Allsopp v The King

[2025] NSWDC 338

District Court

New South Wales

Medium Neutral Citation:

ALLSOPP v R [2025] NSWDC 338

Hearing dates:

25 July 2025

Date of orders:

25 July 2025

Decision date:

25 July 2025

Jurisdiction:

Criminal

Before:

Barrow SC DCJ

Decision:

See [48]

Catchwords:

SEVERITY APPEAL – high range drink driving – full term imprisonment – inappropriateness of refusal of bail pending de novo appeal against severity of sentence

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

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

Category:

Principal judgment

Parties:

Logan ALLSOPP (appellant)
The Crown (respondent)

Representation:

For the appellant:
Mr Johnson, Counsel
Mr Fagan, Solicitor

For the Crown:
Ms McIntosh, Solicitor

File Number(s):

2025/00180572

JUDGMENT

1. Logan Allsopp appeals the severity of a sentence imposed upon him by his Honour Mr Degnan LCM in the Local Court at Picton on 10 July 2025.

Penalty in the Local Court

2. The appellant was sentenced to a term of 11 months imprisonment with a non-parole period of six months commencing on 10 July 2025 after pleading guilty to an offence of high range drink driving. He was also disqualified from driving for nine months and a mandatory interlock order for 24 months was imposed.

3. The appeal is brought pursuant to s 17 of the Crimes (Appeal and Review) Act 2001. An appeal against severity of sentence to the District Court requires the judge to engage in a fresh exercise of sentencing discretion upon the evidence admitted on the hearing of the appeal.

Maximum penalties

4. The maximum penalty for the offence is imprisonment for 18 months. A mandatory interlock order provides for a minimum disqualification period of six months and a maximum disqualification period of nine months. The minimum interlock period is 24 months.

Bail refused pending this appeal

5. On the same day he was sentenced, the appellant sought bail pending the hearing of this appeal. As of today, 25 July 2025, he has been in custody for 15 days. His application for bail was refused by the same Magistrate who sentenced him, something that routinely occurs, especially in regional Local Courts where only one Magistrate is sitting.

6. There is no transcript of that application. However, it is of real concern that bail pending this appeal was refused. The appellant was 27 years old and a first offender. His appeal is clearly arguable, and there is no apparent risk or bail concern that could not have been addressed by bail conditions. Arresting police had not even considered it to be necessary to impose conditions of bail. The offender had not re-offended in the period after his arrest, he had participated in the preparation of a very positive Sentencing Assessment Report and had appeared at Court when required to do so.

7. Plainly, there are circumstances where bail pending an appeal will not be appropriate. For example, where the only issue is the length of a full time term of imprisonment, or where an offender has a history of non-appearance or poses an unacceptable risk that cannot be addressed by conditions of bail.

8. This is not such a case. To refuse the appellant bail in the circumstances here undermines the integrity of the appellate system of review. Deprivation of liberty is the most serious penalty available. The appellant had the right to a de novo appeal. By refusing bail, the Magistrate ensured that this young man would serve at least part of the sentence he considered to be appropriate, even if that was only up until the time the appeal could be heard.

9. In my opinion this apparent approach is contrary to the interests of justice. It undermines an important principle: equality before the law and the equal treatment of offenders across the State. Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28]. The sentence imposed upon the appellant in the Local Court is an absolute outlier in terms of severity.

The offence

10. During the evening of 27 April 2025, the appellant drove a motor vehicle on various public roads whilst there was present in his blood the high range prescribed concentration of alcohol. Shortly after his arrest the reading was 0.235, an extraordinarily high reading.

11. Earlier, at about 9:45pm, police received around nine 000 calls reporting a vehicle travelling north in the southbound lane of the Hume Motorway near Avon Dam Road, south of Sydney, causing oncoming vehicles to swerve out of the way to avoid a collision with the offender’s car.

12. At 9:55pm, police observed the offender’s vehicle in the breakdown lane on the Hume Motorway at Pheasants Nest. The accused was sitting in the driver’s seat. He was the only occupant. He told the police he was very confused and had driven from Woy Woy. It is my understanding that the distance between Woy Woy and where the offender was apprehended by police was approximately 160km. Given he must have travelled further south before turning around and heading north in the southbound lane, the overall distance would have been even longer.

13. Police asked the offender to stand outside his car. He did so. He smelt strongly of alcohol and told the police “I’m pissed and was so confused and started driving on the wrong side.”

14. The offender was asked if he had been drinking and replied “yes, I’ve had a few.” He was arrested for the purpose of a breath analysis and taken to the Picton Police Station. The breath analysis produced a reading of 0.235g of alcohol in 210L of breath.

15. The police observed the accused to be very unsteady whilst walking, staggering and requiring support at times. He was slurring his words, smelt of alcohol and had bloodshot eyes. Police considered he was severely affected. The offender told them he had consumed about 10 Suntory-196 (a Japanese alcoholic drink in 330mL cans), amounting to 20 standard drinks. He had not eaten.

16. The offender’s licence was suspended. His physical licence was confiscated. He was issued a Field Court Attendance Notice and required to attend the Picton Local Court on 22 May 2025.

Seriousness of the offence

17. In the guideline judgement regarding high range drink driving, Re Attorney-General’s Application (No 3 of 2002) (NSW) (2004) 61 NSWLR 305, Howie J observed at [7]:

“It is trite to observe that, what is commonly referred to as, “drink-driving” amounts to socially irresponsible behaviour of a very significant degree having regard to the potential consequences of any driver on a public road being unable to properly manage and control a motor vehicle. It must also be a matter of common knowledge within the public in general that it is a criminal offence to drive a motor vehicle whilst under the influence of alcohol and that substantial penalties, including imprisonment, are available to the courts to punish those who commit the offence. For many years there has been an extensive media campaign to stress the seriousness of such conduct and the consequences that flow from it, both so far as the offender is concerned and in terms of its impact upon the safety of members of the public on or about the highways. In addition, drivers of motor vehicles must be aware that the use of random breath testing since 1982 has increased the chances of detection and hence the likelihood of conviction, punishment and licence disqualification.”

18. At [107] of the guideline judgement, the Court identified various matters that were relevant to an assessment of an offender’s moral culpability and the seriousness of the conduct.

19. Relevantly, the degree of intoxication in this case was substantially above the threshold for a high range drink-driving offence. At the least, the offender’s driving can be categorised as “erratic” given that for at least a period he had been driving north in the southbound lane of the motorway. The length of time that he put other people at risk was quite extraordinary, given he told police he had driven from Woy Woy. As noted, this would seem to have been at least 160km. As for the number of people who were put at risk, all that can be said is that it was a very high number. Anyone either driving a vehicle proximate to this offender or who was a pedestrian in the vicinity of any of the roads upon which the offender travelled was at risk. Given the motorway network between Woy Woy and where the offender was arrested, it is unlikely he came into close contact with many pedestrians.

20. For the above reasons, this is a very serious example of a high range drink-driving offence. In the guideline judgement at [146], the Court nominated various considerations relevant to the imposition of an appropriate sentence. Much of the focus in the guideline judgement was upon the inappropriateness in an “ordinary case” of disposition pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (C(SP) Act).

21. At [146(4)] of the guideline judgment, the Court identified factors that would increase an offender’s moral culpability.

22. I have already identified those matters that apply in this case. Without question, the moral culpability and seriousness of this offence was increased by those factors. I note the Court stated:

“(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.”

23. The Court also expressed the view at [146(6)] that in a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:

“(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;

(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.”

Subjective factors

24. The appellant was a person without a prior criminal record and had a good traffic history over the nine years he had been licensed to drive. He had been licensed provisionally from 21 June 2016 and prior to the events subject of this appeal he had received one traffic infringement notice for exceeding the speed limit by more than 20 km/h but not more than 30 km/h.

25. At [119] of the guideline judgement, the Court noted that prior good character is of less relevance because of the prevalence of this type of offence being committed by persons of good character and the importance of general deterrence. At [122], the Court observed that the completion of a Traffic Offenders Program was no substitute for a period of disqualification. In this case the offender did complete a Traffic Offenders Program, and it is to some extent at least a relevant consideration when considering an appropriate sentence, given s 10 is not an appropriate outcome in this case.

26. The Court also noted at [128] that there needed to be a proper reason to reduce the disqualification period below the automatic disqualification nominated by Parliament. This factor has little application in this case, given the focus of the appeal was on the imposition of full-time imprisonment. I do not intend to reduce the disqualification periods nominated by the learned Magistrate.

27. At [142], the Court noted that the reasons behind a person’s decision to drink alcohol and then drive were not relevant to the assessment of the seriousness of the conduct. In this case the offender does not proffer an explanation for his decision to do so, although there were reasons behind his excessive alcohol consumption that related to the death by suicide of his stepfather in 2024.

28. At [143], the Court noted that although the subjective case of an offender is a relevant consideration it cannot outweigh a proper emphasis being placed on an appropriate penalty, especially in a case such as this one where general and specific deterrence, denunciation and the protection of the community are significant sentencing considerations.

Other evidence

29. Other evidence in the matter included a Sentencing Assessment Report. In that report, it was noted that the appellant has got stable accommodation with his mother. He has prosocial relationships with his extended family, many of whom are here this morning. He has a long-term partner. His mother emphasised that the conduct was out of character. She described how proud she was of him with his work ethic and that he had recently purchased his first home. The appellant described the trauma that he and his family had experienced following the suicide of his stepfather and this was confirmed by his mother. It was noted that he has been in stable employment for eight years and there is a further reference from his employer.

30. He has no criminal history. The writer of the report said he displayed accountability. He did not minimise the seriousness of his actions. He admitted that he had consumed alcohol and provided content by saying that there were conversations regarding his late stepfather and it was irresponsible for him to continue to drink. He said that he knew that he would have been over the limit but he felt okay. He decided to drive some distance to reduce the amount he needed to drive to work on the following day. He was working, at the time, at Nowra and had intended to stay with his father at Albion Park and that explains the very extensive drive. He told the report author that he was grateful that the police had “got him” before he caused harm to other road users. He told the report author that he had remained abstinent from drinking alcohol since this night and recognised the negative impact alcohol had had on his decision making. He told the author of the report that he had been treated for depression and that he was on medication and he explained that the depression largely stemmed from the tragic event involving his stepfather.

31. The report author indicated that the appellant displayed a high level of insight about the impact his behaviour could have had. He was willing to undertake intervention or supervision as directed. He was willing to undertake community service work. He showed the report author that he had done the Traffic Offenders Program and I note there is a certificate to that effect in the Crown bundle. He was considered to be a low risk of reoffending. One recommendation was that if a supervised order was made, a condition that he be required to engage in grief and alcohol related counselling would be beneficial.

32. Also in the bundle, was a Traffic Offenders Intervention Program Report, which included comments that the appellant had made. The appellant is obviously motivated to address the conduct behind his offending.

33. There is a letter from his employer, Tony Catanzariti, who noted he had been working with the business, Asphalt Paving Solutions Pty Limited, since 2017. He joined on the recommendation of his late stepfather who also worked there. He described how the death of the appellant’s stepfather had had a profound and devastating impact upon him. The appellant maintained an exemplary work record. Mr Catanzariti considered him to be reliable, hard working, with a strong commitment to the values of the business, particularly around safety. He was trusted to operate plant and vehicles, and consistently abided by safety protocols and procedures. Mr Catanzariti wrote that he considered the appellant’s behaviour to be completely out of character. He noted the significant toll that the loss of the appellant’s stepfather had taken, and that he considered the appellant to be deeply remorseful. Mr Catanzariti considers the appellant to be a future leader within the business. Mr Catanzariti noted that the appellant had purchased a home in Bathurst, and that that property was rented out. His business continued to support the appellant.

34. The only other material was a letter from Brendan Borthwick, the father of a long-term friend of the appellant. Mr Borthwick had known the appellant for about 20 years through his son and he had had the opportunity to observe him grow into a respectful and dependable young man. Mr Borthwick considered the appellant had demonstrated qualities of reliability, hard work, trustworthiness, and takes his commitments seriously. He was aware of the charges. He did not intend to try and excuse the appellants conduct, but to provide some context for someone he had known for 20 years. The appellant had expressed genuine remorse, and he appeared to understand the seriousness of his conduct. Mr Borthwick expressed the opinion that this experience has had a significant impact upon the appellant, and he is committed to making better choices in the future. In closing, Mr Borthwick said that he thought the appellant was capable of learning from the situation, of becoming a better person as a consequence of it, and he asked the Court to consider exercising some leniency.

Consideration

35. Accepting that the facts of this matter approach a worst case of HRPCA, other relevant considerations include:

1. It is the appellant’s first major traffic offence.

2. He pleaded guilty immediately, advising the court by way of letter.

3. He was, on the evidence, greatly affected by the suicide death of his stepfather in 2024 and had unwisely increased his use of alcohol to cope with trauma and grief arising from this tragedy.

4. He was a person of prior good character and, even having regard to the guideline judgement as it pertains to this factor, was still a person who was entitled to a measure of leniency, per s 21A(3)(f) of the C(SP) Act

5. He has no prior convictions, another mitigating factor per s 21A(3)(g) of the C(SP) Act.

6. When directed to attend the Court he did so.

36. All the evidence on sentence supports the conclusion that the appellant is remorseful, accepts responsibility, displays insight, has good prospects of rehabilitation, is a low risk of reoffending and is otherwise a respected and admired member of the community.

37. Taking into account s 5(1) of the C(SP) Act, that mandates the court not sentence an offender to imprisonment unless satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate, in my view the threshold is crossed in this case. This is because of the seriousness of the offence, the need for general and specific deterrence and the need to denounce the offender’s extremely dangerous conduct.

38. Imprisonment for the purposes of s 5 includes Home Detention and the term of imprisonment being served by way of an Intensive Correction Order.

Is only a fulltime term of imprisonment appropriate?

39. Judicial Commission statistics between January 2021 and December 2024 record that 3673 cases of high range drink-driving were finalised where the offender had pleaded guilty and had no prior record. Of those matters, only 14 cases (0.4%) received a sentence of full-time imprisonment. The inverse of this is that 99.6% or 3659 offenders sentenced for HRPCA who pleaded guilty and had no criminal history avoided full-time imprisonment.

40. I also note that 188 out of the 3,673 offenders who pleaded guilty and had no prior record were sentenced to serve a term of imprisonment by Intensive Correction Order. This still only amounted to 5.1% of the total cases.

41. Thus, in 95.5% of the cases, the outcome reveals the conclusion was reached that the s 5 threshold was not crossed and a penalty less than any form of imprisonment was imposed.

42. Of the 14 instances where terms of full-time imprisonment were imposed, there are no actual judgments available. What is apparent from the case details included in the JIRS database that relate to the cohort of 14, is that in nine of those matters there was an additional offence, usually either Driving whilst Disqualified or Reckless or Dangerous Driving.

39. It is also notable that of those 14 cases only two individuals received a sentence of more than 11 months imprisonment (in both cases 12 months), and only in two cases did the non-parole period exceed six months duration.

40. It is the legislatively mandated maximum penalty that applies to a worst case and not the upper limit of a statistical range, see Allen v Regina [2008] NSWCCA 11 at [24], however the maximum penalty for this offence is limited to a sentence of 18 months imprisonment.

41. Given the size of the sample, the statistics do have value in considering whether a term of full-time imprisonment is appropriate in this case. See R v Pham [2015] HCA 39; 325 ALR 400 at [49] per Bell J and Gageler J (as the Chief Justice then was) and R v Bloomfield (1998) 44 NSWLR 734 at [739].

Appropriate sentence

46. The appellant has been in custody for 15 days. Taking this period into account, on my assessment the appropriate sentence is imprisonment for 10 months.

How should the sentence be served?

47. Having regard to s 66 of the C(SP) Act, and noting the paramount consideration of community safety, I consider an order that the sentence be served in the community is more likely to address the offender’s risk of re-offending and to enhance community safety than if it was to be served in fulltime custody.

48. This is because the appellant is still a relatively young man, he has not previously committed a criminal offence, he is in employment and is pro-social, he has begun to address the underlying mental health factors that contributed to his excessive alcohol consumption, and he will benefit from supervision from Community Corrections.

Orders

49. The orders I make are as follows:

1. The appeal is upheld and the sentence imposed in the Local Court is quashed.

2. The appellant is sentenced to a term of 10 months imprisonment from 25 July 2025 to be served by Intensive Correction Order subject to the following conditions:

1. you must not commit any offence;

2. you must submit to supervision by a Community Corrections Officer;

3. you must perform 100 hours of community service;

4. you must engage in grief and alcohol abuse counselling as directed.

3. I confirm the disqualification period and interlock orders made in the Local Court.

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Decision last updated: 27 August 2025