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Supreme Court 17 April 2026

R v Reen

[2026] NSWSC 473

Traffic & driving
CRIME BAIL RELEASE APPLICATION

Citation: [2026] NSWSC 473
Court: Supreme Court of New South Wales
Date: 17 April 2026
Judge(s): Campbell J

Background

The applicant pleaded guilty in the Local Court to aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900 (NSW). The aggravating circumstance was a blood alcohol concentration of 0.26, well above the 0.15 threshold for high range PCA. The collision caused significant damage to at least three vehicles and left the victim with an extremely serious traumatic brain injury resulting in ongoing disability.

The applicant was on remand following the entry of her guilty plea and was awaiting sentencing in the District Court, listed for 9 June 2026. She had been on bail for other offences at the time of the collision, with that bail having been granted only the day before. The Crown made a detention application under s 22B of the Bail Act 2013 (NSW).

  • Whether s 22B of the Bail Act 2013 applied, which required the Court to determine whether it was "realistically inevitable" that the applicant would be sentenced to imprisonment to be served by full-time detention.
  • If s 22B did not apply, whether the applicant could show cause why her detention was not justified, given this was a show cause offence (the applicant was on bail for other offending at the time and the offence was a serious indictable offence).
  • Whether bail should be granted having regard to the unacceptable risks test.

Decision

Campbell J applied the construction of s 22B adopted by the Court of Criminal Appeal in DPP v Van Gestel (2022), which held that the word "will" in the chapeau of s 22B indicates what is "realistically inevitable" rather than merely likely, while not requiring absolute certainty. The Court noted this is a forward-looking assessment based on materials that are unlikely to be complete.

His Honour examined the guideline judgment in R v Whyte (2002) and Judicial Commission sentencing statistics for s 52A(4) offences. Of 50 cases sentenced in the higher courts between September 2018 and September 2025, 78% resulted in full-time custody, but 22% received intensive correction orders (ICOs), meaning a sentence of two years or less served in the community. Campbell J concluded there was a real prospect, neither far-fetched nor fanciful, that the applicant could receive a sentence capable of being served by ICO. It was therefore not realistically inevitable that a full-time custodial sentence would be imposed, and s 22B did not govern the bail decision.

Turning to the show cause requirement, his Honour acknowledged that the overwhelming nature of the Crown case (established by the guilty plea) made the task of showing cause more difficult. However, several subjective factors weighed in the applicant's favour: serious health problems better managed in the community, a 13-year-old child with a compelling need for her mother's care, completion of a residential alcohol rehabilitation program, attendance at Alcoholics Anonymous meetings (though with a gap before detention), her status as a First Nations person in custody for the first time at age 42, and the vulnerability these circumstances collectively created. Balancing these against the serious objective features of the offending, Campbell J was satisfied that cause had been shown.

His Honour also considered the risk of relapse raised by the prosecution but found this unlikely given the short period before the sentencing hearing and the applicant's awareness that any lapse could be highly significant to the sentencing judge.

Orders Made

  • Bail was granted subject to strict conditions (the full conditions are not set out in the truncated portion of the judgment).

Key Takeaways

  • Under s 22B of the Bail Act 2013 (NSW), the word "will" requires that a full-time custodial sentence be "realistically inevitable," a threshold higher than mere likelihood but falling short of absolute certainty, as established by the Court of Criminal Appeal in DPP v Van Gestel (2022).
  • Judicial Commission sentencing statistics played a meaningful role in the assessment: the fact that 22% of offenders sentenced for the same offence under s 52A(4) of the Crimes Act 1900 (NSW) received intensive correction orders was sufficient to establish a real prospect that full-time custody was not inevitable.
  • Even where an offender has pleaded guilty and the Crown case is thereby overwhelming, the show cause requirement can still be discharged where compelling subjective circumstances exist, including health issues, caring responsibilities, rehabilitation efforts, and First Nations status.
  • In granting bail, Campbell J was careful to avoid usurping the function of the sentencing judge, framing the analysis as a forward-looking assessment based on incomplete materials rather than a prediction of the ultimate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(4)
- Bail Act 2013 (NSW), s 22B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Judicial Officers Act 1986 (NSW), s 8

Cases:
- Director of Public Prosecutions v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 345