STATE OF TASMANIA V DANNY IAN CHEESEMAN ESTCOURT J
COMMENTS ON PASSING SENTENCE 13 AUGUST 2019
The defendant has pleaded guilty to one count on indictment of dangerous driving and related summary traffic offences on complaint 7609/2018, along with a summary charge of evade police (aggravated circumstances) pursuant to s 11A(2A) of the Police Powers (Vehicle Interception) Act 2000 on complaint 7617/2018. The aggravated circumstance being that the defendant had alcohol present in his breath in contravention of s 6 of the Road Safety (Alcohol and Drugs) Act 1970.
I have agreed to deal with the related traffic matters, as will appear, and the charge of evading police pursuant to s 385A of the Criminal Code.
In July 2018, the defendant, now aged 27 was the holder a Novice L1 Tasmanian driver’s licence, which expired on 27 February 2020. A person holding an L1 driver’s licence is required to display L plates, is permitted to travel at a maximum 80 kilometres per hour, must have a supervisory driver with them and must have nil alcohol in their system.
On Saturday 21 July 2018, at approximately 2:30am, police were travelling in a marked police vehicle west along Derwent Park Road when they observed a Subaru sedan driven by the defendant perform an erratic U-turn at the intersection and began travelling north on the Brooker Highway at speed. Police turned around and followed the Subaru, catching up with it at the Howard Road intersection. Police activated their emergency lights and sirens in an attempt to intercept the vehicle for a random breath test. The Subaru accelerated away from police travelling at an estimated 130 kilometres per hour in an 80 kilometre per hour speed zone.
Police deactivated their lights and sirens and the Subaru continued to drive away at speed, travelling through the Glenorchy part of the Brooker Highway at an estimated speed of between 90 and 100 kilometres per hour in an 80 kilometre per hour speed zone.
Police regained observation of the Subaru as it exited the Brooker Highway utilising the off ramp leading to Claremont Link Road. The Subaru failed to stop as required at the signed intersection of the Brooker Highway (off ramp) and the Claremont Link Road and, continued north re-entering the Brooker Highway. Police continued north along the Brooker Highway maintaining observations of the Subaru’s tail lights from a distance. The estimated speed of the Subaru at this time was 130 kilometres per hour in a 100 kilometre per hour speed zone.
As the Subaru approached the Abbotsfield Road turn off, it switched its headlights off. The Subaru continued travelling north, intermittently turning its headlights off for several seconds before turning them back on again. There was no street lighting in this area of the Brooker Highway. The defendant turned the headlights off on at least four occasions while the Subaru was travelling at an estimated 120 kilometres per hour in a 100 kilometre speed zone. On one occasion whilst the Subaru’s headlights were turned off, it overtook another vehicle on the Brooker Highway.
Police regained observations of the Subaru as it approached the roundabout at the Bridgewater Bridge. Upon approaching the roundabout the defendant was travelling at 120 to 130 kilometres per hour in an 80 kilometre speed zone; and 80 kilometres per hour in a 60 kilometre zone. The Subaru continued north on the Lyell Highway, eventually travelling at a speed of 100 kilometres per hour in an 80 zone, before police lost sight of the vehicle.
The Subaru continued along the Lyell Highway turning left into Molesworth Road, which travels back to Chigwell. The Subaru travelled east towards Glenlusk Road. The use of “road spikes” was authorised and police set up the devices on Molesworth Road, north of the intersection with Glenlusk Road. The Subaru travelled through the road spikes, which punctured the front driver’s side tyre and rear passenger side tyre and the vehicle came to a stop. Police spoke to the occupants, which included two male passengers, and confirmed the defendant to be the driver. A roadside breath test was conducted on the defendant which returned a positive result. He did not have someone will a full licence beside him in the car (count 5: complaint 7609/19), and he later returned a reading of 0.055 grams of alcohol per 100 millilitres of blood. He told police he had six or seven beers (counts 2–4: complaint 7609/18).
At the conclusion of the interview the defendant was charged and bailed. On 27 August 2018 he appeared in the Hobart Magistrates Court, and his bail was continued with a further condition that he not drive a motor vehicle while on bail.
At the time of the offence the weather was fine, the road was damp and there was light traffic in the area. The distance between when police first observed the defendant and when they lost observations of him on the Lyell Highway was approximately 13 kilometres. The defendant travelled a further 20 kilometres before being intercepted.
Pursuant to s 37N of the Police Offences Act 1935, the defendant’s vehicle was confiscated for a period of twelve months with effect from 21 July 2018. Whilst at the police station he was issued with an Excessive Drink Driving Notice for six months, disqualifying him from driving with effect from 21 July 2018.
The defendant’s prior convictions include matters relating to driving with alcohol in his system as well as driving whilst disqualified convictions. On 4 November 2014 he was sentenced globally with a number of other offences, including drive whilst disqualified and driving whilst alcohol was present in his body, and was sentenced to a term of 7 months’ imprisonment which was suspended.
The defendant is 27 years of age. He is one of three children and was born and raised in Tasmania. His upbringing was largely unremarkable until he was around age 12 or 13 when his father started drinking excessively and would behave in a violent manner. His parents separated when he was in year 8. The defendant has two children to a previous relationship. A son – 4 years old and a daughter – 2 years old. He is involved in the care of the children.
He has been energetic in the work force since he left school part way through year 9 and, apart from a period of 18 months unemployment, has been continually employed. He is currently living with his partner at Sorell and is employed 5 days a week with a roofing company.
Just prior to the offences he had been to Queensland to try and get work, he was only there for around 3 months. He came back to Tasmania approximately 4 weeks prior to these offences. When he came back his ex-partner said he could not see his children. He was drinking a lot around that time and was living with another family member in New Norfolk.
On the night of the offences he went to see an old friend in Bridgewater, they had been drinking. His friend convinced him it would be okay to drive. The evading police occurred after he panicked.
He has expressed remorse and regret. He has pleaded guilty and the matters with which he was charged were not prepared for trial. He is entitled to an appropriate discount on an otherwise appropriate sentence for that.
Dangerous driving is an indictable offence now and sentences of imprisonment are significantly higher since the offence became subject to the Criminal Code in 2017. See Banks v Tasmania [2019] TASCCA 1 (7 February 2019). The defendant has a prior conviction for dangerous driving, although pre-dating that change. For that reason I ordered that the defendant be assessed for suitability for home detention.
In a pre-sentence report dated 22 July 2019 I was advised that the defendant self-reported an inability to predict ahead of time where he will be working from day to day or hour to hour. If the defendant is unable to address this situation it places him beyond the capabilities of Electronic Monitoring procedures of requiring a 24 hour location schedule one week in advance. Additionally, collateral checks have identified that the defendant has been unable to obtain permission from Housing Connect, to reside at the nominated residence at the time of writing. Therefore he was deemed unsuitable for Home Detention at that time.
I have subsequently been advised that the defendant was seeking alternative employment and or alternative accommodation.
I received an updated pre-sentence report on 1 August 2019 by which I was advised the defendant had made enquiries regarding alternate employment that had regular hours that would be more conducive to a Home Detention Order, and he identified an alternate property to be assessed at Bagdad. A second Home Assessment was conducted on 31 July 2019. The property was suitable in that it was a supportive, pro-social environment for the accused and his partner however, unfortunately the accommodation was assessed as unsuitable due to the equipment’s inability to register a signal.
I was advised by the probation officer that on 31 July she observed a marked change in attitude displayed by the defendant and that he appears to be more grounded and mature in his outlook and was committed to making a Home Detention Order work.
I am influenced by that in arriving at sentence and by the fact that but for lease difficulties and want of a wireless signal at Bagdad, the defendant would not be sentenced to a term of actual imprisonment.
I now propose to deal with this matter by way of suspended terms of imprisonment with close to the maximum hours of community service. A suspended sentence is a real sentence which has significant consequences for a defendant and carries the almost inevitability that the sentence will be served if a similar offence is committed within the relevant period. This is often not understood by the public and as a result such sentences are often accompanied, as here, by community service.
I will imposed a global penalty on all matters except for the charge of evading police. I am doing so because the offences arise out of essentially the one transaction.
The defendant is convicted of all charges to which he has pleaded guilty. On all charges, apart from evading police, the defendant is sentenced to a period of 18 months’ imprisonment, and I wholly suspend that sentence for a period of three years on the condition that the defendant commit no offence punishable by imprisonment within that period. I make a community correction order that contains, in addition to the statutory core conditions, a special condition that the defendant must within the next 2 years satisfactorily perform community service as directed by a probation officer or a supervisor for 210 hours.
In respect of those charges the defendant is disqualified from holding or obtaining a driver’s licence for a period of 30 months from today. In setting that period I take account of the effect of the notice issued by police.
On the charge of evading police, the defendant is sentenced to a period of four months’ imprisonment which is to be served concurrently with the sentence I have just imposed and, is similarly suspended.
In respect of that charge, I also disqualify the defendant from holding or obtaining a driver’s licence for a period of 30 months, to be served concurrently with the period of disqualification imposed in respect of the charge of dangerous driving.