R v Gordon
[2022] ACTSC 130
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gordon |
Citation: | [2022] ACTSC 130 |
Hearing Date: | 23 May 2022, 2 June 2022 |
DecisionDate: | 2 June 2022 |
Before: | Elkaim J |
Decision: | 1. For the offence of culpable driving causing grievous bodily harm the offender is sentenced to a term of imprisonment of three years to commence on today and end on 1 June 2025. 2. The above term of imprisonment is to be served by way of an ICO on the core conditions of such an order. 3. Pursuant to s 62 of Road Transport (General) Act 1999 (ACT), the offender is disqualified from driving for a period of 12 months from today. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – where offender pleads guilty to culpable driving causing grievous bodily harm – where the offender shows significant remorse for serious offending – whether imprisonment or an Intensive Correction Order is appropriate – offender sentenced to three years’ imprisonment to be served by way of an Intensive Corrections Order |
Legislation Cited: | Crimes Act 1900 (ACT) s 29 Crimes (Sentencing) Act 2005 (ACT) s 10 Road Transport (General) Act 1999 (ACT) s 62 |
Cases Cited: | R v Higgins [2020] ACTSC 299; 94 MVR 367 R v Whyte [2002] NSWCCA 343; 65 NSWLR 252 |
Parties: | The Queen ( Crown) Nicholas Gordon ( Offender) |
Representation: | Counsel N Deakes ( Crown) J Cooper ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service ( Offender) | |
File Number: | SCC 265 of 2021 |
Elkaim J:
On 5 November 2021 the offender pleaded guilty to a charge of culpable driving causing grievous bodily harm, contrary to s 29(4) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years’ imprisonment.
The detailed facts of the offence can be found in the Agreed Statement of Facts, included in Exhibit A. The following is a summary.
The victim of the offence is Mr X. He was not known to the offender prior to 23 October 2020. Mr X was a keen cyclist and was riding his bicycle along Hindmarsh Drive on 23 October 2020. He was in the cycling lane. He was on a route which he used every weekday. He had bright lights attached to the front and rear of his bicycle and a strobe light built into his helmet.
The offender was also on Hindmarsh Drive, but he was driving a motorcar. The victim believes he remained within the cycling lane. The offender stated the victim was swerving in and out of the marked cycling lane. This raised the ire of the offender who sounded his horn as he passed the victim. The victim, in response, gestured to the offender in a manner involving the projection of his middle finger.
Both the offender and the victim turned into Athllon Drive. The motorcar was in front of the bicycle. The offender suddenly applied his brakes so that the victim collided with the rear of the motorcar. The collision was forceful because the victim was thrust forward into the rear windscreen of the motorcar. The windscreen shattered and rear panels of the vehicle were damaged. The bicycle was destroyed.
As a result of going through the glass, the victim was severely injured. The victim asked the offender to call an ambulance. The offender drove off but reconsidered his position and returned to the scene after calling an ambulance. He remained at the scene while the victim was attended to by the ambulance service. The police spoke to the offender. He described the altercation that had occurred on Hindmarsh Drive. He said he stopped to “teach him a lesson by brake checking him”.
He said the gesture that had been made on Hindmarsh Drive had “ticked me off on the wrong way”. He said he did not mean to injure the victim.
The facts amount to a classic case of road rage. This occurs when normally law-abiding drivers seem to lose all sense of reasonableness and commit an act of absolute stupidity because of a distorted perception arising from another road user’s actions.
There are photographs of the injuries suffered by the victim. They are horrendous, in particular, the degloving of the victim’s nose within a broader “pan facial injury”. In addition, there was a nasal bone fracture and a depression fracture of the right anterior maxillary sinus. There were also dental injuries and fractures and a shoulder injury.
In addition to the facial injuries there were multiple lacerations over the victim’s body.
The facial injuries required emergency surgery. It was necessary for there to be a debridement across the victim’s face. Debridement was also necessary for lacerations to his hand and right elbow. Sutures were required.
Five days later further facial surgery was necessary. This time a skin graft was applied to the victim’s nose. The graft had been taken from his neck. Not surprisingly treatment continued in hospital where the victim was plainly distressed. He was discharged after six days but required continuing care in particular from a plastic surgeon.
There is a comprehensive report about the victim’s injuries, dated 27 October 2021, by Dr Virginia French. She says that the victim will have permanent scarring and disfigurement to his face and neck. He will have a reduced sensation in his face and there will be future dental treatment required, possibly on a repetitive basis for the rest of his life. He has a reduced function in his right shoulder which will probably succumb to early osteoarthritis.
Dr French noted that there had been a diagnosis of post-traumatic stress disorder. He required psychological therapy.
There are no victim impact statements. They had been foreshadowed by the Crown as coming from the victim and his wife. It is not surprising that there are no statements, having regard to the psychological impact upon the victim which would be exacerbated by him coming to Court and reading out what he has been through. The fact that there are no statements does not in any way reduce the impact upon him.
The offender was born in 1997. He does have a criminal record but it is not relevant to the current offending. It does however deprive the offender of the benefit of no history at all. The offender is a man of Indigenous origin. He was born in Cairns, Queensland. His father was in the Navy. The family moved to England because of an Australian Defence Force posting. His father was usually away from home for up to nine months of the year.
When the offender was eight years of age his mother was raped in front of him and his sister. The event had a major effect on his mother. When the offender was 10 years of age he was sexually assaulted by the father of a friend.
The offender’s sister was sexually assaulted when she was 17 years of age. The trauma affected the whole family.
The offender currently has a partner. Their relationship is under strain because of the current charge. He works for a motorcar company as a parts advisor. He does not drink alcohol or take drugs.
Ms Edwige, a clinical psychologist, has reported that the offender:
experienced significant adverse childhood experiences. He was exposed to disadvantage that in my opinion significantly impacted on his social and emotional well-being and continues to impact on his well-being presently.
Ms Edwige stated that the offender is an anxious person. He met the criteria for a DSM-5 diagnosis of Autism Spectrum Disorder. She thought that this diagnosis “places him at significant risk in a custodial environment for being victimised and being taken advantage of”. She said he will require ongoing psychological treatment and he should attend the Marymead Autism Centre for support.
In relation to the connection between the DSM-5 diagnosis and the offending Ms Edwige noted that on the day that it occurred, the offender’s rituals and routines had been altered to the extent that, because of his autism, his levels of anxiety were increased.
The offender has completed an anger management course. He was described as:
an exceptional participant adapting to the emotional demands of the course. A very likeable and cooperative participant. He understands the seriousness of his pending court appearance and through extensive discussion, role-play, didactics learning, mindfulness-based techniques for emotional regulation, focusing skills, reflective based activities and scenarios [the offender] has shown openness and the ability to adapt to the ambiguity of working in challenging situations.
Mr de Luca, the counsellor who conducted the anger management course, also wrote a separate letter in support of the offender. He said the offender was still in shock about the events and was aware of the gravity of his actions. He said he did not come across “as malicious and presented as a sensitive person”.
There is also a letter from a friend of the offender, Ms Harris, who was in a relationship with him for five years. She talks about his remorse and the effect the events have had upon him.
I have been provided with a number of cases involving culpable driving causing grievous bodily harm. None of the cases involve road rage. They are generally concerned with drug-affected or drunk persons driving dangerously and ending up in an accident. I have been provided with the New South Wales guideline judgment in R v Whyte [2002] NSWCCA 343; 65 NSWLR 252.
In assessing the objective seriousness there is a possible inconsistency between the deliberate nature of the act but the unintentional causing of harm. I am satisfied that it was not the offender’s intent to cause harm. However, even if not intended, it was at least a product of gross negligence.
I think the objective seriousness should be assessed at about medium for this type of offence.
There is no doubt significant remorse on behalf of the offender. He was referred for restorative justice. There are two progress reports before me which indicate that the process is continuing. The offender has stated through his legal representative that he will continue the process after sentencing.
The Pre-Sentence Report says that there is a low chance of reoffending. He has been assessed as suitable for an Intensive Corrections Order (ICO). In this regard a case that I have found particularly useful is R v Higgins [2020] ACTSC 299; 94 MVR 367 (Higgins).
In Higgins the drug affected offender was driving a motor vehicle with three passengers. He was travelling at 115 kilometres per hour in a 50 kilometre per hour zone. The vehicle hit a fence and became airborne. The passengers were severely injured. There were fractures and head injuries dispersed through the victims. Robinson AJ examined the background to ICOs. His Honour observed that although an intention to cause harm was not an element of the offence it was relevant to culpability. His Honour observed, from [105]:
105.As in many like cases, the purposes for which a sentence may be imposed conflict and the imposition of any sentence will never fully accommodate each purpose to its full extent.
106. Here, I find that an intensive correction order will address the offender’s risk of reoffending. The fixing of a sentence of imprisonment of more than three years will, itself, address, at least in part, the need for denunciation, accountability and the recognition of the harm done to the victims. In this case there is a low risk posed to the community from the offender. There is a need to prevent crime by deterring other people from committing the same similar offences. I do not believe that the offender himself will embark upon a course of conduct bringing harm to others. There are very good reasons why full-time imprisonment should be avoided in respect of this particular offender if that were possible having regard to the need that any offender be adequately punished in a way that is just and appropriate.
I think that many of the remarks made in [106] are applicable to this offender.
Cases of this type are amongst the most difficult to deal with. On the one hand there is an otherwise decent person who, in a moment’s act of deliberate stupidity, negligently (if unintentionally) causes terrible injury to an innocent person who will suffer the consequences for the rest of his life.
Should such an offender be put in prison, or should he be able to continue his otherwise normal life—a life achieved despite a harsh background?
Public deterrence is very important. This offender is unlikely to offend again. I think to impose a sentence of full-time imprisonment would not serve justice. But of course there must be significant punishment.
My initial thought was that imprisonment was appropriate but that it should be served by way of an ICO. However because the offender lives in New South Wales, this was perhaps not thought to be a viable option. The Crown took up this issue of an ICO being given to a person who does not live in the ACT and addressed some questions to the author of the Pre-Sentence Report. The author responded in an email which is Exhibit D. The effect of the answers is that although an ICO would not normally be appropriate to a person living in NSW, in this particular case, having regard to the particular circumstances of the offender, such a solution could be workable.
It should not be thought that I am in any way excusing the offender’s conduct by not imposing full-time imprisonment. It was a serious breach of the conduct society expects of a driver. It is deserving of significant punishment. But I do not think that punishment should be imposed through the means of full-time imprisonment.
I think the appropriate term of imprisonment is four years, which is reduced to 3 years after a 25 per cent discount for the plea of guilty.
Orders
I make the following orders:
(i)For the offence of culpable driving causing grievous bodily harm the offender is sentenced to a term of imprisonment of three years to commence today and end on 1 June 2025.
(ii)The above term of imprisonment is to be served by way of an ICO on the usual conditions of such an order.
(iii)Pursuant to s 62 of Road Transport (General) Act 1999 (ACT), the offender is disqualified from driving for a period of 12 months from today.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |