Criminal law: November 2018

Reddy v R [2018] NSWCCA 212

Quasi custody – residential rehabilitation – voluntary vs involuntary participation

In this case the Court of Criminal Appeal (‘CCA’) has confirmed that it is not a precondition of giving a defendant credit for time in residential rehabilitation that they were compelled to be there. The real question is whether they did in fact subject themselves to the restrictions of the course.

The applicant was the driver in a car which rear-ended another car at between 110 and 120km/h. The other car’s driver was very seriously hurt, with a spinal injury, four fractured ribs and a collapsed lung, cuts and bruises. Before the accident, witnesses saw the applicant weaving in and out of lanes, driving in the breakdown and exit lanes, as well as wandering within the lane causing other drivers to take evasive action. The applicant was seriously drunk: he returned a blood alcohol reading of 0.270 some time after the collision. That said, apart from his drinking, his subjective case was described as ‘compelling’. Importantly for present purposes, he voluntarily participated in two residential rehabilitation programs. He was sentenced to imprisonment for three years and five months, with a non-parole period of two years, commencing on the day of sentence. No submission had been made at first instance that the sentence should be backdated to take account for the period of quasi-custody he had spent in residential rehabilitation. This, along with the asserted manifest excess of the sentence, was the basis of his appeal.