Hardie v REGINA; Phillipsen v REGINA

[2012] NSWCCA 6

Court of Criminal Appeal

New South Wales

Case Title:	HARDIE v REGINA;  PHILLIPSEN v REGINA
Medium Neutral Citation:	[2012] NSWCCA 6
Hearing Date(s):	8 February 2012
Decision Date:	08 February 2012
Jurisdiction:
Before:	Basten JA at [28] and [31] RS Hulme J [2] Schmidt J at [30]
Decision:	Leave to appeal granted Appeals dismissed
Catchwords:	CRIMINAL LAW - sentence - assault occasioning actual bodily harm - entering or remaining in a dwelling with intent - sentencing process - sentences not excessive
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Amado v R [2011] NSWCCA 197 R v Lovell & Dominey [2006] NSWCCA 222 R v Zamagias [2002] NSWCCA 149 Smith v R [2011] NSWCCA 209
Texts Cited:
Category:	Principal judgment
Parties:	HARDIE, Jessica Joan v REGINA;  PHILLIPSEN, Stay-C v REGINA
Representation
- Counsel:	Crown:  T Smith Appellants:  K Averre
- Solicitors:	Crown:  S Kavanagh Appellants:  Legal Aid Commission
File number(s):	2010/182602010/18348
Decision Under Appeal
- Court / Tribunal:
- Before:	Colefax DCJ
- Date of Decision:	26 August 2011
- Citation:
- Court File Number(s)	2010/182602010/18348
Publication Restriction:

JUDGMENT

1. RS HULME J: At about 4.00 am on 24 October 2009, Ms Simone Wilkie, then aged 20, was asleep in her bed. One of her two flatmates was also in the premises. The applicants and Ms Melinda Bird, after some substantial ingestion of alcohol, caught a taxi to those premises and after receiving no response to knocking on the front door entered the premises through an open window. Leading the other two, Ms Hardie went to Ms Wilkie's bedroom where she struck Ms Wilkie as hard as she could 30 to 40 times to the head, neck, torso, arms and legs. The attack was protracted. In addition to the blows, a metal deodorant can was thrown at Ms Wilkie striking her in the wrist.

2. Ms Wilkie's flatmate unsuccessfully attempted to drag Ms Hardie off but ultimately Ms Wilkie managed to push Ms Hardie away.

3. After the beating of Ms Wilkie stopped, Ms Bird put in a bag a number of items, being a laptop computer, a DVD player, a handbag, hairdryer and some electrical games and DVDs. As they were leaving the house, Ms Hardie picked up a scooter and threw it at the front door, smashing the glass panel. Ms Bird caused further damage to the panel with her fists.

4. Ms Wilkie sustained very significant injuries - concussion, extensive bruising to her face and cheek, multiple abrasions to her face, injuries to her jaw, neck and left forearm, permanent damage and reduced function to her jaw, a permanent hearing loss in her left ear in the order of 40 to 50 decibels, which now requires her to wear a hearing aid, chronic headaches, sleep disturbance and nausea. She has also suffered a serious post-traumatic stress disorder and requires treatment from both a psychologist and a psychiatrist. Her psychological difficulties have precluded her working since the assault.

5. The only evidence of motive was that there had been some sort of altercation between Ms Wilkie and her flatmates on the one hand and Ms Hardie's sister on the other and Ms Hardie had been informed that Ms Wilkie had attempted to sleep with Ms Hardie's boyfriend.

6. Arising from this incident, Ms Hardie pleaded guilty to three offences. They, the section of the Crimes Act 1900 proscribing them and the maximum penalty for each is as follows:-

   1. Entering a dwelling house with intent to commit an indictable offence, vis, assault - s.114(1)(d) - seven years.

   2. Assault occasioning actual bodily harm in company - s.59(2) - seven years.

   3. Intentionally damaging property in company - s.195(1A) - six years.

7. Ms Phillipsen also pleaded guilty to three offences. Similar details are as follows:-

   1. Remaining in a dwelling house with intent to commit an indictable offence, vis, assault - s.114(1)(d) - seven years.

   2. Assault occasioning actual bodily harm in company and in a dwelling - s.59(2) - seven years.

   3. Stealing in a dwelling - s.148 - seven years.

8. Ms Bird also pleaded guilty and was sentenced but nothing turns on her charges or sentences and they need not be detailed.

9. Colefax SC DCJ recorded that each offender had strong subjective circumstances. Ms Hardie was almost 21 at the time and had no prior convictions. His Honour said she was, therefore, entitled to rely on good character. She has a child, born about seven weeks prior to the sentences. Since her arrest she has lived with her mother and was significantly involved in the care of her siblings, one of whom was as young as seventeen months and one of whom suffers a chronic disability. Ms Hardie left school at seventeen after obtaining her School Certificate. She subsequently obtained a Certificate in Business Administration. Prior to the offences, she suffered significantly with depression and, as might be expected, this worsened considerably after the offences.

10. Colefax DCJ recorded that Ms Hardie had not consumed alcohol since the offences, had undergone psychological counselling and at no time had consumed illicit drugs. His Honour found she had good prospects of rehabilitation.

11. Ms Phillipsen was just over 18 at the time of the offences. She had three convictions as a juvenile. His Honour recorded they could not be held against her but she could not rely on previous good character. She suffered an abusive and neglectful childhood. Prior to the offences, she had a significant problem with alcohol but since them she has totally abstained from alcohol and other drugs. His Honour recorded she had made a serious and successful effort to reform her life and found she had good prospects of rehabilitation.

12. After referring to these subjective circumstances, which he described as strong, his Honour went on to remark:-

    "Those subjective circumstances, however, cannot distract the Court from the extremely serious nature of the offences which have been committed, particularly by Ms Hardie and Ms Phillipsen. In relation to those two offenders, no sentence other than a period of full-time imprisonment is appropriate, although the length of the period of imprisonment will be modified by taking into account those subjective circumstances."

13. After recording that each offender was entitled to a discount of 25% for her plea and finding special circumstances because of the applicants' ages, that they had not previously been imprisoned, and both had good prospects of rehabilitation which would be enhanced by a longer period on parole, his Honour, on 26 August 2011, sentenced the applicants as follows:-

    (1) In the case of Ms Hardie, wholly concurrent sentences of imprisonment for one year and eight months, including non-parole period periods of 10 months, both such periods commencing on 26 August 2011.

    (2) In the case of Ms Phillipsen, wholly concurrent sentences of imprisonment for one year and six months, including non-parole periods of nine months, both such periods commencing on 26 August 2011.

14. Each applicant has appealed upon the grounds that:-

    (1) The learned sentencing judge erred in failing to take the proper steps in determining the appropriate sentence to be imposed on the applicant in that the sentencing judge erred in failing to consider that alternatives to full-time imprisonment were available and whether any of those alternatives ought to be utilised.

    (2) The sentences imposed were manifestly excessive.

Ground 1

1. In support of the first ground of appeal, reliance was placed on remarks of Howie J, with whom the other members of the Court agreed, in R v Zamagias (2002) NSWCCA 17 at [24] et seq:-

   "24. There is a preliminary question to be addressed and, depending upon the answer to that question, two further steps may have to be undertaken before the ultimate sentence is imposed.

   25. The preliminary question to be asked and answered is, whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the Act prohibits a court from imposing a sentence of imprisonment unless the court is satisfied, having considered all possible alternatives, that no other penalty other than imprisonment is appropriate. It should be noted that at this stage in the process the only consideration is whether a sentence of imprisonment should be imposed and not whether that sentence should be suspended. Notwithstanding that s.12, which provides the power to suspend a sentence, is contained in Division 3 of Partt 2 of the Act under the general heading "Non-Custodial Alternatives", a suspended sentence is not an alternative to which s.5 relates: JCE (2000) 120 A Crim R 18 at 15. That is because a sentence cannot be suspended until it has been imposed: it is the execution of the sentence that is suspended not its imposition.

   26. Having determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be: R v Foster (2001) NSWCCA 215 at 30. This has been regarded as the first step of a two-step approach in the imposition of a sentence of imprisonment, see R v Blackman and Walters (2001) NSWCCA 121 at 50 to 52; JCE at 17. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed: see s.6 (periodic detention order), s.7 (home detention order) and s.12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example, it cannot be increased because it is to be served by way of periodic detention: R v Wegener (1999) NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T ( NSWCCA, 19 June 1995)

   27. ...

   28. Once the term of the sentence has been determined, the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s.77 of the Act with respect to home detention. But the appropriateness of an alternative to full-time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full-time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is fulfil all the purposes of punishment. R v Jurisic at 250B."

2. It may be accepted that Howie J's remarks accurately and logically reflect the various steps and the order of them as flow from the terms of the Crimes (Sentencing Procedure) Act . However, it does not follow that a judge must expressly follow this order and refer to all of the steps in circumstances where the ultimate result is, in the judge's view, clear. Howie J made this clear at [30] of his remarks in the case just referred to. Basten JA made a similar point when, in Amado v R (2011) NSWCCA 197 at 5, his Honour observed:-

   "It was unrealistic to suppose that the Court actually reaches its conclusion by proceeding mechanically from step one to step three."

3. Certainly, in many cases the risk of error may increase if a judge does not expressly advert to some or all of the possibilities or steps referred to in Howie J's remarks. But there are many cases where a sentence of full-time imprisonment is so obviously demanded that the procedure envisaged by Howie J can properly be foregone.

4. Not only did his Honour make the remarks that I have quoted, including the passage that no sentence other than full-time imprisonment is appropriate. The sentence imposed during the same proceedings on Ms Bird was a suspended sentence. In those circumstances it cannot be thought that his Honour's failure to expressly deal with the matter by way of the steps referred to by Justice Howie was erroneous or indicative of error. Ground 1 fails.

Ground 2

1. The seriousness with which the law regards the offences committed by the applicants is apparent from the penalties provided. To take but the first offence, s.114(1)(d) provides that:-

   "Any person who:-

   (d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence on or upon the building shall be liable to imprisonment for seven years."

2. Thus, even without the actual commission of some other offence, the penalty for entering, or simply being there, with the relevant intent, exposes an offender to the risk of a lengthy prison term.

3. The view of the legislature has been echoed by the courts in numerous cases. People are entitled to the privacy of their homes. Equally, they are entitled to freedom from assault.

4. And while judging offences of the general nature of those committed by the applicants the courts have regarded it as appropriate to look at the motivation for the offences - see eg R v Lovell & Dominey (2006) NSWCCA 222 and Smith v R (2011) NSWCCA 209 and the cases therein cited. It is clear that general deterrence is an important factor in cases such as this. Persons must be discouraged from seeking to themselves right what they perceive to be injustices or punish those they think, rightly or wrongly, have wronged them.

5. Retribution is also a matter to which principles of sentencing require that regard be had. It is particularly important in this case where Ms Wilkie has suffered not only the pain which must have been associated with her physical injuries but the ongoing effects of post traumatic stress disorder and permanent hearing loss.

6. Before Colefax DCJ it was submitted that his Honour could not take into account this hearing loss because to do so would be to have regard to a more serious offence, ie, assault occasioning grievous bodily harm. His Honour rejected the submission, although saying that he did not regard that injury as a circumstance of aggravation.

7. The consequences to the victim, including the hearing loss, were included as part of the Statement of Agreed Facts, upon which the hearing before Colefax DCJ proceeded and, although the matter is not entirely clear, probably in the circumstances where the Statement of Agreed Facts and the charges - which would seem to have been less serious than those on which the applicants were committed for trial - were both the product of negotiations between the parties. Be that as it may, the borderline between actual bodily harm and grievous bodily harm is not always clear and in these circumstances his Honour was entitled to approach the matter upon the basis that the hearing loss and other injuries, although obviously serious, were not so bad as to amount to grievous bodily harm.

8. Recognition of course had to be afforded to the ages of the applicants and to his Honour's favourable, or relatively favourable, view of their pasts and of their prospects of rehabilitation. However, the extended nature of the attack on Ms Wilkie, the fact that it occurred following an unlawful entry into her home and the extent of the injury to her, mean that a severe sentence was appropriate. Not only are the sentences not manifestly excessive, when regard is had to the maximum penalties of seven years imprisonment for most of their offences, the applicants are fortunate that their sentences were not higher.

9. I would grant leave to appeal but dismiss the appeals.

10. BASTEN JA: I agree with Hulme J. Ground 1 seeks to invoke the requirements set out in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (" Sentencing Procedure Act ") to the effect that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. There are concerns as to how that should be dealt with in the course of expressing reasons for sentence; I refer to the comments I made in that regard in Amado v R [2011] NSWCCA 197, at [5]-[7].

11. There is also a question as to the precise relationship between that obligation and the power to suspend a sentence pursuant to s 12 of the Sentencing Procedure Act , but that issue does not arise in the present case. More significantly, if there were an error in the way his Honour had approached the expression of his satisfaction in that regard, it would merely give rise to an issue as to whether this Court should re-sentence the applicants. For the reasons given by Hulme J, I am not persuaded that the sentences imposed were in any sense other than sentences warranted at law. I therefore agree that there should be a grant of leave to appeal but the appeals of each offender should be dismissed.

12. SCHMIDT J: I agree with both Justice Hulme and Justice Basten.

13. BASTEN JA: The orders of the Court are as Justice Hulme indicated: leave to appeal is granted in respect of each applicant. Each appeal is dismissed.