Director of Public Prosecutions v Hardy

[2015] VCC 1700

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-02123

DIRECTOR OF PUBLIC PROSECUTIONS

v

BADEN HARDY

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2015 and 20 November 2015
DATE OF SENTENCE:	20 November 2015
CASE MAY BE CITED AS:	DPP v HARDY
MEDIUM NEUTRAL CITATION:	[2015] VCC 1700

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O’Doherty	Office of Public Prosecutions
For the Offender	Mr J. Williams	Victoria Legal Aid

HIS HONOUR:

1Baden Hardy, following a trial that occupied 11 sitting days in the County Court at Mildura you were found guilty by the jury of the following charges –

2(i) Rape contrary to s.28(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment;

3(ii) Indecent assault contrary to s.39(1) of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment; and

4(iii), Intentionally causing injury contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment. You were found not guilty by the jury of one charge of making a threat to kill.

5The facts giving rise to the verdicts of the jury may be summarised as follows–

6In 2007 you and the complainant were neighbours in Ballarat.  That year you began a relationship which ended in approximately August 2012.  At the time the relationship was coming to an end, you and the complainant agreed to move to Swan Hill, and you obtained employment there and purchased a house.  You moved to that city, but the complainant remained in Ballarat, although she visited you from time to time after your move.

7In late 2012 the complainant moved to Queensland, and returned to Victoria in April 2013.  As she had rented out her house in Ballarat, she asked you if she could move in with you on a friendship basis and with each of you occupying separate bedrooms.  You agreed to this, but it is clear that you wanted to resume your intimate relationship with her.  The complainant was adamant that this would not occur, and this led to a high degree of tension and frustration on your part.

8You and the complainant resided together under these circumstances until the evening of 22 February 2014.  That night an argument developed between you in relation to a proposed financial agreement intended to deal with property the complainant had purchased for the house and any financial contribution that she had made or may make in the future.

9At approximately midnight, after you had gone to bed, the argument resumed.  The complainant requested you to continue discussing the matter with her.  You went into the lounge room.  You then said to her that you were going to have sex with her.  You forced her onto the lounge room floor, removed her night attire and inserted your partially erect penis into her vagina.  You then took her to your bedroom, where you sucked on her breast.  The complainant was struggling with you and resisting your sexual advances.  In response to this you punched her repeatedly in the face, causing immediate swelling and injuries to her mouth. 

10The complainant was distressed, injured and crying, and this caused you to cease your attack upon her.  You realised the enormity of what you had done, and took her to the Swan Hill Hospital, where she was treated, and complained of your rape and assault upon her.  The complainant was, however, conflicted as to whether she should proceed with her complaint against you, and she initially withdrew it.  Subsequently she proceeded with it and participated in a taped pretext conversation with you.

11On 30 April 2014 you were arrested by investigating police, interviewed and charged.  The following day you staged your own disappearance and death, with a view to avoiding standing trial for your offending.  However, you handed yourself in to investigating police on 7 May 2014, after an extensive police search and investigation had been conducted.

12You gave evidence in the trial and it is clear that the jury rejected your defence that the sexual activity the subject of the charges was consensual and that the injuries suffered by the complainant were caused accidentally. 

13Your offending is plainly serious and the sentence I impose must be calculated to deter you and others from offending in this way.  Persons like the complainant, in a trusting yet vulnerable situation, must be protected by the courts and you must also be punished for what you have done. 

14I have received in evidence a Victim Impact Statement of the complainant, and I accept that your offending has had a deeply traumatic effect upon her. 

15I now turn to your personal circumstances.  You were born on 3 March 1951 in Tasmania and you are now aged 64.  You were 62 at the time of your offending.  You have no prior convictions, subsequent convictions or other outstanding charges.  In middle age, you now face the prospect of imprisonment.

16You were married at the age of 19 and have two adult children and six grandchildren.  You and your wife divorced after approximately 30 years of marriage, and I accept that this had a deeply traumatic effect upon you.  In all probability, it led to the serious destabilisation of your life which has ultimately brought you to this point.  You have a very sound work history and you are in good physical and mental health. 

17I have also received in evidence a body of character references, and I accept that you are a caring and hard-working person. 

18Imprisonment at your age will involve a significant degree of hardship for you, and your otherwise good standing in the eyes of your community and family has now been seriously damaged.  However, you have shown little remorse for your offending.  But despite this I accept that in all probability you will not re-offend and your prospects for rehabilitation may properly me described as good.

19In the result the sentence of the court is as follows –

20In relation to the charge of rape you are convicted and sentenced to be imprisoned for five years. 

21In relation to the charge of indecent assault you are convicted and sentenced to be imprisoned for 12 months. 

22In relation to the charge of intentionally causing injury you are convicted and sentenced to be imprisoned for 18 months.

23The sentence imposed on the count of rape if the base sentence.  I order that six months of the sentence in relation to the charge of indecent assault and six months of the sentence in relation to the charge of intentionally causing injury be served cumulatively on each other and cumulatively on the sentence imposed in respect of the charge of rape. 

24This makes for a total effective sentence of six years imprisonment. 

25I order that you serve four years before becoming eligible for release on parole. 

26I declare that you have served 562 days by way of pre-sentence detention, not including today.

27I have made the forensic sample order sought by the prosecution and I must advise you that the authorities may use reasonable force in order to obtain that sample.

28Thank you, you may be seated.

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