STATE OF TASMANIA v SHAYDEN JAMES COWEN 14 JUNE 2022
COMMENTS ON PASSING SENTENCE GEASON J
On 10 October 2020 Tasmania Police executed a search warrant at a residence in Gagebrook. (This is indictment 254/2021).
You were in the backyard along with 3 other males. You did not reside at this address but you were there regularly.
A search of the house was conducted. You remained outside whilst the search was occurring. A Mr Crosswell was present inside whilst the search was undertaken.
During the search Police observed a manhole in the hallway which was open and what appeared to be a bag hanging from it. It was removed and it was identified as a rifle bag. A search of the bag followed and a Ruger .22 calibre bolt action rifle was located.
It was seized and submitted for forensic analysis. Your DNA was located on that firearm.
Police checks confirmed that the firearm was stolen from a house in Moonah between January and March 2020.
On 30 December 2020 you participated in a video record of interview and in relation to the firearm you stated the following under caution:
- It was not your firearm so it had nothing to do with you.
- Your explanation for why your DNA was found on the gun was that “he probably touched it” but didn’t know where or when you done so.
- You acknowledged that you understood that DNA would transfer onto the firearm when you were handling it and that holding the firearm is possession.
- You do not have a firearms licence and have not been issued with such licence.
- When asked if you were able to possess a firearm you stated “I haven’t possessed a firearm, I’ve looked at a firearm”.
At the end of the interview you were charged.
On the 26th November 2020 at approximately 10.20am, police officers lawfully executed a search warrant at your residence.
At the time you were the only person present on the premises.
Police conducted a systematic search of the address. You directed them to a sawn off .22 Stirling Rifle, with the serial number removed, in an adidas bag in the roof space. Also in the bag were 36 x .22 cartridges. Further ammunition, namely 29 x.357 cartridges were located underneath the house. The charges pertaining to the possession of ammunition have been dealt with in the lower Court already.
You were not the holder of a firearms licence.
You were arrested and conveyed to the Glenorchy police station where you participated in a video recorded interview.
You stated;
- You live alone
- You have lived there alone for some time
- You acknowledged that police had located some paraphernalia You stated “you take responsibility for everything located there.
- You acknowledged that you do not hold a firearms licence
- You said you did not know how the .357 cartridge rounds got to your house
- You said that there was a sawn off firearm in the roof which does not work
- All the cartridges in the roof with the firearm were yours
- You keep it in the roof so it is “out of sight, out of mind”
At the conclusion of the interview you were charged, processed and bailed to appear at a later date. Your first appearance in respect to that matter was in the Magistrates Court was 10 March 2021. You pleaded guilty in the Hobart Magistrates Court on 29 April 2021 to the indictable offence and you were committed to appear in this Court on 10 May 2021. The delay in the finalisation of that matter is due to the police file not being delivered in a timely manner and when it was returned the subsequent realisation that you had been charged with the incorrect offence. I mention that because you are entitled to a discount for your early plea of guilty and the circumstances pertaining to the delay should be mentioned.
On 29 December 2020 at approximately 4:06pm your were observed by First Class Constable Gordon to be the driver of a Maroon Subaru Forester GT Wagon, registration D81AB. You were driving on Grove Road, from the direction of Main Road Glenorchy. At that time you were on bail. A condition of your bail was that you are not to be behind the driving controls of a motor vehicle.
A Corey James Wordsworth was a passenger in the vehicle at the time of your offending. He was fitted with an electronic monitoring device.
When you were first observed by police, you were travelling in a normal manner, within the 50km/h speed limit.
You appear to have recognised the officer. He performed a U-turn with the intention of intercepting you and arresting you.
You accelerated away, overtaking one vehicle on Grove Road without indication, and then turned left into Herbert Street again without indication.
You then overtook two vehicles on Herbert Street again without indication. You were driving in excess of 90km in the 50km/h zone. One oncoming vehicle was required to brake and swerve to avoid a head on collision with you.
The police lost sight of your vehicle on Riverway Road and did not observe it again until sometime later.
At approximately 5:10pm on Elderslie Road you were travelling at an estimated speed of 150km/h in the 100km/h zone.
Your vehicle was then subjected to road spikes on Elderslie Road. The vehicle swerved to the left side of the road, towards the verge of the bridge where officers who deployed the spikes were positioned behind a safety barrier.
The officer who deployed the road spikes, observed the following:
- The vehicle drove over the road spikes and immediately removed them from the road.
- As the officer travelled along Elderslie Road they observed pieces of rubber tyre on the road and track marks in the roadway, consistent with a vehicle driving on a wheel rim.
On Brooke Street you travelled at speed on the incorrect side of the road as the vehicle made a right turn onto Racecourse Road.
Officers lost sight of you again on Racecourse Road, but as they approached Seymour Street they observed a large gathering of people, including children, near the park looking down Seymour Street and moving away from the roadside.
On Seymour Street, you were travelling at speed before you turned right into Butler Street and again drove on the incorrect side of the road. An oncoming vehicle was required to swerve to avoid a collision.
You then turned left onto Brighton Road, causing another vehicle travelling to stop suddenly to prevent collision.
On Brighton Road you travelled at speed on the incorrect side of the road. Your vehicle continued around the roundabout on the incorrect side of the road at Jordan Downs Drive.
You turned erratically into Ford Road where the vehicle lost what appeared to be its tyres.
At approximately 5:15pm First Class Constable Gordon was alerted to radio communications that the vehicle had been subjected to road spikes on Elderslie Road, heading towards Brighton.
A short time later, he observed you travelling on Brooke Street, Racecourse Road, Seymour Street, Menin Road, Brighton Road (North), Ford Road, Tea Tree Road, Andrew Street, Jubilee Avenue, Downie Street, Brighton Road (South). Whilst travelling, you were observed:
- To travel with the vehicle on its rims, after the tyres had deflated and shredded from the road spikes.
- It was noted that there were 2 inflated tyres, both on the driver’s side.
- Shards of the passenger side tyres and wheels were strewn across the road.
- There were gouges in the road from the wheel rims.
- The vehicle was being driven on its rims and shredded tyres. This continued for approximately 8 kilometres.
- The vehicle was travelling in excess of the 50km/h speed limit during this entire route.
Whilst travelling north on Brighton Road, you deliberately drove on the incorrect side of the road into the path of oncoming vehicles. You continued to travel on the incorrect side of the road and entered the roundabout at Brighton Road and Jordan Downs Drive on the incorrect side of the road. Other vehicles were forced to take evasive action to avoid a head on collision.
On Tea Tree Road, you drove on the incorrect side of the road into the path of oncoming traffic.
On Andrew Street, you drove on the incorrect side of the road into the path of oncoming traffic.
On Brighton Road, travelling southbound, at the roundabout intersection of Andrew Street, you drove on the incorrect side of the roundabout.
At approximately 5:19pm you were travelling at low road speed along the Midlands Highway, Brighton. The vehicle was observed to be excessively revving, with smoke emitting from the front and side of the vehicle. The front left and rear tyres had disintegrated.
As a result of the significant damage to the vehicle, tyres, wheels and engine, at approximately 5:20pm the vehicle stopped on Brighton Road just south of the William Street intersection, as the vehicle could no longer be driven.
When stopped, the vehicle engine was continuing to rev at excess, and there was a significant amount of smoke coming from the engine bay.
The arresting officer opened the vehicle’s driver side door. The officer observed an blade protruding from your right hand pocket.
The arresting officer instructed you to exit the vehicle and lay on the ground. You refused and OC spray was deployed. You shielded yourself, resulting in the Spray covering other body parts. Attempts were made to extract you from the vehicle. You resisted by holding onto the controls of the motor vehicle. You flailed and thrashed arms about violently. The arresting officer employed an unarmed tactic including striking you in an attempt to control you and prevent you from extracting the weapon from your pocket. With assistance from other officers, you were successfully restrained and handcuffs applied. You were then conveyed to the Hobart Police Station.
You were subjected to drug and alcohol screening at the Police Station. Positive results were returned for methylamphetamine and amphetamine.
Mr Wordsworth, your passenger removed himself from the vehicle once it had come to a stop. He was arrested and later released without charge. During your offending Mr Wordsworth claims to have asked you on multiple times to stop so that he could get out of the vehicle but you kept saying that you could not stop. Mr Wordsworth described to police that after the vehicle had been spiked he held on and kept asking you to pull over but you were yelling at him, telling him that he could not get out of the car. He said he was scared and feared for his own safety as a result of your driving.
At the time of the offending, the traffic was medium to heavy. The pedestrian traffic was light to medium, including young children playing and walking on roads and footpaths.
Your offending began at approximately 4:06pm and ceased when you were arrested approximately 5:20pm. It continued for approximately 1 hour and 14 minutes, although it is not asserted by the State that you were driving dangerously for this entire period. You travelled a distance in excess of 90km within that period.
On 30 December 2020 you participated in a video record of interview. During the interview, you made a number statements including these:
- That you were currently on police bail, a condition of your bail being that you were not permitted to drive.
- That you had been using ICE heavily for the month before, injecting about 1g a day, you had used ICE on the night of 28 December 2020 and you were still feeling its effects when you were driving on 29 December.
- You did not pull over as you did not want to go to gaol.
- You had recognised the police officer on Grove Road.
- That you did not see police when you were spiked in Elderslie.
- That you did not see police, and did not realise you had been spiked until you saw the police in Brighton.
- That you noticed the tyres were shredding when you were near the Brighton Football Oval.
- That you had not been going very fast in the back streets of Brighton, as you had no tyres.
- That the control of the car after the tyres were spiked was not as bad as you thought it was going to be.
- Your goal was to get away from Police.
- You did not exit the vehicle and run as you knew you would get caught if you did so.
In addition to the dangerous driving charge, you have been charged with a number of summary offences arising out of the same course of events:
(a) Evading police contrary to s 11A(2A) of the Police Powers (Vehicle Interception) Act 2000 for failing to pull over when requested to do so.
(b) Drive whilst disqualified contrary to s 13(1) of the Vehicle and Traffic Act 1999 for driving whilst disqualified.
- Breach of bail.
- Resist a Police Officer.
- Driving whilst a prescribed illicit drug was present in your oral fluid, contrary to s 6A(1) of the Road Safety (Alcohol & Drugs) Act
There are a number of key aggravating factors attaching to your conduct:
- Your driving continued for approximately 1 hour and 14 minutes.
- You travelled a distance exceeding 90km.
- On Brighton Road you travelled at an estimated speed of 150km/h.
- You put other road users at risk, forcing them to take evasive action to avoid collisions with you
- You risked the safety of your passenger, pursuing police officers and indeed yourself.
- There were pedestrians, including young children, playing and walking on the footpaths as you drove by.
- You drove whilst you were under the influence of methylamphetamines.
- The course of driving only ended once the vehicle stopped having become un-driveable.
- You drove to avoid the apprehension of police.
- You were disqualified at the time of driving.
- You were driving contrary to bail conditions.
In my view, Mr Cowen this is a very bad example of the crime of dangerous driving, a crime which exposes the public to the risk of serious injury even death. It is of concern to the Court that even though bail restrictions were in place and you were a disqualified driver, that you offended in such a serious way.
I am prepared to accept your pleas of guilty evidence a realisation that it is time to change your ways and your intention to turn things around. I accept that you are remorseful and you regret the risk to which you exposed other road users in relation to the dangerous driving charges. That realisation is in fact, overdue because your record evidences many episodes of complete disregard for your obligations as a driver and more generally as a member of the community.
I accept that all the offending occurred in a relatively concentrated period between October and November 2020 and I accept as it is noted in the pre-sentence report and in the submissions made to me by your counsel that this was during a period of heavy drug use.
I am required to sentence you separately in respect of the evade police charge. It is relevant to penalty in relation to dangerous driving, however, that your driving was motivated by a desire to avoid police because it demonstrates your awareness of the fact that you were not permitted to drive and it exposes your disregard for other road users. You placed your own interest ahead of everyone else. Driving dangerously motivated by a desire to evade police is a dangerous mix and the desperateness of your actions is revealed by the way you drove that vehicle, even when its tyres were shredded.
In sentencing you today for so many matters I need to be mindful of the cumulative effect of the sentence so as to avoid a penalty which is a crushing one, which defeats any sense of hope.
I discount the sentences in recognition of the utilitarian benefit of your pleas of guilty and in respect of the matters attracting an early plea that sentence will be quantified at 20% of the sentence I would otherwise have imposed.
I cannot ignore your prior convictions, I have touched upon them already and as I said they evidence wilful and continuing disregard for your obligations as a road user more generally.
You are no longer a youthful offender in the strict sense but I do think rehabilitation remains an important sentencing objective and I have factored that into my sentencing to encourage you in that regard. I also take into account the fact of a sentence imposed in the Magistrates Court of eighteen months imprisonment because it is relevant to the approach that I have decided to take in framing penalty. One which involves balancing the need for punishment with the objective of rehabilitation and a recognition of the cumulative effect of long periods of incarceration on your progress in that respect. It is to be hoped that the sentence of eighteen months which was imposed by the Magistrates Court has in a general way caused you to reflect on your choices. I think based upon the contents of the pre-sentence report which speaks to your engagement with the Salvation Army for drug and alcohol counselling during that period that there is evidence of such reflection and there is evidence of progress. I also note the indication that you have given to engage with Community Corrections and a willingness to participate in the EQUIPS addiction program.
It is agreed between your counsel on your behalf and the State that the sentence for these offences is to be backdated to 29 December 2021; that is the day of sentencing of imprisonment will commence.
On the charge of evading police, contrary to s 11A(2A) of the Police Powers (Vehicle Interception) Act 2000, I sentence you to eight months’ imprisonment commencing on 29 December 2021. I disqualify you from holding or obtaining a drivers licence for 3 years, commencing on your release from prison.
On the charge of driving whilst disqualified contrary to s 13(1) of the Vehicle and Traffic Act 1999, I sentence you to six months’ imprisonment concurrent with the sentence that I have imposed in relation to the evade police charge.
I disqualify you from holding or obtaining a drivers licence for three years to commence upon your release.
On the charge of breaching your bail contrary to s 9(1) of the Bail Act, by driving the motor vehicle contrary to your bail conditions, I impose a period of one month imprisonment to be served concurrently with those sentences.
On the charge of resisting a police officer contrary to s 34B(1A)(1) of the Police Offences Act for failing to get out of the vehicle and refusing to place your hands behind your back when arrested, I sentence you to three months’ imprisonment concurrent with the term of imprisonment I imposed in respect of the evade police charge.
On the charge of driving whilst a prescribed illicit drug was present in your oral fluid contrary to s 601 of the Road Safety (Alcohol and Drugs) Act I sentence you to six months’ imprisonment concurrent with the sentences that I have imposed.
On the charge of being in possession of stolen firearms, I convict you and sentence you to six months’ imprisonment, again to be served concurrently with the sentences that I have just imposed and on the new firearms matter on complaint 1807/2021, I record a conviction. The net effect of that part of the sentencing exercise is that you must serve eight months’ imprisonment commencing on 29 December 2021.
For the dangerous driving matter, I have decided to take a different approach, not because the offending is not serious, it is. (I have already identified the aggravating factors). But I do so to encourage your rehabilitation and your involvement in the drug and alcohol counselling programs that you have begun. The deterrent effect that a sentence of home detention, the order I intend to make is recognised in cases such as King and Webb. I order in respect of the charge of dangerous driving that upon your release from prison you will commence a period of home detention for a period of fifteen months. In relation to that offence, I disqualify you from holding or obtaining a drivers licence for a period of four years to commence upon your release.
The conditions attaching to the home detention order are the core conditions which are referred to in the report. In addition there are special conditions that you must during the operational period of the order remain at *address* at all times unless approved by a probation officer.
Upon your release from prison you must attend the Community Correction Office at Glenorchy for your induction into the order. You must during the operational period of the order maintain in operating conditions an active mobile phone service, provide contact details to community corrections and be accessible for contact through that device at all times.
You must submit to the supervision of a Community Corrections Officer as required by that officer. You must not during the operational period of the order take any illicit or prohibited substances. Those illicit or prohibited substances include any controlled drug as defined by the Misuse of Drugs Act 2001, any medication containing the prescribed ingredients referred to in the special conditions which will be reproduced in the sentencing order which includes opiates, benzodiazepine, pseudoephedrine. You must not during the operational period of the order consume any alcohol and you must if directed to do so by a police officer or a community corrections officer submit to a breath test, urine test or other test for the presence of alcohol.
I also make a supervision order for a period of twelve months and attached to that order is a condition that you must attend, participate in and complete the EQUIPS program as directed.
The effect of the sentence that I have imposed is that you must serve eight months on the evade police charge. Other sentences run concurrently with that and you will be released to home detention when that sentence is completed. The net effect of the disqualification orders is that you are disqualified from driving for four years from the time of your release.
In relation to the evade police charge, there will be a licence suspension for a period of three years to run concurrently with the other suspension. The net effect, Mr Cohen is as I said, you are disqualified from driving for a period four years.