STATE OF TASMANIA v DAYNE JOHN ROBERTSON 25 JANUARY 2022
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr Robertson, has pleaded guilty to one count of armed robbery and one count of aggravated assault. I am also dealing with his pleas of guilty to two summary offences of assault and driving while not the holder of a driver’s licence. All of these charges arose out of an incident on 3 April 2020. At about 9am on that day, police were in the Invermay area looking for two men who had been seen fleeing from a stolen vehicle dumped nearby. They saw two men and gave chase, one of whom was arrested; the other, the defendant, ran off and was pursued by several police officers. He went into the driveway of a motor vehicle dealership and ran towards the main building and service centre driveway. At the time, Mr Pinner, an employee of the dealership, was with the owner of a vehicle being checked in for service. He heard yelling form the front of the car yard and saw the defendant running towards the service driveway. Police yelled out for him to stop the defendant. As he started to run towards the defendant, he saw the defendant reach into a pocket and take out what appeared to be a knife, so he stopped. Another employee, Mr O’Toole, was about to get into the vehicle. The defendant stopped near the vehicle, pointed a knife at Mr O’Toole and told him to “fuck off”. That is the first charge of assault. Another member of the public, Mr Johnson, was also in the service centre driveway standing by his vehicle. He attempted to stop the defendant but the defendant pointed the knife in his direction and told him to “fuck off” several times. That is the second summary assault charge. The defendant ran at the vehicle still holding the knife and got into the driver’s seat. Mr Pinner ran to the car and opened the rear driver’s side door. At that time the defendant was trying to start the car and was yelling, “fuck off, leave me alone and don’t come near me”. He raised the knife towards Mr Pinner and Mr Pinner ran away from the car. By this time four police officers were at the car. The defendant was revving the engine, trying to get the car to move. Constable O’Neill opened the front passenger door, and leant in and told the defendant to stop and get out of the car. The defendant told him to leave him alone and raised the knife in his right hand, pointing it towards the officer. This constitutes the crime of aggravated assault. Constable O’Neill then used capsicum spray and the defendant threw the knife out of the passenger side door. At about the same time, another officer, Constable Greenwood, opened the driver’s side rear door and used spray. The defendant managed to move the car forward a few metres which caused Constable Greenwood to be dragged to the ground and his foot was run over by the rear wheel of the car. No charge arises from that which is before me. The defendant stopped the car momentarily before accelerating away out of the car yard. He was not able to be found in a subsequent search of the area. Stealing the car while armed with the knife constitutes the crime of armed robbery. Two days later police went to a home where they located the defendant. He was arrested and detained and not interviewed until the following day due to him being affected by drugs. He said he could not remember much about what had happened. He said the reason he ran from police was because there were warrants out for his arrest for family violence matters. He said he had the knife from a time earlier in the day and did not know where he had dumped the car. He said he had been using Ice which caused him to do “stupid fucked up shit”. The defendant had a learner’s licence but it expired in July 2018. The stolen vehicle was worth about $30,000 and it has not been recovered.
The defendant is 26 years old. He has a recorded history of offending starting as a youth in 2013 although there is nothing of relevance in terms of dishonesty and little in terms of violence. In July 2015 he was dealt with for a variety of offences including traffic matters, drug offences, firearm offences, and family violence offences including an assault. Community service, probation, fines and disqualification resulted. In October 2016 and again in July 2017 he was dealt with for further traffic matters, again with community service, fines and disqualification being the outcomes. In all there are three convictions for driving whilst disqualified and three for driving without a licence. I was told that he has spent two separate periods in custody in relation to this matter, the total period being 75 days. I have the benefit of counsel’s submissions in mitigation and a report from Community Corrections dealing with his suitability for a drug treatment order, alternatively home detention and community service.
The defendant had a difficult childhood marred by witnessing family violence and his father’s absences, sometimes due to time in prison. He was 5 when his parents separated. He lived with his mother until he was 9 when she died from a brain aneurysm. He was then with his father until moving to mainland Tasmania with his older sister when he was about 15. He has had casual labouring positions but nothing of any lasting nature and has no qualifications. He was in a relationship for a period of 10 years until relatively recently, and the couple have three children aged 8, 5 and 4. Both he and his former partner have had lengthy struggles with drug addiction. The defendant’s illicit drug use started at the age of 10 with cannabis use, but methylamphetamine has been the principal drug of concern for about 10 years, with use escalating in the last five years. In 2019 he was admitted to a mental health clinic, assessed as suffering a drug induced psychosis. He has not been able to get help from his older sister as she is also struggling with addiction issues. Departmental care arrangements are in place for his children. I am told the defendant has been committed and co-operative and now has regular contact with the children each week. At the time of this offending, the defendant was significantly in the grip of the drug. He was with a person well known to police. They had been using methylamphetamine. I was told that the defendant was aware there were warrants out for his arrest over family violence matters, and he knew that if he were caught bail would be a problem. He has a limited memory of events but recalls seeing the police and panicking. He made the spontaneous decision to flee. He had no real plan or thoughts about where he was going or what he was going to do; he simply wanted to get away. He did not really know where he was. He recalls ending up in the car yard, seeing a car with the keys in it and making a spur of the moment decision to take it to get away. However, by his plea he admits making the decision to permanently deprive the owner at that time. He accepts that his actions caused fear and apprehension, but it was put that he did not have any intention to cause actual harm at any time. The defendant has made attempts to moderate his substance abuse since early 2020. He seems to have offended by way of drug and family violence matters since these matters but the last occasion was in January 2021. Since then I am told there has been no offending and the defendant feels he has turned a corner. He is no longer with his sister who continues to struggle with her drug use. He has moved in with an older family friend and is now acting as a carer for that person. They are in the process of obtaining a carer’s benefit for him. He has been assessed as suitable for a drug treatment order but not suitable for a home detention order.
Plainly, this was a serious matter. It involves an incident with four different people being threatened with a knife. The owner of the stolen vehicle was present as a witness to events although a little removed in distance. The State accepts that the robbery was not premeditated, but opportunistic and essentially carried out as an easy way to flee from police. It does however, involve the stealing of the vehicle which has not been recovered. As I have said, that involved forming the relevant intention at the time. After the assault of Constable O’Neill in order to avoid arrest, the defendant continued to thwart attempts to stop him driving away. As the defendant appears to accept, it must have been a frightening incident for all involved including the police officers. For the civilians involved they were simply going about their business and this was a traumatic intrusion into their lives. I am told that the defendant regrets his actions, and realises of course that had he made a different choice at the time he would have been facing less serious charges than he now is. Fortunately no one was injured. I am not sure about Constable Greenwood’s foot but, as I have said, there is no charge before me that relates to that incident. All of this happened over 18 months ago. There was a third count on the indictment that was a sticking point between the parties, with the DPP being told at an early time that the counts to which the defendant has now pleaded guilty were not an issue. That third count has been discontinued and the pleas of guilty, for which the defendant is to be given credit, can thus be taken as early in that sense. In all of the circumstances, the criteria are met, and I am satisfied that a drug treatment order is appropriate, and I will deal with the lengthy period spent in custody in a definitive way. I bear in mind that all offences arose out of the one incident.
Mr Robertson, I have set out the facts, your personal circumstances, and the considerations which need to be taken into account. I believe you have insight into the seriousness of this conduct. I will deal firstly with the summary offences of assault and driving without a licence. As you were a subsequent offender in relation to the last of those, you are liable to imprisonment. For those three matters you are convicted and sentenced to 75 days’ imprisonment to commence on 6 April 2020, so that term has expired. On the indictment, you are convicted and subject to your agreement, I make a drug treatment order by which you are sentenced to a term of imprisonment of 21 months, all or any of which custodial part you will not be required to serve unless ordered to do so, or if the order is cancelled. That order will contain the core conditions as provided for in the Sentencing Act. They will be set out in writing. As to the core condition set out in par (b) of s 27G(1), which requires attending at court whenever the court directs, the first directed appearance is the Launceston Magistrates Court at 2.15pm on 3 February 2022, and under par (c) of that subsection you will have to report to a court diversion officer at 111 Cameron Street, Launceston by 5pm today. Program conditions under s 27H of the Act will be as follows:
1 You must submit to drug testing, including random drug testing, urinalysis and oral fluid testing.
2 You must submit to detoxification or other treatment, whether or not residential in nature.
3 You must attend vocational, educational, employment, rehabilitation or other programs, including the EQUIPS Addiction Program.
4 You must submit to medical, psychiatric or psychological assessments or treatment.
5 You must not associate with persons or class of persons as may be directed by the case manager or a court diversion officer.
6 You must live at [address specified] and not change that address without the prior approval of the case manager, a court diversion officer, a judge of this Court or a magistrate, and you must be present at those premises between the hours of 10pm and 6am each day unless otherwise expressly authorised by the case manager or court diversion officers, and present yourself to a police officer if directed to do so.
7 You must not use any illicit drugs or substances, or any prescription or non-prescription medication unless prescribed by a treating doctor or recommended in writing by a pharmacist.
8 You must maintain the use of a working mobile phone in order to send or receive messages about drug testing, case management and/or appointments from your case manager and court diversion officers, and you must remain contactable to those people at all times.
[The defendant agreed to the making of the order in those terms.] I make the order as outlined.
I make a compensation order in favour of Emma Louise Waller for an amount to be assessed and adjourn the further hearing of that matter to a date to be fixed.