STATE OF TASMANIA v BENJAMIN EDWARD BAKES 13 DECEMBER 2024
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Benjamin Edward Bakes, born on 2 December 1990, has pleaded guilty to one count of dangerous driving and I have agreed, pursuant to s 385A of the Criminal Code, to also deal with charges of Drive whilst disqualified, Use an unregistered motor vehicle, Using a motor vehicle with no premium cover and Evade police in aggravated circumstances on complaint 53249/2022. These offences occurred on 16 October 2022.
The defendant has also pleaded guilty to one count of Aggravated animal cruelty, and I have agreed pursuant to s 385A of the Code to deal with two counts of Taking protected wildlife and one count of Animal cruelty on complaint 90800/2023.
The defendant was disqualified from driving from 29 July 2021 to 28 May 2023.
On 16 October 2022, at approximately 7:00pm, a Sunday, members of Tasmania Police observed a Blue Ford Focus Sedan travelling south on Sorrell Street, Devonport turn left onto Steele Street, Devonport. They recognised the driver to be the defendant, who they knew to be disqualified from driving and police systems indicated that the registration of the vehicle had expired.
The defendant travelled West on Steele Street, Devonport. Police conducted a U-Turn and attempted to intercept the defendant on Steele Street by activating their emergency lights and sirens. The defendant rapidly accelerated to an approximate speed of 90 kilometres per hour in a 50 kilometre per hour speed zone, and veered onto the incorrect side of the road. The defendant travelled through the intersection of Steele Street and Don Road on the incorrect side of the road. He travelled on Steele Street toward William Street at approximately 100 kilometres per hour within the 50 and 60 kilometres per hour speed zones. The defendant rapidly swerved into the immediate path of an oncoming vehicle which caused the vehicle to take evasive action to avoid a collision on Steele Street. This left black tyre marks on the road.
Due to the defendant’s driving, police disengaged from following the car. The defendant failed to give way to other vehicles at the roundabout at the intersection of Steele Street and William Street. The defendant turned left from Steele Street onto William Street and travelled north at an estimated speed in excess of 100 kilometres per hour in the 60 kilometres per hour speed zone. The defendant continuously moved back and forth onto the incorrect side of the road.
He then travelled through an orange light at the intersection of William Street and Best Street. Whilst travelling through the intersection, he travelled onto the incorrect side of the road. He continued to travel north on William Street. He overtook a vehicle outside of the Fourways shopping precinct and travelled at a speed that exceeded the 50 kilometres per hour speed zone.
He travelled on William Street on the far left side of the road through a number of vacant parking spots and swerved towards an oncoming vehicle, causing the vehicle to take evasive action to avoid a collision. He then braked heavily on William Street and made a rapid left turn onto Madden Street. This resulted in the vehicle producing a large amount of black smoke and leaving black tyre marks on the road.
The defendant turned right onto Caringa Place and braked heavily, coming to a complete stop. This action left black tyre marks on the road. The defendant fled from the vehicle on foot into the unit complex at 89A Nicholls Court, Devonport where he was arrested.
Whilst the defendant has a bad record of prior convictions, which include some speeding and evade police offences, he has no prior convictions for dangerous driving or like offences.
Turning to the animal cruelty offences, between October 2021 and January 2022 the defendant was an inmate at Risdon Prison. On 12 October 2021 he was housed in the Kara B units of the prison. He and another inmate were present inside a common area of the unit. The defendant was standing at a window, feeding Sulphur-crested cockatoos from his hand. The other inmate approached the window and pulled the struggling cockatoo into the room while the defendant assisted.
Between 12 and 14 October 2021 the defendant kept possession of the cockatoo. Initially, he kept it in a pillowcase but later he contained it within two blue coloured milk crates. During this time he attempted to feed the bird bread, muesli, and fruit which it struggled to eat as it had injuries to its beak.
On 14 October 2021, the cockatoo was discovered by correctional officers and confiscated. That same day, the bird was conveyed to the Bonorong Wildlife Sanctuary where it was assessed by veterinarians who considered that the bird had sustained significant injuries and required euthanasia.
Once euthanized, the cockatoo was conveyed to Natural Resources and Environment Tasmania laboratories for analysis by a veterinary pathologist.
On 12 January 2022, the defendant was housed in the Derwent units at Risdon Prison. On that date he was tasked with hosing the exercise yard for the unit. While doing so, he aimed a fire hose at a nest containing pre-fledgling house sparrows located in the awning of the exercise yard, spraying three pre-fledgling house sparrows out of their nest, causing them to fall onto the concrete floor. He then approached them and stomped on them until they died. He picked up two of the carcasses and threw them into a nearby rubbish bin, leaving the third on the ground. When correctional officers asked him why he had killed the birds he indicated that he was “clearing out a pest” because the birds “chirp and shit on us all day.”
On 13 January 2022, the three pre-fledglings were conveyed to Natural Resources and Environment Tasmania laboratories for analysis.
The defendant has no prior convictions for animal cruelty.
The State submits that the nature of the harm inflicted in this case was appalling, that the amount of suffering caused to the sparrows was great, resulting in the death of the animals, that the birds were extremely vulnerable in relation to the defendant and that the conduct was deliberate and intentional.
As to the cockatoo, it is not asserted that the original injuries to it were caused by the defendant but that the animal cruelty arose out of the fact that while he had charge of the bird, he failed to provide veterinary or other appropriate treatment to the bird.
It is asserted that the length of time that the bird suffered was from the point that the accused took charge of it on 12 October 2021 until it was euthanized on 14 October 2021. During this period the bird was suffering from significant injuries which ultimately required euthanasia. The conduct of the defendant merely exacerbated this suffering.
The State submits that general and specific deterrence and denunciation are all relevant sentencing considerations. I accept the State’s submissions.
Now 34, the defendant is a father of six with a seventh on the way. He has minimal contact with those children, largely because of his history of offending. As a boy, he had limited abilities with literacy to the point of being near but not at intellectual disability.
He studied to the end of year 10 at Yolla District High School near Wynyard in Tasmania. His school performance was affected by a number of matters. The first and perhaps most serious for him personally was trauma within the household including exposure to family violence. At age seven, he was injured in a motorcycle accident and suffered an acquired brain injury as a result.
He turned to drugs in his teenage years. Cannabis at the age of 14, which rapidly progressed to addictions to amphetamines, speed and methylamphetamine. These situations all intermixed to bring him into the youth justice system.
He suffers from post-traumatic stress disorder and depression and anxiety. While not diagnosed, his instructions to his counsel are that he has symptoms consistent with attention deficit disorder. As a result of those diagnoses and suspicions, and also his past injuries and developmental issues, he has been able to access disability support benefits throughout his life and now, over the last three years, assistance through the NDIS.
The defendant, despite his literacy problems, has attempted certificate 2 studies through TAFE Tasmania. He is also wanting to break his addictions.
He was assessed for the court-mandated drug diversion program but was not successful on that program. He admitted himself to Missiondale in February of 2023. He was a resident at that program for eight months in Launceston. The course was successfully completed and he was kept on at the program to assist with less experienced patients. Unfortunately, a family gathering occurred for his father’s 60th birthday, at which he had a beer and when word got back to Missiondale, he was expelled from the program as a result.
He then moved to Velocity Transformations but an incident occurred at that program where he was assaulted by another patient. He defended himself against that patient but unfortunately the program has a zero tolerance policy and both were immediately expelled.
He then relapsed and was remanded into custody. That period in custody going from late 2023 to May of this year was effectively served as a period of imprisonment, due to a backdated imprisonment order of Magistrate Edwards.
His hopes to engage in rehabilitation have not ceased. Both Serenity and the Salvation Army have requested information in relation to the defendant for their screening processes.
In mitigation it is put with respect to the animal cruelty matters, that the taking of the cockatoo was a flawed or misguided attempt by an inmate and his bunk-mate to keep a pet. The bird was at the barred window, they brought it inside, they kept it and fed it in milk crates. They knew that if the guards saw it that they would remove it. The defendant’s plea of guilty is on the basis that the bird’s injuries were incurred prior to them taking it into their possession. The cruelty is asserted on the basis of delaying the bird’s access to veterinary care.
As to the offences involving the sparrows, I am told that the circumstances arose as a result of the defendant’s duties in cleaning at the prison. His instructions to his counsel are that there had been complaints from inmates, including himself, for a long period as to the presence of the birds, bird nesting and bird faeces on the open exercise and basketball area of the prison. When he was assigned the task of cleaning the area he thought, wrongfully, that he was resolving the issue of a common pest, much like one would remove rats or mice.
As to the dangerous driving, it is put that whilst evasive action and fear and risk caused to the public were features of the driving, no actual damage was caused in this case.
The defendant recognises that his past attempts at rehabilitation need to continue with the support of NDIS. He recognises the wrongfulness of his behaviour and is remorseful.
While these charges are serious, as submitted on behalf of the State, the matters put on the defendant’s behalf cause me to conclude that he should spend no further time in prison at this time and should be given the opportunity to continue his efforts at rehabilitation.
The defendant is convicted on the crime of dangerous driving, and the summary driving offences.
In relation to the dangerous driving, and the summary offences, the defendant is sentenced to nine months’ imprisonment ,wholly suspended on the condition that he not to commit any offence which could attract a term of imprisonment, suspended for a period of two years. He is obliged to attend Community Corrections at no later than 4.00pm on Monday of next week or the day after he is released from prison and report to a probation officer.
As further conditions of the suspended sentence, the defendant is to be subject to a period of supervision of a probation officer for a period of two years from his release from prison, and is to report as required by a probation officer, and comply with all of the reasonable and lawful directions of a probation officer. He must not leave or remain outside Tasmania without the written permission of his probation officer and must also give written notice of any change of residential address within two working days of the change. He must undergo assessment and treatment for drug dependency as directed by his probation officer and comply with directions regarding referral to drug and alcohol counselling and drug rehabilitation programs.
The defendant is to be subject to a period of nine months’ disqualification from holding or obtaining a drive’s licence from the date of his release from prison.
On the charge of evading police (in aggravated circumstances), the defendant is sentenced to an additional period of one month imprisonment, wholly suspended on the same conditions, and is to be subject to six months’ disqualification to run concurrently with the nine months I have just imposed on the dangerous driving charge.
The defendant is convicted of the charges of taking protected wildlife and animal cruelty and is sentenced to an additional period of two months’ imprisonment, wholly suspended on the same conditions as the two other suspended sentences I have just imposed.