SENTENCING STATEMENTS

On sentencing, Sheriff Neil Wilson said:

"Sonya Henderson, you pled guilty to a single charge, namely that “on the 22 August 2021 on a road or other public place, namely the A99 at Occumster, near Lybster, Caithness, you did cause the death of Iain Mackay, born 10/09/2018, by driving a mechanically propelled motor vehicle, namely motor car Nissan Qashqai registration number KW17 DKF without due care and attention or without reasonable consideration for other persons using the road or public place whereby you did fail to maintain proper observations, cause your said car to enter the opposing carriageway and drive into the path of oncoming motor car Peugeot 208 registration number SY15 PKO then being driven by Savannah Nixey and did cause your car to collide with the said oncoming Peugeot 208 car, whereby both said vehicles were damaged and the said Iain Mackay then also a passenger in the said Peugeot 208 car was so severely injured that he subsequently died; CONTRARY to the Road Traffic Act 1988, Section 2B”.

This plea was under deletion of the words “the said Savannah Nixey suffered injuries and Ashlyne Mackay, then a passenger in the said Peugeot motor car, suffered serious injuries”. These injuries are detailed in the Crown Narrative, but given that they no longer form part of the charge before the Court, the extent to which I can take into account those injuries when deciding upon the appropriate sentence is limited.

You pled guilty without the matter being taken to trial, thus avoiding the necessity of witnesses giving evidence and having to relive the events of the 22 August 2021. This is of significance as a trial would have involved the occupants of the vehicle you struck, and in particular Ashlyne Mackay, the mother of the deceased, giving evidence. This is to your credit, and the sentence imposed will take that into account. However, the sentence must also take into account that this plea was only negotiated a few days before the trial, the matter having previously been continued to trial at a Continued First Diet more than nine months ago on the 20^th of February 2024.

This is an extremely serious matter. The court has had the benefit of victim impact statements. The ongoing effects of your actions on the deceased’s family are clear from these statements. I can do no more than add the court’s condolences for what can only be properly described as unimaginable grief.

I must balance these factors against your lack of previous convictions of any sort and that you have a clean driving licence.

I must also take into account the details of the charge to which you pled, and the contents of the agreed Crown Narrative.

The charge as libelled makes no mention of excessive speed, and indeed the Crown Narrative states that “From airbag control module data recovered from both vehicles, it is known that during the five seconds prior to the collision the speed of both vehicles was entirely appropriate.” In particular, your speed, five seconds prior to the collision, was noted to be 44mph.

Of equal importance, the Narrative does not allow me to infer that your careless driving immediately before the collision was anything other a relatively short episode rather than an extended course of conduct – albeit with disproportionate and tragic consequences.

In addition, the Criminal Justice Social Work Report before the court narrates that your remorse is genuine and you show a clear understanding of the significance and seriousness of what you have done.

The Scottish Sentencing Council sentencing guidelines for statutory offences of causing death by driving, which came into effect on 16 January 2024, provide a clear and helpful framework for Courts in dealing with, inter alia, cases of causing death by careless driving. The guidelines state that the first step in the sentencing process is to assess the seriousness of the offence, which in turn involves considering two factors, the culpability of the offender and the harm caused. To quote the guidelines, for a contravention of Section 2B of the Road Traffic Act 1988, “the level of harm, which is that a death has been caused, has been fixed by law”.

Accordingly, the only matter at this stage of the sentencing process that I am obliged to consider is the level of culpability of the offender. The guidelines state three levels of seriousness; Level A, driving which falls not far short of dangerous driving, Level C, careless or inconsiderate driving arising from momentary inattention, and Level B,  driving which falls between these two levels. As I have already stated, given the terms of the Crown Narrative, I am clear in my mind that your driving does not fall into the category of being not far short of dangerous driving, i.e. Level A. However, I am also satisfied that, given that the Crown Narrative makes it plain that you were on entirely the wrong side of the road, your driving cannot be described as arising from momentary inattention and therefore does not fall within Level C.

Therefore, I will deal with you on the basis that the seriousness of your driving falls within Level B. The guidelines state that the appropriate sentence for a Level B offence is a Community Payback Order.

The next stage of the sentencing process is to consider the extent to which any Community Payback Order can be affected by either the aggravating or mitigating factors. In your case I take into account your previous good driving record and your remorse. I do not take into account the injuries suffered by the driver and front seat passenger of the other vehicle, as they no longer form part of the charge to which you pled guilty. Had they done so, I would have regarded the injuries suffered by Ashlyne Mackay and Samantha Nixey as aggravating factors.

In deciding upon your sentence, I also take into account the stage at which you pled guilty.

You will be disqualified from having or holding a driving licence for a period of 25 months, this being reduced from 30 months in light of your plea prior to trial. In addition, you will be made subject to a Community Payback Order requiring you to carry out 200 hours of unpaid work in the community within the next 12 months, this being reduced from 240 hours, again in light of your plea prior to trial."