Director of Public Prosecutions v Hardwick

[2019] VCC 1528

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEITH HARDWICK (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bendigo
DATE OF HEARING:	18 September 2019
DATE OF SENTENCE:	19 September 2019
CASE MAY BE CITED AS:	DPP v Hardwick
MEDIUM NEUTRAL CITATION:	[2019] VCC 1528

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Office of Public Prosecutions
For the Accused	Dr T. Alexander	SMR Legal Pty Ltd

HIS HONOUR: 

1Keith Allan Hardwick,[1] you have pleaded guilty to one charge of false imprisonment, one charge of common assault, one charge of aggravated burglary and one charge of making threats to kill.  Those crimes carry maximum penalties of 10 years, five years, 25 years and 10 years respectively.  You pleaded guilty, as I understand it, to a settled indictment and you must get the benefit of that.  As I indicated during the course of the plea, the utilitarian benefit of that plea of guilty is of real significance and you will realise that by the declaration I make under s.6AAA.

[1] This is a pseudonym.

2Insofar as remorse is concerned, you must get some credit for remorse in terms of having pleaded guilty.  There is evidence before me of remorse in a somewhat vague sense and I will be referring to all that again in a moment.

3You have two prior findings of guilt for breaching an intervention order.  They were made only a month or so prior to this offending occurring.  I do not regard them as aggravating the objective seriousness of the offending, they are just simply part of the overall context in which this offending took place and the history of the relationship.

4The circumstances of the offending are concerning indeed.  You were aged 39 at that time.  Your wife was aged 39.  You had been married for 13 years.  You had three children together who at the time were aged eight, 10 and 12.  You had separated in November 2016 and I indicated to your counsel yesterday I am not going to buy into all the Family Court aspects of this.  You went to live with your parents after that separation.  

5A family violence intervention order was obtained on your behalf and again I do not need to go into all the details of that.  It was breached by you attending at the premises and on a couple of occasions and your wife becoming frightened indeed.  After the last of those incidents, on 5 January 2017, your wife had CCTV cameras installed around the house, which had formerly been the matrimonial home.  Those cameras were operational on the day that the offending took place.

6What you had done on 5 January was give her a USB stick which contained apparently letters that you had written to her or to yourself and also contained details of her comings and goings from home and work since the time that you had separated.  There is clearly an element of stalking involved in that and, whilst you are not to be punished for it, I can well understand the apprehension that that would have been caused in your wife.

7In any event, on 24 July 2018 at shortly after 2.30 in the afternoon you attended the victim's home address in Kyabram.  She was at work at the time and the children were at school.  You were captured on CCTV outside the house on the footpath walking across the front of her house and back again, appearing to assess the house as you went.  You are seen wearing a blue-hooded jumper, dark pants and dark sunglasses.  You then walked up the driveway of the house, which leads to a side gate into the rear yard.  You leant over the side gate, opened it and entered the yard.

8Once inside you are seen to look closely at one of the CCTV cameras, which is situated on the awning of the rear portico.  You then disappear out of view of the camera.  At 2.50 pm you used your hand and the tip of a broomstick to reposition that camera so it no longer faced the back area of the house, it faced up into the sky.  It was put on your behalf during the course of the plea because you did that because you had a fear you might collapse and that would be captured on CCTV.  In my view that explanation is ridiculous and totally untrue.  Clearly you did that so that whatever was to follow would not be filmed.

9In any event, having taken that precaution you then hid and lay in wait until your wife arrived home.  At 3.11 she arrived home from work, parked her vehicle and walked up to the rear sliding door.  As she was getting her key to enter the house you ran at her from behind, grabbed her round the torso with both arms and restrained her.  That is the commencement of the charge of false imprisonment.

10She screamed for help, you told her to be quiet and dragged her along the ground to the back of the house.  You asked her if the security cameras were working and she told you that they were.  You sat on top of her to hold her down.  You said you wanted to talk to her about what she was doing and the fact that she had left you.  She attempted to reason with you and told you that the children would be home soon and she had arranged to meet one of the children at the corner on his way home.  You told her to stop talking and to stop making noise that the neighbours could hear.

11You said you wanted to go inside to talk, picked up the keys and bag.  She attempted to run away; however, you grabbed her and put her in a really tight headlock so she could not breathe.  You forced her to the ground, pinned her face down with your body weight, trapping her arms at her side.  That gives rise to Charge 2 of common law assault. 

12She struggled with you and she was trying to get free.  During that struggle she lost her earrings and damaged her watch.  You had a roll of duct tape.  You tore a strip off and tried to tape her mouth.  She managed to get an arm free and pull the tape from her mouth; however, you kept producing new strips and tried at least three times to tape her mouth.  You then produced cable ties from inside your jumper.  You attempted to cable-tie her hands, but she resisted.  You threatened to punch her if she did not cooperate.

13You then sat on top of her as she was face down on the ground and successfully cable-tied her hands together behind her back.  She stopped struggling and said she would cooperate and tell you what you wanted to know.  At that stage she heard the school bell ring, thinking school had finished and children would be home soon.

14In addition to the duct tape and the cable ties, which have already referred to, she saw some items fall out of your jumper.  She saw a packet of yellow ear plugs and a black eye mask with pink edging.  At one stage she also saw rope around your waist.  You told her:  'I've got things under here that you don't want to see'. 

15You say from the apology that somehow or other you conceive that this was a momentary aberration.  I will be adopting the words of Mr Justice Tinney in the Supreme Court shortly in terms of the seriousness of this.  You clearly went there with the intention of restraining her and had taken with you all the accoutrements necessary for that purpose.  This was clearly premeditated.  Obviously I am not in a position to make any finding as to when the thought of doing this came into play, but you had sufficient time prior to arrival home to give up on it and you had gone there well prepared for what took place.

16Once inside you locked the door behind you and she noticed that you were sweating heavily.  You forced her onto the floor in the back entry room, so she was sitting on the floor with her back up against the toilet door.  You then used cable ties to bind her feet together.  As you pulled the additional cable ties from under the jumper, as I indicated a moment ago, she noticed you had rope tied round your waist.  It was then she asked about that that you told her that you had things that she did not want to see.

17She then asked you what were you going to do when the boys arrived home and you replied, 'They won't.  Mum will be here soon and I told her I was coming here to talk to you'.  There is a reference from the parents, but it does not seem to support that, so I do not know what that is all about.  In any event she then asked you if you were going to kill her, to which you responded:  'It depends what you tell me, but I probably will'.  That is a very serious threat to kill in circumstances with a totally defenceless victim expecting the children home at any minute.

18It was at that point in time that she heard one of the children at the back door.  She screamed for help and it was clear that the child heard it.  You told her to shut up.  She managed to wriggle her hands free from the cable ties.  She kept them behind her back so as not to alert you.  You went to the back door to speak to the child and she heard the child say, 'Why did Mum scream?'  She then saw you step outside and shut the door behind you.  She heard you tell the boys that they needed to go to their nanna's house. 

19As soon as you were outside she stood up and opened the sliding door into the lounge room.  By this stage her hands were free; however, her feet were still bound.  She jumped over to the side door of the house and was unable to open the door as it had been locked.  She jumped through the dining room to the front door, which she was able to unlock.  She left the house and jumped through the front yard and went to a neighbour's fence.  That was captured on CCTV and, whilst the CCTV could not be played for technical reasons, I have seen the still photographs of her efforts to get away from you.

20At that point she saw a girl that she knew in the street and told her, 'Call the police, Keith is going to kill me'.  She then continued jumping to the neighbour's front door, banged on the windows and door and was yelling, 'Let me in, Keith is going to kill me'.  The neighbour opened his door and let her in.  She fell into the house and on the floor.  He observed that she was still tied by the legs with the black cable ties and that she was very distressed, 'Crying and screaming about what had happened'.  He phoned 000, as I believe had the girl in the street.

21You, then realising that she had escaped, fled and were captured on film running out of the driveway at around 3.30 pm.  Police arrived about 10 minutes later.  There your mother met them and spoke to the police about the children.  At a quarter to four you for some purpose sent her a text saying, 'What the hell was that?  The boys are safe at Mum's'.

22Police found materials at the house which supported her version of events, including the black and pink eye mask on the ground.  The purpose of that has never been explained to me, nor the purpose of the rope, nor the purpose of the ear plugs, but I am not going to harass your counsel about all that.  They also took her to be medically examined and she was found to have slight bruising to the head and various superficial bruises and abrasions to her arms, wrists and hands.  She also had bruising on both her hips and extensive bruising to the front of her left thigh.  In a victim impact statement she describes the nature of the physical injuries that she sustained and also the ongoing psychological injuries that she has sustained. 

23When you were arrested you exercised your right to make a no comment record of interview, but at the conclusion of the interview you told police that you were disgusted by the allegations and that the victim 'Is a vindictive woman'.  You denied all of the charges alleged against you. 

24The offending is extremely serious, in my view.  I think there seems to be a lack of understanding of how just how serious it all is.  Tendered was a victim impact statement, which was read out by your wife in constrained terms, if I may say so.  She indicated the damage that this has caused.  She indicated the continuing damage that it is causing.  She describes her own fear and paranoia and the anxiety.  She describes the effect it has had on your children and how they still try and come to terms with it.  They were teased at school about you being in gaol. 

25She is concerned, very concerned, about what will happen when you are ultimately released.  She is clearly very afraid of you and totally understandably.  She has attended psychologists and doctors and generally feels safe while you are incarcerated.  But it is upon your release that she says she believes you will stalk her again and attempt to finish what she said you tried to do on 24 July. 

26I make it very clear that references in the material that you provided to Family Court proceedings and references that she has made in that victim impact statement to Family Court proceedings are of no concern of mine.  I am simply sentencing you for the actions that took place on that day and, as I indicated to your counsel during the course of the plea, one of my concerns was that there seemed to be an underlying, somehow or other, justification of all this in that she had in some way, shape or form brought it on herself.  She quite clearly had not.

27It calls, this offending, for the application of general and specific deterrence, denunciation and an appropriate punishment.  When you were in custody a bail application was made before His Honour Justice Tinney in the Supreme Court.  This was in October of last year.  There were other bail applications, as I understand it, that also failed.  His Honour said when refusing bail:

'There is no question the offending alleged is exceedingly serious.  It is alleged that in daylight hours and armed with items intended for use in incapacitating the complainant, the applicant went unlawfully onto her premises, interfered with a CCTV camera which might have recorded his later conduct and then lay in wait for her.  He grabbed her from behind and dragged her to a place of his choosing, forced her to the ground, sought to bind her wrists and gag her, forced her inside her own home away from prying eyes and again forced her to the ground, this time binding her at the ankles.  He threatened her and most graphically and frighteningly as she was so bound and helpless.

'This attack upon the [victim] in her own home, which only came to an end when fortuitously she was able to escape, was calculated to and did cause great terror to the complainant.  The alleged offending was premeditated and involved a significant degree of planning and the use of equipment taken along for the purpose of incapacitating the complainant.  It was offending which was brazen, frightening and disturbing.  Only the fortuitous escape of the complainant prevented a continuation of and possible escalation of the offending.  The threat to kill her and her family was especially chilling'.

28With respect to His Honour, I could not agree more with that assessment of what took place.  A very significant gaol term indeed is the only sentencing option available here. 

29I then turn in this situation to the question of remorse and I make it very clear that, as s.6AAA will indicate, there is a significant reduction in the sentence because of the plea of guilty.  I am concerned in the sense that the alleged remorse has been put.  I think there is very little evidence to support the reality of it.  Your partner, who had been with you for a couple of months prior to this offending, gave evidence that you had professed remorse; I am not quite sure what for, because of what I am about to read out.

30When you were spoken to by police you lied.  You said that the allegations were false and you added that she was a 'Vindictive woman'.  When you spoke to Mr Cummins the forensic psychologist in June of this year, he asked you about the offences.  His report says:

'In summary he said he then reached a psychological stage where he felt he needed answers and hence it was that he attended at the former matrimonial home after working at the farm, at which time he had in his possession cable ties, which he routinely used when working on the family farm.  I know it is also alleged he had some rope tied round his waist.  He stated then Ms Hardwick then walked down the side of the house.  He grabbed her by the arm, whereupon there was a struggle in which she assaulted him.  He then proceeded to place cable ties on her wrists and ankles and at least attempted to put gaffer tape on her mouth.

'The interviewee said [this to Mr Cummins] that he subsequently removed the tape from her mouth and cut the cable ties on her wrist and, in a very agitated state, pleaded with her to talk with him, "'Cause I needed answers".  He said she then stated that he could have the family farm if he agreed to her having the children, whereupon he said he declined this offer.  It was at that stage that the children walked down the side of the house and around the back gate'.

31That is just a pack of lies and that is only, what, three or four months ago.  When you read the purported apology, which has been tendered, you described within that apology that you were sorry for what occurred: 

'Often since last year I have constantly been reminded of the significant impact of a momentary indiscretion'.

32That is a ridiculous assertion.  We even get to the stage where in the course of the plea counsel is instructed to put to me that you turned that camera away because you were afraid you would be filmed collapsing.  That is in my view a lie and it causes me great concern insofar as remorse is concerned.  Clearly a lack of remorse, or a lack of significant remorse might be a better way of putting it here, is not an aggravating feature, it simply removes one of what is normally in these circumstances the most important piece of mitigation.  I make it very clear it does not aggravate the circumstances, but it certainly does not help.

33What it also does is cause me real concern in terms of Mr Cummins' assessment of you in terms of risk.  He has apparently accepted what you told him and he says you are at a low risk.  The neuropsychologist I think said moderate risk.  In Mr Cummins report there is reference to an affidavit of a Mr Powells, who I do not know, who is a psychologist and mental health professional.  Mr Powell says that he referred to assessing you on 12 January 2017 and goes through some detail.  He then says, this is Mr Powells:

'My assessment using the DSM-5 diagnostic criteria's 309.28 adjustment disorder with mixed anxiety and depressed mood that has moved into remission due to acceptance of his wife's separating from him and the loss of his family.  In my assessment of Mr Hardwick I have not seen any evidence to support the claim that he is a risk to himself, his wife or him harming his children or ex-wife, it is not supported by any tangible evidence'.

34How wrong Mr Powells was. I am concerned that he made that assertion or assessment back in January of 2017 and that does not seem to have played any part in Mr Cummins' assessment of what he refers to as a bereavement disorder and there being a low risk of reoffending.  Your wife is clearly terrified that you will do this again, understandably.  I do not know what the risks are involved here, but I am certainly not prepared to accept or sentence on the basis that it is necessarily low.  I think the way it has been gone about and the way that you have conducted yourself since, even maintaining untruths up until this point in time, gives me real concern.

35However, that is only one of the factors to be taken into account in this sentencing.  There is no other material before me of you having offended against other people, it is the situation with your wife and it is contained within that situation.  That is probably not the correct word to use, because it is in a sense not situational, it is ongoing, that upon your ultimate release you will have to go back into a community and, as I say, I am very concerned in all those circumstances.  However, you remain to be sentenced on what occurred on that day in the way that Mr Justice Tinney so succinctly has described. 

36I then look to matters personal to you.  Tendered on your behalf was a report from Ms Carey, a neuropsychologist, and I accept that you on her report and also in the assertion of Mr Cummins essentially suffer from mild autism.  I note that you have had a very successful work career.  You are a qualified accountant and all those other aspects. 

37I am astonished by the diagnosis of bereavement disorder.  I do not even know quite what that is, but the fact of the matter is I do not see that the matters raised in Verdins are applicable here other than I do accept that gaol for you with your condition will be far more difficult than it would be for a person without it.  You, as is commonly the case with autism, get into situations where you do not interpret your surroundings properly.  You can give offence unintentionally, you can take offence unintentionally. 

38In a prison environment that is a very unfortunate personality to have, as I am well aware other prisoners can take things the wrong way or bully, threaten.  I accept that your time in custody will be spent in fear.

39The references from family and colleagues speak highly of you and obviously I take those into account.  As I indicated earlier in these remarks, I think there is somehow an underlying sense of justification in all this, but I am sure those references are given in good faith and are the genuine belief of the people involved.  You have done clearly on that material a lot of community work.  You have been involved in sport, you have been involved in all sorts of organisations, and that is very much to your credit.  None of them report having seen you being violent previously and I am not going to buy into the nature of the relationship with your wife or with the Family Court documents. 

40Your counsel argued persuasively that this was an attempt by you to get answers rather than an attempt to get revenge or mete out punishment for infidelity.  I accept that that is the case, after having listened to him carefully, but I think that the end result is that you were prepared to subject your wife to absolute terror to fulfil your need for answers.  I agree with Mr Justice Tinney that but for the sound of those children outside no one has got any idea what may have happened.

41You have completed a men's behavioural program.  That behavioural program was, as I perceive it, completed just prior to this offending taking place and was therefore of very little value. 

42To your credit again, as I think I have previously indicated, you have a very good work ethic.  You are an intelligent man with an IQ estimated at 103 and referred to in one of the reports as probably being higher.  The separation, without taking sides in any way, shape or form, of you and your wife back in 2016 with the children involved obviously had a very traumatic effect on you and clearly I think in these circumstances ultimately unbalanced you.

43I have taken into account all the matters that are contained within the various reports.  The report of the neuropsychologist says that you have no cognitive defects and describes in simple terms the nature of your autism.  In the report from Mr Cummins, he seems to have taken at face value what you told him.  I accept all the things he says about your past history, and so I do not think in these circumstances there is any need to go into it. 

44This is not about your childhood or anything along those lines.  You have no real difficulties with alcohol or drugs or gambling or any of those factors that sometimes come into play.  This is simply an act of domestic violence, and an act of extreme domestic violence, by a man who clearly thought he was entitled to do that to satisfy his own needs.

45The prospects of your rehabilitation are up to you.  The risk of you reoffending, I am not prepared to make a finding on that.  I will leave that to others when it comes time for you to be eligible for parole.  That can be examined in the light of these sentencing remarks and I will also make sure that the reports that have been tendered to me will be forwarded on to the Parole Board.

46Again I am not decrying what your counsel said to me yesterday, but Mr Cummins, for example, says:

'At interview on 28 June 2019 I discussed Mr Hardwick’s offending of 24 July 2018 in detail with him.  He acknowledged his offending represented a very serious incident.  He stated by the time he attended at the Kyabram address he was feeling very frustrated, agitated and angry and was still unable to understand why his then estranged wife had cheated on him and in his opinion refused to give the marriage a second chance'.

47That is what you said to Mr Cummins. Your counsel argued very ably on your behalf yesterday but that puts another flavour to that concept of your entitlement. 

48I will direct that all the exhibits remain on file.  It is a situation where I do not think there is any point in going through, as I said, your family history or anything like that.  Upon your ultimate release you will have a partner, who has given sworn evidence in front of me that she will be supportive and I accept that.  You have a supportive community and you have a supportive family.  What happens in the Family Court or by reason of the Family Court is of no concern of mine.

49But at the end of the day the moral culpability of all this is so high, in my view, a sentence must be imposed which accurately reflects the interests of justice and, as I have said, general deterrence, specific deterrence, denunciation and punishment.  Men in this situation must clearly understand that they cannot resort to terrorising women to achieve their own ends.  Accordingly you are sentenced as follows.

50On Charge 1, 18 months; on Charge 2, six months.  That sentence will be concurrent.  The reason I do that is it seems to me that the common assault is contained very much within the false imprisonment charge and I do not propose to try and differentiate between them.  On Charge 3 of aggravated burglary, three years and six months; on Charge 4 of threats to kill, a serious example of it in my view, 18 months.  I direct that six months of the sentence imposed on Charge 1 and six months of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 3.  That gives a total effective sentence of four years and six months.

51I direct that you serve a minimum term of three years before becoming eligible for parole and I direct that 421 days be reckoned as having been served under this sentence.  I make it clear that because you have relieved the victim of at least the ordeal of having to give evidence in these circumstances, which would have been a serious ordeal indeed, that but for your plea of guilty I would have sentenced you to be imprisoned for a period of six years and nine months with a minimum term of four years and six months.  The disposal order is made.

52No other orders I have to make?

53MR CAMERON:  No, Your Honour.

54HIS HONOUR:  No, all right.  Thank you.  You can take him now, thank you.  Yes, just stand down.

‑ ‑ ‑