Bullock v The Queen (No 2)

[2020] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

BULLOCK v THE QUEEN (No 2)

[2020] SASCFC 86

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)

10 September 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING

Appeal against sentence.

The appellant was charged on Information with the following offences:

1. Aggravated driving without due care contrary to s 45(1) of the Road Traffic Act 1961 (SA) (Count 1), the offence being aggravated by reason that it caused the death of a person (s 45(3)(a)). The maximum penalty is one year imprisonment.

2. Leaving the scene of an accident after causing death contrary to s 19AB(1) of the Criminal Law Consolidation Act 1935 (SA) (Count 2). The maximum penalty is 15 years imprisonment.

3. In the alternative to Count 2, failing to stop, assist and present to police after an accident contrary to s 43(1) of the Road Traffic Act 1961 (SA) (Count 3).

On 12 February 2020, at about 8.00 pm, the appellant was driving a motor vehicle which collided with a child (ZC) aged two years and 10 months. ZC died as a result of his injuries. He had been playing on the road with his older sisters KC (aged five years) and MC (aged seven years).  The appellant did not get out of his vehicle following the collision, instead driving on to his home, about 100 metres away.  He had no mobile phone with him. After the appellant arrived home, his wife telephoned triple zero and reported the collision at 8.08 pm.  The first police arrived at the scene at about 8.17 pm. 

Following a jury trial and majority verdicts of guilty being returned on Counts 1 and 2, no verdict was taken on the alternative Count 3. The appellant appealed against his convictions. That appeal was dismissed by this Court on 29 October 2019.

The appellant was sentenced by the trial Judge to seven months imprisonment on Count 1 and four years imprisonment on Count 2, to be served cumulatively. Thus, the head sentence was four years seven months imprisonment and a non-parole period of three years eight months was fixed. He now appeals against that sentence on the basis that it is manifestly excessive.

Held per Peek J (Stanley J and Nicholson J agreeing), allowing the appeal:

1. The Judge imposed a just sentence of seven months for Count 1, having regard to the facts that: the maximum penalty is one year imprisonment; the appellant was not charged with “Cause Death By Dangerous Driving”; and that his offending was significantly less serious than the many such cases which involve intoxication (by alcohol or drugs) or very bad or very fast driving, none of which elements are present here. Criminal Law Consolidation Act 1935 (SA) ss 19A, 19AB; Road Traffic Act 1961 (SA) ss 43, 45 referred.

2. In a survey of sentencing decisions similar to Count 2 in the present case, a range of sentence from one year to two years imprisonment is quite discernible, with those at the high end having features worse than appearing in the present case. R v Jongewaard [2009] SASC 346; R v Thach (2010) A Crim R 510; R v Farrer [2017] SASCFC 27 discussed.

3.  The cumulative sentence of four years imprisonment imposed on Count 2 was manifestly excessive and should be set aside.

4.  A sentence of 18 months imprisonment on Count 2 is substituted to be wholly cumulative upon the sentence of seven months imprisonment on Count 1, thus constituting a new head sentence of two years and one month. A new non-parole period of one year and eight months is fixed. Both periods are to commence on 28 February 2019, when the appellant was taken into custody upon conviction.

Criminal Law Consolidation Act 1935 (SA) ss 19A, 19AB; Road Traffic Act 1961 (SA) ss 43, 45, referred to.
Bullock v The Queen [2019] SASCFC 131; R v Farrer [2017] SASCFC 27; R v Jongewaard [2009] SASC 346; R v Thach (2010) 203 A Crim R 510, discussed.

BULLOCK v THE QUEEN (No 2)
[2020] SASCFC 86

Court of Criminal Appeal:  Peek, Stanley and Nicholson JJ

1. PEEK J:  Appeal against sentence.

2. The appellant was charged on Information with the following offences:

   1. Aggravated driving without due care contrary to s 45(1) of the Road Traffic Act 1961 (SA) (Count 1), the offence being aggravated by reason that it caused the death of a person (s 45(3)(a)).

   2. Leaving the scene of an accident after causing death contrary to s 19AB(1) of the Criminal Law Consolidation Act 1935 (SA) (Count 2).

   3. In the alternative to Count 2, failing to stop, assist and present to police after an accident contrary to s 43(1) of the Road Traffic Act 1961 (SA) (Count 3).

3. Following a jury trial and majority verdicts of guilty being returned on Counts 1 and 2, no verdict was taken on the alternative Count 3. The appellant appealed against his convictions. That appeal was dismissed by this Court on 29 October 2019.

4. The appellant was sentenced by the trial Judge to seven months imprisonment on Count 1 and four years imprisonment on Count 2, to be served cumulatively. Thus, the head sentence was four years seven months imprisonment and a non-parole period of three years eight months was fixed.[1] He now appeals against that sentence on the basis that it is manifestly excessive.

   [1]    The serious repeat offender legislation required that a non-parole period of at least 80% be fixed.

   A summary of the facts

5. It is appropriate to adopt Doyle J’s summary of the facts in the conviction appeal as follows:[2]

   [2]    Bullock v The Queen [2019] SASCFC 131 (Stanley and Nicholson JJ concurring).

   [8] As to the circumstances of the collision, the appellant was the driver of a blue Kia Cerato motor vehicle which collided with the child (ZC) at about 8.00 pm on Sunday, 12 February 2017 on Branksome Terrace in Dover Gardens.  ZC died as a result of injuries sustained in the collision.  He was aged two years and 10 months.

   [9] The collision occurred in the vicinity of ZC’s home on Branksome Terrace, at a time when he was playing with his older sisters KC (aged five years) and MC (aged seven years).  The appellant did not get out of his vehicle following the collision, instead driving on to his premises on an intersecting street, approximately six houses or 100 metres away from where the collision occurred.  Having been alerted to the incident by the sound of tyres screeching and an older child calling out, ZC’s mother (CY) ran outside and found her son lying on the road.  She picked him up and carried to her driveway.  A neighbour administered CPR to ZC prior to the arrival of emergency services.

   [10] Following the appellant’s arrival home, his wife telephoned triple zero and reported the collision at 8.08 pm.  The first police arrived at the scene at about 8.17 pm. 

   [11] The only witnesses at trial who purported to have seen the collision were ZC’s sisters KC and MC. Their evidence was admitted at trial pursuant to the provisions of s 13BA of the Evidence Act 1929 (SA).

   [12] KC, aged five years and four months at the time of her interview on 2 March 2017, said that a blue car “ran right over” ZC and kept going.  She said that before ZC was hit by the car they were outside playing basketball, and that ZC was playing on the road.  She said that there was one person and a dog in the car.

   [13] MC, aged seven years and nine months at the time of her interview on 2 March 2017, said that KZ [sic KC] and ZC were out the front of their house.  She went out the front of her house and saw ZC run across the road from the other side of the road.  There was a car coming from the corner.  She said she was near KC in the vicinity of a tree, and that KC said “stop”.  She said that ZC got run over because he was running across the road to near where she and KC were.  According to MC, the car did not stop.

   …

   [16] There were no other adults on Branksome Terrace at the time the vehicle drove off.  CY and another woman emerged from the deceased’s home after a little girl went inside screaming and crying and calling for her mother. 

   [17] Mr Chapman telephoned triple zero after the children went into the house and not long after the sound of the collision.  He estimated that he made the call about 40 seconds after realising what had happened.

   [18] Closed circuit television footage from the appellant’s premises captured his vehicle entering his street following the collision and parking in his driveway, and his entry into his house.

   [19] The evidence revealed that Branksome Terrace is a residential street with houses on either side.  It is a bitumen road, with raised gutters and normal footpaths.  The road was in good condition and slightly less than 8 metres wide.  It had a default speed limit of 50 kph.  There was also some evidence from neighbours to the effect that it was common for children to be playing out the front of the deceased’s home in the area where the collision occurred.  At the time of the collision, being slightly after 8.00 pm, it was still light.

   …

   [21] The appellant gave evidence.  He said that the collision occurred after he had driven to the supermarket to buy cigarettes.  He acknowledged that his 18 month old dog was unrestrained in the backseat of the vehicle at the time. 

   [22] The appellant said that he turned into Branksome Terrace and then travelled along it at a speed of about 35 kph.  He drove at that speed “because there’s usually somebody out playing”, and the street is narrower than his own.  As he approached a tree on his left, a little girl ran out from behind the tree onto the road about 2 metres from him.  He swerved to the right to miss her and heard a noise at the front of the car.  Something then went under his rear wheels.  Immediately before the collision he had been looking straight ahead and there were no obstructions to his view.  The appellant said that he did not know how the deceased child came to be in the middle of the road. 

   [23] The appellant’s evidence was that he realised he had run over a child and thought the child was dead.  He stopped his vehicle, saw the child lying on the road and panicked.  He offered no assistance at the scene, but rather went home to telephone the police “or someone to get him help”.

   [24] The appellant said that his reason for failing to remain at the location of the collision was that he was scared of what would happen; that he was scared of the child’s family.  He claimed to have heard screaming before he drove away, and to have believed he was in danger on account of a potential connection in his mind between the child’s family and a “home invasion” he had experienced some six or so months earlier.

   [25] The appellant did not recall how long after he returned home the call to triple zero was made, or what he said to his wife before the call was made. 

   [26] The appellant’s wife, Donna Bullock, gave evidence confirming that she made a phone call to triple zero.  In the recording of the call, the appellant was heard to say in the background that he had just run over a child; that he thought the child was dead; that he did not stop as it was not safe; and in response to whether there was a parent or someone at the scene of the accident, he said “yeah they’re all yelling and screaming.”

   The prosecution case on Counts 1 and 2

6. Section 19AB(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) provides as follows:

   (1)     A person who—

   (a)     drives a vehicle or operates a vessel without due care or attention; and

   (b)     by that conduct, causes the death of another; and

   (c)     fails to satisfy the statutory obligations of a driver of a vehicle or an operator of a vessel (as the case may be) in relation to the incident,

   is guilty of an offence.

   …

   [Emphasis added]

7. The “statutory obligations” referred to immediately above appear in s 43(1) of the Road Traffic Act 1961 (SA) (RTA) as follows:

   (1)The driver of a vehicle involved in an accident in which a person is killed or injured must—

   (a)     immediately after the accident—

   (i)    stop the vehicle; and

   (ii)     give all possible assistance; and

   (b)     not more than 90 minutes after the accident, present themself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in the driver’s blood or oral fluid.

   ...

   (3)     It is a defence to a charge of an offence against subsection (1) to prove that—

   (a)     the defendant was unaware that the accident had occurred and that the defendant’s lack of awareness was reasonable in the circumstances; or

   (b)     in relation only to a failure to comply with subsection (1)(a), the defendant—

   (i)genuinely believed on reasonable grounds that compliance with subsection (1)(a) would endanger the defendant’s physical safety, or the physical safety of another person; and

   (ii)at the earliest opportunity notified police, ambulance or some other authority responsible for providing emergency services of the accident; or

   (c)     in relation only to a failure to comply with subsection (1)(b), the defendant—

   (i)    had a reasonable excuse for the failure to comply; and

   (ii)presented themself to a police officer as soon as possible after the accident.

8. The prosecution case on Count 1 was that in light of the evidence as a whole, the appellant’s failure to see ZC on the road in front of him until it was too late, or indeed at all, involved a departure from the requisite standard of care and hence constituted driving without due care; and that this want of care caused the collision and death of ZC.[3]

   [3]    Bullock v The Queen [2019] SASCFC 131, [27] (Stanley and Nicholson JJ concurring).

9. The prosecution case on Count 2 was that whether the appellant did not stop at all, or stopped only momentarily and then drove on, he thereby infringed s 19AB(1) CLCA in that he failed to comply with the statutory obligations in s 43(1) RTA, reproduced above.

   The sentencing process

10. During the Judge’s summing up to the jury, his Honour directed:

    … You would need to get a decent look at the person injured or killed in order to decide how to give all possible assistance.  You may not know whether the person was dead or not.  This provision applies when a person is dead but you may not know that a person is dead and rendering all possible assistance might be avoiding a situation where a person is continually run over like a dead cat.  So ladies and gentlemen, that is what is meant by ‘stopping’. [Emphasis added]

11. The remark in emphasis was the subject of complaint in the conviction appeal. This Court held that it did not lead to miscarriage of justice such as to overturn the convictions, but that it:[4]

    [93] … was unhelpful and unfortunate because it risked adding further emotion to what was undoubtedly already an emotionally charged atmosphere at trial. The remark might not only have been seen as disrespectful towards the deceased child, but as also potentially exciting an emotional response from the jury that might have distracted them from their consideration of the real issues in the case.

    [4]    Bullock v The Queen [2019] SASCFC 131 (Stanley and Nicholson JJ concurring).

12. It may be observed that such remarks may also lead to an apprehension in the mind of a defendant that his sentencing process has been affected by sympathies and emotion.

13. The objective factual situation here was not that the appellant was required to remain at the accident scene until police arrived, but rather that immediately after the accident he was required to stop the vehicle; and give all possible assistance; and not more than 90 minutes after the accident, present himself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in the driver’s blood or oral fluid.

14. By stopping only momentarily as he did, the appellant committed a serious offence. He should certainly have remained on the scene and taken the initiative in attending to the victim who was still in the roadway and vulnerable to being hit by another vehicle. However, it should also be recognised that the appellant did not have a mobile phone with him and it was obvious to him that the children (with whom the victim had been playing) were screaming and were in the process of getting their parents who would be attending forthwith. It was in those circumstances that the appellant drove his car directly to his home which was only about 100 metres away and there told his wife what had happened and caused her to telephone for medical and police assistance. As noted in the conviction appeal, the collision occurred at about 8.00 pm and, following the appellant’s arrival home, his wife telephoned triple zero and reported the collision at 8.08 pm.  Police officers first arrived at the scene at about 8.17 pm.

15. The present case is somewhat unusual in that one usually finds a charge of “Leaving an Accident Scene After Causing Death” contrary to s 19AB(1) CLCA (for which the maximum sentence of imprisonment is 15 years) coupled with a charge of “Cause Death By Dangerous Driving” contrary to s 19A CLCA (for which the maximum sentence of imprisonment is 15 years). However, here we have the same “Leaving an Accident Scene” charge coupled with a charge of “Aggravated Driving Without Due Care” (the substantive driving charge) contrary to s 45(1) RTA (for which the maximum sentence of imprisonment is only one year).

16. Thus, the maximum sentence of 15 years for the “Leaving an Accident Scene” charge is here very much greater than the maximum sentence of imprisonment for one year for the substantive driving charge. In such circumstances, one must be careful not to inflate a sentence on the latter offence to compensate for a perception that the maximum penalty for the former offence is inadequate. Any such matter is for the Legislature alone.

17. The Judge imposed what I consider to be a just sentence of seven months for the substantive driving charge, having regard to the facts that: the maximum penalty is one year imprisonment; the appellant was not charged with “Cause Death By Dangerous Driving”; and that his offending was significantly less serious than the many such cases which involve intoxication (by alcohol or drugs) or very bad or very fast driving, none of which elements are present here. Neither the appellant nor the respondent complains about this sentence.

18. On the appeal as to the sentence on Count 2, counsel for the respondent referred to the decisions of this Court in (chronological order) R v Jongewaard (Jongewaard);[5] R v Thach (Thach);[6] and R v Farrer (Farrer).[7]

    [5] [2009] SASC 346.

    [6] (2010) 203 A Crim R 510.

    [7] [2017] SASCFC 27.

19. In Jongewaard, the appellant was convicted after trial of an offence against 45(1) RTA and an offence against s 19AB(2) CLCA. The Judge sentenced the defendant to a total of two years imprisonment with a nine month non-parole period and declined to suspend. The appellant appealed and the respondent did not. The offending was aggravated by the fact that the appellant was to some extent affected by alcohol and that he did not stop at all, but instead drove back to the resort gate at which he was staying and then jumped over the fence and ran some 200 metres to where his girlfriend and others were staying, where he remained until police arrived (at which time he co-operated with them). While the victim did not die, he suffered and continued to suffer, significant disabilities. The appeal was dismissed.

1. In Thach, the case involved injuries caused through high speed “drag racing” on a public road with other complexities such that it bore very little comparison to the present case.

2. In Farrer, the defendant was driving her car to Victor Harbor and near there hit a cyclist, causing the cyclist to be thrown back over the left side of the car, shattering the left windscreen. Without stopping, she left the cyclist on the roadway and drove off towards Adelaide. She was intercepted by police near Adelaide. She lied about the damage to her car, saying that she had hit a post. She was found to have a significant blood level of methylamphetamine and also small quantities of other drugs. She was sentenced to four years imprisonment for “Aggravated Cause Death By Dangerous Driving” (maximum sentence life imprisonment) and two years imprisonment for “Leaving an Accident Scene After Causing Death” (maximum sentence 15 years imprisonment). However, the sentence for the latter offence was concurrent for one year with the first sentence and therefore the sentence for that offence was effectively only one year imprisonment.

3. In a number of ways, the offending in Farrer was worse than in the present case; including the facts that the defendant there actively avoided contact with the police and had no idea of the state of the victim, leaving her on a main roadway in the countryside where she was quite likely to be hit at high speed by another motorist. The appeal was dismissed.

4. In the present case, counsel for the appellant was asked during his short submissions on appeal as to whether he had considered furnishing a table of comparative sentences for the “Leaving an Accident Scene” charge in the context of a death caused by a motorist. He replied that he had not thought of it. Counsel for the respondent, Mr Lesses, kindly “volunteered” to perform that task.

5. The table that was subsequently supplied to the Court is of considerable assistance. It extends from August 2009 to October 2018 and consists mainly of sentences imposed by District Court Judges. Of the cases similar to the present case, a range of sentence from one year to two years is quite discernible, with those at the high end having features worse than appearing in the present case.

6. In all of the circumstances, I conclude that the cumulative sentence of four years imprisonment imposed on Count 2 was manifestly excessive and should be set aside.

7. I would substitute a sentence of 18 months imprisonment on Count 2 to be wholly cumulative upon the sentence of seven months imprisonment on Count 1, thus constituting a new head sentence of two years and one month.  I would fix a new non-parole period of one year and eight months. Both periods are to commence on 28 February 2019 when the appellant was taken into custody upon conviction.

8. STANLEY J:       I agree with Peek J’s proposed orders and reasons. 

9. NICHOLSON J:  I agree with Peek J’s proposed orders and reasons.