STATE OF TASMANIA v BRADY LEIGH WHELDON-TYNAN 20 SEPTEMBER 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Brady Wheldon-Tynan pleads guilty to two separate criminal incidents, each involving multiple offences. The first centres around the aggravated burglary of a house in Prospect on 5 July 2018. The second is dangerous driving which occurred on 3 January 2019.
At about 12.30 am on Wednesday 5 July 2018 the defendant was driving in Prospect with another man. They drove past the unit then owned and occupied by Paul Petterwood. They did not know Mr Petterwood but they stopped when they noticed that the door of the garage attached to the unit had been left open. The defendant walked into the garage, took off his boots and walked through the unlocked door into the unit. Mr Petterwood was asleep in the lounge room. The defendant removed Mr Petterwood’s wallet and keys from the kitchen bench and walked back to the garage. With the help of his associate they pushed the car partially out of the garage and then used the keys to start it. Mr Petterwood was woken by the noise. He came out to investigate. The defendant, in his haste to steal the car, drove it into the side of the garage and then the letter box at the end of the driveway. When Mr Petterwood stood at the bonnet of the car the defendant got out and pointed a stun gun at him, swore and threatened to “Taser” him. Whatever the implement was he was holding, it had the appearance of a device capable of being used to carry out the threat. The defendant ran off and drove off with his associate in the car they arrived in. They left Mr Petterwood’s car and keys but took his wallet. Over the course of the next couple of hours the defendant used a credit card from the wallet at two businesses to buy food, phone credit, cigarettes and fuel to the total value of $108. He attempted to use the card at a third outlet to buy more cigarettes but that transaction was declined.
By these acts the defendant committed the offences of aggravated burglary, stealing the car, wallet and keys, and unlawfully damaging the car and the surround to the garage door at Mr Petterwood’s unit. The car and the keys were left behind. The defendant was found by the police the following day in possession of three of Mr Petterwood’s credit cards. When interviewed he admitted what he had done. There is no victim impact statement from Mr Petterwood because, sadly, he was found dead in his unit by a neighbour later the same day. It is not asserted by the prosecution that the defendant’s crime played any causative role in his death and no charge arises from it.
The second criminal incident occurred six months later on 3 January 2019. On that day the defendant was at George Town when he received a message from his brother that the police were looking for him. Fearful of returning to prison, he drove the Subaru Liberty station wagon he had purchased about five days earlier back towards Launceston on the East Tamar Highway. At about 12.10 pm he was seen by a police officer, Constable Slater, who followed when the defendant turned right onto Archers Road towards the Batman Bridge. By the time the defendant reached the bridge he was aware he was being followed by a police officer. He pulled into a car park, negotiated a U-turn and accelerated away in the direction from which he had come. At that point the road was busy and a vehicle had to cross to the opposite side of the road into the path of oncoming traffic to avoid the defendant as he pulled back out onto the road, thereby failing to give way. Constable Slater activated the lights on his vehicle as a signal for the defendant to stop. He did not do so. Instead, he drove away at speed, travelling onto the incorrect side of the road for an extended period, I infer to overtake other cars travelling in the same direction. Constable Slater followed the defendant along East Arm Road to Dalrymple Road where, despite reaching 130 kph in the police car, Constable Slater made no ground on the defendant, lost sight of him and disengaged from the pursuit. The defendant was next seen back on the East Tamar Highway by other officers sent to look for him. He was driving south at high speed. They followed and monitored the speed of his car in excess of 140 kph. He overtook many other cars, including by driving onto the left shoulder of the road to overtake on that side vehicles travelling in the same direction on the single carriageway. Road spikes were set up at the southern entrance to Dilston. The defendant approached at 140 kph. When he saw the road spikes he decelerated heavily and drove through a gap in the wire road divider. The car struck the centre concrete curb with such force as to cause the front passenger tyre to deflate. Despite this, he continued south on the wrong side of the road into the face of northbound traffic, forcing cars to pull off to avoid a collision, although by then he was travelling at a much reduced speed. He drove for about two kilometres before his car wouldn’t go any further. He abandoned it and fled on foot. He was found hiding in the bushes on the opposite side of the highway and arrested.
When interviewed he told the police that he had driven at 100-110 kph on the gravel part of East Arm Road, that when he left the gravel road he had his foot flat to the floor on Dalrymple Road and got up to 160 kph and that on the East Tamar highway he was travelling at 170 kph, which was as fast as he could make his car go. He also told the police that the car he was driving was “not roadworthy” and that he was surprised it was registered. He intended to do it up and sell it. He admitted that he was a daily Ice user, and had last used Ice at 2.00 am on the same day. He smoked three cones of cannabis about 15 minutes before driving. He said that he thought cannabis made him “drive better”. Analysis of a sample of oral fluid taken from the defendant disclosed the presence of methylamphetamine, amphetamine (a metabolite of methylamphetamine) and THC. The defendant has never had a driver licence and was a disqualified driver at the time.
Arising from these acts the defendant pleaded guilty to dangerous driving. I also agreed to deal with his plea of guilty to the summary charges of evading police, driving while disqualified, driving with an illicit drug in his blood and failing to give way.
The defendant is now aged 21. He was 19 at the time of the aggravated burglary and 20 at the time of the driving offences. He comes from a good and supportive family but he has been troubled by behavioural issues since he was a small child. He was diagnosed with ADHD when he was two and has been medicated for the condition from age four. He is susceptible to peer pressure, enjoys attention, and by age 15 developed oppositional defiance disorder. He has used cannabis since his early teens and in 2017 started to heavily use methylamphetamine, to which he quickly became addicted. He developed substance abuse disorder. However his counsel disavows any submission that the mental conditions from which he suffers operate to mitigate sentence in any way. He has some other physical health problems.
For a young man, the defendant has a poor criminal record. It did not commence until 2017 but since then is typical of a person with a serious substance abuse problem. The record is mostly for dishonesty. In May 2017 he was sentenced to probation for a year for multiple counts of stealing, motor vehicle stealing and receiving. A year later, on 4 May 2018, he was sentenced by a magistrate to imprisonment for 14 months, eight months of which was suspended for two years. The offences for which he was sentenced were committed while he was on probation and included 22 counts of stealing, 21 counts of burglary, aggravated burglary or attempted aggravated burglary and six counts of computer related fraud. The offences also included one count of dangerous driving, motor vehicle stealing and driving with an illicit drug in his blood. The period of six months custody and the suspended sentence did not deter him. The aggravated burglary for which I am to sentence him was committed only two months later. He also committed a string of offences of dishonesty of the same type during the balance of 2018 for which he was sentenced by a magistrate on 12 December 2018. In response to the obvious connection between the dishonesty offences and his addictions, and as an attempt to help him to address it, a drug treatment order was made with a custodial term of five months. At the same time he was sentenced for a serious assault to imprisonment for five weeks, wholly suspended. No application was made on that day for breach of the eight month suspended part of the sentence to which he was already subject. The defendant did not take advantage of the opportunity he was offered by the making of the drug treatment order. Within a month he had committed the driving offences for which I am to sentence him. In addition he committed other summary offences including two counts of stealing and two counts of driving while disqualified two days earlier on 1 January 2019, and stealing and driving while disqualified earlier on the same day. He has already been sentenced by a magistrate for those other offences. On 9 April 2019 the drug treatment order was cancelled and he was sentenced and re-sentenced to a total term of imprisonment of five months plus eight weeks imprisonment from 3 January 2019, the day he was taken into custody for the driving offence. Included in that total sentence was activation of the five week suspended sentence imposed on 12 December, but still no application was made for breach of the 4 May 2018 suspended sentence and no order was made in respect to it. For those sentences his earliest release date was 21 June 2019 and he had completed the full term by 27 July 2019. The offences for which he was sentenced on 12 December 2018 are prior convictions for the driving but not the aggravated burglary. The offences for which he was sentenced on 9 April 2019 are not prior convictions for either. For sentencing purposes he has no prior convictions for evading police or driving while disqualified, but his record indicates a pattern of repeated offending while on bail, a contempt for the law, and the absence of reform despite the sentencing orders directed to that object. He is still a young man. His youth is still a factor, but he has forfeited much of the mitigation which arises from it by his repeated serious offending. The mitigation of youth for driving offences is limited anyway because so many such offences are committed by young men like him and general deterrence is an important factor. All but one of the offences for which I am to sentence him breach the conditions of the 4 May 2018 sentence and application is now made for its activation. I must now activate the eight month suspended part of that sentence unless it is unjust.
Mitigation arises from the pleas of guilty. He initially pleaded not guilty to robbery but changed his plea as soon as the charge was amended. Some of the particulars of the dangerous driving arise from the admissions he made. Considering that I am dealing with the question of activation of an eight month suspended sentence, and two separate criminal incidents, I must have regard for the principle of totality. The sentence must be a fair and just reflect his overall criminality, taking into account the need to deter him and others, and the need for punishment and protection of the public. The sentence should not be crushing in the sense that it should not remove from him any hope for the future or the chance of rehabilitation. One way I will allow for totality is by ordering that the separate sentence for evading police, which I would ordinarily have made cumulative to the term for dangerous driving, be served concurrently. His aggravated burglary involved a spontaneous but brazen and confronting invasion of a home and serious threats to the occupant, as part of a series of similar offences committed round the same time and dealt with by a magistrate. As to the dangerous driving and related offences, the driving did not take place in a town, but involved very high speed driving on country roads at which any other traffic could have been put at grave risk, and on one of the principal highways in the north of the State which always carries traffic. On the highway other drivers were actually put at risk and had to take evasive action. The defendant understood the danger he posed and proceeded anyway. The danger was added to by the drugs he had used and the fact that he was attempting to get away from the police. It is agreed that I sentence the defendant on the basis that the offence of evade police was committed by the initial act of performing a U-turn at the Batman Bridge and driving off. But for totality I would have imposed a total effective term of imprisonment for the driving offences of imprisonment for two years and four months. Further as to totality, I take into account that the defendant has already been in custody since 3 January 2019. It is relevant that he has been sentenced twice since the suspended sentence was imposed without application to activate it. On the other hand, he has been given many opportunities to stop offending and has not taken advantage of them. I see no reason to conclude that it is unjust to activate the term, although I will allow for totality by making part of it concurrent with another sentence.
Brady Wheldon-Tynan, on indictment 168/23019, the burglary matter, you are convicted on each count. I impose one sentence. You are sentenced to imprisonment for six months cumulative to the sentence imposed by the magistrate on 9 April 2019. I order that you not be eligible for parole until you have served half of that sentence. On indictment 256/2019, dangerous driving, you are convicted. On complaint 30055/2019 you are convicted on counts 1, 2, 4 and 5, the other driving offences. On count 1, evade police, you are sentenced to imprisonment for four months cumulative to the term just imposed. On that count you are disqualified from driving for 12 months cumulative to any period of disqualification you are serving or liable to serve. Any driver licence you have is cancelled. On count 4 on complaint, failing to give way, I make no other order. On the indictment and on counts 2 and 5 on the complaint, I impose one sentence. You are disqualified from driving for two years cumulative to period of disqualification just imposed and any other period of disqualification you are serving or liable to serve. You are sentenced to imprisonment for two years, to be served cumulatively to the sentence imposed on indictment 168/2019, but concurrently with the sentence for evading police, count 1 on complaint 30055/2019. I activate the eight month suspended part of the sentence imposed on 4 May 2018 and order that you serve it. Of that term, four months is to be served concurrently with the dangerous driving sentence, and four months is to be cumulative. I order that you not be eligible for parole until you have served six months of that term.
In accordance with the Sentencing Act, s 92A, I specify that the total term of imprisonment that you liable to serve for all the sentences of imprisonment that are being imposed, or activated today is two years and ten months, cumulative to the sentence imposed by a magistrate on 9 April 2019. You are not eligible for parole until you have served one year and five months of that total term. I record for completeness that, once the sentence imposed by the magistrate on 9 April 2019 is taken into account, the total term is almost three years and five months from 1 January 2019, and, leaving aside any entitlement to remissions granted in respect to the magistrate’s sentence, you will be required to serve almost two years before becoming eligible to apply for parole.
[On 19 December 2019 Pearce J corrected this sentence by adding an order that the defendant not be eligible for parole until having served 12 months of the two year term imposed on indictment 256/2019 and counts 2 and 5 on complaint 30055/2019.]