R v Nitschke [2024] NSWDC 614

Citation: R v Nitschke [2024] NSWDC 614
Court: District Court of New South Wales
Date: 22 August 2024
Judge: King SC DCJ

Background

The offender was convicted after a judge-alone trial of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900. The incident occurred on 8 April 2023 and arose from an acrimonious dispute between the offender and the victim and his wife. On the day in question, the offender made a series of threatening phone calls and text messages before driving to the victim's property.

Following a physical altercation at the victim's premises, the offender returned to his vehicle but then deliberately drove on the wrong side of the road and swerved around the victim's wife's parked car in order to strike the victim with the vehicle. The victim had been standing in a position of relative safety behind that parked car. The impact threw the victim onto the bonnet and caused an open fracture and dislocation of his left ankle, with bone protruding through the skin.

At sentencing, the offender also pleaded guilty to three additional offences: failing to stop and assist after a vehicle impact causing grievous bodily harm (s 52AB, Crimes Act); driving while disqualified as a second or subsequent offender (s 54(1)(a), Road Transport Act 2013); and resisting a police officer in the execution of his duty (s 60(1AA), Crimes Act). The guilty pleas to the driving and resist-officer offences had been entered in the Local Court.

Legal Issues

Whether the s 5 threshold for a term of imprisonment was met across all four offences
Where on the range of objective seriousness the principal offence fell
What discount, if any, applied to each offence given the circumstances of the pleas
Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of term
The appropriate head sentence and non-parole period when all offences were considered together

Decision

King SC DCJ held that the principal offence fell at least towards the mid-range of objective seriousness. Although both parties characterised it as falling somewhere between the low and mid-ranges, his Honour accepted that the deliberate and serious nature of the injury pushed it toward the mid-range. He also accepted the joint submission that the decision to use the vehicle as a weapon was impulsive and opportunistic in the moment, rather than premeditated from the outset, noting the offender's spur-of-the-moment reaction after the victim made contact with the car.

The offender's threatening communications, including repeated threats to kill, were central to the finding of intent at trial. His Honour rejected any suggestion that the swerving manoeuvre amounted to self-defence. The victim's injuries were found to be severe and ongoing, including multiple surgeries, persistent infection with a risk of amputation, and post-traumatic arthritis likely to require ankle fusion within a decade. The impact on the victim's wife and daughter, who were present at or near the scene, was also noted, though his Honour found it did not elevate the victim impact to an aggravating circumstance beyond what the injury itself would ordinarily produce.

Because the principal offence proceeded to verdict at trial, no discount applied to it. The failing-to-stop plea, entered after verdict, attracted no discount either, as his Honour found that plea was inevitable once the verdict was returned. For the driving while disqualified and resist-officer offences, which had been pleaded guilty in the Local Court, a 25% discount was applied for the utility of those pleas.

His Honour found special circumstances existed, given the offender's need for assistance with alcohol, drug use, and anger management during the parole period. This justified varying the statutory ratio between the non-parole period and the balance of term.

Orders Made

Principal offence (cause GBH with intent): indicative sentence of 4 years, with an indicative non-parole period of 2 years and 8 months
Failing to stop and assist after vehicle impact causing GBH: indicative sentence of 1 year
Driving while disqualified (second offence): indicative sentence of 9 months
Resisting a police officer in the execution of duty: indicative sentence of 9 months
Total aggregate sentence: 4 years and 9 months, with a non-parole period of 3 years commencing 8 April 2023
First eligible for parole: 7 April 2026
Total term expires: 7 January 2028
Driver licence disqualification: 5 years, deferred from taking effect until release on parole pursuant to s 206A of the Road Transport Act 2013

Key Takeaways

A guilty plea entered only after a verdict of conviction, where that plea was in any event inevitable in light of the verdict, will not attract a sentencing discount for the utility of the plea.
The District Court confirmed that an impulsive, opportunistic decision to use a vehicle as a weapon does not, of itself, reduce an offence to the lower end of objective seriousness where the injury deliberately inflicted is severe and ongoing.
Where an offender's prior threatening communications form part of the evidentiary basis for an intent finding at trial, those same communications inform the sentencing court's assessment of moral culpability.
Special circumstances justifying a variation from the statutory non-parole-period ratio can be established by reference to an offender's rehabilitative needs, including treatment for substance use and anger management during the parole period.
Under s 206A of the Road Transport Act 2013, a court-imposed licence disqualification is deferred from taking effect until an offender is released on parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 33(1)(b), 52AB, 60(1AA)
- Road Transport Act 2013 (NSW): ss 54(1)(a), 205(4), 206A

Cases:
No cases were cited in the provided text.