STATE OF TASMANIA v BENJAMIN JAMES ANDERSON VICTOR 19 AUGUST 2019
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr Victor has pleaded guilty to two charges under the Criminal Code – a charge of assault and a charge of dangerous driving. He has also pleaded guilty to eight summary offences which I am dealing with under s 385A of the Criminal Code. All of the charges relate to a single escapade on 19 March this year.
Mr Victor has had a drug problem for about 10 years. He started using Ice in the middle of last year. By March he was spending about $900 per week on it. On the afternoon of 19 March, police officers stopped him when he was driving on a street in Rosetta. He was asked to produce his driver’s licence. He said he did not have it with him. That was a lie. When asked his name, he gave the name Benjamin James and a false address. He has pleaded guilty to supplying particulars that were misleading, contrary to s 41(1)(b) of the Traffic Act 1925, and to a charge of failing to produce his licence.
He submitted to a breath test. It returned a negative result. He was told that he would have to undergo an oral fluid test. While an officer was outlining the procedure, he started his vehicle and drove away at speed. He has pleaded guilty to charges of evading police and refusing an oral fluid test. As he drove off, he drove towards one of the police officers, who had to get out of his way to avoid being struck by the vehicle. Mr Victor was too quick for that officer, who was hit in the right arm. That is the basis of the charge of assault. As far as I know, the officer was not seriously injured.
The officers pursued Mr Victor. They lost sight of him at one stage, but saw him again at the intersection of Main Road and Berriedale Road in Berriedale. They saw him overtaking vehicles, crossing onto the incorrect side of the road, forcing vehicles to take evasive action to avoid collisions, and driving at a speed in excess of 100 Km/h when the speed limit was 60 Km/h. Near the Claremont Hotel they saw him again cross onto the incorrect side of the road and overtake vehicles, causing other vehicles to take evasive action to avoid collisions. They followed him onto Allunga Road in Chigwell, which is a dead end street. He drove along that road with the left hand wheels in the air at one stage, and came close to rolling his vehicle, but then continued on all four wheels to the end of the road. The police began to set up road spikes. Mr Victor drove at one of the officers, and swerved to avoid him at a late stage. The officer took evasive action. The vehicle missed him by two to three metres. The officers lost sight of him again as he sped off. One or two minutes later, police officers found the vehicle in the front yard of a property in Chigwell, on its side. A witness reported that she had seen it travelling very fast, almost entirely on its side, and had had to turn her vehicle sharply into a driveway to avoid a collision.
Mr Victor climbed out of the driver’s window and attempted to flee, but was stopped and arrested. In his vehicle the police found a quantity of methylamphetamine, about 2.5 grams of cannabis, and two credit cards that had been stolen. He has pleaded guilty to possession of a controlled drug, possession of a controlled plant, and unlawful possession of property.
After his arrest he co-operated with the police and went to the Royal Hobart Hospital where he gave a blood sample. He had methylamphetamine, MDMA and THC in his blood. He took part in an interview and made substantial admissions. He admitted that he had used Ice just before the police intercepted him. He has pleaded guilty to a charge of using that drug.
Mr Victor is 30 years old. He has never been sentenced to imprisonment before. His worst prior convictions are two convictions for driving with a prescribed illicit drug present in his blood. Those offences were committed in July 2009 and September 2016. He was also fined for minor drug offences associated with the 2009 charge.
Mr Victor has a partner, but no children. His partner has a young son, and he is a significant figure in that boy’s life. He grew up in Queensland where he gained an apprenticeship as a butcher. He moved to Tasmania with his parents in 2007, the year he turned 18. He worked in his father’s butchery business in Cygnet from 2007 until this year. About three years ago he cut his left arm quite badly. He is right handed, but butchers use both hands, and the grip strength of his left hand was affected. He made a workers compensation claim. There has been an ongoing dispute as to the severity of his injury. The injury has resulted in him being restricted to light duties and working reduced hours. He found the injury and its consequences demoralising, and increased his drug use.
He started smoking cannabis when he was 18, and became a daily user of that drug when he was 20, smoking it in the mornings and evenings, and spending about $240 per week on it. From the age of 23, for about two years, he used ecstasy on a regular basis. From the age of 23 he also started using amphetamine. Last year, because amphetamine became less readily available, he switched to methylamphetamine. Although he was earning a reasonable income and living with his parents, he resorted to stealing meat from the family business to exchange for methylamphetamine. He managed to continue working and to stay out of serious trouble until the incident on 19 March.
After that incident, he was in custody for some nine days before he was bailed. He was then at liberty for a little over three months before I remanded him in custody on 5 July, the day he pleaded guilty. During the period that he was at liberty, he took positive steps to change his life. He undertook counselling with the Holyoake organisation, and attended five counselling sessions in May and June. He was referred to the Salvation Army’s Bridge Program, and was allocated a worker just before I remanded him in custody. He spent time helping with the care of his mother, who has multiple sclerosis, and is confined to a wheelchair. He regrets his behaviour. He wants to rebuild his relationship with his parents. He proposes to live with his partner when released from custody, and she is willing to have him.
This case is serious enough to warrant a significant sentence of imprisonment. After Mr Victor decided to flee from the police, he drove erratically at high speeds through Hobart suburbs for about 10 minutes, travelling about six kilometres. This journey started at about 5.45pm on a Tuesday, when traffic is usually heavier than average. He was intoxicated as a result of taking Ice. He told the police that he was “on another planet”. A number of motorists had to take evasive action. It is only through good luck that no one was killed or injured.
At the suggestion of his counsel, I had Mr Victor assessed for his suitability for a drug treatment order. A court diversion officer has reported that he is at high risk of re-offending, but that he is suitable for diversion into treatment with the Court Mandated Diversion Program.
I am required to impose a separate sentence on the charge of evading police. Today is the 55th day that Mr Victor has been in custody in relation to these matters, taking into account the nine days in March and the period from 5 July onwards. I have decided to dispose of the charge of evading police by imposing a backdated sentence of 54 days’ imprisonment. On the other charges that are punishable by imprisonment, I would have imposed a cumulative sentence of 12 months’ imprisonment and not suspended any part of it. Instead, I will make a drug treatment order.
Benjamin James Anderson Victor, I convict you on all charges. On the charge of evading police, I sentence you to 54 days’ imprisonment with effect from 26 June 2019. On the other charges, excluding counts 2 and 3 on complaint number 2363/19, I make a drug treatment order. As the custodial part of the drug treatment order, I sentence you to 12 months’ imprisonment. You will not be required to serve any part of that sentence unless you are ordered by a court to do so as a result of you not complying with the conditions of the order that I am now imposing.
The core conditions of the order are as follows:
(a) You must not, in Tasmania or elsewhere, commit another imprisonable offence.
(b) You must attend a court whenever the court directs.
(c) You must report to a court diversion officer at the office of Community Corrections in Hobart within two clear working days after today.
(d) You must undergo such treatment for your illicit drug use problem as is specified in this order or from time to time specified by a court.
(e) You must report to, and accept visits from, your case manager or court diversion officers.
(f) You must, unless there are special circumstances, give your case manager at least two clear workings days’ notice before any change of address.
(g) You must not leave Tasmania except with the permission, granted either generally or in a particular case, of a court.
(h) You must comply with all lawful directions of a court.
(i) You must comply with all reasonable directions of your case manager and court diversion officers concerning the core conditions and program conditions of this order.
I impose the following program conditions as part of the order:
(j) You must remain contactable at all times and notify your court diversion officer immediately of any change in telephone number.
(k) You must abstain from all synthetic substances, mood and mind altering substances, and unidentified substances, and submit to testing as directed by a court diversion officer.
(l) You must refrain from the consumption of alcohol and submit to alcohol testing as directed by a court diversion officer or a police officer.
(m) You must not use any prescription medication without approval from a general practitioner or a court diversion officer, and must only take prescribed medication in accordance with the directions.
(n) You must obey all directions of your court diversion officer or any other court mandated diversion case worker, including directions with respect to attending case management appointments, counselling sessions, urinalysis and any other appointment or assessment required for the program.
(o) You must reside at [address] or an address approved by a court diversion officer and be at your residence between the hours of 9pm and 7am unless you have been given prior approval by a court diversion officer to be absent.
(p) You must accept referral to the Salvation Army to be considered for the Day Program and comply with the conditions associated with being a participant of that service.
Your compliance with this order will be supervised by a magistrate. I direct you to attend the Magistrates Court in Hobart on Tuesday, 27 August 2019 at 10am. I understand the matter is listed before Mr Marron.
I order that the two Bendigo Bank Mastercards found in your possession be forfeited to the State of Tasmania.
On the charge of evading police, I disqualify you from driving for six months from today. On the charge of dangerous driving, I disqualify you from driving for a cumulative term of 12 months.