STATE OF TASMANIA v JAROD LEIGH CASHION 5 OCTOBER 2020
COMMENTS ON PASSING SENTENCE GEASON J
Mr Cashion, you have pleaded guilty to one count of dangerous driving on 4 February 2019, and arising from the circumstances of that offending, a number of matters on complaint which I am asked to deal with under s 385A of the Criminal Code. I have accepted pleas of guilty to those matters through counsel. Those charges are these:
- drive whilst not the holder of a driver’s licence;
- use an unregistered motor vehicle;
- use a motor vehicle with no premium cover;
- evade police;
- drive a motor vehicle whilst a prescribed illicit drug is present in your oral fluid; and
- dishonestly possess a plate, that is, a number plate, in circumstances likely to deceive.
The facts relied upon by the State, and which you have accepted by your plea of guilty, are that on 4 February 2019 at around 1am police were travelling south on the Huon Highway in the vicinity of Lower Longley when they observed a red 1998 Ford Falcon station wagon travelling north. Police began following the vehicle. It began altering speed, at times driving as slow as 60 km/h, then speeding up to as much as 130 km/h. The limit on the Huon Highway is 100 km/h. The vehicle was observed to swerve left and right over the road at times, occupying both the left lane and the overtaking lane.
As you were approaching Kingston and still travelling at around 100 km/h, your headlights were switched off for a period of about 5 seconds. Police observed that there was a continual stream of sparks coming from the left rear wheel.
At a point about 600 metres south of Summerleas Road you made a sudden swerve onto the incorrect side of the highway and continued down the incorrect side of the highway at speeds in excess of 100 km/h, before turning and driving the incorrect way down the slip-way that leads onto Summerleas Road. You were re-sighted turning east at speed, onto Summerleas Road, and observed to lose control of the vehicle as it slid sideways. The left rear wheel broke free from the vehicle and rolled off down the street before the vehicle came to a stop on the side of the road.
You exited the driver’s seat and fled. Five other passengers alighted from the vehicle, one of whom also fled on foot. Though there were six of you in the vehicle, the vehicle is only fitted with five seatbelts. You were pursued and apprehended about 20 metres from the car. You submitted to a random breath test which returned a negative reading. You submitted to a roadside drug test which returned a positive reading.
You participated in a brief roadside recorded interview where you made admissions in relation to being the driver of the vehicle, and in respect of your driving behaviour.
A registration check was conducted, and the plate on the front of the vehicle was noted to be registered to a different vehicle. This vehicle was unregistered and had been since 2008. It was observed to be in poor condition and had been fitted with Landrover wheels on the rear.
A saliva sample was admitted for analysis and results detected the presence of cannabis.
After that test was conducted you participated in a record of interview. You admitted being the driver. You said that you had observed police and failed to stop because you had panicked. You drove stupidly to get away from police. You drove at speed to get away from police. You switched off the headlights as a result of which you could not see where you were driving and you drove onto the wrong side of the highway, acknowledging that a crash would have resulted if another vehicle had been travelling in the opposite direction. You acknowledged that your driving was dangerous and that you were not the holder of a current driver’s licence. You told police that you had purchased the vehicle for $400 the day before, and that you were aware that it was not roadworthy due to its poor brakes and the wheels which were fitted to it. You told police that you were aware that the vehicle was not registered.
You also acknowledged that one of the passengers was travelling without a seatbelt and that you had approximately two months’ driving experience. You admitted that you had smoked marijuana approximately one hour before driving.
The State refers to the fact that your driving put people at risk, because it was on main roads and highways where numerous people might be expected to be, and because your speed was up to 20 kms above the limit, and involved erratic driving. You also travelled on the incorrect side of the road on the highway near Summerleas Road, and did so at speed. You traversed a significant distance over the course of that evening, the distance between Lower Longley and Summerleas Road being approximately 14 kilometres. You also ignored warnings, and you acknowledged to police that your driving involved attempts to escape from them. That aspect was referred to in Banks v State of Tasmania as a relevant factor with respect to the sentence to be imposed for dangerous driving, notwithstanding the fact that the Court is required to impose a separate sentence for that offence. As was pointed out by Porter AJ in that case, the offence of evading police is made out if a driver of a vehicle takes action to avoid apprehension or interception by a police officer who is exercising powers or performing functions under any Act. That was the case. Apart from showing a disregard for authority, it also explains the speed and the manner of driving.
As I say, you are separately charged with evading police, and that matter is required to be the subject of a discrete penalty. You are not to be punished twice for the same conduct.
Mr Fisher presented a detailed and helpful plea in mitigation.
I turn to your personal circumstances. In August 2018 you were involved in a motor vehicle accident. You were a rear seat passenger. You sustained a head injury, as well as fractures to your pelvis, scapula and a splenic haematoma. A report prepared by Clinical Associate Professor Mark Slatyer discloses that since then you have suffered major depression, an adjustment disorder, an episode of self-harm involving a presentation to the Emergency Department at the Royal Hobart Hospital, and that you have engaged with him for treatment since.
His report discloses that you have a medical history, including four head injuries, which, along with the most recent injury sustained in that motor vehicle accident, has resulted in a decrease in cognitive functioning, short term memory and an affective disorder.
He continues to look after you as an outpatient, as I have noted. You attend his practice every six weeks and will require continued care with his supervision into the future because of the brain injury that you have suffered.
Dr Slatyer reports that you have problems with thinking and memory, and that you are unable to control your emotions. You have recently been referred to a neurosurgery consultant for further treatment because you are in pain as a result of the injury to your spine which requires treatment with narcotics. You have trouble sleeping and you are prescribed melatonin for that. He further opines that you should see a clinical psychologist. I am told that you are behaviourally unable to organise yourself. This has resulted in past difficulties associated with you keeping appointments. He makes clear that the non-compliance in that respect is not a result of deliberate attempts on your part to be difficult, but as a result of your condition.
He also reports that you are easily influenced by others. You have a left frontal lobe injury and an ongoing head injury described as “substantial” which impairs you getting on with your life, returning to school or undertaking post-school tertiary studies.
Importantly and relevantly to sentence, Dr Slatyer says this:
“Mr Cashion would be a very vulnerable young man in a custodial situation. He would be easily influenced and taken advantage of by others. I believe he has significant major injuries and if he was to undergo imprisonment it would take a toll on his health. It would be best for his rehabilitation if he was given a sentence that would allow him to continue to see his health care providers and focus on his rehabilitation and improvement with his spinal and head injuries.”
I accept that opinion, based as it is on the contents of the whole of the report he has prepared for the Court. Today I have received a further medical report setting out recent events in your medical history, including a relatively long hospitalisation, a factor which has delayed the finalisation of this matter.
It was as a result of that report that I requested a home detention assessment be undertaken.
Unfortunately, and notwithstanding that two different addresses were proposed, neither address is able to receive a sufficient signal for the purposes of electronic monitoring such that unless a third address is available and assessed as suitable, the sentencing option is not available. No such other address is available.
In the circumstances of your health condition, and the unchallenged opinion of Dr Slatyer about the effects of incarceration upon you, I regard that that result as unfortunate.
I digress to note that I was assisted by the further detailed technical report that I received from Community Corrections in relation to the technological limitations which militate against the making of a home detention order.
I turn to a broader consideration of your circumstances. You completed grade 10 at Huonville High School, and went on to college, but during year 12 you were involved in the motor vehicle accident which resulted in your hospitalisation for three months.
You are currently unemployed and you have never been employed for a significant amount of time. You did have seasonal work previously but for only one season. You have expressed a desire to work or learn a trade, but due to the injuries you sustained in the earlier motor vehicle accident to which I have already referred, you are incapable of sitting for long periods, and it is suggested that you may have difficulties with the cognitive skills needed. Because you have rods, steel plates and screws in your arm and neck, and limited movement as a result, you are in pain, and you must adhere to strict limits in respect of lifting and carrying objects. All of this militates against future employment. The pre-sentence report indicates that due to your injuries you are constantly in pain and need to move your body frequently in an attempt to alleviate discomfort. That view is consistent with the medical evidence with which I have been provided.
Your depression is attributed to the realisation that the future plans you had for yourself ended when you were involved in that motor vehicle accident. Now too, because you do not know how to carry your body, your confidence has been affected.
It is not suggested that you regularly abuse drugs or alcohol. Low levels of alcohol consumption are reported, attributable in part to the fact that your liver cannot process alcohol the way it could. Your use of cannabis is reported as being intermittent.
Relevantly, both Mr Fisher, and the probation officer, indicate that you acknowledge the poor choices you made on the day of the offences, noting that you could have prevented the charges which you now face by taking different action on multiple occasions along the course of the events that lead to today. It is reported that at the time of the offences you were not feeling right in yourself, that you were on multiple medications, and that you were encouraged by others in the car. Your failure to resist such encouragement is consistent with the tenor of the report from Dr Slatyer which indicates that you are easily influenced and thus vulnerable.
In sentencing you, it is relevant that you are a young man. Whilst general deterrence must figure in fixing a sentence for offending in this category, and, I note that it often occurs at a young age, your rehabilitation is a primary sentencing consideration. In that respect I am satisfied that you have a significant insight into your offending. I am satisfied that your almost immediate admissions to police, and your plea of guilty, are expressions of genuine remorse on your behalf for your behaviour on this particular night. I accept Mr Fisher’s submissions today with respect to the period since the commission of these offences, and the inferences that can be drawn from your conduct in that period.
The fact is, however, Mr Cashion, that you caused a risk to the passengers in your vehicle, and to yourself, as well as any other vehicle that was on the road on that night. The risk you created was exacerbated by reason of your lack of experience as a driver. The fact that cannabis was present in your system, aggravates matters. The extent to which that has affected your driving is not disclosed to me, but it cannot be ignored in making a judgment about the objective seriousness of your conduct. But, as I say, I am satisfied that you have reflected on your behaviour and that you appreciate the risk you exposed others to. Those matters, your health conditions, and the contents of the report prepared by Dr Slatyer, together place this matter into an exceptional category. It is precisely for the cases such as yours that we have sentencing by judges and not fixed penalties. There are special circumstances here that I consider require significant weight in fixing the sentence, and I have identified them. They require a sentencing outcome which is different from that which is otherwise indicated.
Because the option of a home detention order is not available to me, I must address the issue of general deterrence in a different way. In all the circumstances I consider that a sentence of imprisonment is required in order to do that. However, having regard to your youth, your plea, your lack of prior convictions, and your remorse, your insight into your offending and, as I have noted, your health circumstances, I am satisfied that your case requires something other than a period of actual incarceration. It is appropriate, in my view, to suspend the whole of the sentence that I will impose. I will make you subject to a community corrections order. I observe that it is well settled as a matter of law, that a suspended term of imprisonment has a general deterrent effect.
You are entitled to the benefit of the discount appropriate for the utilitarian benefit of your early plea of guilty. I reduce the sentence I would otherwise have imposed by 20% in recognition of that.
Mr Cashion, on the indictment I sentence you to 22 months’ imprisonment, wholly suspended for a period of three years on condition that you commit no offence punishable by imprisonment during that period.
On the charge of evading police, I sentence you to four months’ imprisonment, and that sentence is to be served concurrently with the sentence that I have just imposed, and is wholly suspended on the same terms and conditions. I disqualify you from holding or obtaining a driver’s licence for a period of 12 months commencing today.
I record convictions in relation to the charges relating to the false number plate, having no premium cover, and in respect of the charge of unlicensed driving. In relation to the charge of driving a vehicle whilst a prescribed illicit drug was present in your oral fluid, I make a further order disqualifying you from holding or obtaining a driver’s licence for a period of six months. That also commences today.
I also make a community corrections order. As well as the core conditions, I make special conditions that you must, during the period of the order, attend educational and other programs as directed by the Court or a probation officer, and you must submit to such medical, psychological or psychiatric assessment or treatment as directed by a probation officer. The term of that order is 18 months.