STATE OF TASMANIA v JUSTIN CRAIG CLEAVER 17 DECEMBER 2024
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant has pleaded guilty to one count of dangerous driving. The particulars are that he drove on the wrong side of the road, drove on a footpath, reversed at excessive speed, crashed into a police vehicle, and crashed into a fence. I am also dealing with his plea of guilty to a charge of motor vehicle stealing, in the sense that he was using a vehicle without the consent of the owner. After the plea, the facts were stated, and counsel for the defendant specified areas of dispute. I subsequently heard evidence from three police officers. Of course he was not obliged to, but the defendant did not give evidence. On 9 December, I published reasons. The facts, as I found them to be, are as follows.
On Friday 22 April 2022, officers of Tasmania Police were searching for the defendant. They were in an unmarked police vehicle in Herdsmans Cove. While stationary at the junction of Birubi Place and Lamprill Circle, the officers saw a white flat tray utility with no registration plates approaching from the left. It turned right into Dilkara Place before it reached them. They had information this vehicle was linked to the defendant. They drove along Lamprill Circle and turned left into Dilkara Place. Emergency lights on the police vehicle were then activated. The defendant drove away past the police car, drove on to the wrong side of Dilkara Place and over the footpath. He then drove a short distance of about 50 metres along Lamprill Circle and came to a stop in the middle of the road at its intersection of Holloway Drive. The utility was straddling a single white line, but this is not particularised as an act of dangerous driving. By this stage the police vehicle had turned to follow. As the police vehicle drew near to the defendant’s vehicle on the right-hand side, he reversed away. Three of the officers got out, two of whom were armed. The defendant reversed away at some speed, crossed on the wrong side of Lamprill Circle and went into a garden bed. The defendant then drove forward at speed back towards the intersection with Holloway Drive. As the police car was still at the intersection it was able to block the defendant’s route but he continued to move forward and a collision occurred. The three officers on foot caught up. One of the officers punched the defendant to the head through the open window of the utility at which point the defendant again reversed at speed across Lamprill Circle onto the same property but this time crashing into a paling fence. The three officers quickly surrounded the vehicle, the right-hand tyres of the utility were shot out and the defendant pepper sprayed.
On the whole of the evidence, I was satisfied that from the time the two vehicles passed each other in Dilkara Place, the defendant was aware he was being pursued by police officers. As to what acts of the driving were dangerous there is, firstly, driving in Dilkara Place which was conceded. The indictment has one particular of reversing the vehicle but in fact there were two instances of that happening. The first was in dispute, the second was not. I was satisfied the first was dangerous in the circumstances. There is then also crashing into the police vehicle and the second act of reversing leading to the collision with the fence which, I add, moved it back a short distance into the person’s backyard. I accept that the time and distances involved in the relevant acts of driving are very short. From the CCTV footage I saw, traffic appears to be light on the road at the time, but the potential clearly existed at that time of day; Lamprill Circle is a thoroughfare in a residential area, with a community centre and a convenience store quite close to where the offending took place.
The defendant is now 31 years old. He has a very long and extensive record of offending, with a significant number of convictions for serious driving offences. Heavy drug use and addiction has been at the heart of much of his record. He has twice been dealt with in this Court for dangerous driving and associated summary charges. On 13 June 2018, when sentencing the defendant for dangerous driving and summary matters including evading police, a judge of this Court said:
“When he was 16 he was given community service for driving while disqualified and reckless driving. In July 2012 he was sentenced to community service and probation for numerous summary offences committed in that year, including obstructing police and three counts of driving without a licence. On 26 June 2013 the defendant was sentenced to imprisonment for a total of seven months, three months of which was suspended, for a substantial number of offences including two counts of evading police, one count of refusing to submit to the taking of a blood sample, refusing a breath analysis and a breath test, driving with alcohol in excess of the prescribed limit, two counts of driving without a licence and two counts of driving while disqualified, and threatening and resisting the police. He was not deterred. On 3 May 2014, following his release from prison, he committed the offences of dangerous driving and driving while disqualified, also involving a high speed police chase around the streets of Hobart. On 28 May 2015 he threatened and assaulted a police officer. On 12 November 2015 he was sentenced for those and numerous other offences to terms of imprisonment totalling 16 months, three months of which was suspended. That sentence, as others had before, included a lengthy period of disqualification from driving. On 20 July 2016 he was imprisoned for 18 months, six months of which was suspended, for Criminal Code assault. On that occasion he was also with his father. The defendant had a pistol and his father had a rifle. They both assaulted another man by firing the guns towards him. He was released on parole on 19 December 2016 but his parole was revoked on 28 April 2017 and he was eventually released from custody in June 2017.”
On 20 August 2021, again on dangerous driving and associated summary offences, the defendant was made the subject of a drug treatment order; the custodial period was 24 months. That order was in force at the time of this offending. There can be no doubt that the defendant had a traumatic and dysfunctional upbringing, being exposed to violence, drug offending and significant criminality within the family leading to little effective schooling. He was sexually abused by a family member as a boy. He was also the subject of abuse while in Ashley Detention Centre. I note that he was able to stay on the drug treatment program for quite a long period before it was cancelled. He has been able to maintain a relationship with a woman with whom he has children, notwithstanding the relationship has been interrupted by long periods in custody. Since more recently being in prison he has done what he can in terms of the support available to address his problems. When he is out of gaol, he hopes to be able to enrol in a residential rehabilitation program. I was told that particularly over recent months prison conditions have been harsh, with a high percentage of lockdown periods, something which I take into account. I take into account the defendant’s background and his other personal circumstances. I also take into account his pleas of guilty, the plea to the indictable matter, at least obviating the need for a jury trial.
As to the offending, I am able to take into account that the acts of driving were done in attempt to avoid apprehension, even though that conduct is, or may be, the subject of a different charge: Banks v Tasmania [2019] TASCCA 1, 31 Tas R 342. At the same time, It follows from what said earlier that I accept the submission of counsel for the defendant that this case involves unusually short distances and low speeds. That said, the risk to residents driving or walking out into the midst of what was happening was relatively high, as well as the risk to drivers who may have been seeking to use Lamprill Circle. I also accept, that in part at least, the second act of reversing was possibly contributed to by the defendant being struck forcefully to the head by an officer immediately before it began. I do not think that cannot be elevated to a probability as the driving is consistent with what preceded it, but it is a matter I take into account. Although the defendant is not to be sentenced on his record, it means he is not entitled to any leniency, and it means that specific deterrence in respect of driving offences is a significant factor. However, I would repeat that the time period over which this incident took place and the distances involved are very short, and the speeds low.
Mr Cleaver, I have set out the facts as I have found them to be, some of your relevant personal circumstances, and what I see to be the proper considerations. You are a serial offender for crimes of this type and driving offences generally. This episode of dangerous driving is at the low end of the scale but in your case, imprisonment is necessary, but I think a short period will suffice. You are convicted of all matters and sentenced to six months imprisonment to commence on 6 October 2023. You are disqualified from driving for a period of 18 months to commence on the date of your release from prison. I make a compensation order in favour of Carol Johnson for an amount to be assessed and adjourn the further hearing of that application to a date to be fixed.