Vollemaere - [2014] NZHC 1698

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Vollemaere [2014] NZHC 1698
Case: [2014] NZHC 1698
Decision Date: 10 July 2014

CaseChat Overview and Summary

The appellant, Paula Scott, appealed against her sentence for driving dangerously causing death and injury, arguing that the District Court Judge had erred in setting an excessively high starting point and in failing to consider a discount for remorse. The Crown defended the sentence as appropriate given the highly culpable nature of Scott's driving, which involved prolonged, persistent, and deliberate poor decision-making while knowingly fatigued. The High Court assessed whether the starting point was manifestly excessive and whether a discount for remorse was appropriate.

In considering the starting point, the High Court found that the Judge had correctly identified the aggravating factors of Scott's driving while fatigued and her decision to continue driving despite knowing her fatigue was affecting her. While acknowledging the overlap between these factors, the Court found that the four-year starting point was not manifestly excessive, particularly when compared to other cases with similar or greater aggravating factors. Regarding remorse, the Court found that the Judge was incorrect in not allowing a discount for Scott's remorse and willingness to engage in restorative justice, as the police had failed to convey this willingness to the victim's family.

The Court allowed the appeal and reduced the sentence from three years' imprisonment to two years and eight months.

Orders