STATE OF TASMANIA v DARREN JAMES McCALL 28 JULY 2021
COMMENTS ON PASSING SENTENCE BRETT J
Mr McCall, you have pleaded guilty to a number of charges arising from two discrete episodes of criminal behaviour. They are as follows:
Firstly, the crimes of aggravated burglary and assault, as well as the summary offences of driving whilst disqualified and negligent driving, arising from events which took place on 22 January 2020. The context in which these offences were committed was the perpetration of family violence by you against your partner.
Secondly, the crime of dangerous driving, and the summary offences of evade police (aggravated circumstances) and driving whilst disqualified arising from a course of driving on 3 February 2020.
At the time of the offences committed in January, you and your partner had been in a relationship for approximately five months and your partner was pregnant with the child of a previous relationship. You were both homeless and staying at the house of friends. On the day of the offending, you were angry because the complainant had stayed away overnight. When you saw her in the morning, you accused her of infidelity, and then left the house. You returned to the house later in the day. You banged on the door demanding that the complainant let you in and implying that you would enter the house by force. The occupiers of the house, who were also present, refused to open the door and, at their suggestion, the complainant hid in the bathroom.
You then committed the aggravated burglary by kicking in the back door of the house and entering without the consent of the occupiers. You then went to the bathroom, where the complainant was sitting on the floor hiding from you, and kicked in the locked door, causing the top half of the door to break away from its hinge. You then reached through the door, grabbed the complainant by her hair and lifted her up from her sitting position. You then dragged her by the hair out of the bathroom and through the house, ramming her head into an internal wall in the process. You dragged her outside, pushed her into your vehicle and threatened to “smash” her. When you were both in the vehicle, you backhanded her to the head a number of times before driving off. She had resisted you but you were too strong for her and physically overpowered her. You returned to the house shortly after because you wanted the complainant to collect some of her belongings. The police arrived at the house simultaneously with you. The complainant was able to escape from the car and you then drove off at speed. You drove negligently by travelling in excess of 150 km/h in an 80 km zone. Further, you were driving in breach of a disqualification.
The complainant did not suffer any significant physical injury as a result of this attack and I have not been given an impact statement from her. However, the assault committed by you on her was brutal and sustained. It involved an unprovoked and violent assertion of authority and dominion over her. Further, you brutally assaulted her when you knew she was pregnant. The aggravated burglary involved an arrogant and violent invasion of the home of its occupiers. It is clear that they were in fear because, upon your entry, they hid over the back fence and called the police.
Police searched for you but were not able to locate you until the offending which took place on 3 February 2020. On that day, they received information about your whereabouts and deployed a number of units to look for you. At around 4:20pm, police travelling in a marked police vehicle saw you driving towards Penguin and attempted to intercept you by activating emergency lights and sirens. You did not stop, and a short time later a tyre on your vehicle was deflated by an immobilisation device. You then accelerated and engaged in a course of dangerous driving as follows:
As you approached Penguin town centre, you were travelling at 90 km/h in a 60 km zone. You travelled onto the incorrect side of the road and overtook another vehicle when it was unsafe to do so. A number of oncoming vehicles had to swerve to avoid collision with your vehicle.
You turned into Main Road, Penguin and drove over a second immobilisation device. This punctured the remaining three tyres on your vehicle.
Despite this, you accelerated towards an intersection. You crossed a solid white line and then travelled into and through the intersection against a red light on the incorrect side of the road and at high speed. You passed a vehicle which was stationary at the red light when you did so.
By this stage, as a result of the deflation of the tyres of the vehicle, you were struggling to maintain control. Your vehicle was sliding and swerving in and out of lanes.
You then turned right into another street, travelling at speed and cutting onto the incorrect side of the road. At this point, you drove past a number of members of the public standing close to the road. It can be seen on CCTV that an elderly member of the public had crossed the road moments before you drove past. You continued to drive on the metal rims of the wheels until you were forced to stop at a police roadblock.
You had a front seat passenger throughout the course of this driving. You drove in this manner over approximately 7 km, through residential and commercial areas and at a time of the day when considerable traffic could be expected on the road. The driving was erratic and you were clearly desperate to escape capture by police. There was actual risk to pedestrians and a number of other drivers, who had to take evasive action to avoid collision with your vehicle. You also put yourself, your passenger and police at considerable risk. Travelling at high speed on the wrong side of the road into the intersection was particularly dangerous. The consequences of driving in this way could have been catastrophic.
You are 34 years of age. You have a shocking criminal history, which manifests persistent and serious violent offending. You also have a lengthy history of traffic offending, including a number of convictions for disqualified driving, and convictions for evading police and negligent driving. There is no doubt that you were mistreated and abused during your childhood and youth, and I accept that at the time of this offending, you were affected by your drug problem, and had recently suffered the loss of your mother. However, quite frankly, the point has been reached where the difficulties of your life to date neither excuse nor even explain your ongoing criminal behaviour. It is past time that you took responsibility for your conduct. Your propensity for violence and complete disregard of the welfare and rights of others is a matter of great concern. In my view, the predominant sentencing considerations are general deterrence, denunciation and community protection. I regard the last of those as a matter of considerable significance in this case.
The only matters which can reasonably be taken into account in your favour are your pleas of guilty, which have some utility, and the principles of totality. I cannot detect any present commitment to rehabilitation. The comments of previous sentencing judges show that you have mouthed words expressing a desire to rehabilitate in other sentencing proceedings, but it is clear that those words were meaningless and you have not followed through on any promises you have made. Despite this, the courts have from time to time offered you leniency and, in earlier years, provided for rehabilitative support, but none of this has had any discernible positive effect on your behaviour.
It follows that the only appropriate sentences in respect of these crimes are significant terms of imprisonment. Because the offending was discrete, I intend to impose cumulative terms but will moderate those terms appropriately having regard to the principles of totality. I will provide for the possibility of parole, but given your record of prior offending and demonstrated propensity for violence, and the need for community protection, I think that you should serve a substantial portion of the sentence in actual custody.
The orders I make are as follows:
1 You are convicted of the crimes and the offences to which you have pleaded guilty.
2 For the crimes of aggravated burglary and assault and the offence of disqualified driving, you are sentenced to imprisonment for a global term of four years. That sentence will be backdated so that it commences on 3 February 2020. You will not be eligible for parole until you have served three years of that term. Further, you will be disqualified from driving for a period of one year which will commence on the date of your actual release from prison.
3 Pursuant to s 13A of the Family Violence Act, I direct that the crime of assault be recorded on your record as a family violence offence.
4 Further, I make a family violence order for the protection of the complainant in the same terms as the order made on 29 July 2020. The order made by me will take effect immediately upon the expiration of the said order] and will remain in force until 29 July 2022.
5 For the offence of negligent driving, I impose no further penalty.
6 For the offence of evade police (aggravated circumstances) committed on 3 February 2020, I impose a sentence of six months‘ imprisonment. That sentence will be served cumulatively upon the four year sentence imposed for the aggravated burglary, assault and disqualified driving. You will not be eligible for parole until you have served three months of that sentence. I order that you be disqualified from driving for a period of two years, which will be cumulative upon the one year disqualification imposed in respect of those offences. As the vehicle you were driving was confiscated by police, you will also pay a special compulsory penalty pursuant to s 37MA of the Police Offences Act 1935 in the sum of $600. That sum will be paid within 28 days of your release from prison.
7 For the crime of dangerous driving and the offence of disqualified driving committed on 3 February 2020, you are sentenced to imprisonment for a global term of two years and six months. That sentence will be served cumulatively upon the sentence imposed in respect of the charge of evade police (aggravated circumstances). You will not be eligible for parole until you have served 21 months of that sentence. In respect of those offences, you will be disqualified from driving for an aggregate period of three years, which will be cumulative upon the disqualification imposed for the evade police offence.
8 For the purposes of s 92A (3) of the Sentencing Act, I specify that:
(a) The total term of imprisonment which you are liable to serve in respect of all of the above sentences is seven years commencing on 3 February 2020.
(b) The total period that you must serve before you become eligible for parole is the aggregate of the non-parole periods relating to the said sentences, which is a total period of five years.
(c) The total driving disqualification is for an aggregate period of six years commencing on the date of your actual release from prison.