McCall v Tasmania

[2021] TASCCA 11

[2021] TASCCA 11

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	McCall v Tasmania [2021] TASCCA 11
PARTIES:	McCALL, Darren James
v
STATE OF TASMANIA
FILE NO:	CCA 259/2021
DELIVERED ON:	12 November 2021
DELIVERED AT:	Hobart
HEARING DATE:	11 November 2021
JUDGMENT OF:	Blow CJ, Jago J, Martin AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Episode involving aggravated burglary, assault on partner, and related summary offences – Second episode involving dangerous driving, evading police and other summary offences – Sentences totalling 7 years' imprisonment with non-parole periods totalling 5 years – Not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:	K Abercromby
Respondent:	D G Coates SC, D Earley

Solicitors:

Appellant:	Tasmania Legal Aid
Respondent:	Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 11
Number of paragraphs:	26

Serial No 11/2021

File No CCA 259/2021

DARREN JAMES McCALL v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL BLOW CJ JAGO J MARTIN AJ 12 November 2021
Orders of the Court (11 November 2021):

1            Appeal dismissed.

Serial No 11/2021

File No CCA 259/2021

DARREN JAMES McCALL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
JAGO J
MARTIN AJ
12 November 2021

1            This is a sentencing appeal. The appellant, Darren McCall, pleaded guilty to a number of charges relating to crimes and offences committed by him on 22 January 2020 and 3 February 2020. On 28 July 2021, Brett J sentenced him to a total of 7 years' imprisonment, with non-parole periods totalling 5 years. He appealed. He contended that the sentences were manifestly excessive, and that the learned sentencing judge failed to give sufficient weight to his pleas of guilty, the totality principle, and "the issue of delay". On 11 November 2021 this Court heard the appeal and dismissed it, with our reasons to be published at a later date. These are our reasons for dismissing the appeal.

The offending on 22 January 2020

2             The most serious offences committed by the appellant on 22 January 2020 were family violence crimes. The appellant's conduct on that day was as described by the learned sentencing judge in his sentencing comments, as follows:

"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."

3   The appellant pleaded guilty to the following charges in relation to those events:

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• Aggravated burglary, contrary to s 245 of the Criminal Code, committed by entering the residence as a trespasser with the intent to commit the crime of assault therein.

• Assault, contrary to s 184 of the Criminal Code, committed by pulling his partner by her hair, forcing her head into a wall, and forcing her into a vehicle against her will.

• Driving whilst disqualified. (The appellant had been disqualified from driving by a magistrate for periods totalling 4 years commencing on 19 December 2018 on charges including evading police, three counts of driving whilst disqualified, negligent driving, driving an unregistered vehicle, driving an uninsured vehicle, and driving with a prescribed illicit drug in his blood.)

• Negligent driving, committed by driving at a speed in excess of 150 km/h in an 80 km/h zone, and driving on the wrong side of the road.

4             On the charges of aggravated burglary, assault and driving whilst disqualified, the appellant was convicted and sentenced to imprisonment for a global term of 4 years, backdated to 3 February 2020. The appellant had been arrested on that date and had been in custody ever since. The learned sentencing judge ordered that the appellant not be eligible for parole until he had served three years of that sentence, and disqualified him from driving for one year, commencing on his actual release from prison. His Honour also made a family violence order, which will remain in force until 29 July 2022. On the charge of negligent driving, his Honour recorded a conviction and imposed no other penalty.

The offending on 3 February 2020

5            The details of the appellant's offending on 3 February 2020 are set out in the following paragraphs of his Honour's sentencing comments:

"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. 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

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.

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intersection was particularly dangerous. The consequences of driving in this way could
have been catastrophic."

6   The appellant pleaded guilty to the following charges in relation to that conduct:

• Dangerous driving, contrary to s 172A of the Criminal Code, committed by (a) travelling at approximately 90 km/h in a 60 km/h zone on Mission Hill Road; (b) overtaking another vehicle when it was unsafe to do so on Mission Hill Road; (c) failing to give way at the intersection of Mission Hill Road and Main Street; (d) travelling at speed and failing to keep left when turning at the intersection of Mission Hill Road and Main Street; (e) failing to stop at a red traffic light at the intersection of Main Street and Preservation Drive; (f) failing to keep left when turning at the intersection of Main Street and Crescent Street; and (g) failing to maintain proper control of the vehicle on South Road and Ironcliffe Road.

• Driving whilst disqualified.

• Evading police (in aggravating circumstances), contrary to s 11A(2A) of the Police Powers (Vehicle Interception) Act 2000, committed by failing to pull over when police officers indicated to him to do so by using their lights and sirens.

7 On the charge of evading police, the learned sentencing judge convicted the appellant, sentenced him to a cumulative term of 6 months' imprisonment, and ordered that he not be eligible for parole until he had served 3 months of that sentence. He disqualified him from driving for a cumulative term of 2 years and ordered him to pay a compulsory penalty of $600 pursuant to s 37MA of the Police Offences Act 1935.

8             On the charges of dangerous driving and driving whilst disqualified, his Honour convicted the appellant, sentenced him to a global term of two years six months' imprisonment, and ordered that he not be eligible for parole until he had served 21 months of that sentence. In relation to those two charges his Honour also disqualified the appellant from driving for a cumulative period of 3 years.

Aggregate penalties

9             In total, therefore, the appellant was sentenced to 7 years' imprisonment with effect from 3 February 2020, with no eligibility for parole until he had served 5 years' imprisonment, and he was disqualified from driving for a total of 6 years, to commence upon his actual release from prison.

The appellant's personal circumstances

10           The appellant was 34 years old when he was sentenced. He was mistreated and abused during his childhood and youth. He commenced adult life with a significant criminal record. As an adult, he has had a shocking criminal history. After turning 18 in 2005, he was sentenced to imprisonment by judges and magistrates on 17 occasions between December 2005 and December 2018. None of those sentences were wholly suspended. One of them, imposed in 2012, was partly suspended, but the suspended component was activated the following year. His prior convictions, excluding those for crimes and offences committed as a youth, include 14 for crimes or offences involving violence, three for driving whilst disqualified, two for evading police, and five for breaching an interim family violence order. His convictions for crimes of violence include convictions under the Criminal Code for assault in 2005, 2006 and 2011, one for aggravated sexual assault in 2006, and one for aggravated assault in 2017. He has had a drug problem for many years.

Aggravating factors

11   There were a number of aggravating factors in relation to the offending on 22 January 2020, as

follows:

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• The aggravated burglary took the form of a very frightening home invasion.

• The victim of the assault was a pregnant woman.

• It was a prolonged assault.

• It amounted to domestic violence.

12   The aggravating circumstances in relation to the dangerous driving were as follows:

• The crime occurred on a Monday afternoon, when it was likely that there would be motorists and pedestrians on the streets of Penguin.

• A number of drivers had to swerve to avoid collisions.

• A number of pedestrians, including an elderly woman, were crossing roads when the appellant drove towards them.

• A number of police officers were involved in intercepting the appellant.

• The appellant drove for about 7 kilometres when evading the police.

• He ignored emergency lights and sirens.

• He continued to drive after the vehicle's tyres were deflated.

• He was a disqualified driver.

Mitigating factors

13           A number of common mitigating factors are absent in this case. The appellant was not a youthful offender. He was not a first offender. There was no claim of remorse. The appellant did not make any admissions or provide any assistance to the police.

14          The only mitigating factors relied upon by counsel for the appellant were his pleas of guilty, the totality principle, and the delay between the appellant's arrest and his sentencing.

Delay
15	There was an interval of nearly 18 months between the appellant's arrest on 3 February 2020 and his sentencing on 28 July 2021. In an ideal system of justice, he would have been sentenced much sooner. However we do not consider that any delays in this case were serious enough to be taken into account in mitigation of penalty.

16   The history of the proceedings from arrest to sentence can be summarised as follows:

• The appellant was arrested at the conclusion of the second episode of offending, on 3 February 2020.

• Initially he was charged only with summary offences in relation to the two episodes of offending.

• On 3 March 2020 he appeared before a magistrate, and new charges of indictable offences replaced some of the summary charges.

• On 12 March 2020 he appeared before a magistrate and pleaded not guilty to the indictable offences. The summary charges were adjourned sine die. He was committed for trial.

• On 9 June 2020 he appeared before a judge for the first time.

• His counsel told the learned sentencing judge that there had been a number of difficulties in respect of appropriate disclosure being made by the police.

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• On 3 September 2020 an application was made for preliminary proceedings to be conducted in the Court of Petty Sessions. On 12 October 2020 that application was granted. Wood J ordered that depositions be taken from five witnesses. There appears to have been a good reason for the appellant to apply for preliminary proceedings. The learned sentencing judge was told that the complainant had not made a statutory declaration that covered the entirety of the allegations against the appellant.

• The preliminary proceedings commenced in a Court of Petty Sessions on 13 November 2020, but had to be adjourned because one of the prosecution witnesses failed to appear.

• On 16 December 2020, after a couple of adjournments, the preliminary proceedings were concluded without any evidence from the missing witness.

• In late January 2021 a proposal was sent to the Crown as to the resolution of the matter.

• During May 2021 the Crown indicated that that proposal would be accepted.

• Indictments and Crown papers were filed on 13 May 2021.

• Pleas of guilty were entered to all charges, including the summary offences which were dealt with under s 385A of the Criminal Code, on 15 June 2021.

• The facts were stated to the learned sentencing judge on 25 June 2021.

• His Honour adjourned the matter to 28 July 2021, and imposed sentence then.

17           A delay of the order of 18 months between arrest and sentencing is by no means unusual in this State. Tasmania Police, the Director of Public Prosecutions and this Court all have to do the best they can with the funding and resources that are available to them. The appellant had the right to seek preliminary proceedings. There is no suggestion that it was unreasonable for him to take that course. The fact that a witness went missing caused a delay, but not an unreasonable one. The Crown's delay in responding to the proposal of January 2021 was unfortunate, but not unusual.

18           The appellant was always likely to receive sentences requiring him to spend longer than 18 months in custody. This was not a case where the offender rehabilitated himself while the charges were pending. There is no suggestion that he was particularly anxious about his fate during the time that he spent on remand. In fact his counsel told the learned sentencing judge that he described himself as institutionalised. For these reasons, delay should not be regarded as a significant mitigating factor in this case.

The pleas of guilty

19 The appellant's pleas of guilty had a utilitarian value, in that they resulted in the cost, inconvenience and delay associated with two trials being avoided. It is also significant that the appellant facilitated the administration of justice by making applications under s 385A of the Criminal Code in relation to the summary charges. However it cannot be said that the pleas of guilty resulted in the appellant's partner not having to give evidence. She and three civilian witnesses were cross-examined during the preliminary proceedings, but the pleas of guilty avoided the need for each of them to give evidence a second time, before a jury. There was no suggestion that the pleas of guilty were motivated by even the slightest remorse. The Crown appears to have had a strong case in relation to each of the crimes charged. The learned sentencing judge was told that the victim of the assault became unwilling to proceed further or co-operate with the prosecutors after the preliminary proceedings. However the occupants of the house were available to give evidence, and the complainant's evidence from the preliminary proceedings could probably have been admitted as evidence if the complainant had been found to be an unfavourable witness.

20           The learned sentencing judge acknowledged that the pleas of guilty had to be taken into account in mitigation of penalty. There is nothing in his sentencing comments to indicate any factual error or error of principle in relation to the weight he attached to the pleas of guilty. The appellant's argument is

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based on the proposition that the sentences were manifestly excessive. We will address that question in

due course.

Totality

21           When a court sentences an offender for a number of offences, particularly when a number of cumulative sentences of imprisonment are imposed, it is the duty of the court to ensure that the totality of the sentences is appropriate for the totality of the relevant criminal behaviour and not excessive: Mill v The Queen (1988) 166 CLR 59; Griffiths v The Queen (1989) 167 CLR 372.

22          In sentencing the appellant, the learned sentencing judge referred to "the principles of totality" as something to be taken into account in his favour. A little later he said the following:

"Because the offending was discrete, I intend to impose cumulative terms but will
moderate those terms appropriately having regard to the principles of totality."

In other words, each of the three sentences was intended to be somewhat shorter than it would have been if no other sentences were being imposed for other offending.

23           There is nothing in his Honour's sentencing comments to indicate any error of principle in relation to totality. The question for this Court insofar as totality is concerned, is therefore whether the three sentences, in the aggregate, were manifestly excessive.

Manifestly excessive?

24           It is necessary to consider whether any of the three sentences, considered separately, was manifestly excessive, as well as considering whether they were manifestly excessive in the aggregate. The orders as to parole eligibility must be considered as part of each sentence: Sentencing Act, s 17(5). The principles applicable to sentencing appeals on the ground of manifest excess are clear and well settled. See Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1. The critical question is whether any sentence or the aggregate of them was "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505.

25           Having regard to the circumstances of the appellant's offending and the nature of his criminal record, it was appropriate that he receive very heavy sentences, particularly for the purposes of the protection of the public, denunciation, and personal and general deterrence. Lighter sentences would have been unimpeachable, but it cannot be said the impugned sentences, separately or in the aggregate, were out of proportion to the seriousness of the appellant's offending, particularly since provision was made for him to be eligible for parole two years before the expiration of the last sentence.

26   For these reasons we concluded that the appeal should be dismissed.