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District Court 2 August 2022

Bowdern v R

[2022] NSWDC 698

Traffic & driving
CRIME DRIVING OFFENCES APPEAL SEVERITY OF SENTENCE WHETHER ANTECEDENTS ASSIST APPELLANT.

Citation: Bowdern v R [2022] NSWDC 698
Court: District Court of New South Wales
Date: 2 August 2022
Judge: Neilson DCJ

Background

The appellant rode a Harley Davidson motorcycle on Coogee Bay Road and into Goldstein Reserve at Coogee on the night of 10 April 2022 while recording a high-range breath alcohol reading of 0.166. He was found by police at the beach, without a helmet, and initially denied having ridden the motorcycle to that location. Police noted he was argumentative, slurring his words, unsteady on his feet, and appeared to find the matter humorous.

The following day the appellant appeared in the Local Court at Waverley, and again on 11 May 2022. Magistrate Price sentenced him to six months' full-time imprisonment, a 12-month licence disqualification, and a mandatory interlock order for a minimum of 48 months with an initial disqualification period of 12 months.

The appellant appealed to the District Court on the ground that the sentence was too severe. By the time the appeal was heard on 2 August 2022, the appellant had served close to three months in custody.

  • Whether the sentence of six months' full-time imprisonment was excessive in all the circumstances, including the appellant's antecedents and his time already served in custody.
  • Whether the appellant's criminal history, specifically his five prior drink-driving offences, assisted or weighed against him on the severity appeal.
  • Whether converting the balance of the sentence to an Intensive Corrections Order (ICO) was appropriate given the available rehabilitation programs and the appellant's apparent change in attitude after nearly three months in custody.

Decision

Neilson DCJ acknowledged that Magistrate Price was plainly motivated by the appellant's poor attitude, his lack of remorse at the time of sentencing, and his extensive history of drink-driving offences across multiple jurisdictions. This was the appellant's fifth drink-driving offence. The Community Corrections officer's report had also expressed concern that the appellant demonstrated little attitudinal change and could not identify strategies to avoid reoffending.

The District Court nonetheless identified a practical problem with the full-time custodial sentence: the appellant was ineligible to participate in any rehabilitation programs because the fixed term of six months was too short to qualify. The sentencing assessment report had recommended referral to the EQUIPS Foundations program, a Traffic Offenders Intervention Program, and alcohol and drug counselling, none of which could be delivered in custody on a sentence of this length.

Neilson DCJ was satisfied that the period already served had achieved the short, sharp deterrent effect the Magistrate had intended. The appellant told the court he had learned his lesson, and the judge accepted that the experience of custody, though brief, had had the desired impact. In those circumstances, the court set aside the original sentence and replaced it with a six-month ICO, commencing 2 August 2022, to be served in the community under supervision.

Orders Made

  • Sentence of six months' full-time imprisonment set aside.
  • Appellant sentenced to six months' imprisonment to be served by way of Intensive Corrections Order (ICO), commencing 2 August 2022.
  • ICO conditions: no further offences; supervision by a Community Corrections officer; 80 hours of community service work; participation in rehabilitation and treatment programs as directed by Community Corrections; abstention from alcohol and drugs.
  • Mandatory interlock order for 24 months.
  • Minimum licence disqualification period of six months.
  • Appellant directed to report to Blacktown Community Corrections by telephone within seven days.

Key Takeaways

  • The District Court confirmed that a short custodial term can serve a legitimate sentencing purpose as a deterrent, even where the offender has no prior experience of imprisonment.
  • A practical limitation on full-time imprisonment emerged: an offender serving a fixed six-month term may be ineligible for rehabilitation programs in custody, which can weigh in favour of an ICO where programs are available in the community.
  • An extensive history of drink-driving offences across jurisdictions does not automatically preclude conversion of a custodial sentence to an ICO, particularly where the sentencing court is satisfied the custodial period has already had the intended deterrent effect.
  • In allowing the appeal, the District Court reduced the interlock order from 48 months to 24 months and the disqualification period from 12 months to six months, alongside the change in sentence type.
  • Attitudinal change, or the absence of it at the time of original sentencing, remained a significant factor; however, evidence of changed attitude by the time of the appeal hearing was relevant to the exercise of the appellate sentencing discretion.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment metadata or text.