11 September 2019

Lochiel man given community sentence for death of Merimbula cyclist

| Ian Campbell
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Louise Brand, outside Bega Local Court. Photo: Alasdair McDonald & Ian Campbell.

Louise Brand and supporters, outside Bega Local Court. Photo: Alasdair McDonald & Ian Campbell.

Editors note: The story that follows may upset and distress some readers. In commenting on this article please be mindful of the hurt some comments have already caused to the family and friends of David Brand.

Thirty-seven-year-old Lochiel man Nathan Cumming has been given a 12-month Intensive Correction Order, fined $5,000, and ordered to complete 200 hours of community service, for his undisputed role in the death of a 72-year-old cyclist on Mount Darrah Road west of Pambula last year.

In handing down his sentence in Bega Local Court, Magistrate Doug Dick said he was prohibited from considering a charge of manslaughter and that the crime was “properly categorised as road rage.”

Mr Cumming, who is a carpenter and father/step-father to four children will serve his sentence in the community, avoiding the two years jail time and $11,000 fine that was possible with his criminal charge – Grievous Bodily Harm by an Unlawful Act.

In a powerful gesture of love and respect for her dead husband David, Merimbula’s Louise Brand addressed the court, reading her Victims Impact Statement prior to sentencing. Mrs Brand didn’t have to read her statement to the court but did so because “he would have done that for me.”

As read in court:

“On June 23 of last year, Mr Cumming, you chose to confront my then 72-year-old husband, who had recently retired after a lifetime of work as a school teacher, farmer and café proprietor, as he was cycling legally on his pushbike, on a public road,” Mrs Brand said.

“That confrontation resulted in his death.

“The anxiety and fear that must have gone through David’s mind as you drove illegally close to him in a large utility vehicle, stopped in front of him in the middle of the road, and came at him waving your arms – as I witnessed you re-telling to the first police officer at the incident site – must have been terrifying for him.

“Your size and confrontational manner would have been frightening and intimidating. I am haunted daily by what must have been going through my husband’s mind in his last seconds of consciousness as he went over his handlebars.

“For me and my children to see our happy, healthy, fit, highly intelligent husband and father reduced to a vegetative state and on life support over a period of ten days was unbearable to us all.

“But even worse was the decision I had to make to turn off his life support, and then to sit with David holding his hand as his life ebbed away over the next hours.”

Mr Cumming sat and listened to the testimony, his family and friends in the gallery were clearly distressed.

In a strong voice that rarely trembled Mrs Brand looked directly at Mr Cumming from the witness box at the front of the court.

“Upon returning home after such a traumatic few weeks, to then hear from a number of people in Merimbula – a very small community, that David was being vilified for his own death with rumours that ‘he threw the first punch’ was absolutely devastating for me to hear,” she said.

“The hurt and anger such gossip caused me, and continues to cause me, is profound. I can only understand the motivation behind it as an attempt by certain people, not in control of the facts as to what happened that day, to diminish your responsibility and alleviate your guilt Mr Cumming, without thought to David, the real victim, nor his family and friends.”

Mr Cumming’s solicitor Mark Hagan presented a number of good character references to the court and argued that his client had shown remorse and regret and that there “was no evidence of hatred.”

However, Mr Hagan acknowledged that the 37-year-old, “should not have stopped and should not have got out of his car,” and that Mr Cummings should have kept driving.

“I think that the court should also be aware of the fact that David was no novice cyclist. Prior to moving to Merimbula, he cycled for many years on roads around our previous home at Orange,” Mrs Brand said.

“Once in Merimbula, he cycled with the local club on an average of three or four times a week. And, only a few short months prior to his being killed, David and I were cycling locally on average 200kms per week.

“Only months before you confronted my husband, Mr Cumming, we had cycled around Tasmania – well over 1000kms with no fear on our part and no issues on motorists’ part.

“Again, I say on no previous occasion had David nor I ever been so threatened by a motorist’s behaviour.
That is, until you chose to get out of your Nissan Utility vehicle and confront my husband.”

Police Prosecutor, Sergeant Liza Brown said the events of that day, had “changed the lives of many on Mount Darrah Road.”

And that if Mr Cumming had “kept his opinions” about the rights of all road users to himself than Mr Brand would still be alive today.

Magistrate Dick was clearly affected by Mrs Brand’s testimony and in sentencing spoke of his need to punish, send a message to the community, and acknowledge the harm done.

“Mr Brand gave you the middle finger…Mr Brand took exception to the way you drove,” Magistrate Dick said.

“By stopping your vehicle 500 metres further along and getting out, that’s what brings you here today.

“You didn’t appreciate that your actions exposed Mr Brand to serious injury.

“I am told the events of that day trouble you extensively,” Magistrate Dick said.

Speaking outside court, Mrs Brand said she would have preferred a custodial sentence but thought the Magistrate was “very fair.”

“I don’t want David’s death to be in vain, we certainly need to change the mindset of some motorists towards cyclists on the road. Doing something to be fit and healthy and enjoy life is a right we have,” she said.

“I would really like to spend time now advocating for cyclists rights, the public need to be far better educated.

“Having said that we need to talk to the cycling community and make sure everyone is on the same page.”

Mr Cumming, who had four prior negligent driving and speeding offences to his name, was warned that further offences could see him inside a jail cell. However, in a qwerk of the law, further driving offences would not necessarily count towards that possibility.

A point that upset Mrs Brands supporters outside the court.

The need for law reform was a point Mrs Brand closed with in court.

“With all due respect to this court, [I have] complete disillusionment with a legal system that sees a man’s wrongful death reduced to a ‘Grievous Bodily Harm’ charge,” she said.

“Finally, I am now without my lifelong partner of nearly 40 years.

“All of our future retirement plans are destroyed.

“My future economically and emotionally feels insecure.

“My children have no father.

“Our cycling club has lost a mate.

“I no longer cycle – I’m too afraid to do so.

“My health and ability to function at my previous levels have been impacted.

“My life has changed irrevocably, and not for the better.

“The quality of my life has been reduced, by David’s absence, and by the resultant pain and suffering that causes me every day,” Mrs Brand said.

On average, nine bicycle riders are killed and more than 1,900 seriously injured in NSW each year. To update your knowledge of the road rules when it comes to drivers, bicycle riders and pedestrians sharing roads and paths check the NSW Centre for Road Safety website.

David and Louise Brand, cycling in Merimbula. Photo: Supplied.

David and Louise Brand, cycling in Merimbula. Photo: Supplied.

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Nando Pettinato5:05 pm 09 May 21

Mr Brand was my Maths teacher at North Sydney Boys in the early 1980’s. He was a great guy and always very friendly with me. One of the few teachers I remembered that made a lasting impression on me. I just discovered this tragic event today after doing a Google search. I am in disbelief at reading of the “punishment” rendered upon the driver.
My deepest condolences to your family and 40 years later a student he taught still remembers him and will continue to remember him.

It’s hard to fathom that a motorist who stopped his car 500 metres down the road, got out of his car to confront an oncoming cyclist on the road, from my understanding blocked the path of the cyclist to cause him to go over the handle bars, to render him a vegetable immediately, the defendant then being charged with GBH, the cyclist died and the defendant not given a custodial sentence, even on the charge of being reckless, must be so destroying for the family of David Brand.
The legal system often it seems, is a lottery, it depends on which judge or jury you get.

Stephen Dovey3:23 pm 25 Feb 19

I ride the Mt Darragh road intermittently, it is a great ride through the forest on relatively quiet roads giving access to other escarpment roads. I have had eggs thrown at me and also an apple (which bruised me). Once a car slowed down and the passenger slapped me on my rear end. That is 3 incidents over the past 10 years. I tend to avoid that road now preferring to use it only to ride to Back Creek Road and than to Nethercote and return (or via a loop), however that means that by necessity I do ride on Mt Darragh Road through South Pambula to the Back Creek Road turn-off. There are sections I can name where my group is extra cautious, rides single file and “ hug” the edge.
At these points I suggest that signs are erected to warn that bicycles use the road. It would be great to have the road widened at least in some sections to allow for a bike lane.

A truckie yelled out and warned us not to ride it. Recently some drivers recently have slowed right down to allow for a safe distance and I thank them for that.

I agree with everything Mrs Brand says, the death of a love one at this stage or any stage of life is such a terrible thing and to loose your mate and be left alone is so sad.

I live in a mountain community and pray about my driving skills EVERY time I take the wheel- I pray for patience, and a good mind set, unselfish sharing of the road, and the request that God help me NOT harm anyone with my huge piece of steel. I am so anguished over this! Louise was a good friend of mine when we lived in Sydney. I have so much respect for her strength through all of this.

Louise Harrison9:02 pm 08 Feb 19

I don’t think it is any or enough punishment for the person who caused David to pass away. People must learn to control themselves on the road. Relax! My thoughts go out to Louise and her family.
Once again the court is being soft.

Jon Kirkwood11:41 am 08 Feb 19

Road rage leading to injury (and in this case – death) is inexcusable.
The sentence is inadequate and should have included a long period without a licence.

Car drivers sometimes forget cyclists are human beings with loved ones, I have lost several friends and the doctor who saved my life to road user deaths. and I have witnessed so many road rage incidents I forget how many

A community sentence is not punishment enough for will fully causing a persons death.

Graeme Gerrard5:56 pm 07 Feb 19

As a Merimbula cyclist, I ride on the footpaths where possible. I am respectful but still, I know that annoys some walkers. I think things are improving but many drivers think they have a right to the roads and cyclists are just “in the way”. It would help if road designers thought about cyclists when designing roads. They obviously don’t. The new junction of Monaro St and Merimbula Drive is a cyclist’s death trap, as is the Reid St/Park St junction.

Isn’t it illegal to ride bicycles, for riders over 12 years old, on a footpath in NSW due to potential injury risks to pedestrians?

No jail time for causing death by road rage. Unbelievable.

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