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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gordon

Details

AGLC: R v Gordon [2022] ACTSC 130
Case: [2022] ACTSC 130
Decision Date

CaseChat Overview and Summary

The case of R v Gordon was heard in the Supreme Court of the Australian Capital Territory, where the offender, Nicholas Gordon, pleaded guilty to culpable driving causing grievous bodily harm. The maximum penalty for this offence was 10 years' imprisonment. The offender's actions resulted in severe injuries to the victim, Mr X, who suffered permanent scarring, disfigurement, reduced sensation in his face, dental injuries, fractures, and shoulder injuries. The offender showed significant remorse and was deemed suitable for an Intensive Corrections Order (ICO). The legal issues before the court were whether full-time imprisonment or an ICO was appropriate, considering the offender's background and the need for punishment and deterrence.

The court considered the objective seriousness of the offence, assessing it to be medium due to the deliberate nature of the act despite the unintentional causing of harm. The offender's significant remorse and suitability for an ICO were also taken into account. The court referenced R v Higgins [2020] ACTSC 299; 94 MVR 367, where it was observed that an ICO could address the offender's risk of reoffending. The court concluded that full-time imprisonment was not necessary for this offender, who was unlikely to reoffend, and that an ICO was a more appropriate form of punishment that would allow the offender to continue his otherwise normal life.

The court sentenced the offender to a term of imprisonment of three years, to be served by way of an ICO. The offender was also disqualified from driving for a period of 12 months. This decision balanced the need for punishment and deterrence with the offender's background and the low risk of reoffending.

Orders