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District Court 18 May 2022

Jauncey v R

[2022] NSWDC 249

Traffic & driving
CRIMES APPEALS SEVERITY OF SENTENCE DRIVING OFFENCE

Citation: Jauncey v R [2022] NSWDC 249
Court: District Court of New South Wales
Date: 18 May 2022
Judge: Neilson DCJ

Background

The appellant was convicted in the Local Court at Wollongong of driving with a high-range prescribed concentration of alcohol (PCA), following a single-vehicle collision in the early hours of 15 July 2021. His blood alcohol reading was 0.254, more than five times the legal limit. The collision occurred when the appellant failed to negotiate a bend on Dumfries Avenue, Mount Ousley, causing his vehicle to strike a power pole heavily. He sustained a significant laceration to his forehead and was taken to Wollongong Hospital.

The appellant had a documented history of depression and alcohol use disorder. He had been admitted to a private psychiatric hospital in August 2020 following a presentation with suicidal ideation, and again in July 2021 following the accident. He subsequently underwent extensive residential rehabilitation at the Hader Clinic in Victoria over approximately two months, and was receiving ongoing support through the Illawarra Drug and Alcohol Service and Alcoholics Anonymous at the time of sentencing.

On 5 April 2022, Magistrate O'Brien sentenced the appellant to an Intensive Corrections Order (ICO) for 12 months, with conditions including rehabilitation, abstinence from alcohol, and supervision. A fine of $400, a seven-month initial licence disqualification, and a 24-month mandatory interlock licence period were also imposed. The appellant appealed against the severity of that sentence.

  • Whether an Intensive Corrections Order was an appropriate sentencing disposition, or whether a Community Corrections Order (CCO) was the correct order in the circumstances.
  • Whether the initial period of disqualification under the mandatory interlock order should be reduced from seven months to the statutory minimum of six months.

Decision

Neilson DCJ accepted that there was merit in the appellant's argument that an ICO was not warranted on the facts. His Honour noted, however, that the practical result under a CCO with equivalent conditions would be the same as under the ICO imposed by the Magistrate. The ICO was set aside and replaced with a CCO for 12 months carrying substantially similar conditions.

On the question of the disqualification period, His Honour was persuaded that reducing the initial disqualification from seven months to the statutory minimum of six months was in the interests of both the community and the appellant. The Court noted the appellant now lived in Camden and worked at Taren Point, making the commute a significant one. The 24-month interlock licence period, being the statutory minimum, was retained unchanged.

Orders Made

  • Sentence imposed by the Local Court on 5 April 2022 set aside.
  • Appellant released on a Community Corrections Order (CCO) for 12 months from 18 May 2022, under s 8 of the Crimes (Sentencing Procedure) Act 1999, with the following conditions:
  • Not to commit any offence.
  • To appear before the Court if called upon during the term of the CCO.
  • To participate in any rehabilitation program as directed by Community Corrections.
  • To abstain from alcohol.
  • To submit to supervision by a Community Corrections officer and report to the Campbelltown Community Corrections Office within five business days.
  • To take all prescribed medication as directed and comply with all reasonable directions of any medical practitioner.
  • Fine of $400 imposed.
  • Mandatory interlock order made under s 211 of the Road Transport Act 2013: initial disqualification period of six months; interlock licence period of 24 months.

Key Takeaways

  • The District Court confirmed that, where the practical effect of a CCO with equivalent conditions matches that of an ICO, imposing an ICO for a high-range PCA offence may not be warranted, and a CCO may be the more appropriate order.
  • A sentencing court retains discretion to impose the statutory minimum initial disqualification period under a mandatory interlock order where the offender's changed personal circumstances support that outcome.
  • Extensive post-offence rehabilitation, including residential treatment, ongoing counselling, and structured support programs, was treated as a significant mitigating factor in the appeal.
  • Under the mandatory interlock scheme in the Road Transport Act 2013, the 24-month interlock licence period applicable to high-range PCA offences represents a fixed statutory minimum that the Court did not disturb.
  • No error was established in the conditions attached to the original sentence; the appeal succeeded only on the type of order imposed and the length of the initial disqualification.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Road Transport Act 2013 (NSW), s 211

Cases cited: None.