Hardwick (a pseudonym) v The Queen [2020] VSCA 227

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] VSCA 102; (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.

1 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.

2 On the following day, he was sentenced as follows:

False imprisonment [Common law, s 320 - Crimes Act 1958]

Common assault [Common law, s 320 - Crimes Act 1958]

Aggravated burglary [s 77(1) - Crimes Act 1958]

Making threats to kill [s 20 - Crimes Act 1958]

6 years and 9 months' imprisonment with a non-parole period of 4 years and 6 months

3 By notice dated 14 November 2019, the applicant seeks leave to appeal against that sentence. He originally did so on some eight grounds, which he appears to have drafted himself. However, his application for leave to appeal was reformulated by counsel, and condensed to the following three grounds:

Ground 1: The learned trial judge erred by erroneous reliance upon the evidence of Susan Carey and thus making no findings with respect to rehabilitation

Ground 2: The learned trial judge failed to give appropriate weight to the principles in Verdins as they applied to the applicant's sentence

Ground 3: The sentence is manifestly excessive

4 Counsel for the respondent took no objection to the applicant amending his proposed grounds of appeal, and his written case, to reflect those grounds. Accordingly, I granted leave to the applicant to proceed on the basis set out above.

5 For the reasons that follow, I would grant leave to appeal on ground 3, but refuse leave on grounds 1 and 2.

Circumstances surrounding the commission of the offences

6 At the time of the offending, in July 2018, the applicant and his wife had been married for about 13 years. However, they had been separated since November 2016. She and their three children continued to live in the marital home. In 2018, the children were aged 8, 10, and 12 respectively.

7 Immediately following the separation, police obtained a family violence intervention order, listing the applicant's wife and the children as affected family members. The applicant breached that order on a number of occasions, before it finally expired in January 2018. After one particular episode of breach which involved the applicant having provided his wife with a list of her comings and goings from home and work, along with details of her telephone communications (clearly akin to a form of stalking), the applicant's wife arranged for CCTV cameras to be installed at the house.

8 On the afternoon of 24 July 2018, the applicant attended the marital home. His wife was at work and the children were still at school. CCTV cameras captured him assessing the property and then entering a side gate into the rear yard. He used a broom to reposition a CCTV camera so that it pointed away from the back of the house. He then lay in wait for his wife to arrive home.

9 At 3:11 pm, the applicant's wife returned from work. She walked up to the rear sliding door and was attempting to retrieve her house key from her handbag. As she was doing so, the applicant ran at her from behind, grabbing her around the torso and restrained her (part of charge 1 - false imprisonment). She attempted to scream for help, but the applicant told her to be quiet, as he dragged her towards the back of the house. He then pinned her down, saying that he wanted to talk to her about their separation. She tried to placate him by saying that the children would be home shortly. He replied that he wanted to go inside to talk. He proceeded to pick up his wife's keys and handbag.

10 At that point, the applicant's wife attempted to run away. However, he grabbed her and put her into a tight headlock. He then forced her to the ground and pinned her down again, this time trapping her arms to her sides (charge 2 - common assault).

11 During this struggle, the applicant attempted several times to tape over his wife's mouth with duct tape which he had brought with him. He also attempted to tie her hands together with cable ties, and threatened to punch her if she did not cooperate. She stopped struggling and told him that she would not resist. She saw a number of items fall out of the applicant's jumper. These included yellow ear plugs, and a black eye mask with pink edging. He bound her hands with the cable ties and then forced her inside the house (charge 3 - aggravated burglary).

12 Once inside, the applicant locked the door and bound his wife's feet together, again with cable ties. As he retrieved them from his jumper, his wife saw that he had tied a rope around his waist. He said to her 'I've got things under here that you don't want to see'. She asked him what he was going to do when the children arrived home. He replied 'they won't. Mum[2] will be here soon and I told her I was coming here to talk to you'. His wife then asked him if he was going to kill her. He replied 'it depends what you tell me, but I probably will' (charge 4 - making threats to kill).

13 At that point, the applicant's wife could hear one of the children at the back door. She screamed for help. The applicant told her to 'shut up', and went to the back door to speak to the child. She managed to get her hands free, although her feet were still bound. She was able, somehow, to move through the house and unlock the front door. She stumbled across the front yard to a neighbour's fence. Her escape from the house was captured on CCTV.

14 At that stage, the applicant's wife saw someone whom she knew in the street. She yelled out 'call the police, [Keith] is going to kill me'. She continued stumbling along to the neighbour's front door, banging on the windows. She yelled out 'let me in, [Keith] is going to kill me'. The neighbour took her in and saw that her legs were bound with cable ties. She appeared very distressed. The neighbour immediately called 000.

15 The applicant, realising what was happening, fled from the scene. CCTV footage captured him departing from the property at 3:30 pm. Police arrived about 10 minutes later. They found the wife's mobile phone in the garden bed near the side gate. They also found a black and pink eye mask, several lengths of duct tape with the wife's hair attached, and a pair of sunglasses that belonged to the applicant.

16 A subsequent medical examination of the wife revealed that she had sustained slight bruising and superficial abrasions to her head, arms, wrists and hands. She also had bruising to her hips and to her left thigh.

17 The applicant was arrested the following day and interviewed. He admitted to having seen his wife the previous day, but declined to make any further comment. However, when he was asked about the whereabouts of his wife's house keys, he said 'no comment, but I do have her car keys, yeah. I gave them to Mum to hand back'. His mother attended the police station following the applicant's arrest and produced the keys from her handbag. She said that the applicant had obtained them 'by accident'.

18 Before setting out the background facts, the judge noted that the applicant's plea of guilty was of utilitarian benefit. He also noted that there was 'some credit'[3] to be accorded to remorse.

19 In summarising the circumstances leading up to the commission of the offences, in particular, the persistent breaches of the family violence intervention order, the judge said that he did not 'regard them as aggravating' features, but 'simply part of the overall context in which this offending took place'.[4]

20 With regard to the offending itself, the judge said:

[The applicant] clearly went [to the marital home] with the intention of restraining [his wife] and had taken with [him] all the accoutrements necessary for that purpose. This was clearly premeditated. Obviously I am not in a position to make any finding as to when the thought of doing this came into play, but [he] had sufficient time prior to arrival [at the] home to give up on it and [he] had [g]one there well prepared for what took place.[5]

21 The judge then turned to the wife's victim impact statement, which detailed the effect which the applicant's offending had had upon her, and the children. She outlined the fear, paranoia, and anxiety that she had experienced, particularly at the thought of the applicant's eventual release.

22 The judge then turned to the relevant principles governing sentencing of the offender, including denunciation, appropriate punishment, and general and specific deterrence. He concluded that the only available sentencing option was 'a very significant gaol term'.[6]

23 The judge found 'little evidence'[7] of remorse. He contrasted the applicant's professed expressions of remorse, as set out in a letter sent to the court, with his general attitude to the alleged offending as displayed in his police interview. He also contrasted those expressions of remorse with what the applicant had told Mr Jeffrey Cummins, a clinical psychologist who had assessed him prior to the plea. In his account to Mr Cummins, he said that he had grabbed his wife's arm when she had returned home, but claimed that it was she who had assaulted him. He also told Mr Cummins that it was he who had removed the tape from her mouth and the cable ties from her wrists, and not, as the wife claimed, she who had done so.

24 The applicant's version of events, as recounted to Mr Cummins, was characterised by the judge as 'a pack of lies'.[8] Further, his Honour noted that counsel for the applicant had been instructed to submit, on the plea, that the reason why he had interfered with the CCTV camera was because he was afraid that it would capture him collapsing. His Honour found that suggestion to be risible. The judge said that this caused him 'great concern insofar as remorse is concerned'.[9] Finally on this point, he said that the apparent lack of remorse 'does not aggravate the circumstances, but it certainly does not help.'[10]

25 Importantly, the judge specifically rejected Mr Cummins' opinion that the applicant's risk of reoffending was 'low'.[11] On this point, he said:

I do not know what the risks are involved here, but I am certainly not prepared to accept or sentence on the basis that it is necessarily low. I think the way it has been gone about and the way that you have conducted yourself since, even maintaining untruths up until this point in time, gives me real concern.[12]

26 The judge then turned to the applicant's personal circumstances. He accepted that the applicant suffered from mild autism. In relation to that diagnosis, he concluded that none of the Verdins[13] principles were applicable, save for Verdins principle 4, which was that incarceration would be 'far more difficult'[14] for him than would be the case for a person not suffering from his particular problems. He accepted that the applicant's 'time in custody [would] be spent in fear.'[15] He also accepted the positive character references tendered on the applicant's behalf. He said that he had taken them into account, along with the forensic reports referred to on the plea.

27 The judge concluded that the applicant's prospects of rehabilitation were 'up to [him]'.[16] He indicated that he was not prepared to make any finding with regard to the risk of reoffending.

[The applicant's] moral culpability is so high ... a sentence must be imposed which accurately reflects the interests of justice and ... general deterrence, specific deterrence, denunciation and punishment.[17]

29 The judge then sentenced the applicant as indicated above.

30 Proposed ground 1 refers to a detailed report prepared by Ms Susan Carey, a neuropsychologist who apparently had assessed the applicant for the purposes of the Family Court proceedings between himself and his wife. The complaint embodied within this ground seems to be that the judge failed to have regard to the tenor of what Ms Carey had to say as to the risk of the applicant reoffending.

31 In her report, Ms Carey concluded that there was no evidence to suggest that the applicant posed any risk to his children (or indeed, to any other children). Because the report was prepared solely for family court proceedings, it did not delve into the question whether the applicant posed any risk of reoffending, so far as his wife was concerned.

32 The applicant had no prior convictions, although he had breached family violence intervention orders. Of more assistance to the applicant, Ms Carey's report indicated that he was generally introverted, and showed no signs of having an aggressive nature.

33 It was submitted that the judge fell into error by failing to have regard to what Ms Carey had said in her report. As indicated, his Honour concluded that he could make no finding as to the applicant's risk of reoffending. In essence, it was submitted that the only finding reasonably open, on the basis of both Ms Carey's report, and that of Mr Cummins, was that the applicant presented a low risk of reoffending. Accordingly, his prospects of rehabilitation ought to have been regarded as good, rather than being expressed as qualified as they had been.

34 In my view, there is no substance to proposed ground 1. Ms Carey's report was of little probative value, so far as the applicant's prospects of reoffending were concerned. It was written for a different purpose. There was never any suggestion, so far as the judge was concerned, that he posed a risk to his own children, or for that matter, any other children. Ms Carey's affirmation of that fact would have been of no use to the applicant as a mitigating factor.

35 As regards Mr Cummins' evidence, the judge was entitled to give it such weight as he did. Plainly, his Honour considered that the views expressed by Mr Cummins had been overstated.

36 As regards proposed ground 2, the judge concluded that the applicant, by reason of his autism and associated difficulties, would find prison more burdensome than a person not suffering from those conditions.

37 It was submitted that the judge was correct to accept that the applicant would find imprisonment particularly difficult, but that this finding did not go far enough. It was clear that he had been bullied when young, and that he had a number of personality problems. He suffered from depression and an inability generally to engage meaningfully with others. These conditions were hardly conducive to his being able to cope in a custodial setting.

38 Ground 2 complains of his Honour's rejection of any of the other limbs of Verdins as being applicable to the applicant's situation. In particular, it was submitted that the applicant should have been treated as having reduced moral culpability and there should have been some moderation of the need for general and specific deterrence.

39 Of course, that particular submission depends upon the applicant having been able to establish a relevant causal link between the various matters identified, including his autism, and what Mr Cummins described as his 'Persistent Complex Bereavement Disorder'.

40 The judge was clearly highly sceptical of Mr Cummins' opinion in this regard. His Honour said 'I am astonished by the diagnosis of bereavement disorder. I do not even know quite what that is ...'[18] He went on to say that none of the matters raised by Mr Cummins gave rise to any Verdins considerations, apart from Verdins principle 4.

41 It was submitted that 'Bereavement Disorder' is recognised as a form of mental disorder in the DSM-5. Accordingly, the judge should have treated Mr Cummins' diagnosis with appropriate respect, and not dismissed it out of hand as he appeared to have done.

42 I note that although 'Complex Persistent Bereavement Disorder' is indeed recognised in the DSM 5, it is linked specifically to an undue and excessive period of yearning for one who is deceased. Mr Cummins simply asserted the presence of this disorder in the applicant, without seeking to justify its application to someone who was lamenting the end of a longstanding relationship, but not grieving for one who had died.

43 In the circumstances, I can see no error with his Honour having rejected the submission that the other bases identified could be relied upon under Verdins. It was open to his Honour to conclude that the burden rested upon the applicant to establish a causal link between his various disorders, and the offending gave rise to Verdins principles 1, 2, 3, and 5. Counsel was alerted throughout to the fact that the judge was not persuaded that this causal link had been demonstrated. Counsel chose, nonetheless, not to call further evidence in support of any such link. Accordingly, I would not grant leave to appeal on ground 2.

44 Finally, I turn to proposed ground 3, manifest excess.

45 In support of this ground, it was submitted that an analysis of comparable cases would reveal that the total effective sentence of 4 years and 6 months, with a non-parole period of 3 years, was outside the range for offending of this somewhat unusual character. Complaint was made of the sentences of 18 months on each of the charges of false imprisonment and threat to kill. The cases to which I was referred certainly indicate that these individual sentences were stern, but do not of themselves suggest that individually they were wholly outside the range for offending of that type.

46 In support of the submission that the individual sentences, the total effective sentence, and the non-parole period were each manifestly excessive, it was contended that insufficient weight had been given to the mitigating factors present. The applicant had, as a result of his conduct, lost all contact with his children. His employment prospects were uncertain. In addition, this was his first time in custody, noting that he had no prior convictions of any kind. There was powerful evidence of prior good character, as well as clear evidence of a good work history.

47 The judge recognised that the applicant was entitled to credit for a strong work ethic and his involvement, over many years, in selfless work in his local community. It was submitted that these factors, in combination, should have led his Honour to conclude that the applicant had, at the very least, good prospects of rehabilitation.

48 In addition, it was submitted that the applicant's motive for committing these offences should be regarded as, to some degree, lessening his moral culpability. Unusually, this was not a case in which, following the breakdown of a relationship, the applicant sought to get revenge against his former partner, or, for example, to mete out punishment for perceived infidelity. The level of force used was relatively minimal and certainly at the lower end of the scale, paling into insignificance by comparison with many cases of this kind.

49 The applicant's conduct, appalling though it certainly was, involved restraining the victim, rather than actually causing her any significant physical injury. Accordingly, so it was said, this case should not be viewed through the prism of those recent authorities in this Court, which have spoken of the need for very substantial terms of imprisonment where violence is perpetrated in a domestic setting.

50 The amended written case incorporated, by reference, various schedules of authorities apparently assembled by the applicant. These were intended to show that this particular sentence was beyond what was reasonably available, and therefore did not accord with current sentencing practice.

51 It is unnecessary to examine the cases so identified. It is sufficient for present purposes to note simply that sentences for aggravated burglary have increased substantially in this State since Hogarth v The Queen.[19] In that case, this Court observed that sentences for what was there described as 'confrontational aggravated burglary', committed as there, in company and while armed, ought to be uplifted, with a suggestion that a range of 6 to 8 years might be appropriate for offending of that character.

52 Hogarth later came to be applied more generally to other forms of aggravated burglary. For example, in Director of Public Prosecutions v Meyers,[20] a case involving, inter alia, aggravated burglary in a domestic violence setting, along with other serious offences, it was held that a total effective sentence of 3 years and 6 months (3 years of which was the sentence for the aggravated burglary), was manifestly inadequate. The respondent to the Director's appeal was resentenced to a total term of 5 years and 6 months' imprisonment, with a non-parole period of 3 years. It is notable that this was the same non-parole period as the applicant received in the present case.

53 Meyers was, objectively speaking, a far more serious case than the present. It also involved false imprisonment through the use of cable ties upon a former partner of the offender. However, in addition, the respondent in there was armed with a double-barrelled shotgun, as well as a nail gun. He threatened to shoot the victim. He struck her several times with the shotgun, and inflicted a number of injuries upon her. In addition, there then followed a protracted siege, before he was overcome by police. The entire experience must have been utterly terrifying.

54 I do not cite the sentences imposed in Meyers as any sort of precedent. Meyers does, however, clearly convey the very real differences between many cases of domestic violence, sometimes including aggravated burglary, and the conduct of the applicant in this case.

55 Coincidentally, on the very day that this application was argued before me, this Court delivered judgment in Hill v The Queen.[21] That case concerned a home invasion by a woman who had been left by her former partner. She armed herself with a knife, forced her way into the house, and stabbed both her former partner and his new girlfriend. She faced charges not only of aggravated burglary, but also two counts of intentionally causing injury. The offending seemed to have been premeditated, and was described by the judge as 'grievance driven' and 'purposeful'[22]. The total effective sentence is 6 years and 3 months, with a non‑parole period of 3 years and 6 months. In effect, the motive for the applicant's conduct in was anger at abandonment, and animosity towards her husband's new partner.

56 The individual sentences for the various offences were 6 months for the threat to kill,[23] 4 years for aggravated burglary, and 3 years each for the two charges of causing injury intentionally. Leave to appeal on the basis of manifest excess was, understandably, refused.

57 It is noteworthy that the offender in Hill received a non-parole period which was only 6 months greater than that fixed for the applicant. That minimal disparity, of itself, raises a question in my mind as to whether he was treated in accordance with current sentencing practice. It is of some interest to note that the sentencing judge in Hill was the same judge who sentenced the applicant in the present matter. I recognise, of course, that this Court described the sentences imposed in Hill as 'moderate', as indeed they were. Be that as it may, I regard the offending in Hill as far more serious than that in the present case.

58 This is, in my view, by no means an easy matter to resolve. It presented the very experienced sentencing judge with a particularly difficult sentencing problem. In the end, however, I am troubled by the overall length of the sentence imposed in the somewhat unusual circumstances of this case. Accordingly, I would grant leave to appeal on ground 3.

[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.

[3] DPP v Hardwick (a pseudonym) [2019] VCC 1528, [2] ('Reasons').

[13] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[19] (2012) 37 VR 658; [2012] VSCA 302 ('Hogarth').

[20] (2014) 44 VR 486; [2014] VSCA 314 ('Meyers').

[21] [2020] VSCA 220 ('Hill').

[23] That 6 months is in stark contrast with the 18 months that the judge in the present case imposed on the same charge.