STATE OF TASMANIA v ADRIAN JAMES OATES 8 JULY 2021
COMMENTS ON PASSING SENTENCE WOOD J
The defendant Adrian James Oates has pleaded guilty to one count of dangerous driving and related summary offences of evade police (aggravated circumstances), drive whilst disqualified and fail to comply with the duties of a driver involved in a crash.
An application has been made to activate a suspended term of imprisonment of four months.
The defendant was disqualified from driving for 12 months commencing on 25 September 2020 for breaches of the Road Safety (Alcohol and Drugs) Act.
On Tuesday 2 March 2021 the defendant drove a Ford Fairlane with three passengers. Police officers travelling in an unmarked police vehicle made observations of his vehicle. He drove on Woniora Road in Shorewell Park at speed. Then he turned left onto Three Mile Road where police attempted to intercept his vehicle for the purpose of a random breath test.
The police officers activated their sirens and the defendant increased the speed of his vehicle. He travelled at approximately 80 km/h in a 60 km/h zone on Three Mile Line Road. Police flashed their high beam lights at the vehicle in a further attempt to intercept the vehicle but to no avail. They continued to follow with activated sirens.
The defendant turned left onto Mount Street and accelerated heavily out of the intersection. He travelled at 80 km/h in a 60 km/h zone. He travelled 900 metres south on Mount Street, and in the vicinity of the intersection with Singline Avenue he overtook a vehicle and in doing so crossed continuous double white lines. There was oncoming traffic on Mount Street at the time, but given the distance the drivers did not need to take evasive action. The defendant travelled a further 700 metres on Mount Street, turning left onto Old Surrey Road in Havenview.
On Old Surrey Road there were road works in progress at Massey Greene Drive. He drove through the roadworks at approximately 80 km/h in a 40 km/h limited area. There were signs that showed the speed limit change from 60 km/h to 40 km/h. He continued to drive north on Old Surrey Road at an approximate speed of 80 km/h in a 50 km/h zone, past the Havenview Primary School. The grounds border Old Surrey Road. There were no students or staff present on the grounds. He continued to drive north on Old Surrey Road at a slower speed in response to traffic travelling north and turned left on Medwin Street and then left onto O’Grady Street.
He turned left onto Marriott Street and drove past the entrance to the Havenview Primary School at an excessive speed of approximately 80 km/h in a 50 km/h area. He turned left onto Old Surrey Road and accelerated heavily away from police, driving north toward the intersection with the Bass Highway. A police unit was stationed in the vicinity of the Highway ready to deploy road spikes to stop the defendant. As the defendant approached the highway, he was slowed down by traffic. He overtook the line of traffic crossing a single continuous white line. In the process his rear passenger side tyre was spiked and punctured.
The police vehicle continued to follow the defendant with no lights but with warning lights functioning to alert oncoming traffic. At the intersection with the Bass Highway there was a green light facing the defendant but a line of traffic stationary waiting to turn right. The defendant moved into the south bound lane, and overtook the vehicles waiting to turn right, traffic travelling in the opposite direction was stopped at a red light.
The defendant turned right onto the Bass Highway and then merged into the left lane travelling east. Part of the defendant’s tyre was now missing and there was smoke emanating from his vehicle. He travelled east on the highway at a speed of approximately 120 km/h in a 100 km/h zone, while weaving through traffic, overtaking vehicles and unsafely changing from left to right lanes. The traffic was heavy.
As the defendant approached the Heybridge roundabout, he slowed to an estimated speed of 80 km/h in a 60 km/h restricted area. He then accelerated out of the roundabout at a speed of approximately 120 km/h in a zone with a 100 km/h limit. He continued to weave around traffic and moved rapidly from the left to the right lanes in an unsafe manner. He slowed at the Howth roundabout and continued on the Bass Highway travelling at an approximate speed of 125 km/h where the speed limit was 110 km/h. The police officer pursuing the defendant lost sight of his vehicle.
The defendant travelled 22 km on the Bass Highway and in that distance lost the punctured rear tyre. Another police unit set up road spikes on the Bass Highway in the right lane, in the area of Knights Road at Ulverstone. The defendant overtook a utility towing a large caravan in the left lane. The utility was travelling between 85 km/h and 90 km/h. The defendant was travelling slightly faster. The defendant suddenly swerved back into the left lane to avoid the road spikes. The driver of the utility had to take evasive action to avoid a collision, braking heavily and pulling the vehicle to the left, causing the caravan to swing sharply to the left and collide with the guard rail on the side of the road. The defendant did not stop but continued driving east on the Highway.
The defendant attempted to turn left onto Lovett Street but due to his excessive speed and the fact that he was navigating the vehicle with one tyre missing, he lost control. The vehicle crossed to the opposite side of the road, collided with trees and smashed through a residential fence at 65 Lovett Street before coming to rest in the yard. The defendant and his three passengers fled from the vehicle with the engine still running. They were all apprehended by police officers soon after.
The defendant drove dangerously for a considerable distance of approximately 32.5 kms. At the time, the weather conditions were fine, the traffic flow was heavy through Burnie and moderate on the Bass Highway to Ulverstone.
The defendant participated in a video recorded interview with police and made comprehensive admissions regarding his dangerous driving, including that he caused a vehicle to swerve and collide with a guard rail. He admitted smoking cannabis that morning but believed it had not affected his driving ability. He acknowledged he could have killed someone given the manner of his driving. He was remanded in custody on 2 March this year and has been in custody since.
He entered a very early plea of guilty and in April this year was committed to the Supreme Court for sentence.
The defendant has an extensive history involving similar offending. His history as an adult includes 2 prior convictions for dangerous driving, both committed in 2014, 10 prior convictions for evade police, 19 for drive while disqualified, one for drive while not the holder of a driver licence, and 2 prior convictions for drive while having a prescribed illicit drug present in blood.
In March of 2018 the defendant was sentenced by me to two years and six months’ imprisonment, four months of which was suspended on condition he commit no offence punishable by imprisonment for a period of three years from the date of his release. There is now before me an application to activate that four month term. The sentence was imposed for two counts of unlawfully injuring property, two counts of assaulting a police officer, summary offences of driving whilst disqualified, using a controlled drug and a separate incident of escape. The offences involved an incident of driving in a carpark to avoid police and injuring property by ramming two vehicles, one a police vehicle. The crime of dangerous driving now before me is a clear breach of that 4 month suspended term.
The defendant was released from prison in September 2020. Less than a month later, in October 2020, he committed offences of evade police and drive while disqualified. While these are prior offences he was not convicted of them until recently on 14 May 2021. He was sentenced to six months’ imprisonment backdated to the date he was remanded in custody on 2 March 2021. In fixing the sentence I am conscious of the period he will have been in custody before he begins the sentences of imprisonment I will impose today.
Factors which are relevant to the determination of the appropriate sentence for dangerous driving have been authoritatively identified: R v Jurisic (1998) 45 NSWLR 209 at 231 and R v Whyte [2002] NSWCCA 343 at [217] per Spigleman CJ.
Here, fortunately no one was injured. There were a significant number of people put at risk noting the traffic was moderate to heavy, in particular, the lives of the defendant’s three passengers, and the driver of the utility who had to take evasive action. The speed was excessive particularly given the condition of the car and that one of the tyres was punctured and then lost altogether. The defendant admitted using cannabis although the degree of substance abuse is unknown given no testing was undertaken. The defendant’s driving was particularly erratic. The journey was prolonged. He was escaping police pursuit for the whole of the journey and failed to stop.
While considerations of the police pursuit and failing to stop are captured by the offence of evade police they are relevant to the circumstances of the dangerous driving because they reveal a disregard for authority and an intentional course of conduct and add to the factor of desperation to the driving adding significantly to the potential danger: Banks v State of Tasmania [2019] TASCCA 1. The potential danger and risk the defendant posed as he left the roadway and crashed into a residential property can only be regarded as extreme.
The defendant should not have been driving at all and he was well aware of that. His prior criminal history shows he was not acting uncharacteristically and reveals a strong need to deter him, and also to protect the public from danger such as he posed on this occasion.
I turn to Mr Oates’ circumstances. He is now 27 years of age. He has four children under 8 years of age to a previous partner and his partner is pregnant with his child, due very soon.
He identifies as Aboriginal. He grew up on the West Coast one of eight children. As an infant and young child he was exposed to toxic levels of lead. The effects are well researched and are known as having wide ranging effects on brain development and are associated with low IQ. In Mr Oates’ case, learning difficulties, behavioural problems and delayed speech were evident from a young age. He was diagnosed with Attention Deficit Hyperactivity Disorder at age 6, and a mild to moderate intellectual disability by age 12.
Dr Emma Rouse, clinical psychologist, conducted an assessment of Mr Oates’ general intellectual functioning which reveals that it is extremely low. I have the benefit of a report from Dr Rouse dated 21 February 2018, which was initially provided to me when I sentenced the defendant in March 2018. It has been provided to me again. I canvassed the details of her report and her assessment in my comments on passing sentence in March 2018. As I said then, the defendant’s intellectual impairment is the product of an environmental situation that he and his family should never have been subjected to.
The defendant disengaged from school and stopped going altogether when was in year 8 at High School. There were personal circumstances which compounded his cognitive difficulties. His parents separated when he was young but he visited his father regularly. During those visits he was subjected to physical and verbal abuse, and at 14 he decided to cease contact with his father.
He was introduced to drugs, methylamphetamine, at 12 years of age. He began using illicit substances daily. He has struggled with illicit substance abuse since then, achieving some periods of abstinence.
He was committing offences by the age of 13 years. He has spent significant periods of time in custody.
Dr Rouse’s report identifies lower cognitive functioning and poor impulse control have contributed to his general pattern of offending. His impoverished consequential thinking can be seen in his conduct before the Court when I sentenced him in 2018, and again with respect to his offending for sentence today.
At the time of offending, the defendant had just experienced a relationship breakdown and he was in an upset and emotional state. He identifies that he drove because he panicked and did not want to get into trouble. Courts often see such reasons in connection with dangerous driving and evade police and impulsivity is common with respect to these crimes and offences. They deserve little weight in mitigation. Rather, the defendant’s cognitive difficulties are relevant as background and explanation. As a risk factor, it is highly relevant to his prospects of reform in that it is not an entrenched oppositional attitude that sees him offending but rather difficulties that are amenable to treatment if the intensive level of support required is available.
When I sentenced Mr Oates in 2018 I stated then that the defendant required an intensive and coordinated level of assistance to address his complex needs and to organise support and services such as housing, a drug program and referral to services.
Unfortunately when Mr Oates was released from custody in September last year, little or no support eventuated in terms of drug and alcohol rehabilitation. He was on a waiting list and there was delay despite the best efforts of his probation officer. Unfortunately by the time a referral was organised there were problems making contact with him. I have a report from Community Corrections which provides that the defendant maintained a high level of compliance and engagement with respect to appointments with his probation officer. Indeed at the last court date when Ms Devereux-Martin attended to assist the Court she commended the defendant on the progress he made during this period in the community.
The defendant was well aware that he needed drug intervention and indeed was motivated to engage with services. He had participated in the EQUIPS Addiction Program whilst in custody. He reports he made progress in terms of his drug use on his release, particularly with respect to amphetamine. He is very disappointed with himself that he reoffended against the background of that progress. In view of his profound difficulties, support including drug rehabilitation was critical. Another essential need was in terms of accommodation. Without that he is vulnerable to the influence of a criminal peer group.
The pre-sentence report I have mentioned reveals that the defendant has expressed remorse and insight regarding the consequences of his offending. He is motivated to engage with agencies regarding his drug problem and other difficulties. He is conscious of his losses arising from lengthy periods of imprisonment. These are tangible. He was unable to attend his mother’s funeral in 2017 and soon he will miss the birth of his baby. The defendant wants to lead a better life.
To his credit he has prospects of employment if he can successfully address his drug problem. He has attended year 11 and 12 and completed TAFE certificates as a diesel and petrol mechanic, and in panel beating.
Community Corrections assess Mr Oates as requiring a very high level of intervention and supervision on his release. This intervention and supervision is recommended. These needs have been assessed. I highlight in this context that Dr Rouse’s report also made recommendations, which I expect have been taken into account.
The defendant is not suitable for a community service condition because of concerns beyond his control arising from his cognitive difficulties.
The reports that I have from community corrections reveal that intensive support will be available to the defendant both while in custody and on his release. A National Disability Insurance Scheme treatment plan has been approved. The defendant is to be provided with a support worker to assist with daily living, planned activities and appointments. Funding has now been approved for supported accommodation on the defendant’s release and the defendant agrees to that support. He is to receive support from allied professionals such as psychologists to address anger management. The plan addresses the transition from custody to ensure the supports are in place on his release.
Furthermore, Community Corrections will take on the role of liaising with the defendant’s support worker to ensure his compliance with his treatment plan. Drug rehabilitation is to be put in place immediately upon his release.
For the reasons I have identified, this is a serious example of dangerous driving. The offences of drive while disqualified and evade police amount to characteristic behaviour and on their own each warrant a substantive gaol term. General and personal deterrence as well as the need to condemn this offending means a heavy gaol sentence is required. However, there is hope for reform because of the recent efforts made by Mr Oates, and resources to be finally made available by agencies both during the defendant’s incarceration and on his release. For the first time there is to be in place on his release an intensive and appropriate level of support to meet his long-standing needs arising from his discrete circumstances. I have identified a need for the community to be protected from future offending by the defendant.
The opportunity presented by this support is critical not only for Mr Oates’ reform and for his future, but also for the safety of the community.
The individual sentences I impose today will not be as long as they would be if I was sentencing him for the crime or offences individually. The overall sentence will be commensurate with his overall culpability.
I record convictions.
It would not be unjust to activate the sentence of four months’ suspended imprisonment and I do so. It is to be served cumulatively to his current term of imprisonment.
For the dangerous driving I impose two years and four months’ imprisonment cumulative to that term of four months. For the evade police I impose an additional period of four months’ imprisonment.
In relation to the offence of drive while disqualified I impose six months’ imprisonment to be served concurrently. For the offence of being a driver in a crash failing to comply with his obligations, a conviction is all that is required in light of the sentences imposed already and totality considerations.
For the dangerous driving and related offending of evade police, the total sentence is two years and eight months’ imprisonment to be served cumulatively to the four month sentence I have activated. I suspend seven months of the 2 years and eight months to facilitate your reform. That period of seven months is suspended subject to strict conditions:
You are not to commit an offence punishable by imprisonment for two years from your release.
You are to comply with the terms of a community correction order to be operational for two years from your release.
As a special condition of your community correction order you are to comply with the supervision of a probation officer and comply with all reasonable directions of your probation officer including that you must comply with your National Disability Insurance Scheme treatment plan.
Further you must attend appointments as arranged pursuant to that plan.
You must comply with directions of your probation officer that you attend alcohol and drug services for assessment and treatment.
You must immediately serve at the end of your current sentence four months and then the term of 25 months. In relation to that period of 25 months you are not eligible for parole until you have served 13 months.
In accordance with the Sentencing Act, s 92A, I specify that the total term of imprisonment imposed today that the defendant is liable to serve as a result of the orders I have made is 29 months cumulative to his current sentence of six months from 2 March 2021.
He is subject to licence disqualification, three years for the dangerous driving cumulative to his current period, two years for the evade to run concurrently, and 12 months for drive while disqualified concurrent.
I make compensation orders in favour of Philip Shelton and Sharon Joy Smith in amounts to be assessed. The applications are adjourned sine die for the purpose of assessment.
6 August 2021
Pursuant to s 94(2)(a) of the Sentencing Act, noting a global non-parole period cannot be imposed and having given the parties an opportunity to be heard, Wood J varied the sentencing orders as follows:
The sentence of four months imprisonment imposed in relation to evade police, is imposed cumulatively to the activated suspended sentence of four months imprisonment. In relation to the sentence of four months imprisonment imposed for evade police, the defendant is not to be eligible for parole until he has served two months’ imprisonment.
In relation to the period of imprisonment of 2 years and four months imposed for the crime of dangerous driving, seven months is suspended. The operative period of the sentence is 21 months. The non-parole period with respect to the operative period of 21 months is 11 months. That sentence is to be served cumulatively to the term of imprisonment of four months with respect to evade police.
The sentence of imprisonment imposed for driving while disqualified of six months imprisonment is to be served concurrently with the activated sentence and the sentence of imprisonment imposed for evade police.
Having specified in accordance with the Sentencing Act, s 92A that the total term of imprisonment that the defendant is liable to serve as a result of the orders I have made is 29 months cumulative to his current sentence of six months from 2 March 2021, I clarify the following. This period of 29 months is the operative period of 21 months imprisonment for dangerous driving cumulative to the four month sentence (evade police) which in turn is to be served cumulatively to the activated sentence of four months. As specified, in relation to the sentence of four months imprisonment imposed for evade police, the non-parole period is two months. In relation to the operative period of 21 months imprisonment imposed for dangerous driving, the non-parole period is 11 months.