STATE OF TASMANIA v MARK DAVID HOWARD 7 JUNE 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr Howard, has pleaded guilty to one count of dangerous driving and one count of assaulting a police officer. I am also dealing with his pleas of guilty to related summary offences of evading police, drive whilst disqualified, permitting a child passenger to be unrestrained, failing to stop after being involved in a crash, using an unregistered motor vehicle, using a motor vehicle with no premium cover, and resisting a police officer. All offences arose out of a course of events on 15 December 2018. On the day before, the defendant bought an old single cab vehicle fitted with a tray, able to carry three passengers. It was unregistered, had no number plates, and no premium had been paid for its use. At that time, the defendant was disqualified by court orders for five years commencing on 6 June 2017. Under s 11A(2A) of the Police Powers (Vehicle Interception) Act 2000, that aggravates the charge of evading police. At about 4.30pm on 15 December 2018, the defendant was driving the vehicle along Forbes Street in Devonport. There were two female passengers in the cab along with the defendant’s 3 year old son. The child was not seated in any child restraint device. As the defendant turned onto Middle Road at speed, he lost traction, causing the rear of the vehicle to slide into the path of an oncoming vehicle which had to take evasive action. This incident was seen by a police officer in a marked police vehicle, who was travelling towards the defendant. The officer activated the siren and emergency warning lights, did a U-turn and pursued the defendant. Although approaching within 15 metres of the defendant, he refused to stop. When travelling up Middle Road, the tyres on the defendant’s vehicle were heard to be losing traction as the car went up the hill. A short time later the defendant went towards Stoney Rise Road, where police lost sight of the vehicle. In Stony Rise Road, police in a second marked vehicle saw the defendant approach a roundabout, at which point they pursued him with the lights and siren activated. Again the defendant failed to pull over. That is said to be the evading police charge. He drove onto the incorrect side of the road and travelled in the wrong direction around a roundabout, before continuing north along Stoney Rise Road. In approaching another roundabout, the defendant overtook a vehicle stationary at the intersection. Officers in a third police vehicle joined in the pursuit and they positioned their vehicle just north of the Stoney Rise Road and Don Road roundabout in order to deploy road spikes. Constable Maingay, who was wearing a police uniform and a high visibility vest, was on the southern edge of the road ready to deploy the spikes. As the defendant approached, he increased the vehicle’s speed and travelled close to the southern side of the road. When about 30 metres away from Constable Maingay, the defendant swerved the vehicle in his direction. At this point he was travelling at about 72km/h in a 60 km/h zone. Believing he would be struck, Constable Maingay moved quickly out of the way, but as he did so he managed to throw the spikes on the road. As a result two of the tyres on the defendant’s vehicle were punctured. Police in the second vehicle involved again activated the siren and emergency lights and followed the defendant along Forth Road. The defendant mounted a traffic island and crossed onto the wrong side of the road and collided with a parked bus. As a result, the rear tray of the vehicle fell onto the ground, but the defendant continued to drive along a parking area on the wrong side of the road before crossing back to the correct side. Continuing along Forth Road, tyres on the defendant’s vehicle were deflated and were running on the rims. The defendant was travelling well within the speed limit as a result. He was overtaken by police in the second police vehicle, and came to a stop. He then ran from the driver’s side door, and jumped over a fence into a paddock. He was followed on foot by a police officer who told him to stop. The defendant continued to run at speed. The chase went on for about 600 metres, during which the defendant jumped over one barbed wire fence and attempted to jump over another but fell. The defendant then refused to do as he was told by the pursuing officer, and resisted by refusing to put his arms behind his back and thrashing his body about. The officer was eventually able to apply handcuffs and the defendant was arrested. He was then taken to hospital where a sample of his blood was taken for analysis. The blood sample tested positive for the presence of methylamphetamine and amphetamine. He is not charged with that, nor is it pleaded as an aggravating factor of the evading police charge. But it is relevant to the extent of the danger he posed. After getting treatment, the defendant was taken into custody and he has been detained since that time, although part of that was spent serving a sentence. At the time of these events the traffic flow along the route was moderate, there was light rain and the road was wet. There were, of course, a total of four occupants in the defendant’s vehicle, designed to carry only three. When the vehicle came to a stop the total distance covered was eight kilometres, with the defendant covering about 4.5 kilometres from where the road spikes had been deployed. The repairs to the bus are estimated to be approximately $3,000. I have a victim impact statement from Constable Maingay. He held a genuine fear that he was about to be run over. He did suffer some soreness and stiffness in the few hours after the incident. He had a sleepless night and since then has struggled to sleep with any sort of regular pattern. He finds himself inexplicably sad, and at times distant from his wife and children for reasons he cannot really explain. He has taken to sitting up late drinking alcohol. He finds it an effort to go to work now, whereas he used to enjoy what he did. He is currently assessing his position and may seek to reduce his working hours or take up less critical police duties.
The defendant is now 34, 33 at the time. He has a lengthy recorded history of offending relevantly starting in 2003. He has a bad record of traffic offending. His history includes drug offences, an offence of wounding in 2005, an escape, anti-authority type offences, numerous regulatory traffic offences and some matters of dishonesty. In particular, there are nine convictions for driving with an illicit drug in the system, seven for driving while disqualified, and two for driving under the influence, along with some other drink driving matters. He has previously served terms of imprisonment for driving offences including activated suspended terms, and most recently on 22 February 2019, was sentenced to three months’ imprisonment on a charge of driving whilst disqualified committed in October 2018. The defendant is presently a single man and the father of a son, now aged 4. That is the child who was in the car. The defendant has full-time care of the child when he is not in gaol; otherwise the child is cared for by the defendant’s sister. I am told that he is distressed when away from his son, and is devastated by the current separation and its potential length, but he accepts that he is responsible for that. After leaving school in year 10 he worked full-time as farmhand for a time, and then had many and varied forms of employment, struggling to maintain full-time employment but with a fair amount of success. He married and had a child, but gave up full-time work after the relationship ended and he assumed the child’s care. Drug use and addiction are at the heart of his offending history. In an unfortunately familiar story, he started using cannabis in his late teens after being given some by a friend. That use escalated in nature and extent, and he ultimately became addicted to amphetamine. In terms of his rehabilitation, it is submitted that he has shown a capacity to remain drug-free. This is said to be demonstrated by a gap in his offending from April 2009 to December 2011. It was in that period he was married and in full-time employment in the fishing industry. After some acrimony about the demands of his job, his wife left him. In the aftermath of the breakup he returned to drug use. However, it was not explained to me why his present circumstances do not provide sufficient stability to enable him to avoid offending. I am told that he accepts that his conduct in assaulting the officer would have been terrifying. He also accepts that it was sheer luck that no one was injured and that nothing else happened. He acknowledges the risks to others and is ashamed that his son was in the car at the time. I take into account the pleas of guilty, which have practical value. I take into account that he has retained the support of his sister and may be motivated to reform by the need to care for his son. However, the need to deter this defendant and others who might behave in a similar way is of primary concern. This defendant has shown he is an ongoing risk to the public, and community protection has a role to play. The dangerous driving is at the more serious end of the scale, and of course, the crime of assaulting police calls for a weighty response, given the need to protect officers acting in the course of their duty. As to that crime, the State did not assert an intention to strike the officer. The crime is made out by the threat of impact intending to induce an apprehension that force is to be applied. I note that the law requires me to impose a separate sentence for the charge of evading police. I also have to bear in mind that the sentence needs to reflect the overall criminality of the conduct.
Mr Howard, by your conduct, of course, you exposed a number of people to a high level of risk. Those people included your own son. You caused ongoing psychological injury to a police officer. Past sentences have not deterred you from significant breaches of the road rules. You have shown the ability to overcome your drug problem, and you need to find the strength to do that again, otherwise you will continue to end up in prison. I will give you a reasonable opportunity for parole, which hopefully will assist in your rehabilitation. You are convicted of all matters. Excluding the evading police charge, you are sentenced to three years’ imprisonment to commence on 13 March 2019.* On the evading police charge, you are sentenced to four months’ imprisonment cumulative to the first term. I order that you not be eligible for parole until you have served one half of those terms. I order that you are disqualified from driving for a period of three years to commence at the expiration of the present period or periods of disqualification. I make a compensation order in favour of Smith Tasmania No 2 Pty Ltd for an amount to be assessed, and I adjourn the further hearing to a date to be fixed.
*On 11 June 2019, pursuant to s 94(2)(a) and (3)(a) of the Sentencing Act 1997, his Honour varied the sentence of three years imprisonment by excluding the offence of permitting a child passenger to be unrestrained from its scope, and recording a conviction on that charge.