R v Reen

HIS HONOUR: The applicant for bail has pleaded guilty to the serious offence of aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900 (NSW). The relevant circumstances of aggravation is the presence of the prescribed concentration of alcohol, which, for the purposes of the section, is 0.15, which is of course the threshold for a high range PCA offence.

Turning to the objective circumstances of this offence, the applicant’s reading was 0.26, which is well over even that high range threshold. Moreover, although there is no evidence nor agreed facts about speed, there was significant damage to the applicant’s car, the victim’s car, and some damage to the car in front of the victim’s car.

The victim suffered very serious injuries. Those injuries exceed the threshold for grievous bodily harm by a very significant measure. Of the many injuries, he has been left with what appears to be a serious traumatic brain injury which has completely altered his life and continues to cause ongoing significant disability.

I make these observations because, as I have said, the applicant has pleaded guilty to this offence, and, for the purpose of determining this application for bail, I am called upon to consider the provisions of section 22B of the Bail Act 2013 (NSW).

The applicant entered a plea of guilty in the Local Court. On that occasion, the Crown, not unexpectedly, made a detention application in accordance with section 22B. The first question is whether I am satisfied that the applicant, when she stands for sentence in the District Court on 9 June 2026, will be sentenced to imprisonment to be served by full-time detention. The second question is if I am so satisfied, whether she has demonstrated special or exceptional circumstances justifying a decision to grant bail. Alternatively, if I am not satisfied that she will be sentenced to imprisonment to be served by full-time detention, the first question is whether I am satisfied that she has shown cause, given the circumstances of the offending; the second, is about the application of the unacceptable risks test.

This is a show cause offence because, as the Crown have properly emphasised, she was on bail for other offending, which had only been granted the day before this tragic accident and the section 52A(4) offence is a serious indictable offence.

Section 22B of the Bail Act is in the following terms:

In the Director of Public Prosecutions v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 (“Van Gestel”), a unanimous Court of Criminal Appeal (Gleeson JA, Wright and Cavanagh JJ) construed the meaning of the clause I have emphasised in the chapeau to section 22B in context by saying (at [44]):

Of this, one can say in the case at hand, having regard to the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, that a term of imprisonment will be imposed. As Spigelman CJ observed (Mason P, Barr, Bell and McClellan JJ agreeing) in respect of the non-aggravated section 52A offences (at [229]-[231])

Although the statistics compiled by the Judicial Commissioner of New South Wales are often referred to as a “blunt tool” (but consider section 8 Judicial Officers Act 1986 (NSW)), it should be borne in mind that of the 50 cases of section 52A(4) aggravated offences for which persons were sentenced in the higher courts of New South Wales between 24 September 2018 to 30 September 2025 those statistics show that 78% of offenders received a sentence of full-time custody. In that regard, the head sentence varied between two years and six months, and seven years. The other 22% of persons sentenced received a term of imprisonment to be served in the community by way of an intensive correction order (“ICO”). Thus, a sentence of imprisonment of two years or less was imposed.

I return to the issue in this case: can it be said that it is not realistically inevitable that Ms Reen will be sentenced to full-time imprisonment? While every case, when the time comes to pass sentence, must be considered on its own facts, matters and circumstances relevant to sentencing, and a single sentence arrived at by the sentencing judge appropriate for the offence and the offender, the raw statistics suggest to me that there is a real prospect, neither far-fetched nor fanciful, that Ms Reen may receive a custodial sentence of two years or less which the sentencing judge decides can appropriately be served in the community under an ICO. I am therefore satisfied that it is not realistically inevitable that she must serve a sentence by way of full-time custody. For this reason, section 22B does not govern the grant of bail in this case.

I turn then to the show cause consideration. From her plea of guilty it follows that the Crown case is overwhelming; Ms Reen admitted every element of it in the Local Court prior to her committal. This makes the task of discharging the onus for the show cause test somewhat more difficult than in the normal case. Although I have said, of course, that the sentencing judge must pass a sentence which is appropriate both for the offence and the offender, any sentence passed must be proportionate to the objective seriousness of the criminality involved.

In this case: although there is no direct evidence of speed, there is damage to at least three vehicles; the blood-alcohol reading was very high; and the injuries suffered by the victim were extremely severe. In isolation, these factors, taken together, suggest a high degree of objective seriousness. As opposed to that, the distance of the proposed journey was short, no more than about 1.1 kilometres. Although there is some evidence of erratic driving at times during the journey from where she picked her son up at McDonald’s to the point of impact, that is not an overwhelming factor.

Turning to subjective circumstances, and in terms of looking ahead at what the prospects are (and avoiding usurping the function of the sentencing judge), although she has a criminal record and she was on conditional liberty at the time of the collision, which is always a significant aggravating factor, she has, in many ways, a compelling subjective case.

She has a multitude of quite serious health problems which I need not go into in detail - but they are very significant. Although I accept Justice Health can attend to those matters in custody, frankly, they are always going to be better addressed in the community if that is an available option.

It does seem that Ms Reen has been attending to her health in an appropriate manner in the time leading up to the offending and thereafter. Moreover, she has two children, one of whom is aged 13, and I am satisfied has the compelling need for her mother’s care and attention.

Ms Reen has taken the opportunity of her earlier grant of bail to undertake a full-time residential course of alcohol rehabilitation at The Glen for Women, which is a reputable rehabilitation organisation known to the Court. She also, at least up until 4 September 2025, diligently attended meetings of Alcoholics Anonymous although, as Ms Ervin pointed out to me, there was no evidence of further attendances up until the time when bail was revoked upon the entry of the plea of guilty. It does seem that she was admitted to hospital for a period of time in late September to early October with an acute kidney injury. However, there is no evidence before me that she resumed her Alcoholics Anonymous attendance after that. I am, however, satisfied that Ms Reen has made significant progress in her rehabilitation from her alcoholism.

Ms Reen is also a First Nations’ person, in custody for the first time at the age of forty-two. These considerations of themselves add a significant layer of vulnerability.

Obviously, as was pointed out in Van Gestel, I do not have all the materials that will be available to the sentencing judge on the proceedings on sentence when it comes before the District Court, nor would I seek to usurp or second-guess that judge’s function. But, given that I have held that there is, statistically speaking, a real prospect of a sentence legally capable of being served by ICO, and an ICO being ordered, having regard to those subjective matters, I am satisfied that cause has been shown.

Quite properly, the prosecution urged on me the prospect of a relapse given the absence of evidence that Ms Reen has attended Alcoholics Anonymous recently before her detention. Given the relative shortness of time between now and the sentencing hearing, I think that is unlikely. I accept Ms Haralampidou’s submission that Ms Reen will be well aware of her need to put her very best foot forward when the time to stand for sentence comes, and that any lapse between now and then may well be highly significant to the sentencing judge.

I think also, given the other findings I have made, that the period on what will be strict bail will provide an opportunity to put her affairs in order, particularly in relation to her children and other aspects of her household, as she faces the opposite prospect of a significant absence in the event that the judge decides that no sentence other than one of full-time custody is appropriate. I do not think that that opportunity should be denied her given the various matters to which I have referred. That is to say, she has a reason for being at liberty at this time in relation to those matters. For these reasons, I am not satisfied that any risk incidental to the grant of bail is unacceptable and I grant conditional bail.