STATE OF TASMANIA v JAMES MICHAEL MARSHALL 19 APRIL 2023
COMMENTS ON PASSING SENTENCE JAGO J
James Michael Marshall you have pleaded guilty to one count of dangerous driving contrary to s 172A of the Criminal Code and related summary offences committed on the same day, namely driving whilst disqualified, using an unregistered motor vehicle, using a motor vehicle with no premium cover and using a vehicle in contravention of vehicle standards.
On 27th November 2022, at approximately 5.05pm, a police officer observed you driving a gold coloured Ford sedan on Marine Terrace at Burnie. As you approached the intersection of Marine Terrace and Edward Street, you overtook vehicles by moving into a “right turn only” lane and then entered the intersection in contravention of a red traffic light. You drove along the Bass Highway towards Sulphur Creek before turning on to Preservation Drive and travelling towards Penguin. You were travelling at speeds upwards of 100 kilometres per hour as you travelled along Preservation Drive, which is a 60 kilometre zone. You crossed a double solid white line. As you approached the intersection of Main Road and Preservation Drive at Penguin, you proceeded through the red traffic signal, cutting off another vehicle who was travelling through the intersection on the green light. You then turned onto Main Road without using the designated slip lane. Whilst turning the corner, your vehicle careered onto its two driver side wheels and struck the gutter in front of a nearby church which caused the vehicle to swerve across two lanes. Your vehicle, by this point somewhat out of control, then struck another kerb on Johnsons Beach Road causing it to flip and land on its roof in a grassed area immediately adjacent to a walking path. I have seen photographs of the crashed vehicle. It landed in very close proximity to the walking path. At the time of the crash there were people using the walking path. It is most fortunate no one was struck and injured. There were also other vehicles being driven in the vicinity who were fortunate not to be impacted by your driving behaviour. You showed little regard for the well-being of other road users and pedestrians. Subsequent police investigations revealed that you have never held a driver’s licence and at the time of the incident, were subject to a court ordered disqualification period. The vehicle you were driving was also unregistered.
A later inspection of the vehicle determined that it was un-roadworthy as at the time of driving. Both front seatbelts had been removed, both front wheels were non-compliant and brake components were missing, including both rear brake callipers.
You were arrested and interviewed by police. You admitted to driving the motor vehicle. You told police you had purchased it a couple of weeks earlier for $600.00. You admitted to police you were aware that it was unregistered. You also agreed that you did not hold a driver’s licence and were subject to a disqualification period. You told police you had left your parents’ residence in Burnie. You were apparently intending to drive the motor vehicle to Sheffield to have some work done on it. You told police that on route the brakes failed and you had to try to “dodge cars”. You said you attempted to use the vehicle’s handbrake to slow it down but were unsuccessful, so instead decided to “floor it even more”. You admitted to police that you were driving at up to 120 kilometres per hour as you approached Penguin. You admitted to police your manner of driving was such that you thought you were going to kill someone. Some of the things you said to police are reflective not only of you having minimal control over the motor vehicle, but also of a selfish disregard for the safety of others.
You have a relevant prior criminal history. You have five prior matters for driving whilst not the holder of a driver’s licence. Two of those arose when you were a youth and did not result in convictions. The other three were dealt with by way of conviction and fines. You have one prior conviction for driving whilst disqualified, four prior convictions for driving an unregistered and uninsured motor vehicle, one prior conviction for driving without due care and attention and prior convictions for failing to comply with the duties of a driver involved in a crash. Additionally, you have prior convictions for offences against police, bail offences and matters of dishonesty. For a young person, your record of prior offending is poor.
There is no question that this was a serious example of dangerous driving. It involved you travelling approximately 20 kilometres along a major highway and through built up areas, including both residential and business areas. At times, high speed was involved and other road users were forced to take evasive action. Your behaviour was aggravated by the fact that you were disqualified at the time of driving and, indeed, have never held a driver’s licence. You were also driving an un-roadworthy motor vehicle. Your driving behaviour only came to an end when you crashed. You were, in fact, intending to drive much further, even though you were well aware of the difficulties with the brakes. That shows a complete disregard, in my view, for the welfare of other road users. As I have noted, it was not only the other road users who were put at risk, but also pedestrians given the proximity of where you lost control and crashed to the walking path.
You are 20 years of age. You experienced a relatively stable and supportive upbringing but, at the age of 14, you were introduced to cannabis by an uncle. You quickly developed a cannabis addiction. When you were 16 you moved to the mainland to live with a cousin. She introduced you to methyl amphetamine and within six months of your first use, you also developed an addiction to that substance. You have grappled with an addiction to both substances ever since. I am told this incident occurred after you had been using drugs continuously for a period of about five days. That in no way mitigates your offending. Indeed, it is reasonable to infer that you were affected by such substances at the time of driving, increasing the danger you presented. After the incident occurred, you were remanded in custody and have remained there to date. I am told you have used that time to focus on abstaining from illicit drug use and have also undertaken some drug counselling. You claim your time in custody has been a sobering experience and made you realise that you need assistance in addressing your long term drug addiction.
I had you assessed as to your suitability for a Drug Treatment Order. The report concluded that you are both eligible and suitable for the imposition of such an order, although the author of the report does express reservations as to your willingness to commit to such an order. In the past when you have been subject to community based supervision orders, your compliance has been very poor. I am told however, that you attribute this attitude to your drug addiction. You submit through your Counsel, that your time in custody has given you cause for reflection and you now appreciate that without assistance, it is unlikely you will be able to successfully address your drug addiction. You say you are determined to do so in the hope that you will be able to develop and maintain a meaningful relationship with your young child. You say you are now willing to commit to the CMD program and recognise you need the assistance it can offer.
General deterrence and denunciation are obviously most important sentencing considerations in a matter like this and ordinarily a lengthy term of actual imprisonment would be imposed for driving of this nature. You are, however, still young and prospects of rehabilitation should not be ignored. In the hope that you may be able to address your illicit drug addiction and cease offending, I have determined I can adequately address relevant sentencing aims by the imposition of a Drug Treatment Order. You must understand, however, Mr Marshall that a Drug Treatment Order carries with it a custodial component – which is a period of imprisonment. If you do not commit to the program and you end up breaching the conditions of the Drug Treatment Order it is likely to be cancelled and you will be required to serve the custodial component of the sentence.
I make the following orders. I record convictions in respect to all crimes and offences to which you have pleaded guilty. In respect to the offences of use unregistered motor vehicle, use a motor vehicle with no premium cover and use vehicle in contravention of vehicle standards, I make no further order. With respect to the crime of dangerous driving and the offence of drive whilst disqualified, I will sentence globally. I impose a Drug Treatment Order with a custodial component of 18 months. You will not be required to serve any part of that sentence unless you are ordered to do so by a court as a result of you not complying with the treatment and supervision part of that Order. The Drug Treatment Order will contain all of the usual core and programme conditions contained in ss 27(g) and 27(h) of the Sentencing Act 1997. They are lengthy. You will be provided with a copy of them in writing.
They are as follows:
- You must not in Tasmania or elsewhere, commit another imprisonable offence;
- You must attend the Magistrates Court of Tasmania in Burnie at 12 noon on 17 May 2023 and thereafter attend the Magistrates Court or this Court as and when directed to do so by the Court;
- You must report directly to a Court Diversion Officer at Community Corrections, Reece House, Burnie within two working days of your release from custody;
- You must undergo such treatment for your illicit drug use as directed by your case manager or Court Diversion Officer or as from time to time specified by the Magistrates Court or this Court;
- You must report to and accept visits from your case manager or Court Diversion Officer;
- You must, unless there are special circumstances, give your case manager at least two clear working days’ notice before any change of address;
- You must not leave Tasmania except with the permission, granted either generally or in a particular case, of the Magistrates Court or this Court;
- You must comply with all lawful directions of the Magistrates Court or this Court;
- You must comply with all reasonable directions of your case manager and Court Diversion Officers concerning the core conditions and programme conditions of this order.
There will be further programme conditions of the order, namely that:
- Throughout the duration of the order, you must reside at [address provided] or another address approved by your Court Diversion Officer or case manager and not change that address without the prior approval of the Court, your Court Diversion Officer or case manager. You must be at that address between the hours of 9pm and 7am daily and present to a police officer as directed;
- You must not use or possess any controlled substance within the meaning of that term in the Misuse of Drugs Act 2001;
- You must not use any medication unless prescribed to you by a treating medical practitioner, approved by your Court Diversion Officer and in accordance with the medication directions for use;
- You must submit to random testing for the presence of drugs as directed by your case manager or Court Diversion Officers;
- You must submit to urinalysis as directed by your case manager or Court Diversion Officers;
- You must submit to oral fluid testing as directed by your case manager or Court Diversion Officers;
- You must submit to detoxification or other treatment, whether or not residential in nature, as directed by your case manager or Court Diversion Officers;
- You must not associate with persons or classes of persons as directed by your case manager or Court Diversion Officers;
- You must attend for assessment, and if deemed suitable, participate in and complete any vocational, educational, employment, rehabilitation or other programmes including the Equips Addiction programme as directed by your case manager or Court Diversion Officers;
- You must attend counselling and/or treatment as directed by your case manager or Court Diversion Officers including Anger Management Support Services;
- You must engage with NDIS support services as directed by your case manager or Court Diversion Officers;
- You must submit to medical, psychiatric or psychological treatment as directed by your case manager or Court Diversion Officers;
- You must maintain the use of and remain contactable by a mobile phone that is capable of receiving messages about drug testing, case management and/or counselling appointments from your case manager or Court Diversion Officers;
- You must not consume alcohol throughout the duration of the order.
- You must remain contactable at all times.
In respect to the dangerous driving and drive whilst disqualified charges, I impose a global period of licence disqualification of two years to commence upon the date of your release from custody.
I should note I have not overlooked the fact Mr Marshall has spent five months remanded in custody on this and other matters. He is, however, awaiting sentence in the Magistrates Court on a number of matters. The time he has spent in custody may well be attributed to that Court’s sentence, leaving him in a position to commence the Drug Treatment Order. If not, an appropriate application for cancellation can be brought.