Citation: Allsopp v R [2025] NSWDC 338
Court: District Court of New South Wales
Date: 25 July 2025
Judge: Barrow SC DCJ
Background
The appellant, a 27-year-old first offender, pleaded guilty in the Local Court to high range drink driving after police received approximately nine triple-zero calls reporting a vehicle travelling north in the southbound lane of the Hume Motorway. When apprehended, the appellant recorded a breath analysis reading of 0.235g of alcohol per 210 litres of breath. He told police he had driven from Woy Woy, a journey of approximately 160 kilometres, before being located in the breakdown lane at Pheasants Nest.
The Local Court sentenced the appellant to 11 months' full-time imprisonment with a six-month non-parole period, along with a nine-month licence disqualification and a 24-month mandatory interlock order. On the same day, the sentencing Magistrate refused the appellant's application for bail pending his appeal to the District Court.
The appellant brought a severity appeal to the District Court under s 17 of the Crimes (Appeal and Review) Act 2001, requiring the District Court judge to conduct a fresh sentencing exercise on the evidence admitted at the hearing.
Legal Issues
- Whether the original sentence of 11 months' full-time imprisonment was appropriate for the offence, given the appellant's personal circumstances and comparable sentences for similar offending
- Whether the refusal of bail pending the de novo severity appeal was consistent with the interests of justice
- How the sentence should be served, having regard to s 66 of the Crimes (Sentencing Procedure) Act 1999 and the paramount consideration of community safety
Decision
Barrow SC DCJ expressed serious concern about the Magistrate's refusal of bail pending the appeal. The appellant was a first offender with an arguable appeal, no apparent risk justifying detention, and had complied with all bail requirements since his arrest. The judge noted that by refusing bail, the sentencing Magistrate effectively ensured the appellant served part of the sentence under review before the appeal could be heard, which the District Court found contrary to the interests of justice and inconsistent with equality before the law.
On the substantive sentencing question, the District Court acknowledged the genuine seriousness of the offending. The degree of intoxication was substantially above the high range threshold, the appellant had driven for an extraordinary distance while severely affected, and his driving was erratic, including a period in the wrong lane of a motorway. These factors elevated the appellant's moral culpability.
Despite the seriousness of the offence, Barrow SC DCJ found the Local Court sentence was an "absolute outlier" in terms of severity. A review of comparable sentences showed that in only two of 14 analogous cases was a sentence of more than 11 months imposed, and only two involved a non-parole period exceeding six months. Taking into account the 15 days the appellant had already spent in custody, the District Court assessed the appropriate sentence as 10 months' imprisonment.
The Court then considered how that sentence should be served. Given the appellant's age, status as a first offender, employment, pro-social profile, and the steps he had begun to take to address the mental health and alcohol issues underlying the offending, Barrow SC DCJ concluded that a sentence served in the community via an Intensive Correction Order was more likely to reduce reoffending and enhance community safety than full-time custody.
Orders Made
- The appeal is upheld and the sentence imposed in the Local Court is quashed.
- The appellant is sentenced to 10 months' imprisonment from 25 July 2025, to be served by way of Intensive Correction Order, subject to the following conditions:
- Must not commit any offence
- Must submit to supervision by a Community Corrections Officer
- Must perform 100 hours of community service
- Must engage in grief and alcohol abuse counselling as directed
- The disqualification period and interlock orders made in the Local Court are confirmed.
Key Takeaways
- The District Court held that refusing bail pending a de novo severity appeal will undermine the integrity of the appellate review system where the appeal is clearly arguable, the offender is a first offender, and no bail risk exists that conditions cannot address.
- Barrow SC DCJ characterised the 11-month full-time term as an "absolute outlier," illustrating that statistical comparisons drawn from like cases retain relevance when assessing whether full-time imprisonment is proportionate, even where the maximum penalty remains the ultimate benchmark.
- Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when determining how a sentence is to be served, and an Intensive Correction Order may better serve that objective than full-time custody where an offender demonstrates genuine rehabilitative prospects.
- The offending in this case was assessed as a serious example of high range drink driving, with elevated moral culpability arising from the extreme blood alcohol level, the extraordinary distance driven, and the period of wrong-way driving on a motorway.
- Equality before the law, as affirmed in Green v The Queen; Quinn v The Queen [2011] HCA 49, requires consistent treatment of offenders across the State, a principle the District Court found was compromised by the bail refusal here.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 17
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 66
Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Re Attorney-General's Application (No 3 of 2002) (NSW) (2004) 61 NSWLR 305
- Allen v Regina [2008] NSWCCA 11
- R v Pham [2015] HCA 39; 325 ALR 400
- R v Bloomfield (1998) 44 NSWLR 734