McEvoy, Michelle v D.P.P

[2009] NSWDC 385

CITATION:	McEvoy, Michelle v D.P.P [2009] NSWDC 385
EX TEMPORE JUDGMENT DATE:	14 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Pursuant to Section 11 Crimes (Sentencing Procedure) Act 1999 bail granted. Dates for reporting rehabilitation progress to court set. Proceedings adjourned for bail period.
CATCHWORDS:	Criminal law - Local Court sentence severity appeal - drive with intent to menace - mid-range of seriousness - pursuit over several kilometres - intencded collision with victim's vehicle - child in appellant's car - relationship between parties - past offending conduct - serious cannabis abuse issues - appeal against 8 months imprisonment - s.11 Crimes (Sentencing Procedure) Act bail
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act
PARTIES:	Michelle McEvoy Director of Public Prosecution
FILE NUMBER(S):	2009/131783
SOLICITORS:	Crown: Ms Pawliw Defence: Ms Cashmen

JUDGMENT

1. Michelle McEvoy appeals against the sentence imposed by Magistrate Brown, I think it was at the Blacktown Local Court, on 14 August last. On that occasion she had pleaded guilty to drive with intent to menace. He had the offence occurring on 1 November 2008. The learned magistrate imprisoned her for eight months with a non-parole period of four months. She was disqualified for a period of three years from 14 August to expire on 13 August.

2. The background to the offence would appear to be available from the evidence of Belinda Hill, a neighbour, who gives evidence of having observed the appellant with the victim, one Russell Owen. Russell Owen is on her evidence a fifty nine year old married man with children with that partner and has been in some type of liaison with Michelle McEvoy to the extent that the appellant describes him to police as an ex partner. They have one four year old child, Liam McEvoy. The couple are not living together but she, as I understand it, is living in a house owned by the victim and paying rent to him.

3. From the evidence of Ms Hill there are tensions that exist between the parties, and from Ms Hill’s perspective, the offending party to the point of stalking and intimidating in a substantial and serious way the victim Russell Owen. At about 3.30pm on Saturday 1 November 2008 Russell Owen was driving along Sorrento Drive, Glenwood in his silver Holden Commodore as he approached a roundabout. At the intersection of Sorrento Drive with Glenwood Park Drive he saw the appellant in her vehicle enter the roundabout and accelerate towards him.

4. He accelerated into the roundabout to avoid collision. He had to reverse out from the wrong side of the road back into the roundabout. That manoeuvre is something I am having difficulty understanding but the appellant was said to have followed him along Glenwood Park Drive for a kilometre. He saw her following close behind. He did two loops of a roundabout at another intersection, Glenwood Park Drive and Malvern Road in an attempt, he said, to slow her down so that he could escape. He then travelled along Malvern Road at ninety kilometres an hour, further attempting to lose her.

5. He saw the appellant drive on to the wrong side of the road next to his vehicle, I am assuming in Malvern Road. She steered her vehicle at his, causing both vehicles to collide. His vehicle sustained scrape marks to the off-side portion of a metre and a half in length and two and a bit inches in diameter. His vehicle mounted the gutter. The appellant pulled up in front of him and then reversed into his vehicle, colliding. In her vehicle was her son.

6. Now, there were two other offences the magistrate dealt with and they are not, it would seem, the subject of appeal.

7. There is evidence before me that the victim, Owen, wanted to withdraw his statement as late as last week, 7 September 2009. What has caused him to do this is not revealed other than perhaps in a sentence “IF I WAS TO KNOW THIS WOULD LEAD TO THIS CONVICTION AND THIS OUTRAGEOUS SENTENCE then I would not have made it or withdrawn the statement”.

8. The first attempt at withdrawing his statement would appear to be 1 December 2008. Mr Owen does not seem to be possessed with a very deep knowledge of the mechanisms of the criminal justice system. He says,

“Please consider and let it be known that I, Russell Owen, wish and request that the department of Police ceases to act on my behalf and hereby withdraws its case against the defendant.”

9. The police do not act on behalf of anybody. The police are there to enforce the peace, order and good government of the State of New South Wales. If people disobey the laws, the police have a sworn duty and obligation, to prosecute them.

10. Further, if there is material which is appropriate to go before a court of law, whether it be the Local Court or this court, that court has a sworn duty to administer justice according to the law without fear or favour. It is not for victims or others to indicate to the court and expect some compliance with their so called indication that people are not to be prosecuted. If people have breached the law then both the police have a sworn duty to prosecute and judges have a sworn duty to administer justice according to the law.

11. It is a fact that the court can take into account, if it thought for a moment it was appropriate so to do, that Russell did not seek to have the appellant incarcerated and had forgiven the appellant of the offence. But in terms of forgiving the appellant of the offence, nothing like that appears in his angry communications. I can not be satisfied, particularly in the light of the evidence I have heard, that it is not some mechanism for manipulating or holding it over, that is the withdrawal of the charge, over the appellant for some other ulterior purpose.

12. The appellant has offences going back to Children’s Court days, 1998. She is born in 82 and would now be twenty seven years of age. As an adult she has offences of destroy or damage property, possessing prohibited drugs, a drive while under the influence of alcohol or other drug in April of 2008. On that occasion the learned magistrate gave her a s 10A conviction, no other penalty, and a twelve month disqualification. In those circumstances it must be seen that the magistrate took a fairly lenient view of that driving.

13. The Crown in my view makes four significant points in respect of the criminality that is involved in this offence. The Crown described it as a high-end offence. It may not be as high as high end, but it certainly may well fall into a phrase that has become more frequent in criminal jargon, a mid-range offence, because the driver was unlicensed; there was a child in the car that was necessarily put in danger by this course of driving; there was a pursuit of the victim; and having as it were, damaged his vehicle that was not enough, she then had to reverse into him for an additional effect.

14. The learned magistrate as I say imposed eight months’ imprisonment. What is significant, at least so far as I can see, is that the appellant has perhaps since this offence done all she can to rehabilitate at least from cannabis. She was a monumental abuser of cannabis, for some years smoking twenty to fifty cones daily.

15. Cannabis at that level may well be thought by those smoking it to be relaxing them and putting them in a state of euphoria. But there can be no doubt that like many other drugs it has a collective effect, each time working and gathering strength adverse particularly to mental health issues. Paranoia and aggression are two things that flow from cannabis abuse. I note that the hospital records describe her two or three days later as being paranoid. One could not help but come to the view that that driving was aggressive.

16. Continued abuse of cannabis would see those paranoia, aggression and other incidental mental health issues exacerbate. The appellant was wise to give it up. The other thing that is clearly obvious is that the appellant is severely depressed. Not so much this morning but particularly this afternoon she has sat behind her counsel weeping and crying hysterically. That may be a reactive depression, she may not want to go into custody. It may also be a more deep-seated proposition. It does not appear to me that anybody has addressed that issue in terms of her treatment to date. I may be wrong on that.

HIS HONOUR: She’s not on any anti-depressant, I get these things all telescoped.

CASHMAN: She’s on Zyprexa and Lexapro.

HIS HONOUR: Yes, I did read something, to help her get off the cannabis. Now, where did I read that?

CASHMAN: Lexapro’s an anti-depressant. She’s on 10 mls of Lexapro, your Honour, and that’s for her depression, that’s for the withdrawal - is that Lexapro?

17. Yes, it has got “Since the breakdown of a long-term relationship a year ago she has been suffering depression and takes Lexapro for this condition. She further explains that she has been prescribed medication, Zyprexa, which is said to assist cannabis withdrawal.” I knew I had read that somewhere, thank you.

18. But for what appears to me to be a fair dinkum effort of dealing with her cannabis problem, the sentence would have stood. But clearly there are some issues that need to be addressed before I can finalise this matter. I intend to review her in three months’ time, six months’ time, and in eight months’ time I will finalise this matter.

19 In the meantime, pursuant to s 11 of the Crimes (Sentencing Procedure) Act she is to be placed on bail. Her bail conditions are these; that she is to be of good behaviour; she is to accept supervision by Probation and Parole; she is to obey all reasonable directions of Probation and Parole including treatment, counselling and programs as suggested by them; she is to abstain from all illicit drug use; she is to submit from random urine analysis from time to time as determined by Probation and Parole for the purpose of assessing whether she is using illicit drugs. Any dirty urine, any substituted urine will be deemed a breach of this bail and I will need to be notified forthwith.

20. She is to abstain from all alcohol during the bail period; alcohol is a depressant and it is contraindicated if anybody is on antidepressants; and again to submit to any testing required of her by Probation and Parole randomly or otherwise for the purpose of ascertaining abstention from alcohol. She is to do all she can to obtain counselling with Westmead Hospital; she is to take her medication as prescribed. Any failure to take medication as prescribed will be deemed a breach of the bail.

21. I am particularly interested in any psychiatric or psychological report that can be made available to me in three months’ time because I am satisfied there are serious mental health issues and particularly depression and probably anxiety. Failure to attend Probation and Parole counselling, training and meetings will be deemed a breach of bail. She should also continue to do what she can to maintain employment, that can be another condition of the bail. If she loses employment she will seek assistance with a Commonwealth employment agency and enrol in a personal assistance support program with them.