie’s loss and you simply cannot describe how deeply sorry you are.  You have offered to pay reparation and you have, of course, pleaded guilty, which in itself, demonstrates an acceptance of responsibility.

[34]     For that reason, as I said in the sentencing indication, I am satisfied I do not need to punish you for the purpose of bringing home to you the gravity of your offending.   I accept that the primary purposes of sentencing in this case, are the purposes of denunciation and deterrence, in particular of other people, from committing the same or a similar offence.

[35]     I have been referred to a range of sentencing decisions, but none of course are on all fours with what has happened here.1   However, the cases I consider the most relevant are those where the negligence involved a clearly dangerous activity, such as hang-gliding or the use of a rope swing bridge.    In those cases, a sentence

requiring payment of reparation and completion of community service was imposed.

1      R  v  Waiba,  HC  Auckland,  T025743,  Baragwanath  J,  8  August  2003;  R  v  Parson,  HC Christchurch, CRI-2003-025-004488, Fogarty J, 4 June 2004; R v McWhannell, HC Palmerston North, CRI-2009-054-1094, Ronald Young J, 29 July 2010; R v X (No. 1) [2015] NZHC 1244, HC Wanganui CRI-2015-083-529, Simon France J, 5 June 2015; R v Nagle [2013] NZHC 2532, HC New Plymouth CRI-2013-043-206, Williams J, 25 September 2013; R  v  Illston,  HC Wanganui, CRI-2011-034-273, Miller J, 26 October 2011.

[36]     I consider that this is a case where reparation is appropriate.   The Vercoes have incurred costs of $16,800 for the funeral and headstone for Charlie.   It is a significant sum and, although your income is at present limited, you do have the facility to borrow on the assets you have and you have indicated a willingness to do something tangible for your victims like this.

[37]     In all the circumstances, as  I said in the sentencing indication,  I do  not consider any purpose would be achieved by imposing any further penalty.  As I said, your  teaching career is,  in  itself,  a significant  body of community service and, furthermore, the stigma of a conviction and the adverse consequences it will have for your life overall, including the impediments to travel which were discussed at the sentencing indication hearing, is a very significant penalty in itself.

[38]     Mrs Scott, I now ask you to stand.  On the charge of manslaughter, you are hereby ordered to pay reparation to your victims, the Vercoes, the sum of $16,800.

[39]     You may now stand down.

Solicitors:

Preston Russell Law, Invercargill

Bill Dawkins Law, Invercargill