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District Court 14 June 2022

Neil v R

[2022] NSWDC 402

Assault & violenceTheft & propertyTraffic & driving
CRIME EVIDENCE IDENTIFICATION EVIDENCE APPEAL CONVICTION APPEAL DRIVING OFFENCES

Citation: Neil v R [2022] NSWDC 402
Court: District Court of New South Wales
Date: 14 June 2022
Judge: Neilson DCJ

Background

The appeal arose from a contested Local Court hearing before Farnan LCM at the Central Local Court in March 2021, decided on 18 June 2021. The proceedings concerned the driving of a stolen grey BMW sedan across several Sydney locations over the night of 30 April to 1 May 2020, a period the District Court described as a "joyride."

The appellant faced 13 charges in total, including driving whilst disqualified, participating in police pursuits, using a vehicle as an offensive weapon to prevent lawful apprehension at a Silverwater service station, obtaining a financial advantage by deception, predatory driving, and menacing driving. He pleaded guilty to several charges but contested others, including whether he was the driver of the BMW throughout the entire event and whether the specific mental elements of certain offences were proved beyond reasonable doubt.

The Local Court convicted the appellant on the contested charges, including menacing driving (sequence 13), and imposed an aggregate sentence. He appealed both the convictions and the severity of the sentence.

  • Whether the prosecution's identification evidence was sufficient to establish beyond reasonable doubt that the appellant was the driver of the BMW at all material times during the night in question
  • Whether the Local Court's finding that only four (not five) persons occupied the BMW was open on the evidence
  • Whether the driving on the M4 at Auburn in the early hours of the morning constituted "menacing driving" with intent to menace a police officer, within the meaning of the Road Transport Act 2013 (NSW)
  • Whether, on the conviction appeal, any reasonable doubt existed that had not been properly addressed by the Local Court
  • Whether the aggregate sentence and individual indicative sentences imposed by the Local Court were manifestly excessive
  • When the aggregate sentence ought to commence

Decision

Conviction appeal

The District Court examined the identification evidence, including speed camera footage and opportunities for occupants of the BMW to have changed places during the pursuit. Neilson DCJ upheld the Local Court's finding that only four persons were in the vehicle at all material times, which in turn supported the finding that the appellant was the driver throughout. The conviction appeal was not upheld on the identification grounds.

On the question of menacing driving (sequence 13), the District Court considered the meaning of "menace" and "menacing" under the Road Transport Act 2013 (NSW). The Court examined the circumstances on the M4 at Auburn, where Sergeant Fowler was forced to take evasive action to avoid a collision with the BMW. The Local Court had already acquitted the appellant of predatory driving (sequence 12) because the intent to inflict actual bodily harm was not proved to the required standard, but it had convicted on the alternative charge of menacing driving. The District Court upheld that finding, satisfied that the evidence supported the requisite intent to menace.

Severity appeal

On the severity appeal, the District Court reviewed both the indicative sentences for individual sequences and the aggregate sentence. Neilson DCJ found the aggregate sentence imposed by the Local Court required adjustment, including reconsideration of the commencement date. The Court also addressed a submission that an extended custodial period risked institutionalising the appellant, who was 21 years old at the time of sentencing. Neilson DCJ accepted a psychologist's report indicating the appellant appeared settled in custody but rejected the institutionalisation concern, describing the non-parole period of one year and eight months as the minimum appropriate for the offending.

Orders Made

  • The aggregate sentence and non-parole period imposed by the Central Local Court on 18 June 2021 were set aside.
  • A fresh aggregate sentence of two years and nine months was imposed, commencing 1 May 2021.
  • A non-parole period of one year and eight months was set, expiring 31 December 2022.
  • Indicative sentences were recorded for individual sequences, including: sequence 4 (using an offensive weapon to prevent apprehension): 2 years; sequence 11 (police pursuit, Malabar): 16 months; sequence 10 (police pursuit, Kingsford): 15 months; sequence 3 (dangerous driving): 10 months; sequence 6 (taking and driving a conveyance): 10 months; sequence 2 (driving while disqualified): 10 months; sequence 1 (police pursuit, Forest Lodge): 9 months; and earlier matter sequences of 6 months and 1 month respectively.
  • Convictions under s 10A of the Crimes (Sentencing Procedure) Act 1999 (without further penalty) were recorded for sequences 5, 7, and 9.
  • Disqualification periods from driving imposed by the Local Court were confirmed.

Key Takeaways

  • The District Court confirmed that identification evidence, including camera footage and analysis of opportunities for occupants to change positions within a vehicle, can sustain a finding that a particular person was the driver throughout a continuous course of driving.
  • "Menacing driving" under the Road Transport Act 2013 (NSW) requires proof of an intent to menace, which is a distinct and lower threshold than the intent to inflict actual bodily harm required for predatory driving. An acquittal on the higher charge does not preclude conviction on the alternative.
  • Where a vehicle is driven continuously over an extended period, the sentencing court may find that the offender drove throughout that entire period for the purpose of both conviction and the factual basis of sentence, provided the evidence supports it.
  • In setting an aggregate sentence, the totality principle requires the court to ensure the combined sentence appropriately reflects the overall criminality, including adjusting the commencement date where necessary.
  • A submission that continued custody risks institutionalising a young offender will not necessarily succeed. Here, the Court rejected the argument where psychological evidence described the appellant as settled in custody and the non-parole period was assessed as the minimum warranted by the seriousness of the offending.

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 10A

Cases
- Police v Neil [2021] NSWLC 3 (the Local Court decision under appeal)
- Moffitt v R [2020] NSWDC 486