STATE OF TASMANIA v HEATH MICHAEL KELP WOOD J
COMMENTS ON PASSING SENTENCE 12 MAY 2020
Heath Michael Kelp has pleaded guilty to dangerous driving, and summary offences of evade police (aggravated circumstances), drive while not the holder of a driver licence, dishonestly alter or display a plate in a way calculated to deceive and breach of bail conditions by driving.
On 12 October 2019 at about 9:00am the defendant was observed by police driving on Sheffield Road. He was subject to a bail condition imposed by the Devonport Magistrates Court on 9 September 2019 that he was not to drive a motor vehicle. The motor vehicle he was driving was a stolen Ford Ranger utility displaying stolen and false plates. Police officers had taken up a position on the side of the road, and on his approach, deployed road spikes. The defendant took evasive action and accelerated harshly along Sheffield Road.
Police pursued the vehicle, activating emergency lights and sirens. The defendant continued to accelerate away. After approximately 300 metres, he veered off the road into bushland, crossing double white lines as he exited the roadway. Then after travelling a distance of about 200 metres, he returned to the roadway, again crossing double white lines. The defendant drove for another two kilometres reaching speeds in excess of 120 km/h. The speed limit in the area is 80 km/h.
The defendant entered Foster Street in Railton and drove north for 1.3 kilometres towards the township of Railton, travelling over 120 km/h. He continued at this speed, crossing the bridge, travelling through the intersection of Giblin and Foster Street and through the Railton township. These areas are clearly marked with signs displaying the speed limit of 50 km/h. Police officers observed children and families using the footpaths on the side of the road. They maintained intermittent use of their sirens and lights.
After travelling approximately 700 metres north, the defendant exited Foster Street, crossed onto the footpath and nature strip, cutting a corner and entering Native Rock Road. He was traveling at an estimated speed of over 100 km/h. He passed close to a bus shelter with the potential for pedestrians to be present. He maintained this speed travelling along Native Rock Road, slowing to 80 km/h when the road surface changed from bitumen to gravel.
He had travelled for approximately 1.2 kilometres on the gravel surface when he struggled to maintain control of the vehicle. The vehicle fishtailed widely for a period before leaving the roadway and driving through a fence, destroying it, and then driving into a farm paddock at 309 Native Rock Road. He gained control of the vehicle and accelerated away from police. He drove through two more fences on the property causing approximately $500 worth of damage.
Police officers manoeuvred their vehicle into a position to force the defendant to stop driving. He was arrested and taken into custody. During an interview with police he made some frank admissions about his conduct.
Mr Kelp’s personal circumstances are to be taken into account. He is 28 years of age. He has limited education and some experience working as a labourer for temporary periods. He was receiving Centrelink New Start Allowance at the time he was remanded in custody after his arrest.
In the years before this incident he had developed an entrenched and very serious addiction to methylamphetamine.
In the period immediately prior to these offences, his life was at an exceptionally low point. His level of drug use had escalated. He had accumulated drug debts amounting to about $20,000. His drug-taking and behaviour had been instrumental in the breakup with his partner. This was a long term relationship of eleven years and together they have three children. This break-up was having a significant emotional impact on the defendant. His mental health was particularly poor. He was contemplating suicide and had procured a firearm with that purpose in mind.
The defendant has a history of depression, and his battle with this condition is linked to abuse suffered as a child. It seems likely that his trauma background was what led to his abuse of alcohol and substances as a teenager and young adult. While in custody he has been prescribed diazepam and his mental condition has significantly improved. His improved condition is also due the fact he has not been taking any illicit drugs in prison.
On the day of his offending, when the police vehicle pursued him, he thought for a moment they were people connected to the drug trade out to cause him harm, and he panicked and sped away before quickly realising it was the police.
His criminal driving arose in circumstances where he was in a desperate state about his life. He was immersed in a drug culture, his life revolved around obtaining and using drugs and due to his own decisions and actions he had destroyed the good things in his life. He felt a disregard for his own safety and a disassociation from his community. I take his desperate emotional state into account to a degree. His driving was an impulsive response, not conduct that was calculated. However, his emotional state cannot be given significant weight; he was well aware of the wrongfulness of his actions and his capacity to fully appreciate the danger associated with his conduct was not impaired.
In April this year the defendant was sentenced to terms of imprisonment amounting to 18 months, with non-parole of 9 months backdated to 12 October, 2019. The sentences were imposed in relation to a very large number of offences, mostly committed in 2019, a significant number committed close in time to the 12 October 2019, and some even committed on the same day. This is the first time the defendant has experienced a sentence of an actual term of imprisonment.
I have the benefit of a report from Community Corrections. It notes that the defendant is gaining insight regarding the significant negative impact his substance abuse has had on his family. He is motivated to be a better father and wants to pursue contact through appropriate channels. He was recently assessed for the court mandated drug program but was regarded as not suitable. He has had limited engagement with support services regarding his drug and alcohol abuse and his trauma background, despite the gravity of these problems. He is assessed by Community Corrections as having a very high level of risk and needs. He is considered suitable for a community correction order with a supervision condition. The defendant is willing to participate in programs and intervention.
He has previous convictions for traffic offences as a youth and as an adult including drive while disqualified and drive unlicensed. He has a prior conviction for drug trafficking which attracted a 6 month suspended sentence, and summary drug offences, and a prior conviction for common assault which attracted a community service order. He has prior convictions for firearms offences and unlawful possession of property.
His recent convictions for prior offending, the subject of the effective sentence of imprisonment imposed in April this year include the following:
Six counts of drive whilst not the holder of a driver licence, one count of refuse a requirement to undergo an oral fluid test, 5 counts of drive a motor vehicle whilst a prescribed illicit drug is present in oral fluid, one count of negligent driving, 5 counts of motor vehicle stealing; one of the counts related to the theft of the vehicle he drove on 12 October 2019, firearm offences relating to possession of a firearm on 12 October, a significant number of dishonesty offences including 16 counts of stealing and 8 counts of burglary; many of these were committed close in time to the crime dealt with today of dangerous driving, one count of injure property and one count of destroy property, relating to 12 October 2019 and the fences he drove through, and a number of breaches of an interim family violence order which were committed before 12 October, and a number after he was remanded in custody. He received a global sentence of ten months’ imprisonment for these offences.
The 6 month suspended sentence for trafficking that I mentioned earlier was activated. For the evade police associated with the negligent driving he was sentenced to two months’ imprisonment.
These offences, committed mostly as I have said, during 10 months leading up to 12 October, reveal the extent of his drug taking and lawless lifestyle he was leading in this particular period.
I note with respect to the gaol term he is serving that, given the pandemic, imprisonment is presently more onerous for all prisoners than it otherwise be for all.
The defendant’s course of dangerous driving and evade police posed a significant risk to other potential road users and pedestrians. The distance that he drove dangerously was approximately four kilometres. His driving off road was desperate and placed himself at real risk but also, showed a disregard for others who could have been in his path. His driving at high speeds of up to 120 km/h approaching and through a rural township with a speed limit of 50 km/h was the kind of driving that could have ended in tragedy. He realises now that he was very fortunate that no one was seriously hurt. The defendant paid no heed to his unlicensed status, his bail conditions and that the vehicle he was driving was stolen. His wrong-doing started well before he accelerated away from police, it started when he got behind the wheel of a motor vehicle.
The defendant is a relatively young man who has a serious and long term substance abuse problem, who for the first time is serving a lengthy period of imprisonment. He is motivated to address his difficulties. I must take into account that the sentence he is serving may prove to be effective as a personal deterrent and that a further heavy sentence, if it is leads to a crushing term, may be counterproductive in terms of his rehabilitation. Totality is an important consideration in fixing the sentence. However, I am also conscious that general deterrence, punishment, denunciation and protection of the public are primary goals.
Balancing these considerations, I have concluded that while an additional period of imprisonment is required, and this will be imposed for the evade police, and so, his time in custody will be extended, a suspended sentence will be imposed for the dangerous driving. This means that when he is released from prison he will have a lengthy gaol sentence hanging over his head, and he will be at risk of going into prison if he reoffends, or if he does not take up the opportunities that he will have for his rehabilitation.
The sentences I impose are as follows. I record convictions on all charges. For the evade police, as a second offence, I impose a sentence of four months’ imprisonment cumulative to the sentence he is presently serving.
Mr Kelp, for the crime of dangerous driving I impose a term of imprisonment of 16 months’ imprisonment, wholly suspended on strict conditions for two years to commence on the day you are released from custody with respect to the sentences you are presently serving, on the following strict conditions:
• You must not commit another offence punishable by imprisonment for the period of two years.
• You are subject to the supervision of a probation officer for the same period.
• The core conditions of a community corrections order involving supervision by a probation officer are imposed:
o You must report to a probation officer within 48 hours of your release at 57-59 Oldaker Street, Devonport.
o You must report to a probation officer as required.
o You must comply with all the reasonable and lawful directions of your probation officer.
o You must not leave or remain outside Tasmania without the permission of a probation officer.
o You must give notice to your probation officer of any change of address or employment before, or within two working days of the change.
In addition to the usual core conditions that attach to a community corrections order, there are other substantive conditions that I impose:
o You must during the order attend educational and other programs as directed by your probation officer.
o You must undergo assessment and treatment for drug dependency as directed by a probation officer.
o You must submit to testing for drug use as directed by a probation officer.
o You must undergo assessment and treatment for alcohol dependency as directed by a probation officer.
o You must submit for testing for alcohol use as directed by a probation officer.
o You must submit to medical, psychological or psychiatric assessment and treatment as directed by a probation officer.
o You must participate in and complete any drug rehabilitation programs, such as the EQUIPS Addiction Program, as directed by a probation officer.
o You must attend counselling or programs in relation to your trauma history as directed by a probation officer.
o You must comply with a direction of a probation officer to be assessed and complete a residential drug rehabilitation program, either the Missiondale or Bridge programs.
Mr Kelp you have recently had brought home to you what happens if you breach a suspended sentence, you are presently serving an activated six month term of imprisonment. If you breach this suspended sentence, you can expect it to be activated. I am sure I do not need to tell you that this order represents a critical chance for you to rehabilitate.
For the purposes of s 92A of the Sentencing Act 1997, putting to one side the wholly suspended sentence that I have imposed, I specify that (a) the term of imprisonment that is being imposed is four months to be served cumulatively to the sentence you are presently serving, and (b) that you are not eligible for parole in respect of that sentence of four months.
I will cancel your licence for an additional period. I note you are presently subject to a term of disqualification, in April your licence was cancelled for 30 months. For the crime of dangerous driving I impose a period of 18 months disqualification, your licence is cancelled, to commence at the end of the disqualification period that is already in place. For the evade police I impose a period of disqualification of two years to run concurrently with the 18 month cancellation and which will commence at the end of the disqualification period that is presently in place. Again, an order is made cancelling your licence for that two year period.
I make a compensation order in favour of Kerry Forster, adjourned sine die for assessment.