Keith Allan Hardwick (a pseudonym)[1] v The Queen - [2020] VSCA 227

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0013

KEITH ALLAN HARDWICK (a pseudonym)[1]	Applicant
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 applicant.

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2020
DATE OF JUDGMENT:	7 September 2020
MEDIA NEUTRAL CITATION:	[2020] VSCA 227
JUDGMENT APPEALED FROM:	[2019] VCC 1528 (Judge Smallwood)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – False imprisonment – Common assault – Aggravated burglary – Making threats to kill – Total effective sentence of 4 years and 6 months’ imprisonment with non-parole period of 3 years – Offending occurred within context of family violence during breakdown of domestic relationship – Prior breaches of family violence intervention order – Whether judge erred in failing to accept findings of risk in forensic report – Report produced for purpose of Family Court proceedings – Judge entitled to reject findings of risk – Ground not reasonably arguable – Whether judge failed to give appropriate weight to principles in R v Verdins (2007) 16 VR 269 – Whether applicant’s various disorders reduced moral culpability – Causal link between applicant’s ‘bereavement disorder’ and offending not established by evidence given on plea – Open to judge to reject applicant’s submission that moral culpability reduced – Ground not reasonably arguable – Whether sentence for aggravated burglary, and related offences, manifestly excessive – Prior good character – Strong work history – Seemingly reasonable prospects of rehabilitation – Ground reasonably arguable – Leave to appeal granted on manifest excess ground only.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr T R Alexander	Nelson Brown Legal
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

WEINBERG JA:

On 18 September 2019, the applicant 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 on Indictment Offence Maximum Sentence Cumulation

1 False imprisonment [Common law, s 320 — Crimes Act 1958] 10 years 1 year and 6 months 6 months

2 Common assault [Common law, s 320 — Crimes Act 1958] 5 years 6 months —

3 Aggravated burglary [s 77(1) — Crimes Act 1958] 25 years 3 years and 6 months Base

4 Making threats to kill [s 20 — Crimes Act 1958] 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…

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: [2020] VSCA 227
Decision Date: 7 September 2020

CaseChat Overview and Summary

The case of Keith Allan Hardwick v The Queen involved the appellant challenging the sentence imposed on him by the County Court of Victoria for various criminal offences. The appellant, who was convicted of false imprisonment, common assault, aggravated burglary, and making threats to kill, was sentenced to a total effective term of 4 years and 6 months’ imprisonment with a non-parole period of 3 years. The offences occurred in the context of family violence during the breakdown of a domestic relationship. The appellant had previously breached a family violence intervention order. The applicant sought leave to appeal against the sentence, raising several grounds for appeal, including whether the judge erred in failing to accept findings of risk in a forensic report, whether the judge failed to give appropriate weight to certain sentencing principles, and whether the sentence was manifestly excessive.

The legal issues the court was required to decide included whether the judge erred in failing to accept the findings of risk in the forensic report, whether the judge failed to give appropriate weight to the principles in R v Verdins, and whether the sentence was manifestly excessive. The court considered whether the judge was entitled to reject the findings of risk in the forensic report, which was produced for Family Court proceedings. The court found that the judge was entitled to reject the findings of risk, as the report was not produced for the purpose of the sentencing proceedings. The court also considered whether the judge failed to give appropriate weight to the principles in R v Verdins and whether the applicant’s various disorders reduced his moral culpability. The court found that the causal link between the applicant’s ‘bereavealment disorder’ and the offending was not established by the evidence given on plea, and it was open to the judge to reject the applicant’s submission that his moral culpability was reduced.

The court held that the ground of appeal regarding the failure to accept the findings of risk in the forensic report and the failure to give appropriate weight to the principles in R v Verdins were not reasonably arguable. However, the court found that the ground of appeal regarding the manifest excessivity of the sentence was reasonably arguable. The court noted that the applicant had a prior good character, a strong work history, and seemingly reasonable prospects of rehabilitation. The court granted leave to appeal on the ground of manifest excessivity of the sentence only. The applicant was granted leave to appeal on the ground that the sentence was manifestly excessive.

Orders