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District Court 14 December 2016

Gillmore v R

[2016] NSWDC 401

Traffic & driving
CRIME SENTENCE APPEAL AGAINST SEVERITY OF SENTENCE COLLISION AT SPEED OF 10 KPH OFFENDER OF PREVIOUS GOOD CHARACTER APPEAL ALLOWED

Citation: Gillmore v R [2016] NSWDC 401
Court: District Court of New South Wales
Date: 14 December 2016
Judge: Neilson DCJ

Background

The appellant was charged with negligent driving causing grievous bodily harm following a collision on the Pacific Highway at Roseville on 18 December 2015. He was driving a Holden utility southbound in the middle of three lanes when a motorcycle rider merged into his lane after avoiding parked cars. The appellant began to move into the outer lane, found it unsafe, and swung back into the middle lane, making contact with the motorcycle.

The collision occurred at approximately 10 kilometres per hour in heavy, slow-moving traffic. The motorcyclist was knocked from her bike and suffered a comminuted fracture of both malleoli in her right ankle, requiring surgery with three plates and twelve screws. She had recovered fully within ten weeks and had returned to full health by the time of the Local Court hearing.

In the Local Court at Hornsby, the appellant initially pleaded not guilty. After evidence was given on the hearing day, he withdrew that plea following the morning tea adjournment and entered a guilty plea. Magistrate Reiss sentenced him to a fine of $800 and a 12-month driving disqualification. The appellant then appealed to the District Court on the ground that the sentence was excessive.

  • Whether the original sentence of a fine and 12-month licence disqualification was excessive in all the circumstances
  • Whether this was an appropriate case for a dismissal without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999, including the imposition of a good behaviour bond

Decision

Neilson DCJ found that the circumstances of the offending, while resulting in a serious injury, were at the lower end of the spectrum for negligent driving causing grievous bodily harm. The collision occurred at only 10 kilometres per hour in congested traffic, and the appellant's negligence consisted of failing to keep a proper lookout. The judge noted that this failure was at least partly understandable given that the appellant is legally blind in his left eye, and the victim may have been in his blind spot when he completed his return into the middle lane.

The appellant's personal circumstances weighed significantly in the court's assessment. He was 25 at the time of the offence, had held a licence for approximately nine years without a single driving infringement, and stood before the court as a person of excellent prior character. He had built his own landscaping business, employed four staff, and depended on his licence both to run that business and to assist his partner, who has a chronic illness and does not drive.

Neilson DCJ was satisfied that this was a proper case for the application of section 10. The court noted that, because the offence had caused grievous bodily harm, it was appropriate to attach a 12-month good behaviour bond rather than simply dismissing the matter without conditions. The conviction recorded in the Local Court was set aside.

Orders Made

  • The conviction and sentence imposed by the Local Court at Hornsby on 16 September 2016 were set aside.
  • Under section 10 of the Crimes (Sentencing Procedure) Act 1999, the matter was dismissed without proceeding to conviction.
  • The appellant was released on a good behaviour bond for a period of one year from 14 December 2016, on the following conditions:
  • Appear before the court if called upon during the term of the bond
  • Be of good behaviour
  • Reside at the address provided to the court
  • Notify the Registrar by prepaid registered post of any change of residential address during the bond period

Key Takeaways

  • A section 10 dismissal without conviction remains available for offences of negligent driving causing grievous bodily harm, even where the physical injury was objectively serious, provided the overall circumstances justify that outcome.
  • The District Court treated the collision speed (10 km/h), the absence of any prior driving record, and the offender's excellent character as factors collectively capable of taking a case outside the range where a fine and disqualification were warranted.
  • Where an offence results in grievous bodily harm, the District Court considered it appropriate to attach a good behaviour bond to a section 10 order, rather than leaving the dismissal unconditional.
  • Practical hardship arising from licence disqualification, including the impact on a small business and on caring responsibilities for a partner with a chronic illness, formed part of the sentencing court's overall consideration, though the court's reasoning does not suggest these factors were determinative on their own.
  • Late guilty pleas, entered after the commencement of a hearing, do not automatically preclude a section 10 outcome, though the timing of the plea change was part of the factual context the court considered.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 10

Cases cited: No cases were cited in the judgment.