STATE OF TASMANIA v BENJAMIN VICTOR THORP 19 NOVEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Thorp, a jury has found you guilty of one count of dangerous driving.
You committed the crime on 8 March 2019. It was committed in the context of flight from the police. You had been disqualified from driving and were recognised by chance by an officer who knew you, as you both approached a roundabout in Glenorchy. I accept the evidence of that police officer that you immediately recognised her and realised that she had identified you. Although the police car went around the block before following you, I am satisfied that you anticipated that it would follow you, and from that point on, you were evading interception.
In addition to the crime of which you have now been found guilty, you have also been charged with the offences of disqualified driving and evade police. However, these summary offences are still before the Magistrates Court and have not yet been finalised, and there has not been an application made for me to hear and determine them pursuant to s 385A of the Criminal Code. Accordingly, while those aspects of your conduct provide context and motive for the dangerous driving, and can properly be regarded as aggravating factors in respect of this crime, I am not punishing you for those offences. They will be dealt with by the Magistrates Court in the future.
On the basis of the evidence at trial, I am satisfied that the relevant driving consisted of the following:
(a) After realising that Constable Carter had recognised you at the roundabout, you drove at speed along Gepp Parade and then on the Brooker Highway, travelling towards the CBD. In Gepp Parade you were travelling at 70 km/h in a 50 km/h zone from time to time. After reaching the Brooker Highway, you sped away from police, at times weaving between lanes, in close proximity to other vehicles. When you reached the part of the Brooker with a speed limit of 60 km/h, you continued to travel at approximately 80 km/h in that speed zone towards the ABC roundabout.
(b) I accept the evidence of Detective Rodgers in respect of what happened at the ABC roundabout and then at the Hogs Breath intersection. Although his description conflicted with his passenger, Constable Whelan, I am satisfied that Constable Whelan has confused and conflated the events at each intersection. I am satisfied of this because Detective Rodgers provided a clear consistent description of what happened at these intersections, but Constable Whelan does not mention the Hogs Breath intersection. Clearly, the vehicles would have travelled through that intersection. I am satisfied that at the ABC roundabout, you paused momentarily at a red light and then proceeded into the intersection in defiance of that red light. I accept that there were no vehicles coming through the intersection on the green when you travelled through, and I infer that the reason you paused before entering the intersection, was to look for oncoming traffic. However, at the Hogs Breath intersection, you proceeded through a red light without stopping and despite a vehicle travelling through the intersection on the green light. That vehicle had to brake to avoid a collision with your vehicle.
(c) You then continued along Davey Street. You were driving in a similar manner to the driving on the Brooker Highway, that is weaving in and out of lanes and cutting off other vehicles. This continued until at least as far as Barrack Street, where the police lost sight of your vehicle. However, the vehicle containing Detective Rogers and Constable Whelan continued in the same direction and eventually caught up to your vehicle on the Southern Outlet. At this time, you were travelling within the speed limit and otherwise driving appropriately. However, when you realised that police were travelling beside you, you increased your speed and performed some dangerous manoeuvres in order to escape from them. This included overtaking other vehicles and then at the last minute abruptly changing direction to travel across a solid white line, so as to enter the Kingston bypass. In doing so, you cut off other vehicles. You then sped off towards and along Algona Road. As you approached a police position on this road, your vehicle was travelling at 110 km/h in a 90 km/h zone. You were required to brake heavily to avoid colliding with a vehicle travelling in front of you. You then sped away and police lost contact with you.
It is perfectly true, as your counsel submitted, that your manner of driving was not dangerous at all times throughout the relevant episode of driving. It is also the case that the driving lacks some of the features of more serious cases. However, the driving took place over a prolonged period and distance, and is aggravated by the fact that you were evading interception by police for the whole of the journey. Apart from a period when you were travelling along the upper part of Davey Street and the commencement of the Southern Outlet, when you thought you had outrun the police, you travelled at high speed and in an erratic manner, undoubtedly motivated by your desperation to escape from police. It is not to the point that you successfully avoided colliding with other vehicles. The dangerous nature of such driving cannot be demonstrated by the extent to which the risk is realised by actual consequences. The gravamen of the charge of dangerous driving is in fact the existence of that risk without the risk being materialised. It is the existence of the potential threat posted by the risk inherent in the speed and manner of driving which is of concern. To drive as you did, an example of which can be seen on the video taken by Constable Whelan, creates significant risk, particularly if it causes another driver to react imprudently, or there is a mis-judgment by either you or another driver. Driving of this nature significantly reduces the safety margin for error and the potential for error must always be taken into account in assessing the potential risk from driving of this nature. Further, driving through the red lights, particularly when entering the Hogs Breath intersection without stopping, and despite the presence of a vehicle travelling across intersection on a green light, were particularly dangerous aspects of the manner of your driving.
You are 26 years of age. You have a poor criminal record which includes some driving offences. In January 2019, you were convicted of a number of family violence offences and sentenced to 6 months’ imprisonment, which was wholly suspended for two years. In February 2019, a suspended sentence of three weeks imprisonment was imposed for offences which included driving whilst disqualified. You were clearly subject to both suspended sentences, and an order of disqualification, when you committed this crime. In April 2019, you were sentenced to imprisonment for offences which included another conviction for driving whilst disqualified. An application has been made by the prosecution for the activation of the suspended sentences.
Your counsel has provided me with information concerning your personal circumstances. You were exposed to family violence and alcohol abuse as a child. You left school after completing grade 10, spent some time in the Army and have demonstrated an industrious approach to employment since that time. Your counsel concedes that the period of 12 months during which this crime was committed and also during which the offences which led to the suspended sentences were committed, was a disturbed time for you because of problems arising from your relationship and the consequent restriction on your capacity to have contact with your young son. The concession that you, in your counsel’s words, “went off the rails” during this period is appropriate. Your counsel submits that the short period that you spent in custody since committing this crime was a wake-up call for you and that you have resolved to lead a more positive life in the future. I hope for your sake that this is the case. Although you were certainly old enough to know better when you committed this crime, I accept that your rehabilitation is an important sentencing consideration.
Having said this, general deterrence is a particularly important sentencing consideration in respect of crimes of this nature. Driving a motor vehicle dangerously is a crime that can be committed spontaneously and without the need for any significant preparation or premeditation. It is, however, a crime which places many persons, including innocent members of the public and police officers performing their duty on behalf of the community, at great peril. The experience of this Court is that the crime is prevalent. Those who would drive as you did on this occasion must realise that the consequence of such driving will be the imposition of significant punishment.
I am required to activate the suspended sentences unless I am of the opinion that it would be unjust to do so. When I have regard, in particular, to the deliberate nature of this offending and its temporal proximity to the imposition of the suspended sentences, I am not of the opinion that it will be unjust to activate the sentences. Accordingly, the sentences must and will be activated. In assessing the sentence to be imposed for the dangerous driving I will take into account the principles of totality. Those principles require some consideration to be given to the fact that, since committing this crime, you have served a period of actual imprisonment for other offences. I will make provision for your rehabilitation by allowing early release on parole, and will make a community corrections order which will apply after your release from prison.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime of which you have been found guilty;
2 The suspended sentence of six months’ imprisonment imposed on 14 January 2019 by the Magistrates Court is activated. It will be backdated and served from 10 October 2019, which is 27 days before the day you were remanded by me. You are not eligible for parole until you have served one half of that sentence.
3 The suspended sentence of three weeks’ imprisonment imposed by the Magistrates Court on 21 February 2019 is activated. It will be served cumulatively upon the six month sentence already activated. You are not eligible for parole until you have served two weeks of that sentence.
4 In respect of the crime of which you have been found guilty, you are sentenced to a term of 12 months’ imprisonment, which will be served cumulatively upon the activated three-week sentence. You are not eligible for parole until you have served one half of that sentence. Further, you will be disqualified from driving for a period of two years. That disqualification will take effect from the date of your release from prison or from the expiry of any extant period of disqualification, whichever is the later.
5 I make a community corrections order. The community corrections order will have an operative period of 12 months which will commence from the date of your actual release from prison. The order will include all the core conditions which will include provision that you are to report to Community Corrections in Hobart within three clear days of your release from prison. There will also be special conditions which will involve you attending any educational or other program as directed by a probation officer, and undergoing supervision by a probation officer during the operative period.
6 For the purposes of s 92A(3) of the Sentencing Act, I specify that:
(a) The total term of imprisonment which you are liable to serve in respect of all of the above sentences is 18 months and three weeks, commencing on 10 October 2019.
(b) The total period that you must serve before you become eligible for parole is 9 months and 2 weeks.