R v Nitschke

[2024] NSWDC 614

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Nitschke [2024] NSWDC 614

Hearing dates:

26 April 2024 – verdicts
30 May 2024 – sentence hearing

Decision date:

22 August 2024

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Special circumstances found: first custodial sentence, need for longer period of supervision on parole to assist with drug & alcohol and mental health issues, anger management.

Indicative sentences:

001: 4 years NPP 2 years, 8 months

002 1 year

003 9 months (25% discount)

004 9 months (25% discount)

Aggregate Sentence:

Sentenced to a term of imprisonment for 4 years and 9 months comprising a non-parole period of 3 years to commence on 8 April 2023 and to expire on 7 April 2026, and a balance of term of 1 year and 9 months to commence on 8 April 2026 and to expire on 7 January 2028.

Eligible for release to parole on 7 April 2026.

Driver disqualification period: 5 years. [s205(4) RTA 2013]

Catchwords:

CRIME – Sentence after judge-alone trial – cause grievous bodily harm to person with intent - s166 matters -failing to stop and assist after vehicle impact causing GBH - driving offences – resisting police officer in execution of duty – intention – serious injury, deliberately caused – impact on victim and family – subjective matters

Legislation Cited:

Crimes Act 1900

Road Transport Act 2013

Category:

Sentence

Parties:

Rex
Nitschke, Harold

Representation:

Counsel:
Defence: Mr B Walmsley KC

Solicitors:
Crown: Mr D Hoitink ODPP; Ms E Lyte ODPP
Defence: Mr C Ford Ford Criminal Lawyers

File Number(s):

2023/00113329

JUDGMENT

1. HIS HONOUR: Harold Nitschke appears for sentence in respect of four offences. The first is an offence of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900. The maximum penalty provided in respect of that offence is imprisonment for 25 years and there is a relevant standard non-parole period of seven years.

2. He stood trial, judge alone, in respect of that offence, and I returned a verdict, convicting him on 26 April 2024. At the conclusion of the trial, having been found guilty by me, he then indicated to his counsel that he would also plead guilty to an offence contained on a s166 certificate of failing to stop and assist after a vehicle impact causing grievous bodily harm, contrary to s 52AB of the Crimes Act. That carries a maximum penalty, on indictment, of imprisonment for seven years.

3. There were a further two offences contained on a s166 certificate, being driving while disqualified as a second or subsequent offender, contrary to s 54(1)(a) of the Road Transport Act 2013, and a further offence of resisting a police officer in the execution of his duty, contrary to s 60(1AA) of the Crimes Act.

4. In relation to the drive while disqualified and resist officer in execution of duty offences, the maximum penalty available is 12 months. He had indicated a plea of guilty in respect of each of those two offences in the Local Court and is entitled to a 25% discount for the utility of the plea alone.

5. The offender was arrested on 8 April 2023 and has been in custody, bail refused only in relation to these matters since that date. Accordingly, any sentence imposed must start from 8 April 2023.

6. It is the common position of both the Crown and the defence that the s 5 threshold is passed in relation to these matters and a sentence of imprisonment is appropriate. I accept the submission by the Crown and the concession by Mr Ford on behalf of the offender were appropriate in the circumstances.

7. As I delivered verdict on 26 April 2024, indicating in my verdict judgment the facts which I accepted beyond reasonable doubt, I will not repeat those but simply attach a copy of that judgment to these reasons, when available.

8. In very short form, the offender was angry as a result of a relationship that he had with the victim, Mr Collins, and his wife, Mrs Collins. He became very agitated on 8 April 2023, making several abusive phone calls to Mrs Collins and making threats against her and Mr Collins, which are set out in my judgment. Eventually he drove, presumably from his premises, in his son’s car to Middle Rock, which is in close vicinity to the home of the victim, Mr Collins, on the understanding that Mr Collins would meet him there. When Mr Collins did not attend, he then attended Mr Collins’ premises, which were somewhere within the distance of perhaps 500 metres to one kilometre away.

9. There was then an altercation between himself and Mr Collins before the offender endeavoured to drive away in his car. But, in the course of doing so, he deliberately drove on the wrong side of the road and swerved around a parked car in order to hit Mr Collins with the car. Mr Collins had been standing in a position of relative safety behind the car the offender swerved around. The impact caused a serious injury, as referred to in the report of Dr Tarrant, dated 15 April 2024, in which he stated:

“This is a severe injury which can result in loss of limb and a decreased quality of life resulting from pain and dysfunction. Geoffrey has had multiple operations. He has infection, isolated after the initial operation and ongoing hospitalisation for infected flareups managed by Dr Aiveen Bannan. There is still a chance of him to have a flareup with the infection that may result in amputation. He has post-traumatic ankle arthritis which will likely worsen and may need an ankle fusion. His ankle joint has a guarded prognosis with his current level of post-traumatic arthritis. This is not life threatening. Currently he can perform basic activities of daily living and other pursuits such as motorbike riding. Within the next ten years there is a high chance his ankle will need to be fused. This will increase his current level of disability.”

10. When struck by the car, the victim was thrown up on to the bonnet and his left leg came into contact apparently with the front offside wheel of the vehicle, causing an open fracture and dislocation of his left ankle, to the extent that bone protruded through his skin.

11. It was accepted by agreed facts that the injury constituted grievous bodily harm. What was not accepted in the trial was that the offender had intended to inflict grievous bodily harm. In my view at the time, on the basis of all of the material, particularly by way of communications between himself and the Collinses, his threats to kill and his belligerent text messages and/or phone calls indicated an ongoing intention of a most serious kind.

12. As it was a defended trial, there can be no discount on sentence in respect of the offence of causing grievous bodily harm with intent. However, as indicated, in respect of each of the offences of drive while disqualified and resist a police officer, noting that the plea was entered in the Local Court, it is appropriate to provide a 25% discount on sentence.

13. As to the offence of failing to stop, while it was contained in a s166 certificate, it was inevitable at the conclusion of the trial, in light of the verdict, that the offender would plead guilty at that time to that offence. I will not provide any discount for that plea.

14. I note in relation to offences of this nature, a very relevant consideration is the nature of the injury inflicted on the victim. This was a very serious injury requiring surgery and repeated intervention to assist the victim in returning to his ordinary life. However, he has done so in circumstances where he is significantly impacted by limitation on his movement, pain and suffering. I note from the Victim Impact Statement, provided as part of Exhibit 2, that as of 9 August 2024, he continues to have significant problems because of the injury inflicted on him.

15. In the Victim Impact Statement, he also speaks of the significant effect that the incident has had on his wife, who was a witness to the actual incident, and also on his daughter Tanisha, who, if not an actual witness to the incident itself, was present at home immediately before it occurred and must have been aware of the consequences shortly thereafter.

16. In the Victim Impact Statement, Mr Collins has outlined the very significant effect that it has had on him, as well as on his wife and his daughter. His wife and daughter were not the victims of the incident, but were indirect victims of the incident, as they were present: Mrs Collins in fact seeing it occur and attending - immediately after her husband had been struck by the car - to her husband, then lying visibly injured on the grass verge outside the neighbour’s house.

17. I note the assertions in the Victim Impact Statement as to the effects on Mr Collins and the effects that he perceives on his wife and daughter, noting, of course, that his daughter already suffers some significant mental health and intellectual disorders, being referred to as having been diagnosed with ASD, ADHD, ODDD and GAD. However, the impact on the victim does not go beyond what can reasonably be expected because of such a significant injury as this as to qualify as an aggravating circumstance.

18. Both Mr Ford, on behalf of the offender, and the Crown have submitted that the offending falls somewhere between the low range and the midrange of objective seriousness. In my view, considering all the relevant matters closely, I would say that it at least falls towards the midrange rather than towards the low range. It is a serious injury, deliberately caused, although I accept, as has been submitted by both parties, that it was a result of an impulsive and opportunistic decision by the offender, having moved his vehicle back on to the road, to deliberately strike the victim, rather than something that he had contemplated before arriving at the premises.

19. I have no doubt from the nature of the text messages and phone calls threatening to kill, et cetera, that the offender was so emotionally antagonistic to Mr Collins that he had intended to at least have a significant argument, if not fight with him. His impulsive and opportunistic use of the motor vehicle was clearly spur of the moment in the circumstances where Mr Collins had inflicted some injury to the offender’s son’s motor vehicle as he was being pressed up against his own vehicle, as referred to in my judgment.

20. I reject that the response of swerving as he did around Mrs Collins’ vehicle was any form of self-defence, in respect of then seeing Mr Collins on the road surface itself, whether or not he was armed with any implement at that time.

21. As to the offence of failing to stop, as I said in my judgment, there is nothing in the evidence at trial to indicate that Mr Nitschke could have been aware of the particular nature of the injury inflicted, although I would find beyond reasonable doubt that he must have anticipated that there was some injury inflicted in circumstances where he had deliberately used his motor vehicle to strike Mr Collins, causing him to fly up and on to the bonnet and then off again as he swerved away.

22. As to the offence of driving whilst disqualified as a second or subsequent offender, I note that at the time of the offending, according to the Sentence Assessment Report under the hand of Blayney Pilbeam, dated 21 May 2024, the offender reported that at the time of the offence he was under the influence of approximately ten premixed rum and cokes and had consumed a few cones of cannabis, attributing that use to a feeling of boredom.

23. There is no evidence as to any alcohol reading. He is not charged with driving under the influence of anything but simply with driving whilst disqualified as a second or subsequent offender. At the time of the offending, he was subject to a 12-month Community Correction Order imposed on 13 July 2022 for the offence of driving whilst disqualified. In addition, on 13 July 2022, he had been disqualified from that date for a period of one year for the offence of driving whilst disqualified, and on 13 July 2022 for the offence of drive with a special range concentration of alcohol, committed on 19 June 2022, which is the same date as the commission of the last offence. He had a mandatory interlock order imposed on him to apply for a period of five years from 13 July 2022. He was also convicted on 8 July 2020 for an offence of driving with a low range concentration of alcohol, committed on 24 January 2020, and, as a result, a mandatory interlock order was made with a disqualification period of five years from 8 July 2020.

24. His traffic record, which is Tab 8 of the Crown bundle, Exhibit 2, indicates a significant history of driving offences from the time that he was first licensed in 1986, including one fail to stop after an accident in 1986. He has a number of convictions for such offences as driving while disqualified, even earlier than the ones that I have referred to, and driving while affected by alcohol. His traffic record is a poor one indicating a relatively continuous disregard for the law since his juvenile years.

25. The Sentence Assessment Report appropriately refers to his criminal history as a history of violence-based offending which commenced in 1988. Since this time, his pattern of offending has continued in frequency and severity, culminating in the index offences. The fact that he was the subject of a Community Service Order at the time means that these offences were committed while subject to conditional liberty.

26. When questioned by the sentencing assessment officer, he acknowledged his aggression towards the victim was “uncontrollable” and justified his behaviour as being due to the victim antagonising him. He did, at least apparently, acknowledge his behaviour was unacceptable, and verbalised an intention to address his aggressive response through community-based interventions. I note, in that respect, that he has been supervised by Community Corrections on various occasions since 1995, due to prior Community Correction Orders and Community Service Orders.

27. In 2002, he was the subject of a Community Correction Order which focused on case management of his mental health, aggression, and antisocial driving attitudes. Apparently, that has not particularly assisted him. It is asserted that during his time with Corrective Services New South Wales, he was noted as “difficult to supervise due to failing to engage in criminogenic programs and supervision requirements.” He is assessed as being a medium/high risk of reoffending which, on the basis of his criminal history and driving record, I accept as appropriate.

28. As the trial was defended, there is no evidence from the trial of remorse or contrition. The Sentence Assessment Report does not indicate any real indication of remorse or contrition. Under the heading “Insight into Impact of Offending,” it states:

“Mr Nitschke verbalised regret for his behaviour, however struggled to articulate the impact it has had on the victim. He displayed limited insight, only vocalising his personal adversities and impact on his family, rather than victim empathy.”

29. And, as I have previously referred to, he described his aggression towards the victim as “uncontrollable” and justified by his perception that the victim was antagonising him.

30. He gave evidence on sentence today, and I note that of course he gave evidence at trial, which I did not accept, that indicating that I had some scepticism about the truthfulness of his evidence. That scepticism was still evident today when he gave evidence on sentence, as it is frequently the case that offenders, having defended a matter and participating in a Sentence Assessment Report interview, realise that they have said little to assist themselves when it eventually comes to sentence, and endeavour to give evidence at the sentence hearing to suggest a significant change in attitude and appreciation of their offending.

31. This is frequently the result of the Sentence Assessment Report being available to their legal representative before they give evidence, and being directly taken to those matters which are not in their interest contained in the report. That is not a suggestion by me that that is what Mr Ford has done, but it is a circumstance which must always be acknowledged as likely.

32. I do, however, accept, despite my scepticism, that Mr Nitschke has finally taken on board the seriousness of his offending and that he does now genuinely feel terrible and disgusted about his behaviour and has turned his mind to consideration of the significant effects his offending has had on the victim and, indeed, on the victim and his family. In those circumstances, I am prepared to accept that there is some evidence of remorse and contrition.

33. The offender is now some 56 years of age, having been born on 17 August 1968. He has already spent a significant period of time in custody and will inevitably be spending further time in custody before being eligible for parole. The prospect of rehabilitation is affected by the extent to which he has continued to breach both traffic law and criminal law in the past, and his failure to take the benefit of orders made to assist him. I accept that he has suffered from PTSD, anxiety and depression. But, neither PTSD, nor anxiety or depression, in his case, assist in explaining his conduct, or in ameliorating his moral culpability. It must always be remembered that, apart from the abuse of Mrs Collins, when he finally spoke to Mr Collins, he threatened to kill him before attending at his home.

34. The offender, in his evidence, referred to having left school at approximately the age of 14 to commence working as an apprentice butcher, which he did for approximately some three years. I know nothing more of his past occupations, other than that at the age of somewhere in his mid-thirties he commenced working for the railways. He is said to have observed several serious incidents involving either suicide or accidental death, concerning the railways, in respect of which he never received any counselling or treatment. He also referred to having intervened when a young person was endeavouring to hang themself from a tree.

35. He has been on a disability pension for some years, and I accept that that was due to a diagnosis of PTSD. I note, of course, that anxiety and depression are frequently associated with the use of prohibited drugs, which Mr Nitschke admits to, from the age of approximately 13 when he began using marijuana and alcohol.

36. His relationship with Mr and Mrs Collins appears to have had a significant relationship to the consumption of marijuana at least. Those who abuse the use of alcohol and participate in the use of prohibited drugs, even if only marijuana, frequently suffer from anxiety and depression. His statement in evidence was that the effect of this was that he would not leave home for days or weeks.

37. He has been previously married and has two sons from that relationship, who he apparently continues to maintain contact with. In fact, the car he was driving on this occasion was one of his son’s. He said that his relationship with his wife broke down after approximately 15 years, because of his abuse of drugs and alcohol. He has, in the intervening period, commenced a new relationship with a female who works as a nurse in relation to persons who are suffering from neurological injury.

38. He has informed the Court that he will take on board the need to address his drug and alcohol problems and abide by any advice to attend on psychological or psychiatric assistance and take medication. He also said that he now accepts responsibility for hitting the victim, although he denied it at trial. Unfortunately, he did say that he now accepted that responsibility because he was drunk at the time, in effect. However, he indicated that he no longer blames the victim and realises that whatever his issue with Mr Collins was, he should have taken an entirely different course, such as forgetting about it or going to the police.

29. The sentencing assessment officer in his report found that he was a medium/high risk of reoffending. As I have said, that is consistent with his history and certainly, in the absence of effective treatment and/or assistance in the future, I anticipate that that would be the result, particularly noting his long history of ignoring the law in particular ways, as evident from his criminal and traffic history.

30. As to the driving while disqualified, as a second or subsequent offender, in my view, in the absence of the plea of guilty, an appropriate penalty would have been the maximum under the section, which is 12 months’ imprisonment. I will, when providing the indicative sentences, as I intend to proceed by way of an aggregate sentence, indicate that I would reduce that by three months to take account of the early plea. Similarly, in relation to resisting a police officer in the execution of his duty, the maximum is 12 months. It was an early plea, and I note, from having viewed the approximately six-minute video of the police attendance, the offender was uncooperative and obstreperous and perhaps putting on what I would refer to as an unwarranted histrionic display, I would similarly provide an indicative sentence of nine months, allowing 25% discount from the maximum.

31. As to the offence of failing to stop and assist after the vehicle impact causing grievous bodily harm, as I have said, there is no evidence that the offender was particularly aware of the injury inflicted on Mr Collins, but, in my view, must have been aware that there was some injury, and his subsequent call after leaving the scene, referred to in my verdict, without quoting the lengthy message left, was intimidating, taunting, abusive, threatening and boastful, as well as also failing to make any reference to any possible injury. I say “boastful” because it seems to me that he was chiding, to use his words, the victim as a “fucking dumb junkie cunt,” to think that he (Mr Collins) could frighten him (Mr Nitschke) with:

“That’s the best you got, a hammer and a fucking what, a little what, a screwdriver, crowbar or something. I should’ve got out with you and dealt with you with my bare hands...you pathetic little fucking weak man. Who’s the weak man now? Hammer and a fucking crowbar, is that the best you could find.”

42. In my view, he was boasting that he had, by hitting Mr Collins with the car, gotten the better of him in the circumstances.

43. I also note, in respect of my scepticism concerning his evidence today, as opposed to what is contained in the Sentence Assessment Report, that the Sentence Assessment Report was prepared for a court date of 30 May 2024 and was itself dated on 21 May 2024. In other words, it was shortly after the trial when he was the subject of assessment. He has had a significant time in custody since then to reflect on what he did on 8 April 2023, and that is a factor that I have taken into account in accepting his evidence today, that there is now at least, as a result, some reasonable evidence of remorse and contrition, and I can now have at least some hope of rehabilitation being achieved.

44. I have taken all of those matters into account including, of course, the maximum provided for each of the individual offences as well as the standard non-parole period provided in respect of the cause grievous bodily harm with intent to cause such harm offence, to determine an appropriate sentence, the s5 threshold having been passed.

45. I have taken the view that the offender requires some assistance in relation to his use of alcohol and/or prohibited drugs as well, no doubt, as assistance in relation to anger management, and that he would be assisted in those regards by my finding special circumstances justifying a variation from the statutory relationship between the non-parole period and the balance of term.

46. I have already indicated an indicative sentence in respect of the failing to assist, of one year. I have already indicated an indicative sentence, in respect to the drive while disqualified - second offence - of nine months and resisting an officer in the execution of his duty, of nine months. The indicative sentence in relation to the offence of cause grievous bodily harm with intent to cause it, is four years, and, as there is a standard non-parole period, I must give an indicative non-parole period which is two years and eight months, consistent with varying, because of special circumstances, the statutory relationship.

47. The actual sentence, taking those matters into account, is a sentence with a non-parole period of three years, commencing on 8 April 2023. He will be first eligible for parole on 7 April 2026.

48. The balance of term is one year and nine months, giving a total term of sentence of four years, nine months. So that is a sentence of four years, nine months with a non-parole period of three years. The non-parole period will expire on 7 April 2026 when he will first become eligible for parole and the total term will expire on 7 January 2028.

49. There is also a need to impose a disqualification period, and s 205(4) of the Road Transport Act 2013 applies in respect of these matters, and I would impose a sentence of a period of disqualification of five years which, I think, technically would have to be expressed as dating from today. But I note, that s 206A of the Road Transport Act would mean that it would be deferred from taking effect until his release on parole.

I think that’s correct, Mr Crown?

HOITINK: Yes, your Honour.

HIS HONOUR: Is there anything that I have omitted, or which was incorrect?

HOITINK: Not from my point of view, your Honour, no.

FORD: No, your Honour.

HIS HONOUR: Do you need those dates repeated, Mr Nitschke?

OFFENDER: No.

**********

NITSCHKE JMT 26APR24 (48082, docx)

Amendments

17 January 2025 - Trial Judgment - R v Nitschke 26 April 2024 attached.

Decision last updated: 17 January 2025