STATE OF TASMANIA v BRETT LANGDON WESCOMBE 18 MARCH 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr Wescombe, you have pleaded guilty to one count of indecency and one count of dangerous driving. You have also pleaded guilty to the related summary charges of prohibited behaviour, refusing to submit to the taking of blood, providing false information as to name and address, hinder conveyance contrary to the Road Safety Alcohol and Drugs Act 1970, and possessing a controlled drug. I am dealing with the summary charges pursuant to s 385A of the Criminal Code.
The offences were committed on 10 October 2017. The act of indecency took place at 7:15 am. You drove up to a man who was walking his dog at a suburban recreational ground. You were completely naked. When your vehicle was beside him, you opened the driver’s side door, fully spread your legs to expose your penis and said to him “Do you want some of this.” The man walked away and called police.
The dangerous driving took place immediately after you had driven away from the recreation ground. It occurred during the course of the journey between the recreation ground and a location in the car park of a business in Warrane, where you were ultimately intercepted by police. The total distance of the journey was 9 km, although the prosecution estimates that the distance over which you were observed to be driving dangerously was approximately 3.4 km. Your driving during this period was erratic and unpredictable. It took place on the East Derwent and Tasman Highways, which are major arterial roads, at a time when there was heavy traffic in the vicinity. The specific acts of driving which constitute the crime include tailgating other vehicles, coming close to a complete stop on the highway without regard for other traffic, travelling at an excessive speed, changing lanes in a dangerous way and thereby cutting off other vehicles. Some vehicles were required to brake suddenly and aggressively to avoid collision with your vehicle. A particularly dangerous action involved travelling past other vehicles on the Tasman Highway, at a speed well in excess of the limit of 110 km/h, and then suddenly and without warning coming to a complete stop in the middle of a lane. A large truck was required to swerve to avoid a collision. The driver was so concerned that he called 000 to report the incident. At another point on the Tasman Highway, you tried to perform a U-turn across a traffic island to access the other side of the highway. You were impeded from completing the turn by the barrier in the middle of the road. You then reversed quickly across the highway in front of a trailer and a car, both of which had to brake heavily to avoid a collision.
When police located you, your vehicle had come to a halt in the location already described. The police found you sitting in your car, naked and masturbating. This constitutes the summary charge of prohibited behaviour. They found a number of sex toys, as well as a considerable quantity of drugs. It was obvious to the police that you were under the influence of drugs or alcohol. Police administered a breath test which returned a negative result for alcohol and an oral fluid test, which returned a positive result for cannabis and MDMA. You were taken into custody pursuant to the Road Safety Alcohol and Drugs Act for the purpose of a blood test, but as you were being escorted to the divisional van, you ran away. You were apprehended after a short chase. This action constitutes the offence of hinder conveyance. When you were taken to hospital you refused to submit to the taking of blood for analysis, which constitutes the offence of refusing to submit to the taking of blood. You also provided police with false details as to your identity. You, in fact, gave them the details of your brother.
You have not disputed any of these allegations. However, you have asserted in mitigation that you have no memory of these events, and that your conduct can be attributed to intoxication induced by a substance which you had taken the previous night. Your counsel submits that these circumstances reduce your moral culpability, because you were taking the drugs for therapeutic purposes and had no reason to foresee that the drugs would have an intoxicating effect, particularly of this nature, on you. You assert that you would not have committed these offences otherwise. The prosecution disputes this explanation, and its claimed mitigatory effect. Your counsel accepts that the onus of establishing the mitigatory benefit of such circumstances falls upon you, on the balance of probabilities.
Your evidence, taken in combination with representations made by you to Dr Jordan, asserts that in 2013, you were diagnosed by a psychiatrist in Western Australia, with the condition ADHD. Soon after, the psychiatrist prescribed dexamphetamine to control the symptoms of the condition. You continued to use that drug, under prescription, until you came to Tasmania four years ago. At that time, you consulted another psychiatrist who refused to continue the prescription. You were prescribed different medication, which you claim was not effective in controlling the symptoms. In evidence, you said you looked for another doctor who would prescribe dexamphetamine, but were unable to find one. Accordingly, you resorted to procuring synthetic drugs from online websites, which you believed would have the same effect as dexamphetamine. You claim to have obtained some benefit from these drugs.
Your evidence is that shortly before the relevant night, you had ordered synthetic drugs from an overseas website, which you had not used before for this purpose. You located the website and selected the drugs, based on your own research on the internet. The drugs arrived on 8 October 2017. You took a dose on the night before the relevant events. You remember taking a 500 mg capsule. It is not clear how you determined this to be an appropriate dose. You said in evidence that you then drove to Rosny lookout, which was something you had done before, generally for sexual activity, either with your wife or by yourself. You conclude that you must have fallen asleep in your car. Your next memory is being apprehended by police.
Assuming that your evidence is accepted as credible and reliable, the question which arises is whether the effect of the drugs and the fact that you committed this conduct while intoxicated by virtue of the drugs, reduces your moral culpability in respect of these crimes and offences. The fact of your intoxication is not seriously disputed by the prosecution, and the observations of various witnesses, including police, are entirely consistent with that intoxication. This is also consistent with Dr Jordan’s evidence as to the expected effect of the drug, and his description of your condition which is “delirium”. He describes this as “impairments in consciousness and attention together with global disturbance of cognition, including perceptual and complete impaired disturbances orientation and memory.” This would all seem to be consistent with the evidence as to your actual condition. Accordingly, I accept, on the balance of probabilities that you were intoxicated by the drug in the sense explained by Dr Jordan, that you cannot recall the events which constitute the crimes and offences, and that your conduct was substantially due to your intoxication.
Of course, without more, self-induced intoxication is an aggravating factor in respect of dangerous driving. However, such intoxication may reduce moral culpability if it can be established by you on the balance of probabilities that the intoxication and its effect on your conduct, was not something that you could reasonably anticipate as a consequence of taking the drugs. If you are able to establish this, then your mental state would become relevant for the reasons described in Verdins. Of course, it would not be sufficient for you to establish merely that you did not anticipate the precise effect of the drug. If you were, or ought to have been aware that drugs of this nature might have an intoxicating effect, then there could be no mitigatory benefit to you from taking the drug. Further, if you took the drug aware of a potentially intoxicating effect, and then, before the drug had caused intoxication, made a conscious decision to drive, this conduct in itself would aggravate the seriousness of your offending.
Having considered all of the evidence, including the relevant expert evidence, I am not satisfied that the intoxication has any mitigatory effect. In particular, I am not satisfied on the balance of probabilities that you are being truthful in respect of your reasons for the use of these drugs. Your use of the drugs must be seen within the context of a much longer history of illicit use of amphetamines for recreational purposes. I find your explanation of sourcing drugs on the Internet solely for therapeutic purposes after having been unsuccessful in obtaining a prescription for dexamphetamine from treating doctors, to be highly improbable. I have no doubt that your underlying condition was also involved in your decision to source the drugs, but I do not think it was the sole or predominant reason. I think that the more probable explanation is that you wanted to use these drugs for recreational purposes as an alternative to amphetamine, and used the underlying condition of ADHD as an excuse to do so.
Further, I do not accept, in any event, that you have established a basis for the reduction of moral culpability. The evidence of Mr Gardner establishes that dexamphetamine has similar effects to methylamphetamine and amphetamine. I infer the probability that this is also true of synthetic substances previously used by you. Given your experience with illicit drugs, you must have realised that the substances had a similar effect to those drugs. Further, I have no doubt that you would have been aware that you were not permitted to drive with such drugs in your body. Although you claimed in evidence that your belief was that the synthetic drugs were legal, this is not actually correct and it does not seem to me that you took any significant step to establish the true situation. Your evidence seems to be that you relied solely on your own research on the Internet. I am satisfied on the basis of your evidence, and what you told Dr Jordan, that you made a conscious decision to drive to Rosny lookout on the night in question. You conceded in evidence that you had taken a 500 mg dose of the drug before driving to the lookout. Further, in my view, it is highly probable that you took some drugs while you were there. I note that drugs were found in your vehicle when you were apprehended by the police. The presence of these drugs in your vehicle has not been satisfactorily explained by you. I conclude that you took these drugs with you when you left home and consumed some while you were at the lookout.
Accordingly, while I accept that you may not have taken these particular drugs before, and may not have completely anticipated the full extent of their impact upon your cognition, you took drugs that were likely to have a similar effect to methylamphetamine and amphetamine, before you left home, knowing that you would be driving, and/or while you were in charge of the motor vehicle at Rosny lookout. In these circumstances, the effect of the drugs will not mitigate your moral culpability for your criminal conduct. In fact, I consider that your use of the drugs in these circumstances is an aggravating factor. There is a clear analogy between a person who uses alcohol to a state of heavy intoxication and then drives dangerously, and what occurred in this case. I intend to assess your moral culpability on that basis.
You are 57 years of age. Your record of prior convictions, is varied, and includes a number of drug and traffic offences. There are a number of prior convictions for drink-driving and disqualified driving, although I accept that prior to your commission of these crimes, you last committed an offence of that nature some 10 years earlier. You have, however, been convicted of driving whilst disqualified since the commission of these crimes.
Ultimately, this was a relatively serious case of dangerous driving. It is true that some of the aggravating features found in other cases are not present. For example, this is not the type of case where you were deliberately and consciously driving in a dangerous manner in order to avoid interception by police. You did not cause any actual injury to any person or damage to property. You have no prior history of driving dangerously, although I note again the related history of drink-driving. However, there are serious aspects to the driving. A number of other road users, as well as yourself, were put at risk by your conduct. The driving occurred on busy highways and there was in fact significant traffic in the vicinity at the time. The driving persisted over a significant distance. I have already commented that the danger was increased by the erratic and unpredictable nature of your conduct, which was undoubtedly a direct result of your intoxication.
Those who consume illicit drugs or alcohol and then drive dangerously create great danger on the roads. All too frequently that danger materialises in death or serious injury. There is, accordingly, a significant need to emphasise general deterrence in this sentence.
The summary offences are also serious matters and, in the case of the breaches of the Road Safety (Alcohol and Drugs) Act, involved separate and distinct criminal conduct. The offences of refusing to submit to a blood test and hindering conveyance are regarded seriously because they undermine the system of enforcement in respect of drink and drug driving and facilitate the avoidance of responsibility for such conduct.
In respect of the act of indecency, I am satisfied that this conduct was out of character and attributable to the intoxication. Specific impact has not been asserted, although I imagine that the man in question was shocked and offended by what you did.
In mitigation, I will take into account your pleas of guilty, although their weight is reduced by the disputed explanation, which has been substantially rejected. I will take into account that there was no injury to person or property.
In my view, the only appropriate sentence is one of imprisonment. However, in this case there are a number of factors which persuade me that home detention is an adequate and appropriate sentencing option. I take into account the factors which distinguish this case from more serious cases, the length of time that has elapsed since you last committed a serious driving offence, and the fact that you have not previously committed the offence of dangerous driving. The order will still have significant punitive effect. It will also provide appropriate opportunity for supervision, which, in my view, is indicated in this case.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime and the offences to which you have pleaded guilty.
2 As a global sentence, I make a home detention order, which will have an operational period of 18 months, commencing today. The home detention premises will be at [home detention premises]. I note that the core conditions of the order contained in s 42AD(1) will have effect during the operational period of the order. This will include s 42AD(1)(g), which is the provision requiring submission to electronic monitoring. For the purposes of the condition contained in s 42AD(1)(c), I specify that the offender must, during the operational period, be at the home detention premises at all times on each day of the week, unless he is not there for a relevant reason, as specified in s 42AD(4). The order will also include the following special conditions:
(a) That you must report to a probation officer at Community Corrections immediately after these proceedings.
(b) That you must maintain in operating condition an active mobile telephone service, provide the details to your probation officer and be accessible for phone contact at all times.
(c) That you must not permit any other person to reside in the home detention premises during the operational period of the order, except with the consent of your probation officer.
3 I also make a concurrent community correction order, which will have an operational period of 18 months. In addition to the core conditions of the order, the order will also include the following special conditions:
You must, during the operational period of the order:
(a) attend educational and other programs as directed by the Court or a probation officer;
(b) submit to the supervision of a probation officer as required by the probation officer;
(c) undergo assessment and treatment for drug dependency as directed by a probation officer;
(d) submit to testing for drug use as directed by a probation officer;
(e) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
4 Further, I am required to impose a period of driving disqualification. I note that there are minimum periods of disqualification prescribed in the relevant legislation, the Road Safety (Alcohol and Drugs) Act in respect of some of the offences to which you pleaded guilty. I think that a global disqualification from driving for a period of four years is appropriate, but I intend to reduce that period to three years having regard to the fact that you have served a period of 12 months under an excessive drink drive notice. You were further disqualified for breaches of that disqualification, but I do not intend to take those further breaches into account because you have already been punished for them. Accordingly, I impose a global disqualification of three years, which will be backdated to the date that I imposed bail conditions preventing you from driving, which is 2 October 2019.
5 In relation to the indecency charge, I am required to make an order pursuant to the Community Protection (Offender Reporting) Act unless I am satisfied that you do not pose any risk of committing a reportable offence in the future. In the circumstances of this case, and in particular having regard to the nature of the offence and the fact that it was committed when you had allowed yourself to become intoxicated by drugs, I think that there is clearly some risk that you will commit a reportable offence in the future. However, I think that risk is relatively limited, and accordingly I make an order that your name be placed on the register and you be subject to the relevant reporting conditions for a period of three years from today.