Citation: R v Dane Clack [2007] NSWDC 243
Court: District Court of New South Wales
Date: 2 November 2007
Judge(s): Nicholson SC DCJ
Background
The appellant, a 29-year-old Indigenous man from the Newcastle area, was stopped by police at approximately 12.15am on 11 August 2007 while driving along Glebe Road. A random breath test returned a negative result, but a licence check revealed he was disqualified from driving until 2022. It was the eighth occasion on which he had driven while disqualified or unlicensed.
The Local Court sentenced the appellant to six months' full-time custody for the drive-while-disqualified offence. He had also been subject to an 18-month good behaviour bond for breach of an earlier bond, but the appeal against that matter was withdrawn before the District Court, leaving the Local Court's order on the bond breach to stand.
The appellant came before the District Court on a severity appeal against the six-month sentence. By the time of the appeal, he had already served one month in custody.
Legal Issues
- Whether the six-month full-time custodial sentence imposed by the Local Court was excessive in the circumstances.
- Whether the appellant's personal circumstances and stated rehabilitative intent justified the substitution of a conditional bond under section 11 of the Crimes (Sentencing Procedure) Act 1999.
Decision
Nicholson SC DCJ noted the appellant's extensive and troubled criminal history spanning eleven years, including repeated driving offences, assaults, larceny, and breaches of apprehended domestic violence orders. The court acknowledged the seriousness of this record while also observing that the appellant appeared to possess genuine, if previously untapped, vocational skills and expressed a willingness to confront the underlying causes of his offending.
The court accepted that the appellant had identifiable personal difficulties, including depression, self-image issues, and challenges connected to his schooling and family relationships. His Honour observed that the appellant appeared to respond positively when discussing his skills in carpentry, joinery, electronics, painting, and music, and considered this a basis for a more structured rehabilitative approach.
Rather than allow the custodial sentence to continue, the court elected to grant bail under section 11 of the Crimes (Sentencing Procedure) Act 1999 for a period of twelve months. The sentence was not set aside outright: His Honour indicated that if the appellant demonstrated genuine rehabilitation over the following six months, the sentence would be suspended. The court scheduled a progress review hearing on 14 December 2007 at Parramatta District Court, at which documentary evidence of compliance would be required.
Orders Made
- Leave granted to withdraw the appeal against the 18-month bond for breach of an earlier bond (leaving the Local Court's order to stand).
- Bail granted under section 11 of the Crimes (Sentencing Procedure) Act 1999 for 12 months, subject to the following conditions:
- Be of good behaviour for the duration of the bond (including no driving and no illicit drug use).
- Re-enrol in the personal support programme conducted by Wesley Uniting by 4pm on Monday 5 November 2007.
- Participate in all programmes aimed at gaining employment in a skills-based area, and maintain any such employment obtained.
- Report to Probation and Parole at Maitland with a copy of the orders by 4pm on Monday 5 November 2007 and comply with all reasonable directions.
- Submit to random urine testing up to four times monthly (a prescribed methadone dose is not a "dirty urine" for these purposes).
- Maintain fortnightly contact with the Justice Health case manager ("Crellyn").
- Report to Jenny Willis at Raymond Terrace Community Health Centre from 16 November 2007 and fortnightly thereafter, providing monthly proof of attendance to Probation and Parole.
- Counselling with Jenny Willis to focus on self-image, life skills, and depression.
- Abstain from all alcohol for the duration of the bail.
- Discuss with Probation and Parole and Wesley Uniting the suitability of re-enrolling in Electronics at TAFE for 2008.
- Any failure to supply urine or a positive urine result to be reported to the court as a breach.
- Full background pre-sentence report ordered.
- Matter stood over for a progress report hearing on 14 December 2007 at Parramatta District Court.
Key Takeaways
- The District Court treated the appellant's stated willingness to engage with rehabilitation, combined with identifiable vocational skills and structured support services, as sufficient grounds to substitute a section 11 conditional bond for ongoing full-time custody on a severity appeal.
- Under section 11 of the Crimes (Sentencing Procedure) Act 1999, a court may release an offender on bail during sentencing proceedings as part of a structured rehabilitative arrangement, with the original custodial sentence remaining available if conditions are not met.
- A severity appeal does not automatically result in a reduced sentence; here, the six-month sentence was neither confirmed nor quashed outright, but deferred pending a demonstrated period of compliance.
- Disqualification from driving until 2022 and eight prior instances of driving while disqualified or unlicensed did not preclude the court from taking a rehabilitative approach, though the sentencing judge made clear the conditions were strict and closely monitored.
- Scheduling an early review hearing (within approximately six weeks) reflected the court's intention to closely supervise compliance before deciding whether to formally suspend the underlying sentence.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 11 (conditional release on bail during sentencing)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 9 (good behaviour bond)
Cases cited: None cited in the judgment.