Lochiel man given community sentence for death of Merimbula cyclist

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.