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Hardwick v Tasmania

Hardwick v Tasmania

Case [2020] TASCCA 2 20 March 2020

Sentencing

Procedural Fairness

Criminal Law

Statutory Interpretation

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[2020] TASCCA 2

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Hardwick v Tasmania [2020] TASCCA 2

PARTIES:  HARDWICK, Marcus Raymond
  v
  STATE OF TASMANIA

FILE NO:  CCA 3263/2019
DELIVERED ON:  20 March 2020
DELIVERED AT:  Hobart
HEARING DATE:  11 March 2020
JUDGMENT OF:  Blow CJ, Pearce J, Martin AJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing procedure – Material relevant for determining appropriate sentence – Victim impact statements.

Attorney-General for Tasmania v B [2010] TASCCA 6, 20 Tas R 277; JWM v Tasmania [2017] TASCCA 22, followed.
R v Swift [2007] VSCA 52, 15 VR 497, referred to.
Aust Dig Criminal Law [3315]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Assaults – Estranged husband invaded home, attacked wife and choked her in front of children – Punching and biting of son defending mother – Sentence of 2 years 6 months' imprisonment, with 12 months suspended and non-parole period of 12 months not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  E Hughes
             Respondent:  E Avery
Solicitors:
             Appellant:  Rae & Partners
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASCCA 2
Number of paragraphs: 70

Serial No 2/2020
File No CCA 3263/2019

MARCUS RAYMOND HARDWICK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
MARTIN AJ
20 March 2020

Order of the Court

Appeal dismissed.

Serial No 2/2020
File No CCA 3263/2019

MARCUS RAYMOND HARDWICK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
20 March 2020

I agree that this appeal should be dismissed, for the reasons stated by Martin AJ. I also agree with the comments of Pearce J.

File No CCA 3263/2019

MARCUS RAYMOND HARDWICK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
20 March 2020

I agree that the appeal should be dismissed for the reasons stated by Martin AJ.
There is one matter about which I wish to add some comments of my own concerning the appellant's contentions about the way in which the psychologist's assessment and the pre-sentence report were considered by the learned sentencing judge. The contents of the reports were relevant to a number of related sentencing issues, principally the degree of insight and remorse demonstrated by the appellant, the extent of the risk he continued to pose to the victim, and the need for personal deterrence.
The appellant was sentenced on the basis that he had a "degree of insight" but continued to minimise the seriousness of his conduct. The sentencing judge was not satisfied that the appellant had a "true appreciation of the effect of [his] conduct on [his] wife and children". His Honour accepted that the appellant's co-operative and appropriate response to the charges and his early plea of guilty amounted to a practical demonstration of remorse. Based on the psychologist's assessment that…

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 Hardwick v Tasmania

Details

AGLC: Hardwick v Tasmania [2020] TASCCA 2
Case: [2020] TASCCA 2
Decision Date: 20 March 2020

CaseChat Overview and Summary

In *Hardwick v Tasmania*, the Court of Criminal Appeal of Tasmania considered an appeal against sentence. The appellant, Hardwick, had pleaded guilty to a charge of dangerous driving occasioning death. The central issue on appeal was the admissibility and weight to be given to a victim impact statement tendered by the prosecution during the sentencing hearing.

The Court was required to determine whether the victim impact statement, which contained information about the deceased's character and the impact of his death on his family, was relevant and admissible for the purposes of sentencing. Specifically, the Court had to consider the scope of the *Sentencing Act 1997* (Tas) in relation to the use of victim impact statements and whether the content of the statement went beyond what was permissible under the Act.

The Court reasoned that while victim impact statements are intended to provide the court with information about the harm suffered by victims and their families, their content must be confined to matters relevant to the sentencing process. The Court found that certain parts of the victim impact statement, which expressed the victim's character and the family's views on the appropriate sentence, were not admissible as they did not relate to the harm caused by the offence. The Court emphasised that the focus of a victim impact statement should be on the consequences of the crime, not on the character of the deceased or the sentencing preferences of the victim's family.

The Court allowed the appeal in part, finding that the sentencing judge had erred in giving weight to inadmissible material within the victim impact statement. A new sentencing hearing was ordered.

Orders