Bowdern v R [2022] NSWDC 698

District Court New South Wales

Medium Neutral Citation: Bowdern v R [2022] NSWDC 698 Hearing dates: 2 August 2022 Date of orders: 2 August 2022 Decision date: 02 August 2022 Jurisdiction: Criminal Before: Neilson DCJ Decision: Pars [21]-[22]. Catchwords: CRIME – DRIVING OFFENCES - APPEAL – SEVERITY OF SENTENCE – Whether antecedents assist Appellant. Legislation Cited: Nil. Cases Cited: Nil. Texts Cited: Nil. Category: Sentence Parties: Appellant – Thomas Edward Bowdern R - Crown Representation: Appellant – Mr Maxton of LegalAid NSW R – Ms O'Connell of the Office of the Director of Public Prosecutions File Number(s): 2022/00102781 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Crime Date of Decision: 11 May 2022 Before: Price LCM File Number(s): 2022/00102781

Judgment 1. HIS HONOUR: This is an appeal against the severity for sentence passed by Magistrate Price sitting in the Local Court at Waverley on 11 May 2022. The Appellant was charged that on 10 April 2022 at Coogee he did drive a motor vehicle on Coogee Bay Road, and on a road related area, namely Goldstein Reserve, Coogee, whilst there was present in his breath or blood the high range prescribed concentration of alcohol. The reading was 0.166 grams of alcohol in 210 litres of breath. For that offence, the Appellant appeared on the following day before the learned Magistrate at Waverly and also on 11 May 2022. 2. His Honour sentenced the Appellant to imprisonment for six months commencing on 11 May 2022, and expiring on 10 November 2022. His Honour disqualified the Appellant from driving for 12 months and made a mandatory interlock order for a minimum period of 48 months, with a minimum initial disqualification period of 12 months. His Honour did have before him a sentencing assessment report bearing the date 11 May 2022. 3. The facts are these: on Sunday 10 April 2022, the Appellant parked his Harley Davidson motorcycle in a no stopping zone in front of the Coogee Bay Hotel in Coogee. He then entered those licensed premises and took an unknown amount of alcoholic beverages. At about 10.30pm, the Appellant left the premises and returned to his motorcycle. He sat on it for a while, turned the ignition on, and pulled out of the no stopping zone. He then travelled west on Coogee Bay Road before he performed a U-turn over white unbroken centre lines. The Appellant then rode east on Coogee Bay Road through the traffic lights at Arden Street before he mounted the gutter into Goldstein Reserve, Coogee. He rode his motorcycle into the reserve and eventually parked it on the promenade near the beach where he was found by the police. During that driving, the Appellant did not wear a motorcycle helmet. 4. When the police stopped him, the Appellant admitted that he had been drinking at the hotel but denied riding the motorcycle to the location in which he was found with it, stating that he had pushed the motorcycle to that place. That was clearly an untruth. The police noted that the Appellant smelt strongly of intoxicating liquor, was argumentative, and he challenged the police. The police observed that he appeared to be dazed, was slurring his words and was unsteady on his feet. Eventually he was cautioned, arrested, and taken to Maroubra Police Station after failing a roadside breath test. 5. At the police station he is submitted to a breath analysis that returned the reading of 0.16 grams of alcohol in 210 litres of breath. The Appellant requested the services of a doctor and was taken to the Prince of Wales Hospital where he gave blood. The result of the blood testing is not before me. The Appellant had his licence suspended immediately by police. Fearing that the Appellant would drive his motorcycle to his home at Northmead, the police confiscated the keys and put them into the property safe until he could retrieve them no earlier than 10.40pm on Monday 11 April 2022. 6. Clearly the Appellant was refused bail and appeared before the learned Magistrate on the following day. The Appellant appeared before the learned Magistrate one month later on 11 May 2022. It appears to me that his Honour was moved by comments made by both the police and the maker of the sentencing assessment report. The police in the Facts Sheet said this: "The Accused showed complete disregard for traffic legislation, road safety and the safety of other pedestrians/road users. The Accused had a poor attitude towards the matter, showed no remorse for his actions and saw his licence as a right instead of a privilege. The Accused appeared to find the matter humorous." 1. The maker of the sentence assessment report, Ms Madeleine Baker, said this at the commencement of her report, "Mr Bowdern accepts responsibility for his behaviour and claimed that his actions on the night of the offences were a 'silly mistake.' It is of concern that Mr Bowdern appears to demonstrate a lack of attitudinal change, given his history of offending behaviour and ongoing disregard towards traffic legislation and authority. He stated that his level of intoxication on the night of the offences clouded his thought processes and attributed to his decision to drive. Mr Bowdern failed to acknowledge the benefit of engaging with intervention to address his offending behaviour claiming that he had previously completed necessary courses and expressed an intention to return to a law abiding lifestyle. Mr Bowdern was unable to identify any changes or strategies he intends to implement in order to uphold his pro-social intentions." 1. As a result of the order made by the learned Magistrate, the offender has now been in custody from 11 May until today, a period just short of three months. I asked him whether he has learnt his lesson. He told me he has. Sometimes there is benefit in a short, sharp experience of custody. 2. The Appellant has never been in custody before. It can be a frightening and daunting experience. Clearly, the learned Magistrate was concerned to administer the short, sharp shock to make the Appellant realise what he had done. However, there are drawbacks in approaching the matter in that fashion. For example, the Community Corrections officer, Ms Baker, said this, "Based on the information currently available, the supervision plan will be likely to involve: Mr Bowdern will be referred to the next available EQUIPS Foundations program facilitated at Blacktown Community Corrections Referral to the Traffic Offenders Intervention Program to address ongoing disregard for road safety Referral to local Alcohol and Drug service with a view to engage in counselling. Interviews with Community Corrections will focus on, but will not be limited to, intervention modules that target Managing Environments and Managing Impulsivity." Ms Baker also assessed the Appellant as being suitable to undertake community service work and Community Corrections were able to provide the equivalent of up to 21 hours of work per month. 1. Unfortunately, none of that could be provided in custody. In the material before me from the Department of Corrective Services, it is clear that the Appellant is ineligible to participate in programs because he is serving a fixed term of six months imprisonment. 2. In other words, although he would certainly benefit from undertaking programs, he cannot attend any programs whilst in custody because the length of his admission is insufficient. 3. In the circumstances, I am minded to release the Appellant forthwith and, bearing in mind the period that he has served in custody, place him on an Intensive Corrections Order ("ICO") for a period of six months commencing today requiring him to perform 80 hours of community service, to participate in rehabilitation and treatment as directed by Community Corrections and requiring him to abstain from alcohol and drugs. 4. In this way, he will have the benefit of an ICO as well as the benefit of the short, sharp period of imprisonment which, hopefully, has brought him to realise what happens if he does not comply. Lest it be thought that the sentence initially recorded by the Magistrate, and the one to be recorded by me, is inadequate, it is important to consider the Appellant's criminal history. 5. On 11 May 2012 in the Australian Capital Territory, he drove a motor vehicle with alcohol in his blood or breath. The reading was 0.121. For that, he was fined $1,000 and disqualified from driving for 12 months. On 11 May 2012 he also exceeded the speed limit and was convicted and fined $253.00. 6. On 12 September 2013, he was found guilty of destroying or damaging property for which he was convicted and required to enter into a good behaviour bond for a period of 12 months. 7. On 9 July 2015, he drove a motor vehicle whilst alcohol was present in his breath or blood. The reading on the occasion was 0.077, a low range level. For that, he was fined $500.00 and disqualified from driving for three months. 8. On 15 April 2016, the Appellant drove whilst alcohol was present in his breath or blood again in the ACT. The reading on this occasion was 0.115, we would say mid-range. He was convicted and placed on a good behaviour order for a period of 12 months. He was disqualified from driving for a period of six months. 9. On 8 May 2017, the Appellant committed a fourth drink driving offence, driving a motor vehicle in the ACT with alcohol in his blood or breath. On this occasion, the reading was 0.017. That would not be criminal offence in this State, but it was in the ACT and the Appellant was fined $1,000 and required to behave himself for a period of 12 months. 10. On 8 May 2017, again, in the ACT he drove whilst unlicensed and was convicted and fined $500.00. 11. It appears that he then moved from the ACT to Goulburn, and a number of driving offences were committed in Goulburn on 11 January 2018 as well as some other offences in that city, but the first drink driving offence in this State occurred on 10 April 2022. It could be seen therefore that it this was the Appellant's fifth drink driving offence. No doubt, that also persuaded the learned Magistrate to impose the sentence which he did, but I am confident that at the current stage the Appellant realises what he must do in order to drive normally in our society, and that can be reinforced by the courses that he should be given by Community Corrections when released on the ICO. 12. For those reasons, I set aside the sentence recorded by the Local Court at Waverley on 11 May 2022. Bearing in mind the Appellant has spent almost three months in custody, I sentence him to imprisonment for a term of six months commencing today, 2 August 2022, to be served by way of intensive correction in the community. Terms to the order are: 1. You must not commit any offence; 2. You must submit to supervision by a Community Corrections officer; 3. You must complete community service work for 80 hours; 4. You must participate in rehabilitation/treatment program as directed by Community Corrections; and 5. You must abstain from alcohol and drugs. You are to report to the Community Corrections office at Blacktown within seven days by telephone. 1. I make a mandatory interlock order for a period of 24 months. I impose a minimum licence disqualification period of six months. 2. Any other orders sought? MAXTON: None from the appellant. HIS HONOUR: Don't you break the confidence I've placed in you Mr Bowdern. APPELLANT: Thank you your Honour. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2023