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Hards v The Queen

Hards v The Queen

Case [2013] VSCA 119 7 May 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0295

COLBY WILLIAMS HARDS
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2013
DATE OF JUDGMENT:	7 May 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 119
JUDGMENT APPEALED FROM:	DPP v Hards (Unreported, County Court of Victoria at Mildura, Judge Gamble, 4 December 2012)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Four years’ imprisonment with non-parole period of two years – Spear tackle – Victim punched while unconscious – Young offender – Good character – Importance of general deterrence – Sentence within range – Inappropriate reliance on statistical median – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M G O’Connell SC	Galbally & O’Bryan
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ:

The applicant pleaded guilty to one count of causing serious injury intentionally. He was sentenced to four years’ imprisonment with a non‑parole period of two years. He now seeks leave to appeal against sentence. In my opinion, the application for leave to appeal should be refused.

There is a single ground of appeal, that is, that the head sentence and the non‑parole period were each manifestly excessive. For reasons which follow, I consider that that proposition is not reasonably arguable. In so saying, I wish to acknowledge the care and thoroughness with which the arguments for the applicant have been advanced. The submissions addressed cogently and forcefully a number of matters which bore on the sentencing discretion.

The facts of the offending are helpfully set out in the respondent’s written case, as follows:

The applicant was born on 15 October 1990. At the time of the offending he was aged 20. At the time of sentence he was aged 21. The applicant and victim had played together for the Imperial Football Club.
At approximately 7:00 pm on Friday 14 January 2011, the victim … arrived at a nightclub in Mildura called the Sandbar with two of his friends. At approximately 7:30 pm a group of people from the Imperial Football Club, including the applicant, arrived at the Sandbar.
At some stage during the evening, the applicant and the victim had an amicable conversation about to the victim’s decision to go play for the Bambill Football Club as an assistant coach.
Later, at approximately 9:00 pm, the applicant approached the victim at the bar and asked him: ‘What’s your problem?’. The applicant suggested that two of them ‘go for a walk’ in order to ‘sort it out’. The applicant wanted to fight the victim. The victim was concerned that the applicant might hit him. At this point, one of the security staff ejected the applicant from the Sandbar.
At approximately 10:00 pm, the victim and one of his friends left the Sandbar. As they left they saw the applicant talking to the security staff. The victim’s friend went to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hards v The Queen

Details

AGLC: Hards v The Queen [2013] VSCA 119
Case: [2013] VSCA 119
Decision Date: 7 May 2013

CaseChat Overview and Summary

The case of Hards v The Queen involved the appellant, Hards, who appealed against his sentence for intentionally causing serious injury to another individual. The Crown Court of Victoria sentenced Hards to four years’ imprisonment with a non-parole period of two years. The dispute centred around the severity and appropriateness of the sentence given the circumstances of the offence and Hards' personal circumstances.

The primary legal issues before the court were whether the sentence was within the appropriate range and whether the trial judge had appropriately balanced the principles of general deterrence and specific deterrence in imposing the sentence. The court also considered whether the trial judge had erred in relying on statistical median sentencing guidelines, rather than focusing on the unique circumstances of Hards’ case.

The court found that while the offence was serious, the sentence was within the appropriate range for such an offence. The trial judge had considered the principles of general and specific deterrence, as well as Hards’ young age and good character. However, the court noted that the reliance on statistical medians was not appropriate in this case, as it did not take into account the unique circumstances of Hards’ offending and personal background. Despite these observations, the court found that the sentence was not manifestly excessive or inappropriate, and thus, the appeal was dismissed. Leave to appeal to a higher court was also refused.

Orders