On 23 June 2018 just before 11am, David Brand and his wife were riding their bicycles with friends on Mount Darragh Road at Lochiel between Eden and Pambula (on the coast near Merimbula in southern NSW) where they were enjoying their retirement.
David was slightly behind the group when he was passed by less than a metre by Mr Cumming driving at 100 km/h who, according to Court documents: “… failed to slow down while passing close to Mr Brand on a series of bends. It was claimed Mr Brand flipped him the middle finger before Mr Cumming pulled over with the intention of confronting the cyclist.” As there were two on-coming vehicles, Mr Cumming was legally required to either overtake David safely with a gap of 1.5 metres, or to slow and give way to the on-coming traffic before overtaking.
Upon seeing David’s gesture in his rear-vision mirror, Mr Cumming told the Bega Local Court that he pulled over and walked to the middle of the road in an attempt to stop Mr Brand.
When David and Mr Cumming impacted, David was riding at 40 km/h according to his Garmin (computer device). He was thrown over the handlebars and his head “impacted heavily” with the road. Despite wearing a helmet, David sustained severe injuries including a fracture to his left skull, traumatic brain injuries including multiple haemorrhages, and multiple rib and pelvic fractures. David was taken to Canberra Hospital but died eight days later without ever regaining consciousness.
During his initial police interview, Cumming ADMITTED to passing too close to David, and to walking onto the roadway to stop David.
No crash unit was sent from Wollongong to inspect and document the scene, and no professional forensic photographs were taken.
In terms of injuries, there was no record of any serious injuries to Mr Cumming other than a cut to his leg, who claimed they had accidentally collided by both moving in the same direction prior to the impact. This is despite Mr Cumming claiming to have also hit the ground after colliding with a bicycle/rider weighing over 80 kg and travelling at 40 km/h.
While paramedics were stabilising David at the scene for urgent transport to Canberra, Mr Cumming demanded they look at the cut on his leg.
Initially, NSW Police only charged Mr Cumming with two traffic offences: 1) pedestrian moving into driver’s/cyclist’s path; and 2) driver of motor vehicle not passing a bicycle at a safe distance. It was only weeks later, after Louise Brand made representation for a more serious charge, that a third offence was added: 3) grievous bodily harm (GBH) by unlawful act
Before he stood trial, all charges against Mr Cumming were dropped except for the grievous bodily harm by unlawful act that carried a maximum penalty of two years’ imprisonment.
The two road-related charges were dropped despite Mr Cumming ADMITTING to moving into the cyclist’s path and ADMITTING to not passing at a safe distance. It was also noted later in Court that Mr Cumming had four prior traffic offences, but it appears these were not considered in sentencing as no penalty was imposed on Mr Cumming’s licence.
Despite previously saying that this was a clear act of road rage, Magistrate Dick stated during sentencing that there was “never any intention for you to commit actual bodily harm”, having concluded, based solely on Mr Cumming’s testimony, that the pair had both moved to avoid a collision and had “unfortunately” moved in the same direction. Magistrate Dick also cited Cumming’s “prior good character and low risk of reoffending”.
In sentencing, Magistrate Dick imposed a 12-month intensive correction order, which effectively means imposing 200 hours of community service and a $5,000 fine instead of a custodial (jail) sentence of up to two years and an $11,000 fine.
The call to action:
Louise is seeking the reopening of David’s case in the Supreme Court of NSW, not in the local District Court which is not set up to handle such serious charges.
In its initial stages, the incident should have been better investigated, and a crash unit should have been dispatched from Wollongong to fully investigate and photograph the scene where a man was killed.
The charge of grievous bodily harm by unlawful act was not appropriate for the seriousness of Mr Cumming’s actions, and the sentence that was ultimately passed was woefully inadequate. Moreover, the two road-related charges of passing too close and of moving into the cyclist’s path, that Mr Cumming initially admitted, should never have been dropped.
Louise’s life has been completely upended. After a long and successful career as a teacher, she and David ran a local café. Now widowed, Louise has lost her husband, and her sons have lost their father. Everything Louise and David worked for, including a happy and well-deserved retirement, is now gone.
Louise is asking for support from cycling communities – and from the wider Australian community – as she embarks on what will be a long and arduous journey for justice.
David was not an internationally-renowned cyclist. He was simply a good man, a loving husband and father, and an irreplaceable member of his community.
It not just #bemoremike, it’s now also #bemorelouise.