STATE OF TASMANIA v JAYDEN GARRY FEHLBERG 8 JULY 2021
COMMENTS ON PASSING SENTENCE WOOD J
Jayden Garry Fehlberg has pleaded guilty to one count of dangerous driving on 28 September 2019 and related summary offences committed on the same day of evade police contrary to s 11A of the Police Powers (Vehicle Interception) Act 2000, drive whilst not the holder of a driver licence, use an unregistered motor vehicle and using a motor vehicle with no premium cover. He has also pleaded guilty to summary offences committed on the next day, 29 September 2019, of negligent driving and evade police (aggravated circumstances), drive whilst not the holder of a driver licence, dishonestly display a plate in a way calculated to deceive, use an unregistered motor vehicle and using a motor vehicle with no premium cover. Finally, the defendant has pleaded guilty to one count of assaulting a police officer being an indictable crime committed on 5 October 2019.
On 28 September 2019 at about 3:30pm, the defendant drove a Holden Commodore on Stony Rise in Devonport at a speed of 73 km/h in a 60 km/h zone. He was observed by a police officer, Senior Constable Anderson. The defendant realised he had been observed and accelerated out onto the Bass Highway without indicating. The highway is a dual lane carriageway and he was weaving in and out of traffic. He drove at a high speed along the Bass Highway and Senior Constable Anderson followed. On the Turners Beach straight he travelled at 187 km/h in a 110 km/h zone for a distance of approximately 700 metres – one kilometre.
On the Bass Highway, in the vicinity of Camp Clayton, Senior Constable Anderson tried to intercept the defendant by activating the emergency lights, sirens and flashing his headlights. The defendant did not pull over and continued driving at speed.
He drove up behind other westbound traffic travelling within the speed limit of 110 km/h, he braked heavily and followed close behind them, at a distance of approximately one metre. He tried to force his way between two vehicles that were travelling in the dual lanes of the highway. One of them took evasive action to avoid being hit by the defendant, moving to the left verge of the highway.
The defendant increased speed again, overtaking a number of vehicles when it was unsafe to do so.
He turned off the Bass Highway onto Castra Road without indicating and at a high speed. The speed would not have allowed him to stop, avoid a collision or give way to vehicles that were travelling through the intersection in another direction.
The defendant travelled from Castra Road onto Main Street in Ulverstone. He drove down Main Street, a residential street with businesses, at approximately 110 km/h in a 60 zone, passing multiple obscured intersections. This meant that the defendant was not able to get a good view of vehicles approaching the intersections. The defendant’s speed would not have allowed him to stop to avoid a collision or give way to other vehicles.
Police stopped pursuing the defendant’s vehicle and it was not located. The course of driving covered a distance of 16 kilometres and lasted for between 6 -7 minutes. The traffic during the journey was moderate to heavy.
On Sunday 29 September 2019 at approximately 1:30 in the afternoon, two police officers were on patrol in an unmarked police vehicle in Ulverstone on Amy Street in the vicinity of Undara Crescent.
One of the officers, Senior Constable Anderson who had observed the defendant’s dangerous driving the day before, saw the same vehicle but now different registration plates which did not belong to that vehicle. The defendant tried to hide his face before passing the police car and then accelerating. The police officers pursued the defendant’s vehicle and tried to intercept it by activating lights and sirens. The defendant increased the speed of his vehicle and travelled on to Upper Maud Street without indicating. He cut the corner as he did so travelling on to the incorrect side of the road as he went through the intersection.
The defendant continued along Upper Maud Street, travelling at approximately 80 km/h in a 50 km/h zone. He continued at speed entering Hearps Road without indicating. He continued up Hearps Road and onto South Road. The intersection of Hearps Road and South Road is an obscured T-intersection. He drove through the intersection at speed without indicating, along South Road to a roundabout and then drove onto the Bass Highway. He drove onto the Bass Highway and was seen travelling approximately 160 km/h in a 110 km/h zone. Police ceased their attempts to intercept the vehicle.
The course of driving covered a distance of approximately three kilometres and took approximately three minutes. Traffic was moderate to heavy, particularly on the Bass Highway.
At all material times the defendant was not the holder of a driver’s licence.
The facts regarding the aggravated assault are as follows. On 5 October 2019 Senior Constable Anderson was on mobile patrol in Clarke Street in Ulverstone with another police officer. He saw the defendant with a group of people standing near the same vehicle the defendant had been driving on 28 and 29 September. When the defendant saw the police he moved towards the open driver’s side door. Police manoeuvred their vehicle to block his path. The defendant then ran down a nearby street and was followed by Senior Constable Anderson who was intending to arrest him for the driving offences. The defendant ran into a back yard with a high fence he could not climb. Senior Constable Anderson arrested him and took hold of his jumper and walked back to the police car with him. As they were doing so, they were approaching the same group of people and the defendant tried to remove himself from Senior Constable Anderson’s grasp so that he could hug his partner.
Senior Constable Anderson told the defendant not to do that and to make his way to the police car, otherwise he would be handcuffed. The defendant continued to struggle and threw his elbow back into the officer’s head striking him. A struggle followed and during the course of the struggle the defendant bent the officer’s left thumb back in an attempt to have him release his grip.
The defendant then grabbed hold of Senior Constable Anderson’s testicles and pulled and squeezed, causing immediate pain. Senior Constable Anderson was unable to break the defendant’s grip or reach any of his accoutrements and struck the defendant to the face. The defendant released his grip and he was restrained and placed in handcuffs. He declined to participate in a video interview.
Senior Constable Anderson did not require medical treatment. I am informed that he is now more apprehensive than he was before the incident in terms of his interactions with people when carrying out his duties. This type of impact on an individual is inevitable and must be reflected in the sentence which needs to operate as a deterrent to other future offenders who may be tempted to resort to violence in such situations.
There is an application for me to activate a suspended period of six months’ imprisonment on the basis that the condition that the defendant not commit an offence punishable by imprisonment for two years has been breached by his offending before the Court. The defendant was sentenced for crimes of attempted aggravated armed robbery and two counts of aggravated armed robbery by Geason J on 17 August 2018 to a term of two years’ imprisonment from 8 March 2018 with six months suspended. That six month period is sought to be activated.
The sentencing order included a probation order that operated for 12 months from his release from custody and ran from 5 July 2019 to 5 July 2020. That is also subject to breach proceedings. The order was subject to condition that he was not to commit an offence punishable by imprisonment. He has blatantly breached that order by his offending before the Court today. Generally, Mr Fehlberg was uncooperative with that probation order, and in in view of his non-compliance breach action was under consideration in November 2019 but was deferred to await the outcome of the matters now before the Court.
The defendant was aged 22 at the time of offending. He has a significant number of prior convictions for traffic offences including driving unlicensed and unaccompanied learner driver, and seven prior convictions for evading police. I note he has none for dangerous or reckless driving or negligent driving. He has prior convictions for other types of offending such as drug matters and bail breaches. He has the prior convictions for violence that I have mentioned, the subject of his Honour Justice Geason’s order, as well as two prior convictions for common assault.
He has spent time in custody for his offending now before the Court, initially from 6 October to 3 December 2019, and then from 19 February 2020 until 3 April 2020 after his grandmother withdrew as surety. In total he has spent 102 days in custody with respect to these matters.
There are no mitigating circumstances regarding his offending on 28 and 29 September. He was using methamphetamine during this period and at the time of driving he was under the influence and suffering from lack of sleep. These are aggravating factors. In terms of the assault, he was trying to avoid being taken back into custody, having found a previous period of incarceration very difficult. This is not a mitigating factor.
Mr Fehlberg, the sentence must reflect your personal circumstances as well as the seriousness of your offending. At the time you committed these crimes and offences, your prospects of reform seemed very poor. You were immersed in a drug and anti-social culture. You were abusing methamphetamine and you had a very serious and long-standing drug problem. While you had the support of your grand-parents, you were not listening to them. This continued to be the case after your offending. Then in February last year you were given an ultimatum by your grandmother to cease your drug use, and to cease a relationship that was promoting your drug use. You ignored that ultimatum and she withdrew as your surety and you spent time in custody as a consequence. That period was effective as a personal deterrent. You were released on 3 April 2020 and you have not reoffended since then.
Since your release in April, you have made good progress in terms of your abuse of methamphetamine and indeed, you have been abstinent from that drug. You have severed ties with your previous associates.
You have made good progress in other respects. You have established a viable gardening business. You cannot drive but you have in place transport arrangements. You have a stable and supportive relationship with your partner, and you have a role as a step-father to her children and you are taking that role seriously. You have a child born to a previous partner with whom you are hoping to establish regular contact.
This year you made contact with a drug rehabilitation service with the intention of fortifying the progress you have made. I note you still have a dependence on cannabis. That rehabilitative support has not yet eventuated but I accept you are motivated to engage with drug intervention. Mr Fehlberg, if you remain drug free I consider you have good prospects. You have skills and a good work ethic, and I note in this context you have previously completed three years of a four year apprenticeship as a motor mechanic. You enjoy spending time at home working on motor vehicles. You have the ongoing support of your grandparents, who offer you both emotional and practical support.
I have not overlooked your pleas of guilty. While at a late stage there is still a utilitarian benefit which warrants some mitigation of the penalty.
As I said to you in May, the matters before the Court place you in jeopardy of imprisonment and ordinarily, lengthy terms of actual imprisonment would be imposed. The dangerous driving is serious example of this crime, involving high speeds and a total and selfish disregard for the clear danger you presented to other motorists. There were a number of times in your course of driving, when, if a vehicle had happened to be in your path, tragedy would likely have resulted. General deterrence is a most important consideration.
You have made sound progress and I have confidence that you will continue to work towards your reform. As I have highlighted, since April of last year, the prospect of imprisonment has proved to be a powerful deterrent to you. Ultimately, your reform is in the community’s best interests and remains a weighty objective.
Mr Fehlberg, given these positive considerations, I have determined to impose orders that will see you remain in the community. However, the orders will be very stringent and onerous.
I note that you have been assessed as suitable for a drug treatment order. However, I consider that there are significant practical hurdles with this order because of the frequency of appointments and the problems that you have with transport. There would be serious consequences associated with missing any appointments. I have determined that there are other more appropriate options.
One of the orders I will impose today will be home detention. Your home in Ulverstone has been assessed as suitable. Mr Fehlberg, understand that this is a type of imprisonment. It is imprisonment in your home. If you breach the conditions the consequences for you will be serious.
Community corrections have told me that they are concerned that you may not have the ability to manage and comply with the very strict conditions that are part and parcel of a home detention order. What I am going to do today Mr Fehlberg is to give you the chance to show that you can comply with a home detention order. If you cannot, there will be a swift response, the matter will be returned to Court, the home detention order can be cancelled and a sentence of imprisonment put in its place. You will see that there will be other orders imposed as well that may be the subject of breach action and serious consequences.
The orders I make are as follows. Jayden Garry Fehlberg, with respect to the application to breach the suspended sentence of six months, I consider that it would not be unjust to activate the sentence but it would be unjust, given your circumstances, to activate all of it. I note that you have spent over three months in custody and in my view that is sufficient. So, I activate part of the sentence for the number of days from 19 February 2020 to 3 April 2020 (43 days). Effectively you have served that sentence.
In relation to the breach proceedings for the probation order, I cancel the order without substituting another sentence. I note this order complemented other sentencing orders which have expired.
I record convictions on the crime of dangerous driving and aggravated assault and the summary offences. With respect to the crime of dangerous driving, I impose a home detention order of 14 months and a community correction order of two years.
The terms of the home detention order will be set out in a written document and provided to you. This order is to take effect from today. The core conditions of a home detention order apply during this period and these reflect the terms set out in the home detention assessment report, including that you must not commit an offence that is punishable by imprisonment; you must reside at the home detention premises [address specified]; you must for the duration of the operational period of the order (14 months) you must submit to electronic monitoring and have an electronic monitoring device fitted and comply with reasonable and lawful directions given to you with respect to such monitoring. The home detention order is subject to special conditions and these include that:
- You must during the operational period of the order remain at [address specified] at all times unless approved by a probation officer.
- You must immediately after Court attend Community Corrections in Burnie for induction with respect to this order.
- You must maintain in operating condition an active mobile phone service, provide your contact details to Community Corrections and be accessible for contact through this device at all times.
- You must submit to the supervision of a community corrections officer as required by that officer.
- You must not, whilst subject to the operational period of the order, take any illicit or prohibited substance which include any controlled drug as defined by the Misuse of Drugs Act 2001, any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine unless you provide written evidence from your medical professional that you have been prescribed the relevant medication.
- You must not during the operational period of the order consume alcohol and you must if directed to do so by a police officer or community corrections officer, submit to a breath test, urine test or other test for the presence of alcohol.
A community correction order is also imposed from today for the period of two years. You must not commit an offence punishable by imprisonment for that period. The core conditions of the order require you to report to a probation officer, at Community Corrections in Burnie immediately after Court. You must as a special condition of the order perform 98 hours of community service within 2 years.
I impose a period of licence disqualification of 2 years with regard to the dangerous driving.
For the offence of evading police on 28 September I impose an additional period of home detention of two months to commence at the expiration of the 14 month period of home detention. So, the total period of home detention is 16 months from today. The core and special conditions are the same but they operate for 2 months from the expiration of the 14 month period. I impose an additional period of licence disqualification of 6 months, four months of that term is to be cumulative.
For the negligent driving committed on 29 September I impose a fine of $500. I impose a period of 9 months licence disqualification to run concurrently with the two year period imposed. Your vehicle was confiscated on 5 October, 2019. I impose a special compulsory penalty pursuant to s 37MA of the Police Offences Act in the amount of $600.
For the evade police (aggravated circumstances) on 29 September I impose three months’ imprisonment, wholly suspended for two years with a condition that you must be subject to supervision for 18 months and you must comply with all the directions the subject of the sentence imposed on the crime of aggravated assault, and I impose 2 years’ licence disqualification, five months is to be cumulative. The end result is 33 months disqualification. Your licence is cancelled.
On the other summary offences committed in the course of driving on 28 and 29 September, having recorded convictions I impose no other penalty, having regard to totality. I have taken into account your unlicensed status in imposing the sentences for dangerous driving and the summary offences which have attracted substantive penalties.
Finally for the crime of assaulting a police officer, I impose six months’ imprisonment, wholly suspended on conditions that you not commit an offence punishable by imprisonment for two years. As further conditions, you must perform 56 hours of community service and you must be subject to supervision of a probation officer for 18 months and comply with all reasonable directions of your probation officer. In addition to the necessary conditions that apply by virtue of the fact that your sentence is conditional on the performance of community service and conditional on supervision of you by a probation officer, to be set out in an order provided to you, there are other conditions that you must comply with. You must comply with all reasonable directions including that:
- You attend Alcohol and Drug Services for assessment and individual treatment and counselling for alcohol and drug use.
- You must attend, participate in, and complete the EQUIPS Addiction Program as directed.
- You must comply with directions in terms of vocational and educational courses and programs and also parenting courses.
- You must comply with all reasonable directions to attend Forensic Mental Health Services for assessment and treatment.