Keith Allan Hardwick (a pseudonym)[1] v The Queen - [2021] VSCA 67

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0013

KEITH ALLAN HARDWICK (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

[1]To prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2021
DATE OF JUDGMENT:	19 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 67
JUDGMENT APPEALED FROM:	[2019] VCC 1528 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – False imprisonment – Common assault – Aggravated burglary – Making threat to kill – Total effective sentence of 4 years and 6 months’ imprisonment with non-parole period of 3 years – Domestic violence setting – Prior breaches of family violence intervention order – Whether sentence manifestly excessive – Director of Public Prosecutions v Meyers (2014) 44 VR 486, Hatzis v The Queen [2021] VSCA 43 and Till v The Queen [2018] VSCA 122 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr T R Alexander	Nelson Brown Legal
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

As was Weinberg JA, who granted leave to appeal, I have been ‘troubled by the overall length of the sentence imposed in the somewhat unusual circumstances of this case’.[2] Ultimately, however, the appellant has failed to persuade me that the impugned sentence is manifestly excessive (albeit I consider it to be very stern and at the uppermost extremity of the appropriate range). Having had the considerable advantage of reading the judgment of Niall JA, essentially for the reasons that he advances — and, it must be said, not without some hesitation — I agree that the appeal should be dismissed.
[2]Hardwick (a pseudonym) v The Queen [2020] VSCA 227, [58].

NIALL JA:

On 18 September 2019, the appellant pleaded guilty in the County Court at Bendigo to one charge of false imprisonment, one charge of common assault, one charge of aggravated burglary, and one charge of making a threat to kill.

On the following day, he was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1 False imprisonment[3] 10 years 1 year and 6 months 6 months

2 Common assault[4] 5 years 6 months —

3 Aggravated burglary[5] 25 years 3 years and 6 months Base

4 Making threat to kill[6] 10 years 1 year and 6 months 6 months

Total effective sentence: 4 years and 6 months’ imprisonment

Non-parole period: 3 years

Pre-sentence detention declared: 421 days

Section 6AAA statement: 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 6 months

Ancillary orders: Forfeiture and disposal orders
[3]Common law, Crimes Act 1958 s 320.
[4]Ibid.
[5]Crimes Act 1958 s 77(1).
[6]Ibid s 20.

An application for leave to appeal was granted on 7 September 2020 — leave was granted on the sole ground that the sentence imposed was manifestly excessive.[7]…

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.

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Details

Case: [2021] VSCA 67
Decision Date: 19 March 2021

CaseChat Overview and Summary

The case of Keith Allan Hardwick, a pseudonym, against The Queen involved an appeal against the sentence imposed by the lower court. Hardwick was convicted of false imprisonment, common assault, aggravated burglary, and making a threat to kill in a domestic violence setting. The dispute centred around the total effective sentence of four years and six months' imprisonment, with a non-parole period of three years. The primary legal issue for the court was whether the sentence was manifestly excessive given the circumstances of the case, including Hardwick’s prior breaches of a family violence intervention order. The court had to consider relevant precedents, including Director of Public Prosecutions v Meyers, Hatzis v The Queen, and Till v The Queen, to assess the proportionality of the sentence.

The court examined the severity of Hardwick's crimes, his history of breaching family violence intervention orders, and the need for the sentence to serve both punitive and deterrent purposes. It noted that the cumulative effect of the offences, particularly in a domestic violence context, warranted a significant custodial sentence. However, the court also recognised the principle that sentences should not be manifestly excessive. In weighing these considerations, the court determined that the sentence was appropriate and not manifestly excessive, taking into account the totality of the circumstances. The appeal was therefore dismissed, affirming the sentence imposed by the lower court.

In its reasoning, the court emphasised the importance of ensuring that sentences reflect the gravity of the offences while also considering the individual circumstances of the offender. The court found that the sentence imposed balanced the need for punishment and deterrence with the principles of proportionality and individual justice. The decision underscores the court's approach to sentencing in domestic violence cases, where the cumulative impact of offences and the offender's history are critical factors. The court's ruling reinforces the importance of a balanced and reasoned approach to sentencing in serious criminal cases.

The final orders of the court were to dismiss the appeal, thereby upholding the original sentence of four years and six months' imprisonment with a non-parole period of three years.

Orders