Bullock v The Queen (No 2)

Case [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…

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Bullock v The Queen (No 2) [2020] SASCFC 86
Case
[2020] SASCFC 86
Decision Date

CaseChat Overview and Summary

The appellant, Bullock, appealed against a sentence imposed by the trial judge. He had been sentenced to seven months imprisonment for one offence and four years imprisonment for another, to be served cumulatively, resulting in a head sentence of four years and seven months. A non-parole period of three years and eight months was fixed, with the serious repeat offender legislation mandating that this period be at least 80% of the head sentence. The appeal was brought on the grounds that the sentence was manifestly excessive.

The legal issues before the court concerned the appropriateness of the cumulative sentence and the non-parole period imposed. Specifically, the court had to consider whether the sentencing judge erred in ordering the sentences to be served consecutively, and whether the non-parole period was excessive in light of the circumstances of the offences and the appellant's history as a repeat offender. The court was also required to assess whether the overall sentence reflected an appropriate balance between punishment, deterrence, and rehabilitation, given the gravity of the offences, which involved a fatal collision with a young child and the appellant's subsequent failure to stop at the scene.

The court considered the facts of the collision, where the appellant's vehicle struck and killed a two-year-old child on a residential street. The appellant did not stop at the scene but drove to his nearby home before his wife contacted emergency services. The appellant's evidence suggested he swerved to avoid another child and then heard a noise, realising he had run over a child. He stated he panicked and left the scene due to fear, referencing a prior home invasion. The court noted the appellant's admission that his dog was unrestrained in the vehicle and that he had acknowledged running over a child and believing the child was dead. The court ultimately found that the sentence imposed was not manifestly excessive, taking into account the seriousness of the offences, including the failure to stop and render assistance, and the appellant's prior criminal record.

The appeal against sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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