R v Sully

Case [2012] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SULLY

[2012] SASCFC 9

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Anderson)

22 February 2012

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - WITHDRAWAL

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - CAUSATION

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - DUTIES OF DRIVER INVOLVED IN A CRASH - FAILURE TO STOP AT SCENE OF CRASH

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction - appellant was convicted following trial by judge alone for causing death by dangerous driving, causing harm by dangerous driving (three counts) and leaving the accident scene after causing death by careless driving - appellant was involved in a high speed street race with another car driven by F - F collided with a third car containing the victims - appellant was charged on the basis that he aided and abetted F's dangerous driving - whether at the time of the collision the appellant had effectively withdrawn from the common purpose - survey of authorities bearing on what is required of an aider and abettor to effect withdrawal so to end his criminal responsibility - whether a unilateral decision to withdraw is sufficient - whether there need be communication to the principal of the abandonment - whether trial judge erred in finding the appellant was a substantial cause of the accident having regard to the presence of a bush obscuring the victim's view of oncoming traffic - whether appellant was "involved in an accident" within the meaning of the statutory provisions obligating him to stop at the scene - whether verdicts unsafe or unsatisfactory.

Held:  appeal dismissed.

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - PARITY BETWEEN CO-OFFENDERS - OTHER MATTERS

Appeal against sentence - appellant sentenced to four and a half years imprisonment with a non-parole period of 30 months - whether sentence was manifestly excessive having regard to penalty imposed on the co-offender F, who was given a head sentence of 2 years and 9 months and non-parole period of 12 months - F received discount for pleas of guilty and judge found special reasons why a period shorter than the mandatory minimum period should apply - whether it was open to sentencing judge to reduce the sentence to which the appellant was otherwise liable by reference to the principles of parity and totality - whether the difference in the sentences imposed on the co-offenders was such as to give rise to a justifiable sense of grievance.

Held:  appeal dismissed.

Vanstone J (Anderson J agreeing) - the marked difference in the sentences was dictated by the operation of statute and the policy of giving credit to an offender who pleads guilty.

Sulan J (in dissent) - the differing operation…

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AGLC
R v Sully [2012] SASCFC 9
Case
[2012] SASCFC 9
Decision Date

CaseChat Overview and Summary

The appellant, R v Sully, appealed against his convictions for causing death by dangerous driving, causing harm by dangerous driving, and leaving the scene of an accident after causing death by careless driving. The convictions arose from a street race with another driver, Fenney, whose vehicle collided with a third car carrying the victims. The appellant was charged on the basis that he aided and abetted Fenney's dangerous driving. The appeal was heard by Sulan, Vanstone, and Anderson JJ of the Supreme Court of South Australia.

The central legal issues before the court were whether the appellant had effectively withdrawn from the common purpose of the street race before the collision occurred, thereby ending his criminal responsibility as an aider and abettor. This involved determining what constitutes a sufficient withdrawal, specifically whether a unilateral decision to cease participation is enough, or if communication of this abandonment to the principal offender is required. Additionally, the court considered whether the appellant was "involved in an accident" within the meaning of the statutory provisions requiring a driver to stop at the scene of a crash. Finally, the court addressed whether the verdicts were unsafe or unsatisfactory, including whether the trial judge erred in finding the appellant was a substantial cause of the accident despite a bush obscuring the victims' view of oncoming traffic.

The court surveyed authorities on the requirements for an aider and abettor to effect withdrawal from a common unlawful purpose. It was held that the trial judge's finding that the appellant's abandonment of the race was "too late" and that his encouragement was still "operating" at the time of the collision was crucial. The court affirmed that for withdrawal to be effective in negating criminal responsibility, it must be timely and, in some circumstances, communicated to the principal offender. The appellant's argument that a unilateral decision to slow down was sufficient was not accepted as a basis for overturning the conviction. The court also found that the appellant was indeed "involved in an accident" as contemplated by the relevant legislation.

The court dismissed the appeal against conviction and sentence, refusing permission to appeal on one ground. The judges agreed with the orders proposed and the reasons given by Justice Vanstone.

Orders

Orders of the court

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Background

Background to the litigation

He now appeals against the convictions on various grounds. Principal among them is his contention that an aider and abetter who ceases to aid and abet before the actus reus takes place is not criminally responsible for the principal’s offence. He also argues that he could not properly be convicted of an offence of leaving an accident scene after causing death by careless driving because the statutory obligation to stop and render assistance falls only upon the driver of a vehicle “involved in an accident”, which, the appellant argues, he was not. A further ground complains that the convictions are unsafe and unsatisfactory. The appellant also renews an application for permission to appeal in respect of a ground raising the proof of causation.Background The collision occurred on Torrens Road, Woodville North at the junction of Audley Street soon after 8:30 pm on 14 May 2009. Each of the appellant and Fenney were driving along Torrens Road in a south easterly direction, that is, towards the city. Each was driving a Subaru WRX, the appellant’s being a distinctive green colour and Fenney’s being blue. Extensive reasons for the verdicts were given: R v Sully [2011] SASC 169. The judge found, contrary to his denials in an interview with police, that the appellant and Fenney were engaged in a race for “at least 500 metres”: [173]. During the race speeds of at least 100 kilometres per hour were attained. The judge found that the appellant pulled out of the race not long before the junction of Torrens Road and Audley Street because he intended to turn left into Audley Street: [174]; and that the collision occurred “in a matter of seconds only of [the appellant] braking and slowing down” to take that turn: [176]. The judge further found that even if the appellant was not still racing at the time of the collision he was criminally responsible for the dangerous driving of Fenney as an aider and abettor because the appellant’s abandonment of the race (if that is what it was) was “too late”: [176]; the appellant’s encouragement of Fenney to drive in a dangerous manner along Torrens Road to Audley Street was “still operating” at the time when the collision occurred: [178]; the abandonment was “not such as to negate the earlier encouragement” given to Fenney: [178]; the encouragement earlier given to Fenney “was still operating in the mind of Fenney” at the time of the collision: [178]; “[t]he chain of causation had not at that stage been broken irrespective of the precise point at which the [appellant] slowed down and made the left hand turn into Audley Street”: [178].The aiding and abetting argument Mr Algie SC, for the appellant, argued that on these findings, the appellant could not properly be found guilty of the charges. He argued that the relevant principle is that, where aiding and abetting is constituted by spontaneous acts of encouragement by “A” of “B”, ceasing to aid and abet is withdrawal sufficient to render A no longer criminally responsible for the ensuing acts of B. He asked rhetorically: “How else could a person in the appellant’s position signify abandonment?” He argued that it followed that any continuing impact of A’s earlier acts on B’s mind beyond the point of A’s withdrawal was not relevant. The ongoing effect of the earlier encouragement was, he suggested, possibly relevant to civil liability, but was not so in a criminal prosecution.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J
As I said, this perceived difficulty only arises where the mandatory minimum is a proportion, rather than a fixed period. Because of the contrary position put to the judge by both sides and accepted by her, it is not necessary to decide whether there is any force in this argument. Conclusion The orders I would make are:1.permission to appeal on ground 2 is refused.2.the appeal against conviction is dismissed.3.the appeal against sentence is dismissed. I agree with the orders proposed by Vanstone J and I agree with Her Honour’s reasons

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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