Bullock v Bower
[2015] ACTSC 261
•24 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bullock v Bower |
Citation: | [2015] ACTSC 261 |
Hearing Date: | 24 July 2015 |
DecisionDate: | 24 July 2015 |
Before: | Penfold J |
Decision: | See [21] to [23] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – re-sentence after successful appeal – offence of “drug-driving” as a first offender – offender needs regular medical attention – offender has care of 15-year-old grandson – rehabilitation efforts by offender – reasons to impose disqualification period less than default disqualification period – partial costs order made in offender’s favour. |
Legislation Cited: | Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 29(1), 34(1) |
Cases Cited: | Bullock v Bower [2015] ACTSC 185 |
Parties: | John William Bullock (Appellant) Charmaine Bower (Respondent) |
Representation: | Counsel Ms K Bolas (Appellant) Mr K Lee (Respondent) |
| Solicitors Kim Bolas Criminal Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 8 of 2015 |
Introduction
On 16 July 2015, I upheld John Bullock’s appeal against a sentence imposed in the Magistrates Court earlier this year, and I must now re-sentence him.
The offence
His sentence was imposed for an offence of “drug-driving”, arising from a drug test administered to Mr Bullock after a random traffic stop, which revealed the presence of cannabis in his body.
Mr Bullock was sentenced as a first offender in relation to the offence, meaning that he had not previously been found guilty of an offence of drug- or drink-driving under s 29(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). In the Magistrates Court, and while unrepresented, Mr Bullock had entered an early plea of guilty.
The facts of the offence are set out in my judgment on the appeal (Bullock v Bower [2015] ACTSC 185) and do not need to be described in detail here. I note, however:
(a)that the offence involved a drug generally treated by the law as a less dangerous illicit drug;
(b)that there is, however, no claim that Mr Bullock was unaware that he would still have cannabis present in his body; and
(c)that there was nothing in Mr Bullock’s driving that brought him to the attention of police.
On the other hand, the offence was committed at a time of day and in a local shopping area where traffic was described as moderate, and Mr Bullock did have a passenger in his car.
Subjective circumstances
One of the problems with the Magistrates Court sentencing was that there was very little information before the sentencing Magistrate about Mr Bullock’s personal circumstances, although her Honour did have Mr Bullock’s criminal record. That document showed that Mr Bullock, who is now 54 years old, was a regular offender as a younger man, albeit with a criminal history consisting mainly of traffic offences, but that since 1992 his only other offending has consisted of offences in 2008 of trafficking in cannabis and possession of stolen property, for which he received a suspended sentence.
In the Magistrates Court, Mr Bullock was fined $300 and disqualified from driving for three years, the default disqualification period applicable to Mr Bullock as an offender and to the particular offence.
There is more material about Mr Bullock’s circumstances available to me than was available in the Magistrates Court. In particular, I have these documents before me:
(a)A letter from Mr Bullock’s doctor reporting that:
he suffers from valvular heart disease, for which he has had surgery, and is fitted with a pacemaker. He is on warfarin. He also has chronic anxiety and depression and chronic back pain... .
(b)A document from the Office for Children, Youth and Family Support headed “Care & Protection Services Specific Parental Authority (SPA) KINSHIP CARER” issued in 2012, which authorises Mr Bullock to exercise daily care for a named child or young person who I am told is his grandson. The document records that he has been approved and has agreed to exercise parental responsibility for that child or young person. I understand that Mr Bullock has looked after his grandson, who is now 15, for about 10 year.
(c)A letter from Mr Bullock to the court, expressing remorse for his irresponsible and dangerous conduct, explaining his use of cannabis as intended to help him with arthritis pain and insomnia, and claiming that he no longer uses cannabis now that he has begun to take antidepressants. Mr Bullock also explained in his letter the difficulties that would be caused to him by a licence disqualification, particularly in obtaining medical and dental treatment for himself and his grandson and in taking his grandson to school, rugby league training and weekend games, some of which are played out of the ACT.
(d)A letter from the former manager of Mr Bullock’s grandson’s rugby league team, who spoke favourably of Mr Bullock, noting in particular that he had regularly volunteered his time in support of his grandson’s rugby league team over the last nine years.
(e)A letter from a longstanding friend of Mr Bullock, who said that in his opinion it is out of character for Mr Bullock to drive under the influence of drugs. He said that Mr Bullock has expressed remorse about the incident and has expressed concerns about losing his licence.
(f)A letter from Mr Bullock’s daughter, whose son is in Mr Bullock’s care. She also mentions Mr Bullock’s expression of remorse and reports her belief that he has now stopped using cannabis and that his health has improved after taking antidepressants.
(g)Finally, a letter from Mr Bullock’s other daughter, who also mentions Mr Bullock’s remorse and says that he accepts responsibility for the offence. She says that Mr Bullock is a good role model for his grandson and that she was shocked that he had been charged with driving under the influence of drugs because he is usually law abiding and a safe driver.
All those people confirmed Mr Bullock’s claim that a licence disqualification will create significant difficulties for Mr Bullock in managing his various commitments.
I understand that Mr Bullock has not driven since being sentenced in January this year and has been relying on friends and family to help out. The prosecutor noted that there was no evidence before me that this had caused major hardship, but I accept that complete reliance on others could be difficult to maintain for any extended period.
Mr Bullock’s doctor also reported Mr Bullock’s explanation for the offence as follows:
... on 17 11 14 he had attended Calvary hospital because of severe back and abdominal pain. He was checked there, but not given any treatment. He decided to smoke some pot to help with the pain and sometime later needed to drive to the chemist for medication. He states that he was driving normally but was pulled over for a drug screening test, which was positive.
This explanation has not been challenged, but does not on the other hand gain any extra credibility as a result of coming via Mr Bullock’s doctor, nor through being repeated by counsel from the bar table.
Since the offence, Mr Bullock has completed the one-day “Think Ahead: Alcohol and Drug Awareness Program” offered by the Road Ready Centre and, as also mentioned earlier, has given up cannabis since being prescribed antidepressants.
Re-sentencing considerations
On the appeal, I rejected the submission of counsel for Mr Bullock that a plea of guilty entitles an offender to a reduction in the default disqualification period. This does not necessarily mean that once it is found that a period other than the default disqualification period would be appropriate, the plea of guilty must be ignored in considering the appropriate disqualification period, but for the reasons I canvassed in the appeal judgment, it is unlikely to have any particular significance in reducing that period.
On the other hand, I accept from the evidence before me that Mr Bullock’s offence was of low-level seriousness, and that he has heavy burdens in his daily life that will make it especially difficult for him to manage without a driver licence.
For those reasons, and particularly having regard to the hardship that will be caused by licence disqualification, I consider that there are reasons for imposing a disqualification period less than the default disqualification period.
Application for costs order
Counsel for Mr Bullock has applied for a costs order in respect to the costs of the appeal, noting that Mr Bullock has not been eligible for Legal Aid, given the nature of his offence.
Although the appeal was not upheld on the primary appeal ground, it was upheld for reasons that emerged from the matters raised in the appeal grounds, and those reasons did not reflect any fault on Mr Bullock’s part.
I also note that this matter involved one unnecessary mention in this court as a result of an apparent oversight or communication breakdown on behalf of the respondent.
Accordingly, I propose to make a partial costs order in Mr Bullock’s favour.
Sentence
Mr Bullock, please stand. I confirm the conviction recorded in the Magistrates Court and the fine imposed there.
Noting that you have already abstained from driving for just over six months, I now disqualify you from driving for a further six months, the minimum disqualification period available for this offence under s 34(1) of the Road Transport (Alcohol and Drugs) Act. That means that you will be eligible to obtain a licence again on 24 January 2016.
Finally, I order the respondent to pay half of your costs of the appeal as agreed or assessed. You may sit down.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Kate Harris Date: 28 August 2015 |