STATE OF TASMANIA v BPJ 24 APRIL 2019
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr J has pleaded guilty to three crimes and eight summary offences in relation to an escapade on a night in December 2017, when he was 17 years old. The crimes involved him injuring a police officer by running into him with a stolen vehicle, assaulting other officers by driving at them with that vehicle, and dangerous driving.
On the night in question Mr J went to a party in Kingston at the home unit of his former partner, consumed a large quantity of alcohol, and got into arguments, first with his former partner and then with another man. The police were called. He co-operated with them, and they drove him home.
At around 1am he returned to the unit block where the party was still in progress. He took a car that was parked outside the units, without the permission of its owner, and began to drive it. He has pleaded guilty to motor vehicle stealing. He was a disqualified driver, having been served in July 2017 with an excessive drink driving notice by which he was disqualified for six months. He has pleaded guilty to driving while disqualified. The vehicle that he took happened to be unregistered. He has pleaded guilty to using an unregistered vehicle. As he was a disqualified driver, it was an offence for him to drive with any alcohol in his blood. A blood test later in the night revealed that he had a blood alcohol content of 0.192 grams of alcohol in 100 millilitres of blood. He has pleaded guilty to driving with alcohol in his blood.
Having taken the vehicle, he drove aggressively and noisily in the vicinity of the units, and soon returned to the car park from which he had taken the vehicle. Some people who were attending the party approached the car, and tried to open the doors to get him out, but he had locked the doors. He put the car into reverse, accelerated aggressively, and unknowingly reversed into a man, pinning him against a steel picket fence, which collapsed. The car became stuck on the fence. Mr J repeatedly spun the wheels forwards and backwards until he succeeded in freeing the car. He drove away, but returned a few minutes later. One of the partygoers approached the vehicle with a view to opening the driver’s door, but Mr J accelerated towards him. Someone else pulled that man out of the way.
The police were called again. They returned to the scene and began looking for Mr J. At about 1.15am they observed his vehicle travelling towards them on Algona Road, Kingston. Their radar showed that its speed was 150 Km/h. It was raining and the road was wet. The officers lost sight of the vehicle, but saw it again on Crystal Downs Drive in Blackmans Bay. They tried to pull it over by turning on their emergency lights, but Mr J did not stop, and accelerated away from them, thereby committing the offence of evading police. He has pleaded guilty to that offence.
Crystal Downs Drive ends in a cul-de-sac. The two officers followed Mr J towards the end of the cul-de-sac. They stopped their divisional van in a position in the middle of the road, between two parked vehicles, so as to prevent Mr J from driving away. One officer got out on the passenger side of the police vehicle, closed his door, and stood between the police vehicle and a parked box trailer. There was insufficient room for Mr J to drive between the police vehicle and the trailer, but he decided to do that. He drove directly at the officer, who feared for his life. He drew his firearm. He observed that Mr J appeared to be looking straight through him. He fired a shot at him, and was simultaneously hit by the stolen vehicle. His body was lifted over the bonnet of the car. He unintentionally fired a second shot. The stolen vehicle struck the rear of the divisional van with considerable force, and Mr J drove off. By driving off, he committed another summary offence – failing to stop after being involved in a crash. He has pleaded guilty to that offence.
More significantly, he has pleaded guilty to dangerous driving, and to a charge under s 170 of the Criminal Code in relation to the causing of bodily harm to the officer. The crime created by s 170 is called “Committing an unlawful act intended to cause bodily harm”, but s 170 also applies to situations where the offender’s intention is to resist or prevent a lawful arrest or detention, as distinct from intending to cause bodily harm. Omitting the words that are irrelevant to this case, the section provides that “Any person who, with intent … to resist or prevent the lawful arrest or detention of any person … does any actual bodily harm to any person … is guilty of a crime. Charge: Committing an unlawful act intended to cause bodily harm.” Mr J has pleaded guilty to the s 170 charge, not on the basis that he intended to harm the officer, but on the basis that he harmed him when he had an intent to resist or prevent his own lawful arrest or detention.
The injured officer was taken to hospital on the night in question, assessed, given pain relief medication, and discharged without further treatment. He suffered from pain to his lower back and left hip. He received physiotherapy treatment for two months. He has been left with a lasting click in his left hip which constantly reminds him of the incident. He experienced a range of psychological symptoms as a result of the incident. He was diagnosed with post-traumatic anxiety. He is still receiving counselling as a result. He had a breakdown after hearing about fellow police officers being hit by a car and one of them having his leg amputated. One consequence of the incident is that he became short tempered, and that had an impact on his wife and children. I do not think I need go into detail about his other psychological symptoms. He is lucky that he was not killed or seriously disabled.
The two shots fired by that officer both passed through the windscreen of the stolen car. One of them struck Mr J to the right side of his head, lodging under his skin but not entering his skull. It seems likely that it had ricocheted off a pillar and therefore struck him with reduced velocity. Mr J did not realise he had been shot.
A second police vehicle arrived at the scene. Mr J drove back there. The injured officer was lying on the side of the road, and three officers were standing on the road. Mr J drove at the officers at high speed. He has pleaded guilty to assaulting them by driving at them when they were acting in the execution of their duty, contrary to s 114(1) of the Criminal Code. One of the officers drew his firearm, pointed it at Mr J, yelled at him to stop, and warned that he would shoot. Mr J braked heavily, skidded to a stop about 10 metres from the officers, reversed, turned the vehicle, and drove away.
He returned to the party. He assaulted the man whom he had earlier pinned against the fence by punching him with his right hand. That man was not hurt. Mr J has pleaded guilty to a charge of assaulting that man, contrary to s 35(1) of the Police Offences Act 1935. Police officers arrived at the party and arrested Mr J. He resisted them by thrashing his arms, trying to break free, and kicking out at them. He has pleaded guilty to resisting arrest. He was forced to the ground, restrained with handcuffs, taken to Hobart police headquarters, and then taken to the Royal Hobart Hospital for treatment of his gunshot wound.
The bullet was surgically removed. Mr J spent six days in hospital. He remained in custody from his arrest on 2 December 2017 until being bailed on 19 December 2017. He subsequently spent three more short periods in custody. Altogether he has spent 22 days in custody in relation to these matters.
Mr J is now 18 years old. He has been committing offences and being prosecuted in the Magistrates Court for them every year since he turned 13. His prior offences include offences of dishonesty, offences against police officers, and offences against property. A magistrate ordered him to perform some community service when he was 16. On the night in question he was on bail on various charges including driving with alcohol in his blood in a concentration of 0.102%, driving whilst disqualified, and destroying property.
Mr J was raised by his father and his extended family. He left school when he was 16. He had difficulties at school. His counsel told me that he left because drinking and cannabis were getting the better of him. On the night in question, his relationship with his partner had only recently come to an end. She had had a child by him. He felt that his life was not going well, had a lot to drink, and behaved extremely stupidly.
When he was bailed in December 2017, his bail conditions required him to live with a couple at Whitefoord. Whitefoord is between Parattah and Woodsdale. Other bail conditions required him not to drive, not to consume alcohol or any illicit drug, to be at home between 9pm and 6am each night, and not to go south of Pontville except when going to a court, a doctor, or a conference with his counsel, and only if accompanied by one of his sureties. Those bail conditions were varied in February of last year to require him to live with his mother in New Norfolk and not travel south of the Bridgewater bridge, with similar limited exceptions. In December of last year, the bail conditions were varied again to require him to live with a relative in South Hobart, and not to go south of Tolmans Hill unless accompanied by a youth justice worker. The result of the bail conditions, as varied from time to time, is that he was not able to have anything to do with his old friends and acquaintances in the Kingston area. As a result of that prohibition, he stopped getting into trouble.
Since his arrest he has not seen any of his old friends from the Kingston area or spoken to them. He has not re-offended since being bailed, except for two minor breaches of his bail conditions. His counsel told me that he breached the curfew condition of his bail on two occasions, not by being absent from his address, but by failing to present himself for a police curfew check as a result of not hearing the police knocking. That assertion was not disputed by the Crown, and I therefore accept it. He was offered employment as a cleaner, but the arrangements fell through because of his strict bail conditions. It is a pity that no application was made to vary them.
Mr J’s counsel submitted that, because of the steps that he has taken towards rehabilitation, I should defer sentencing in accordance with s 47(1)(j) of the Youth Justice Act 1997. Under s 56A(2)(b) of that Act, I have the power to do so for the purpose of allowing him to demonstrate that rehabilitation has taken place. However it seems clear from his behaviour over the period of 16 months that he has been on bail that he has already demonstrated that. I say that on the basis of a pre-sentence report from a youth justice worker, as well as his counsel’s submissions.
Because Mr J was under the age of 18 on the night in question, there are provisions in the Youth Justice Act that govern his sentencing. Under s 47(3A), I must ensure that the matter of his rehabilitation is given more weight than any other individual matter. Under s 47(4)(c), I must have regard to the impact that any orders I make will have on his chances of finding or retaining employment or attending education and training. Although Mr J committed some very serious crimes and offences, I do not think it would be appropriate, in all the circumstances, for him to spend any more time in custody unless he re-offends. I think that the most appropriate course is for me to impose a wholly suspended detention order under the Youth Justice Act, with conditions making him subject to youth justice supervision and requiring him to perform a substantial amount of community service. That course is consistent with the recommendations of the youth justice worker. I am required to impose a separate sentence on the charge of evading police, and to disqualify him from driving for at least three months on the drink driving charge.
BPJ, I convict you on all charges. On the charges other than counts 1 and 3 on complaint 11732/17 (evading police and using an unregistered vehicle), I sentence you to 22 months’ detention, wholly suspended for a period of two years; I make a community service order requiring you to perform 175 hours of community service within the next 12 months; and I make a Youth Justice Act probation order for a period of two years from today. On count 1 on complaint 11732/17, I sentence you to a concurrent term of two weeks’ detention, wholly suspended for a period of two years. On the three charges on the indictment, I disqualify you from driving for a period of 18 months from today. On count 2 on complaint 2036/18 (the drink driving charge), I disqualify you from driving for a concurrent period of eight months from today.