STATE OF TASMANIA v DARCY VINCENT BULL 20 JUNE 2023
COMMENTS ON PASSING SENTENCE WOOD J
Darcy Vincent Bull has been found guilty of two counts of assault. On 28 January 2022, the defendant drove a motor vehicle into a motor vehicle being driven by Aaron Pene. Mr Pene had a passenger, Joshua Mason. The defendant’s act of driving into Mr Pene’s vehicle gives rise to two counts of assault.
At the trial, the defence was that Mr Pene drove into the path of Mr Bull and that the collision was an accident. The verdicts demonstrate that the jury rejected that defence. During the plea in mitigation, it was argued that the evidence was consistent with Mr Bull driving with recklessness rather than with the intention of a deliberate impact. I reject that construction of what happened and I am satisfied beyond reasonable doubt the collision was deliberate.
The facts as I find them to be are as follows. On the afternoon of 28 January 2022, there was an exchange on social media between the defendant and Mr Pene against a background of significant animosity between these men. The exchange included a message from the defendant saying, “Come see me, you know where I am”. The complainant, Mr Pene, drove a small MG sedan to Fleming Street with the knowledge that Mr Bull’s mother lived there and the defendant may be at her residence. His passenger, Mr Mason, was in the front seat and uninvolved in the animosity. Mr Pene went to Fleming Street in a show of bravado or to annoy the defendant.
As Mr Pene drove down Fleming Street, the defendant and his passenger, Ms Moerkerk, were leaving his mother’s driveway in a Toyota Land Cruiser driven by the defendant. The defendant smiled at Mr Mason. Mr Pene drove to the end of the Fleming Street, which was a dead end, turned around, and began to drive back down the street. Meanwhile, the defendant executed a three-point turn. He told Ms Moerkerk to put her seat belt on and accelerated, driving back down Fleming Street at speed, in the order of 60 kms per hour. The defendant was driving slowly down Fleming Street on his correct side of the road. The defendant swerved and struck the small MG in a head on collision.
The Toyota travelled up onto the bonnet of the MG, causing catastrophic damage to the front of the MG, and pushing the MG backwards some 30 metres into the front yard of number 11. While that has occurred, the Toyota tipped onto its left-hand side and began to slide on the bitumen to its resting position.
While Ms Moerkerk remained in the passenger seat with the vehicle on its passenger side, the defendant kicked out the front wind-screen and soon afterwards had a verbal altercation with the complainant, Mr Pene.
Mr Pene’s passenger, Mr Mason, fled the scene in a state of panic, anxiety and shock.
The defendant participated in a record of interview with police later during the evening. He provided an account which was false in various key respects and made no admissions about his driving in terms of his wrongdoing. He said he was driving slowly at about 10-20 kms per hour and was about to turn into his driveway, when the complainant drove into his path causing a collision. The lies he told police showed significant presence of mind.
Fortunately, no one was seriously hurt. The physical injuries of the complainant and his passenger were confined to bruising and soreness. Both have suffered emotional and psychological after-effects. Mr Pene was reluctant to drive for a period of some months, and for work purposes was driven by a work colleague, which affected his income. Mr Mason suffered terror in the moments before the crash, and thought he was going to die. He was unable to work for a couple of weeks due to physical pain and anxiety and shock. The terror that someone experiences in such moments when they think they may die must be regarded, in and of itself, as tangible harm. The experience can be debilitating and, furthermore, carries the prospect of ongoing, perhaps permanent, psychological effects.
An aggravating feature of these crimes of assault is that the infliction of violence involved the use of a weapon; the defendant weaponised a motor vehicle to commit these crimes with the potential for serious or lethal harm. By comparison with the Land Cruiser, the MG was a very obviously a small, light vehicle and was never going to withstand such a collision.
The defendant’s conduct was alarming to the public who witnessed the driving. There was the potential for members of the public to be harmed and the defendant displayed an indifference to that risk. His driving showed indifference to the safety of his passenger, as well.
While Mr Pene was, no doubt seeking to aggravate and antagonise the defendant by driving into Fleming Street and his presence escalated the situation, the defendant’s response was so disproportionate that there is little, if any, mitigation in that aspect of the circumstances.
It is said on the defendant’s behalf in mitigation that he was leaving his mother’s address hoping to avoid Mr Pene and he returned because he was concerned about what might occur. I do not accept that explanation.
I find that at the point he turned the Land Cruiser around and told his passenger to put on her seat belt, he had made a decision then to drive at and into Mr Pene’s vehicle or, at the very least, to drive at Mr Pene at speed in order to intimidate him, and then as the situation unfolded, he decided to ram him. His violence was impetuous and I accept it was unplanned.
The defendant is 37 years of age. He has prior offences of relevance. On 4 January 2021, he committed an offence of common assault upon a female partner and committed an offence of destroy property and two offences of breach of police family violence order. For those matters, a magistrate imposed an undertaking without conviction in April 2021. On 14 June 2021, he committed an offence of common assault and destroy property. The offence of common assault involved driving directly towards Mr Pene, who was a pedestrian. Mr Pene grabbed a bin and placed it in front of him for protection. The defendant crashed into the bin and Mr Pene jumped out of the way. After that, the defendant got out of his vehicle and hit the windscreen of Mr Pene’s car with something causing it to smash. In relation to these matters, he was arrested and remanded in custody and spent a period of approximately three months in custody before being remanded on bail. It is troubling that in the 6-month period before he committed the crimes before the Court today, he had already assaulted Mr Pene by driving at him, and spent some three months in custody. I note he had not yet been convicted and sentenced by a court and so may not have had a full appreciation of the seriousness of his conduct, but still it would ordinarily be expected that three months incarceration would have been salutary. Ultimately, after he committed the crimes before the Court today, he was sentenced to 6 months’ imprisonment backdated to a notional date to take into account time spent in custody in the period of June – September 2021. The balance of three months’ imprisonment was suspended on the condition of his good behaviour for two years. A community service order of 84 hours was also imposed. At the time he committed the crimes before the Court today, he was on bail for similar conduct, but I do note his crimes were not in breach of a suspended sentence because that sentence had not yet been imposed.
His past and current offending has occurred in a discrete period from 2020 to 2022. This was a period when the defendant was under significant personal strain as a result of a breakdown of his marriage and after he and his wife had separated. They had been running a business and there were acrimonious proceedings in relation to the children and property. Ultimately, the business had to be closed due to the impact of COVID.
Mr Pene was a previous employee of their business and so was Mr Bull’s sister. They had been in a relationship and there were difficulties associated with the breakdown of that relationship, and the defendant’s relationship with Mr Pene soured. Mr Pene had been charged in relation to family violence allegations concerning the defendant’s sister and there was a family violence order in place to protect her. Further, Mr Pene had sent inappropriate messages to the defendant’s younger sister which contributed to Mr Bull’s ill-feeling towards Mr Pene.
In the same period, the defendant suffered mental health issues as a result of the breakdown of his relationship. He sought assistance for his difficulties and while he was in “rehabilitation”, he met Ms Moerkerk, who also had mental health difficulties. The relationship that ensued was problematic, and there were family violence allegations against the defendant, resulting in a family violence order being placed on him. However, the relationship continued in circumstances where the defendant was concerned for her well-being and mental health, particularly after she became pregnant with their child but then had a miscarriage. The continuation of the relationship gave rise to breach of family violence orders by being in her company and breaches of bail. In this time, Mr Pene was showing an interest in relation to Ms Moerkerk which contributed to the hostilities. In fact, this demonstration of interest was background to the prior offences of common assault and destroy property. The defendant was at Ms Moerkerk’s residence in Moonah when Mr Pene attended the area and the offences were committed.
Since that discrete period, there has been significant improvement in the defendant’s circumstances. He has sought treatment for his mental health. He has been prescribed medication for anxiety and depression and is experiencing the benefit of that. There has been a property settlement and agreement in relation to contact with his children. He has been on bail since February of last year and there has been no further offending since then. The defendant has avoided Mr Pene and there has been no further engagement with him. He has ceased his relationship with Ms Moerkerk and has entered into a new relationship, and his current partner is supportive. He has a civil relationship with the mother of his two children, aged 8 and 6 years, and he is eager to develop a meaningful relationship with them once more.
Given his education and industrious record, involving both experience in manual and managerial work, he has sound prospects in terms of future employment. The fact that his offending is limited to a confined period during a chaotic and very difficult time gives hope that he will return to law-abiding ways now these circumstances have improved. Community corrections have indicated he engaged well with supervising probation officers before he was remanded in custody.
The defendant, however, has demonstrated little insight and remorse. He has minimised his conduct and blamed the complainant for his offending. I note he does accept the jury’s verdict.
As a positive factor in terms of his rehabilitation, I accept he is highly motivated to pursue a productive lifestyle and focus on his family and his children.
Mr Bull, these are serious assaults involving the use of a motor vehicle as a weapon in order to instil fear and to inflict violence. The target of your aggression was Mr Pene, but you also assaulted his passenger, who was a stranger to you. Your conduct was appalling, and in fixing the sentence there is a need for the Court to send a message to others so they can see that such brutal aggression will be dealt with severely. Denunciation and general deterrence are prominent sentencing considerations. Given this is the second time you have chosen to assault Mr Pene by driving at him, your culpability is significant. You have shown no remorse or real insight into the gravity of what you have done and there is a need for the sentence to reinforce your understanding about the seriousness of your criminal conduct. I allow for the fact that you may develop insight regarding your wrongdoing, particularly after involvement with programs such as the EQUIPS aggression program.
On the other side, there are positive factors that will be reflected in the sentence. Given the significant improvement in your circumstances and your genuine motivation to further improve your circumstances and put your offending behind you, as well as the support available to you in the community, I have considerable confidence in your rehabilitation. I regard your reform as an important goal which should also be reflected in the sentence.
I repeat what I said on a previous occasion; that your criminal conduct is too serious to allow consideration of home detention.
A lengthy gaol sentence is required to reflect the matters I have referred to, particularly the gravity of your assaults upon two victims, your culpability, and the need for general deterrence. While the sentence will be lengthy, it is also be designed to encourage your rehabilitation.
I record convictions. I impose a global sentence of two years’ imprisonment. I suspend 16 months of that period subject to conditions. The effective term of eight months is backdated to 28 March 2023 to take account of time spent in custody. The 16 months that has been suspended is suspended on the following conditions:
- You must not commit an offence that could attract a term of imprisonment for a period of two years from your release.
- You must comply with community correction order for a period of two years from the date of your release.
Further, I impose a community correction order for a period of two years from the date of your release.
As conditions of that order, you must report to a probation officer at 75 Liverpool Street, Hobart, within two working days of your release.
You must report to a probation officer as required by that probation officer.
You must comply with all the reasonable and lawful directions of your probation officer.
And I impose all other core conditions of a community correction order.
In addition, I impose a special condition that you must attend and complete the EQUIPS Aggression Program as directed by your probation officer.
You are disqualified from holding or obtaining a driver licence for a period of 18 months from today.