AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 14 September 2009

McEvoy, Michelle v D.P.P

[2009] NSWDC 385

Traffic & drivingDomestic & family violence
CRIMINAL LAW LOCAL COURT SENTENCE SEVERITY APPEAL DRIVE WITH INTENT TO MENACE MID RANGE OF SERIOUSNESS PURSUIT OVER SEVERAL KILOMETRES

Citation: McEvoy, Michelle v D.P.P [2009] NSWDC 385
Court: District Court of New South Wales
Date: 14 September 2009
Judge(s): Nicholson SC DCJ

Background

The appellant pleaded guilty in the Blacktown Local Court to driving with intent to menace. The offending arose from a dispute between the appellant and a man she described as an ex-partner, with whom she shared a four-year-old child and from whom she rented her home. On 1 November 2008, the appellant pursued the victim's vehicle over several kilometres, causing her car to collide with his on the wrong side of the road and then reversing into his vehicle a second time. Her young son was in the car throughout.

The Local Court sentenced the appellant to eight months' imprisonment with a four-month non-parole period, along with a three-year licence disqualification. The appellant appealed to the District Court on the ground that the sentence was excessive.

At the time of the appeal, the victim had attempted on multiple occasions to withdraw his complaint and sought to have the prosecution discontinued. The court considered those attempts in the context of the broader relationship between the parties.

  • Whether the Local Court imposed an excessive sentence for the offence of driving with intent to menace
  • The weight to be given to the victim's attempts to withdraw his complaint
  • The relevance of the appellant's history of serious cannabis abuse, associated mental health conditions, and rehabilitation efforts to the appropriate sentence
  • The appropriateness of adjourning finalisation of sentence under section 11 of the Crimes (Sentencing Procedure) Act 1999 to allow monitoring of rehabilitation

Decision

Nicholson SC DCJ characterised the offence as falling within the mid-range of seriousness rather than the high end urged by the Crown. The court identified four aggravating features: the appellant was unlicensed; a child was in the vehicle and placed at risk; the offence involved a sustained pursuit over several kilometres; and after the initial collision, the appellant reversed and struck the victim's vehicle a second time.

On the victim's attempts to withdraw his complaint, the court was firm. It explained that police prosecute on behalf of the State, not individual complainants, and that courts administer justice independently of a victim's preferences. The court also expressed reservations about whether the attempted withdrawal was genuine, noting it may have served an ulterior purpose in the context of the parties' ongoing relationship.

The court identified the appellant's serious cannabis abuse, consuming twenty to fifty cones daily over several years, as likely contributing to the aggressive and paranoid driving behaviour. However, it found that since the offence the appellant had made a genuine effort to address her cannabis dependence. That rehabilitation, combined with unaddressed depression and anxiety, was sufficient to defer the finalisation of sentence. The court indicated that but for those rehabilitation efforts, the original eight-month sentence would have stood.

Relying on section 11 of the Crimes (Sentencing Procedure) Act 1999, the court adjourned the proceedings and granted bail subject to detailed conditions, with review hearings scheduled at three, six, and eight months to assess the appellant's progress before imposing a final sentence.

Orders Made

  • Conviction recorded
  • Bail granted pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999
  • Bail conditions imposed, including: good behaviour; supervision by Probation and Parole; compliance with all reasonable directions from Probation and Parole including counselling and treatment programs; abstention from all illicit drugs and alcohol; submission to random urine and alcohol testing; attendance at Westmead Hospital for counselling; compliance with prescribed medication (failure to comply deemed a breach); maintenance of employment or enrolment with a Commonwealth employment agency if employment is lost
  • Review hearings set at three months and six months, with finalisation of sentence at eight months
  • Proceedings adjourned for the bail period

Key Takeaways

  • The District Court confirmed that courts administer criminal justice independently of a victim's stated preferences, and that a victim seeking to withdraw a complaint cannot direct the court to discontinue proceedings or decline to impose a sentence.
  • A conviction for driving with intent to menace involving pursuit over several kilometres, two separate vehicle collisions, an unlicensed driver, and a child passenger was characterised as falling within the mid-range of seriousness rather than the high end of the offence.
  • Under section 11 of the Crimes (Sentencing Procedure) Act 1999, the District Court may adjourn finalisation of a sentence on appeal and grant bail where genuine rehabilitation efforts warrant monitoring before a final penalty is imposed.
  • The court treated heavy long-term cannabis use as a factor capable of explaining aggressive and paranoid conduct, while also holding the appellant responsible for that conduct.
  • No error was established in the magistrate's original approach to the sentence; the decision to defer final sentencing was driven entirely by post-offence rehabilitation, not by any finding that the Local Court had erred in principle.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 10A and section 11

Cases cited: None cited in the provided text.