Gillmore v The Queen

[2016] NSWDC 401

District Court

New South Wales

Medium Neutral Citation:	Gillmore v R [2016] NSWDC 401
Hearing dates:	14 December 2016
Date of orders:	14 December 2016
Decision date:	14 December 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Set aside conviction recorded and sentence passed by Local Court at Hornsby on 16 September 2016 Bond s10 for 1 year
Catchwords:	CRIME – SENTENCE – Appeal against severity of sentence – Negligent driving causing grievous bodily harm – Initially pleaded not guilty, but changed to guilty plea following morning adjournment – Collision at speed of 10 kph – Injury to victim caused when her motorcycle fell onto her – Offender of previous good character – Offender had had 9 years driving experience with no driving offence – Fined $800 and disqualified from driving for 12 months – Appeal allowed – Appellant to enter into s10 good behaviour bond for 12 months
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Carl John Gillmore (Appellant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: Mr Averre (Appellant) Mr Gunter (Respondent)   Solicitors: Unrecorded (Appellant) Solicitors for the Director of Public Prosecutions (Respondent)
File Number(s):	2016/97409
Publication restriction:	No
Decision under appeal	Court or tribunal: Local Court at Hornsby Jurisdiction: Criminal Date of Decision: 16 September 2016 Before: Magistrate D Reiss File Number(s): 2016/97409

Judgment

1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Magistrate Reiss sitting in the Local Court at Hornsby on 16 September 2016. The appellant was charged with negligent driving causing grievous bodily harm to Fiona Campbell. The driving occurred at about ten minutes after noon on 18 December 2015 on the Pacific Highway at Roseville. Initially the appellant had pleaded not guilty to the offence, but according to notes made by the learned magistrate, after evidence had been given the appellant withdrew his plea of not guilty after the morning tea adjournment and then pleaded guilty. His Honour sentenced the appellant to pay a fine of $800 and disqualified him from driving for 12 months.

2. The appellant had been driving a black Holden utility. He was driving southbound at Roseville near the Scuderia Veloce Motors premises at Roseville. He was travelling in the middle of three lanes. The “victim”, Fiona Campbell, was driving a motorcycle, also in a southerly direction on the Pacific Highway, but in the kerbside lane. There were some parked cars in the kerbside lane and, due to that, the victim merged into the second or middle lane in front of the appellant’s vehicle. The appellant decided to turn to merge into lane 3, the “fast lane” or the third of the three lanes, but determined that it was not safe to do so and swung part of his car which had left lane 2, back into lane 2. It would appear that the appellant was going slightly faster than Ms Campbell was riding her motorcycle and contact was made between the motorcycle and the passenger side door of the appellant’s utility, causing Ms Campbell to be knocked from her cycle. She sustained a significant injury to her right ankle because of damage done when her bike fell on her leg.

3. The agreed facts indicate that there was a comminuted fracture of both malleoli of the right leg, requiring surgical reduction with three plates and 12 screws, and, after the surgery was practiced, her leg was placed in a plaster cast. According to notes made by the learned magistrate, she had almost fully recovered by the time of the hearing in the Local Court on 16 September 2016, but then his notes indicate that she recovered fully within ten weeks of the accident and that she was required to be off work “for a while” which would appear to have been less than ten weeks.

4. This collision occurred at the speed of about ten kilometres per hour. Traffic was very heavy and the traffic was moving very slowly. The negligence of the appellant was failing to keep a proper lookout. To an extent that is understandable as the appellant is legally blind in his left eye and the victim may well have been in his “blind” spot when he turned his vehicle fully back into lane 2 after making an attempt to merge into lane 3.

5. The appellant is now 26 years of age. At the time of the offence he was 25 years of age. He was granted a learner’s licence on 9 October 2006. He has now been driving for ten years. He has no other criminal offence at all, and furthermore has no other driving offence. His driving record does not even disclose a speeding fine or any minor infringement.

6. The appellant stood before the Local Court as a man of prior good character, indeed excellent character, and that must be taken into account. The appellant completed an apprenticeship as a landscape gardener and then obtained a diploma in horticulture in landscape design. At the age of 22 he commenced his own business and he currently employs four staff. He sub contracts to his former master landscaper, Mr Andrew Gallagher, of Folium Landscapes. There is medical evidence before me to tell me that the blindness in the appellant’s left eye was caused by a childhood retinoblastoma, but that the appellant is capable of driving and has been driving for many years. That is confirmed by his licence record.

7. The appellant, in essence, requires to keep his licence to maintain his business and to maintain the number of employees that he has and maintain the quality of the work being done by those he employs. The appellant’s partner has a chronic illness which requires her to attend numerous doctors and hospital appointments, and that has been the case for the last “few years”. That has been attended to by the appellant and, without his assistance, would cause the appellant’s partner and her extended family extreme difficulty, as the appellant’s partner is not a motor vehicle driver.

8. This is a case which, in my view, is suitable for the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 and it appears to me that, because grievous bodily harm was suffered, that I ought impose a bond to be of good behaviour for one year. For those reasons I set aside the conviction recorded and the sentence passed by the Local Court at Hornsby on 16 September 2016.

9. Carl John Gillmore, under s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction, but having regard to your good character, I am satisfied that it is expedient to release you on a good behaviour bond. I order that you be released on a good behaviour bond for a period of one year from today. The conditions of the bond are as follows: (1) you are to appear before the Court if called upon to do so at any time during the term of the bond; (2) you are to be of good behaviour; (3) you are to reside at [withheld] or, (4) you are to advise the Registrar of this Court by prepaid registered post of any change of residential address during the term of the bond.

Any other orders sought?

HIS HONOUR: Mr Gillmore, you’ll need to go back to the other building, the Downing Centre, to execute the bond in the registry.

APPELLANT: Thank you, your Honour.

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