STATE OF TASMANIA v MICHAEL ALLEN JAMES DALY 15 DECEMBER 2022
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr Daly has pleaded guilty to a charge of attempted aggravated carjacking. The crime of aggravated carjacking is committed when two or more people try to deprive a person of a motor vehicle. On 7 February 2022 Mr Daly and a youth attempted to take a man’s vehicle without consent at Sandy Bay. The motorist was a delivery driver. He had parked a Toyota Corolla in the carpark of a McDonalds outlet in Sandy Bay and was waiting in the vehicle to pick up an order with the driver’s side door open and his right foot outside the door. The youth had decided to go to Sandy Bay to steal a car. He had invited Mr Daly to come with him, and Mr Daly had agreed to be part of this arrangement. The youth was armed with a pair of scissors and a screwdriver. Mr Daly was not armed. The pair confronted the motorist. The youth stood outside the driver’s door, stopped the driver from getting out, and demanded the keys. Mr Daly got into the front passenger seat and also demanded the keys. The youth pushed either the screwdriver or the scissors towards the driver’s neck. Mr Daly pushed the man’s head towards the implement and that resulted in a small cut to his neck, but then the man pushed the youth out of the way and fled with the keys. Mr Daly and the youth both left. They were later arrested. Mr Daly has been in custody ever since.
The youth was sentenced by a magistrate to 12 months’ detention. Under the provisions of the Youth Justice Act 1997 that means he would have been conditionally released after serving half that sentence. Mr Daly, after his arrest, made full admissions to the police and he has pleaded guilty at an early stage. It has not been necessary for the Crown to prepare the case for trial and there has been no suggestion that the driver might have to give evidence. All of those things count in his favour.
Mr Daly is mentally ill. He suffers from schizophrenia and other conditions. He is the subject of a treatment order which means he is liable to involuntary detention. He has spent most of his time recently either in the Wilfred Lopes Centre of at the Royal Hobart Hospital. On 4 February, because he had been taking his medication and was compliant, he was trusted to leave [the hospital] and come back again. He was allowed 12 hours’ leave. He did not come back. He committed this crime three days later. The medication would still have been fully effective at that time, so there is no suggestion that he got into trouble on this occasion because of his mental health, but that is a very significant factor in sentencing.
He has a terrible criminal record. He is only 22, and was only 21 when this crime was committed. At that time he was subject to a three month suspended sentence of imprisonment. That sentence was imposed in July 2020 on charges of driving with illicit drugs in his oral fluid and on a charge of driving whilst unlicenced. There were two illicit drugs, methylamphetamine and THC. It was a condition of the suspension of that sentence that he was not to commit another offence punishable by imprisonment for two years after that sentence was imposed. He committed this crime about 19 months after that sentence was imposed. The Crown has applied for that suspended sentenced to be activated. I have to activate it unless I consider that that would be unjust. I do not think it would be unjust. He was meant to stay out of trouble and he committed a serious crime.
My first order is that I activate the suspended sentence of three months’ imprisonment imposed on Mr Daly by a magistrate on 21 July 2020, backdated to 7 February 2022. I do not think it is appropriate to make any provision for parole in relation to that sentence in the circumstances.
In relation to the crime of attempted aggravated carjacking, I have mentioned a couple of factors that count in Mr Daly’s favour – his admissions to the police, and his plea of guilty. There are other factors. The sentence I am about to impose for this crime will come on top of the three month suspended sentence. That is a factor that warrants a little leniency. Also, Mr Daly has led a tragic life. He left home at 13. He has been through periods of homelessness. He has had all sorts of problems, and they include problems with his mental health. It is likely that he will spend much of adult life in various forms of detention as a result of his mental health problems.
One of the facts that I have to take into account in sentencing in this sort of situation is the protection of the public. I have not received a victim impact statement from the driver. His neck was scratched. He may have found it a very disturbing experience to be confronted by two people trying to take the vehicle from him. I think this is a situation where, despite the mitigating circumstances, I need to impose a sentence on the lengthy side for the protection of the public. But it cannot be out of proportion to the seriousness of the offending. This was a piece of stupidity when no one was seriously physically hurt. Taking all of those matters into account, Mr Daly, I convict you and sentence you to nine months’ imprisonment (with effect from 7 May 2022) cumulatively with the activated sentence of three months.