DPP v Hardwick

Mr McKay ended up struggling in the hallway with Mr McKay falling to the ground. 13. You kept yelling at Ms Blackburn, swearing and verbally abusing her before finally leaving through the front door. 14. Ms Blackburn called Triple 0 again. 15. Police arrived at about 8.45 pm in the evening and saw Ms Blackburn distressed and emotional. Further police then arrived and processed the scene. There was some blood located on the cupboard door and hallway wall, which is thought to be yours, as you were seen to be bleeding from the mouth by Ms Blackburn. 16. Ms Blackburn sustained soreness to her arms and was unable to raise her arms without pain for days after the incident. Photographs show the bruising and marks to her arms caused by you. Neither Ms Blackburn nor Mr McKay, nor you, sought medical treatment as a result of the assaults. 17. On 29 April 2025, so the next day, at approximately 10.35 in the morning, you were arrested by Senior Constable Dickson and Senior Constable Porra. 18. You were interviewed at the Ballarat Police Station and you made full admissions to the offending. You said that when you arrived at Ms Blackburn's address with the groceries, you "noticed there was some dude's shoes at the door and then I seen the window that he was there and then I banged on the door and said "Open up", then I ran around the back and barged the door down and then was asking where he is and then found him in the cupboard' and 'then we started fighting'. 19. When asked your intention when you forced entry into Ms Blackburn's home, you said, 'Just to find the bloke and hit him'. And then you said 'I was angry, like, yeah, I wasn't thinking'. And then 'All I was thinking was to belt him'. 20. In reference to the assault on Ms Blackburn, you said 'I don't recall. I was trying to open the door. I might have accidentally knocked her or something maybe, but yeah. Yeah, my intention wasn't to hurt her at all'. 21. At the plea yesterday, whilst acknowledging the seriousness of your offending, your counsel, Mr Portelli, submitted that a community corrections order was appropriate and within range. 22. The prosecutor, Mr Pirrie, submitted that a term of imprisonment was called for whether or not in combination with a community corrections order. 23. In determining what is an appropriate sentence in your case, the law requires me to have regard to a variety of factors which I will outline in these sentencing remarks. Some tend towards leniency and some point the other way, with no one factor automatically prevailing over any other.

1. Turning first to your personal circumstances. These were outlined in defence submissions and in two-character references, one from your brother and one from your employer.
2. You were born in Ballarat in 1996 and are now 29 years old. You have nine siblings, eight brothers and one sister. The 10 of you were raised by your parents in a three-bedroom public housing flat. Your parents stayed together throughout your childhood but have recently separated. Your mother did not work, and your father was mostly unemployed. Despite some financial hardship, there was always food on the table and your upbringing appears to have been relatively stable.
3. You struggled at school and dropped out in Year 9. You then did a vocational program called Youthworks. You started a bricklaying apprenticeship when you were 15 and remain employed at the same business to this day. You are now a site supervisor, a job with some responsibility. As I say, your employer has provided a reference.
4. You met Ms Blackburn when you were 12 years old. You dated as teenagers and reconnected in 2016 following a period of separation. Your son Ben was born in 2017 when you were 20 or 21. You have had limited contact with him since this offending and say that you miss him deeply. You hope to establish regular contact with him after these proceedings have finalised.
5. You do not have any mental health or psychiatric disorders, but have been very anxious since this offending. You do not have any drug or alcohol issues.

Objective gravity of your offending and moral culpability

1. I turn now to the objective gravity of your offending and your moral culpability. Those matters are critical to any sentence imposed in any case. In simple terms, how serious was your conduct and how much are you to blame.
2. If there was any doubt about the seriousness of the offence of aggravated burglary, the maximum penalty of 25 years makes it absolutely clear. The maximum penalty of only five years for the offense of common law assault, makes that offence an inherently less serious offence, but it is still serious enough.
3. That said, there is obviously a wide spectrum of seriousness within any offence and your offences are no exception.
4. What you did can be broadly categorised as family violence because you broke into the home of your ex-partner in a rage, because you were jealous. Even though you did not enter with the intent to assault your ex-partner, you were so consumed with rage that you had no hesitation in pushing her away violently when she got in the way. When you found the man you were after, you punched him repeatedly. He was a completely innocent person. You were not deterred by the fact he was obviously afraid and hiding in a cupboard. You were not deterred by the fact your son was there watching what you were doing.
5. Your behaviour was frightening and dangerous and frankly outrageous, especially given you could hardly be described as a man of slight build. You were so caught up in your own anger, you could not stop to think just how damaging it was for your son to witness what you were doing. What a terrible example you were setting him. Further, you could not stop to think just how damaging your behaviour was to the prospect that you would have any sort of decent relationship with Ms Blackburn in the future.
6. On the other hand, as unwise as it was for you to rock up unannounced and uninvited, you did not go to the home intending to assault anyone. What you did was completely unpremeditated and spontaneous and occurred in response to an unexpected situation, at a time when your emotions were still raw. You were not armed or in company. It was not in the middle of the night. Further, although you were very angry with Ms Blackburn and abused her, at least you did not enter with the intention of assaulting her. Finally, you did not cause serious physical injury to either of your victims.
7. None of that is to excuse what you did or to downplay the seriousness of it, it is just to assess where in the spectrum of seriousness for your offences your conduct sits. In the end, as serious as it was, I consider it to be towards the lower end of seriousness for your offences and your moral culpability likewise. The prosecution concede this to be the case.

1. One of the matters I need to consider is the impact of your offending on your victims. I did not receive a victim impact statement from your male victim, but it does not stretch the imagination to find that he would have been very scared, as he obviously was, and traumatised by what happened on that night.
2. I did, however, receive a victim impact statement from your ex-partner. She explained in that victim impact statement that your actions did not just produce fear on the night but have affected her and your son Ben in a more permanent sense. She said that, Ben learned that the world was no longer a safe place and that she and Ben carry that fear every day, in their sleep and in their own home. She said she and Ben have to work to feel secure again. It is obvious the loss of the sense of safety and security that your conduct has caused on your ex-partner.

1. I turn now to consider current sentencing practices. This is another matter I need to consider in order to promote consistency of approach in sentencing. Current sentencing practices can be gleaned from statistics or sentences imposed in comparable cases or both.
2. I was not referred to any comparable cases, but I have looked at the most recent Sentencing Advisory Council Statistics of the higher courts for your offences, as well as the well-known case on aggravated burglary of DPP v Meyers which was a 2014 case. What distinguishes your case from Meyers and many of the cases referred to in Meyers, is that you were not motivated by a previous conflict or grievance with a person in the premises and your offending was completely spontaneous.[7]
3. The statistics indicate that 80 per cent of people sentenced for aggravated burglary over the five years before 30 June 2024, received an immediate term of imprisonment ranging from less than one year to seven years, with two to three years being the most common at 22 per cent. The next most common sentence imposed was a community corrections order at 17 per cent of charges. Similarly for common assault, 74 per cent of offenders received a term of imprisonment which was usually less than one year, with a community corrections order also being the next most common sentence.
4. Of course, statistics are of limited assistance because they never tell you anything about the details of the cases. That said, the range of sentences could be expected to broadly reflect the full spectrum of seriousness of the cases involved, meaning that cases at the lower end of seriousness and/or with significant mitigating factors, might be expected to fall within the 20 per cent of cases that did not receive terms of imprisonment.
5. In any event there is no single correct sentence and sentences imposed in other cases are not binding. Ultimately, my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.

1. You are entitled to a significant discount in your sentence for the fact you cooperated with police immediately when you were arrested and that you pleaded guilty at the first opportunity.
2. Those matters are very much in your favour and they do you credit. In pleading guilty you facilitated the course of justice and took legal responsibility for your crimes. You also spared your victims the ordeal of coming to court to give evidence.
3. Moreover, I accept that your plea of guilty is accompanied by genuine remorse. Your two character referees both speak to this and I accept what they say.

1. You have only one prior court appearance for which you received a non-conviction disposition. The offending and the court appearance were both in 2019. Mr Portelli submitted the offending before me was out of character, but given this prior, I cannot really agree as it also involved an assault on Ms Blackburn. After an argument and again in front of Ben, who at that time was only 18 months old, you grabbed Ms Blackburn and forced her to the ground and then banged her head on the floor before driving off in her car.
2. Very obviously you have a bad temper, which you were not able to control back then, nor six years later. Also concerning is the fact you were ordered by the court in 2019 to complete a Men's Behaviour Change Program, which it is assumed that you did because your adjourned undertaking was discharged. You either did not learn from that program or what you learned was not sufficient to stop you from doing what you did on 28 April last year.
3. As opposed to those matters, which are against you, in your favour, you have an excellent work history and your employer cares enough about you to write a glowing reference for you and turn up to court to support you. Your brother also speaks of your kind and generous nature and the efforts you are making not to get into trouble again.
4. It is also noteworthy that you have been on bail since your arrest and that you have had reporting and other conditions, including a curfew, and have abided by those and not committed any other offences. You have also not breached the intervention orders that were taken out against you by both of your victims in this matter. You have also completed part of a parenting course with Berry Street.
5. On balance, I consider your prospects of rehabilitation to be good. At 29 years of age, you could have accumulated a number of prior convictions if that was your inclination. Even though the one prior that you do have is concerning, it was some time ago and I do think you are genuinely trying to be a better person. You do not have any mental health or drug and alcohol problems and that bodes very well for your future. You just have to learn to control your emotions and in particular, your anger.

1. I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
2. Further, when there are multiple charges such as here, the total effective sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality and nor should you be punished twice for the same behaviour.
3. The courts have repeatedly emphasised the need for general deterrence and denunciation in cases involving family violence and aggravated burglaries. Your offending involved both, that is family violence and aggravated burglary. Although I have found your prospects of rehabilitation to be good, I think there is also a need to deter you from behaving in this way again.
4. I have had you assessed for a community corrections order and you have been found suitable and indicated your consent. The central issue for me is whether to impose that on its own, or in combination with a term of imprisonment.
5. It is clear that community corrections orders have a punitive element and can, in appropriate cases, achieve all the sentencing purposes, including denunciation and general deterrence whilst promoting rehabilitation. The suitability of properly conditioned community corrections orders of lengthy duration for serious offences was affirmed by our Court of Appeal in the case of Boulton and subsequent decisions.[8] Moreover, the Court of Appeal in Boulton specifically named the offence of aggravated burglary as an example of the type of serious offence for which a community corrections order might be appropriate.
6. I have already set out in full the matters in your favour and against in the course of these reasons. There is no need to repeat them.
7. After weighing these competing considerations, I have concluded that all the relevant sentencing purposes can be met in your case by the imposition of a community corrections order. If not for the spontaneous nature of your offending and your immediate acceptance of responsibility and remorse, there would be no question of you escaping imprisonment.

1. Because the offences are founded on the same facts, I am imposing an aggregate sentence for all three of them.
2. Mr Hardwick, just stand up please. If you have not understood what I have said so far, I am not imposing a term of imprisonment, I am just imposing a community corrections order. On all charges I convict and sentence you to a single community corrections order. The order will last for three years, that is 36 months.
3. You are to report to the Ballarat Community Correctional Centre by 2 pm today.
4. Now the mandatory terms of all Corrections orders, so this applies to you, include that you must not commit another offence for which you could be imprisoned during the time the order in force, that is for the next three years. You also must not leave Victoria without first getting permission to do so, you must obey all lawful instructions from and directions of the Secretary. You must report to and receive visits from the Secretary or delegate. You must let a Community Corrections officer know within two clear working days of you changing your address or job.
5. Now as well as the mandatory conditions, I have imposed some special conditions:
   • You are to be under the supervision of a Corrections officer for the duration of the order;
   • You are to perform 400 hours of unpaid community work over the period of the order;
   • You are to undergo mental health assessment and treatment as directed;
   • You are to undertake other treatment and rehabilitative programs as directed;
6. I direct that 25 of the hours that you satisfactorily undertake in treatment and rehabilitation are to be counted towards the 400 hours, so in other words, if you do less than 25 hours of treatment and rehabilitation, then that number of hours will come off the 400 hours. If you do more than 25 hours of treatment and rehabilitation, then only 25 hours will come off that 400 hours
7. Now Mr Portelli will explain that order in more detail, but I want to be very clear, you must make sure you comply with that order, because a breach of the order is an offence in itself, so you will be charged with breaching the Corrections order. In addition, you would be liable to be resentenced for these offences. The Corrections order I have imposed is a long order and that is because of the seriousness of your offending, which would ordinarily call for a long term of imprisonment and that is why I have imposed so many hours as well. You should realize that by imposing the community corrections order, I am giving you the opportunity to avoid prison. If you breach the order, I will realize that my faith in you was misplaced and I will have no hesitation in sending you to prison. Do you understand what I have said about that?
8. OFFENDER: Yes I do.
9. HER HONOUR: Do you understand how close you were to receiving a term of imprisonment?
10. OFFENDER: Yes I do.
11. HER HONOUR: Do you understand that that is the very likely result if you breach this order?
12. OFFENDER: Yep.
13. HER HONOUR: And do you also understand that you have to prioritise during those work hours under the order over your desire to work for money?
14. OFFENDER: Yep.
15. HER HONOUR: So you did express some concern to the Corrections officer about how you were going to fit in the work given that you work so many hours as a bricklayer, I think you said six or seven days a week, but I can only stress how important it is that you prioritise the community work, and you have three years to complete it, over paid work, alright?

1. If you had pleaded not guilty to these charges and if you had been found guilty by a jury, then I would have sentenced you to a total effective sentence of imprisonment of two years, with a non-parole period of 18 months. All right, now that Corrections order will be printed out, I sign it, I will then give it to Mr Portelli, he can check over it and then you sign it and once you have done that, you will be free to leave and you just remember you have got that appointment at 2 o'clock today. So is all of that clear?
2. OFFENDER: (Indistinct words), thank you.
3. HER HONOUR: Very well, just have a seat. The Corrections order defaults to giving you two days, well it might be three days because of the weekend, to report to Ballarat Correctional Services Centre. So the order is going to say that, but I am telling you, report today at 2 o'clock all right?
4. OFFENDER: Yep, that's (indistinct).
5. MR PORTELLI: Your Honour, may I be permitted to go to the dock to have my client sign the document?
6. HER HONOUR: Yes certainly, yes. All right, well that concludes this matter.

[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.

[2] A pseudonym. To avoid the possibility of identifying one of the victims, who is a protected person under a Family Violence Intervention Order, this sentence has been anonymised by the adoption of pseudonyms in place of the name of the offender and witnesses.

[6] I am required to take into account is the impact of your offending on your victims and their personal circumstances - Section 5(2)(daa), (da) and (db).

[7] DPP v Meyers [2014] VSCA 314 at [28].

[8] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308; Borg v The Queen [2020] VSCA 191