STATE OF TASMANIA v NICKOLAS LUKE WILLIAM PEDDER 13 JULY 2023
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr Pedder has pleaded guilty to a number of charges relating to two separate incidents that occurred in March and May 2022. Both incidents involved him committing crimes when driving vehicles after he had had too much to drink.
On the evening of Thursday 3 March 2022 Mr Pedder was at his home in Claremont, when two pedestrians, Mr King and Mr Smith, walked past. Mr King had his dog with him. Mr Pedder yelled abuse at the pedestrians. He yelled out, “What are you looking at cunt?” and “Long haired faggot.” Mr King made a derogatory comment to Mr Smith, and they kept walking. Mr Pedder continued to yell abuse. Mr Pedder got into his Hilux vehicle and followed them.
He drove up behind them. They were walking along a footpath. Mr Pedder drove up onto the footpath and drove at them. They had to jump out of the way to avoid being hit by the vehicle. Driving at the two men on a collision course was a threatening gesture that constituted two assaults.
Mr Pedder made a u-turn, and drove at speed back towards Mr Smith and Mr King. Again, they had to jump out of the way of the vehicle to avoid being hit. By driving at each of them again, Mr Pedder committed two more assaults.
Mr Pedder made a second u-turn and drove on a collision course towards Mr Smith, who had to jump out of the way. That amounted to a fifth assault. Then he made a third u-turn and drove back towards the two men. This time he drove towards Mr King’s dog, who was standing on the road. The dog ducked and lay low on the road. Mr Pedder drove his vehicle over her without making contact with her. Then he made another u-turn, drove back towards the two men, and started driving around in circles. Mr King started to walk away. Mr Pedder drove his vehicle at Mr King and collided with him, knocking him over. He drove away without stopping or slowing down.
In respect of this incident Mr Pedder has pleaded guilty to six counts of assault and one count of cruelty to animals, contrary to s 8(2)(c) of the Animal Welfare Act 1993. I am dealing with that charge under s 385A of the Criminal Code.
Mr King and Mr Smith both provided victim impact statements. Mr King sustained a lump and bruising to his arm and bruising to his leg. For some days he was unable to sleep on his side and was limping. He did not need medical treatment. He has continuing feelings of insecurity, particularly when a car drives up behind him. His dog has become afraid of walking in the neighbourhood, even in a park.
Mr Smith suffered from chronic anxiety and depression before this incident. His problems were aggravated by Mr Pedder’s conduct, and that exacerbation is continuing. He is now very anxious about walking in the neighbourhood. He has taken days off work, resorted to binge drinking, gained weight, and lost self-confidence. There are other psychological symptoms that I need not describe.
Mr Pedder used his vehicle as a weapon. I accept that he intended only to scare the men. However, when a motor vehicle is used as a weapon, it is a potentially deadly weapon, and in this case it was in the hands of a man who was intoxicated and irresponsible. Much greater harm could have been done.
To make matters worse, the offences committed by Mr Pedder on this occasion constituted breaches of the conditions of a suspended sentence. On 25 March 2020 a magistrate sentenced him to six weeks’ imprisonment on two charges of burglary and two charges of stealing, and wholly suspended that sentence on condition that he not commit another offence punishable by imprisonment during the following two years. The six assaults and the animal cruelty charge were all punishable by imprisonment, and were committed during the final month of the two-year period. The burglaries were committed one night in September 2019 when Mr Pedder, in an intoxicated state, burgled two cars in Sandy Bay and stole items worth a total of $400 from them. It is significant that the 2019 offences and the March 2022 offences were all alcohol related.
Mr Pedder was interviewed by police officers on 8 May 2022. After initially denying any memory of the incident he admitted, in general terms, that he had driven at the two men to scare them. He told the police that there was no excuse for his conduct, that it was reckless and dangerous, that he was lost for words, that he felt like an absolute moron, and that he wanted them to tell the complainants that he felt really bad. He was told that he would receive a summons.
A few weeks later, in the early hours of 31 May 2022, he was driving home from the Wrest Point Casino in a Holden Statesman sedan. He drove towards Sandy Bay Road at a high speed. Police officers travelling south on Sandy Bay Road attempted to intercept the vehicle by flashing their headlights as he passed, but he failed to stop. By driving off, he committed the offence of evading police.
The officers made a u-turn, activated their emergency lights, and pursued Mr Pedder north on Sandy Bay Road. They saw him drive through a red light at the intersection with King Street, where he turned left. They saw him drive through a second red light at the intersection of King and Regent Streets. He drove on the wrong side of the road at the intersection of King and Parliament Streets. A little later he was seen driving along Molle Street. He crossed Davey Street, failing to stop for a red light there too, and travelling at about 100 Km/h. The speed limit is 50 Km/h. A little later he was seen travelling north on the Brooker Highway in Moonah at a speed of about 160 to 180 Km/h. The speed limit there is 80 Km/h. He drove onto the wrong side of the road there, causing the driver of a southbound vehicle to swerve to avoid a collision.
Police officers found him at his home at about 2.30am. He admitted that he had been driving the Holden Statesman, and that he had been travelling at about 180 Km/h on the Brooker Highway. He said that he would cooperate and that he was sorry. He was taken to the Hobart Police Station where a breath analysis reading of 0.121 was obtained.
In respect of this incident he has pleaded guilty to charges of dangerous driving, evading police, and exceeding 0.05.
Mr Pedder was 28 years old when he committed these offences and is now 29. He has a variety of prior convictions, including convictions for assault in 2008, aggravated assault in 2009, aggravated sexual assault and aggravated assault in 2011, and assault in 2016. The aggravated sexual assault was committed when he was intoxicated.
Mr Pedder is a proud Aboriginal man. He has a partner. They have been together for 13 years and have three young children. He has a reasonable employment record and currently has casual employment as a labourer. He had a dreadful childhood which involved family violence, drug abuse, neglect and four periods of youth detention. He began drinking alcohol and consuming cannabis when he was 12, and has had alcohol and drug problems ever since. He has mental health problems, and attempted suicide at one stage last year. To his credit, he has been undertaking counselling relating to his alcohol and drug problems through the Salvation Army’s Bridge Service over the last 13 months.
I have obtained a home detention assessment report from a probation officer. The probation officer concluded that Mr Pedder was unsuitable for home detention and unsuitable for court-ordered community service, but in need of a period of supervised probation. I have also obtained a report from a consultant forensic psychiatrist working in the Tasmanian Forensic Mental Health Service. Counsel for Mr Pedder challenged the conclusion that he was unsuitable for home detention, and cross-examined the probation officer. In his report the probation officer had deemed Mr Pedder to be unsuitable for home detention because of concerns about four matters – family violence, the safety of children, mental health problems, and alcohol consumption.
The probation officer’s concerns about family violence were based on entries in a database used by Tasmanian public servants associated with the Safe At Home Initiative. It was recorded that there were two episodes of family violence, both in June 2016, and three family arguments, the last of which resulted in police officers attending Mr Pedder’s home on 3 March 2022. A police family violence order was made against him following the first incident in June 2016. He has convictions for breaching that order on 23, 24 and 25 June 2016. The conviction for assault imposed in 2017 relates to the same episode of offending. He was convicted, fined $800, and placed on probation for 12 months in relation to those offences. All of that was seven years ago.
The concern about child safety resulted from a report obtained by the probation officer from “Children and Youth Services”. That agency did not favour a home detention order because of the stress and harm that could result to Mr Pedder’s children and partner. However their concerns were based solely on the database records relating to family violence.
The psychiatrist’s report was not available when the probation officer provided his report. She concluded that Mr Pedder’s primary diagnosis was of “alcohol use disorder in early remission”. She also said that he had “comorbid cannabis use disorder in early remission associated with drug-induced psychosis”. She suggested that a diagnosis of a primary psychotic disorder should be considered. However she noted that Mr Pedder had only reported psychotic symptoms in the past two years during times of alcohol withdrawal or when he had attempted to cease anti-psychotic medication which had been prescribed.
She noted that he described ongoing symptoms of post-traumatic stress disorder, apparently related to experiences that Mr Pedder said he had at the Ashley Youth Detention Centre. She recommended engagement with mental health, therapeutic and substance abuse providers at a level that would not be possible if Mr Pedder was in prison. She saw contact with Mr Pedder’s partner and children and his role in his family as advantageous protective factors. She opined that Mr Pedder’s conditions were all treatable, and that he had the capacity to reflect on his behaviour, a capacity to experience empathy, and a degree of resilience that would enhance his prospects of successfully engaging in rehabilitative strategies.
Having regard to the apparently minor nature of the family violence offending in 2016, the time that has elapsed since then, indications in the reports that Mr Pedder has the support of his partner, and the positive comments made by the psychiatrist, I am satisfied that, despite the understandable concerns of the probation officer, Mr Pedder is a suitable candidate for a home detention order. If home detention was unavailable or inappropriate, I would certainly have sent him to prison.
However, because of the positive steps that he has been taking towards rehabilitation, I think it is preferable to make a home detention order. I have to impose a separate sentence on the charge of evading police.
I have decided not to activate the suspended sentence or make any other order relating to the burglary and stealing offences, on the basis that it would be unjust to do so having regard to the very different nature of Mr Pedder’s offending in 2019, the fact that he breached the conditions of his suspended sentence only during the final month of the two-year period of suspension, the steps that he has taken towards rehabilitation, and the fact that I am imposing substantial penalties today for other offending.
Nickolas Luke William Pedder, I convict you on all charges. On the charge of evading police, I sentence you to two months’ imprisonment, wholly suspended on condition that you commit no offence punishable by imprisonment for a period of two years, and I disqualify you from driving for two years from today. On the other charges, I disqualify you from driving for a cumulative period of 12 months and make a home detention order with an operational period of eight months, commencing tomorrow. The home detention premises will be at [address provided]. The core conditions of the order are contained in s 42AD(1) of the Sentencing Act 1997. They will have effect for the full eight months. They include s 42AD(1)(g), which requires you to submit to electronic monitoring. For the purposes of the condition contained in s 42AD(1)(c), I specify that you must, during the operational period, be at the home detention premises at all times on each day of the week unless you are not there for a relevant reason, as specified in s 42AD(4). The order will also include the following special conditions:
- You must report to a community corrections officer at Community Corrections in Hobart for the purpose of induction no later than 10am tomorrow.
- You must maintain in operating condition an active mobile telephone service, provide the details to a community corrections officer and be accessible for phone contact through that service at all times.
- You must submit to the supervision of a community corrections officer as required by that officer.
- You must not during the operational period of the order take any illicit or prohibited substances, including any controlled drug as defined by the Misuse of Drugs Act 2001, or any medication containing an opiate, benzodiazepine, bupropion hydrochloride or pseudoephedrine unless you provide written evidence from a medical professional that you have been prescribed the relevant medication.
- You must not allow anyone else to remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purposes of electronic monitoring.
I make a community correction order for an operational period of 12 months, with special conditions that, during the operational period of that order:
- You must submit to the supervision of a probation officer as required by that probation officer.
- You must attend any programs that a probation officer directs you to attend.
- You must undergo assessment and treatment for alcohol and/or drug dependency as directed by a probation officer.
- You must not consume any alcohol.
- You must submit to testing for alcohol and/or drug use as directed by a probation officer.
- You must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
- If directed by a probation officer you must attend, participate in, and complete the EQUIPS Addiction Program as directed.
- You must comply with the reasonable directions of a probation officer in relation to financial counselling.
I make no order in relation to the suspended sentence imposed on 25 March 2020.