Hardwick (a pseudonym) v The Queen [2021] VSCA 67

1 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 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.

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

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

4 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] The following summary of the facts has been extracted from the Leave Reasons.

5 At the time of the offending, in July 2018, the appellant 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.

6 Immediately following the separation, police obtained a family violence intervention order, listing the appellant's wife and the children as affected family members. The appellant breached that order on a number of occasions, before it finally expired in January 2018. After one particular episode of breach which involved the appellant 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 appellant's wife arranged for CCTV cameras to be installed at the house.

7 On the afternoon of 24 July 2018, the appellant 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.

8 At 3:11 pm, the appellant'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 appellant 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 appellant 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.

9 At that point, the appellant'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).

10 During this struggle, the appellant 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 appellant'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).

11 Once inside, the appellant 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[8] 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).

12 At that point, the appellant's wife could hear one of the children at the back door. She screamed for help. The appellant 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.

13 At that stage, the appellant'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.

14 The appellant, 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 appellant.

15 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.

16 The appellant 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 appellant's arrest and produced the keys from her handbag. She said that the appellant had obtained them 'by accident'.

17 After recounting the details of the offending, the judge said that the offending was 'extremely serious' and accompanied by a lack of understanding on the part of the appellant as to how serious the offending was.[9] He noted that according to a victim impact statement, the victim suffered from fear, paranoia and anxiety as a result of the offending.[10]

18 The judge adopted, as his assessment of the gravity of the offending, the following observations which Tinney J made when refusing the appellant bail:

There is no question the offending alleged is exceedingly serious. It is alleged that in daylight hours and armed with items intended for use in incapacitating the complainant, the [appellant] went unlawfully onto her premises, interfered with a CCTV camera which might have recorded his later conduct and then lay in wait for her. He grabbed her from behind and dragged her to a place of his choosing, forced her to the ground, sought to bind her wrists and gag her, forced her inside her own home away from prying eyes and again forced her to the ground, this time binding her at the ankles. He threatened her and most graphically and frighteningly as she was so bound and helpless.

This attack upon the [victim] in her own home, which only came to an end when fortuitously she was able to escape, was calculated to and did cause great terror to the complainant. The alleged offending was premeditated and involved a significant degree of planning and the use of equipment taken along for the purpose of incapacitating the complainant. It was offending which was brazen, frightening and disturbing. Only the fortuitous escape of the complainant prevented a continuation of and possible escalation of the offending. The threat to kill her and her family was especially chilling.[11]

19 The judge concluded that the offending called for general and specific deterrence, denunciation and appropriate punishment.[12]

20 The judge indicated that there was to be a 'significant reduction' in the sentence because the appellant pleaded guilty but the judge remained concerned about the appellant's claim to be remorseful, noting that there was very little evidence to support it.[13] In that respect, the judge noted that the appellant had lied to police about the allegations and described the victim as a 'vindictive woman'.[14] The judge also regarded the account the appellant gave to a forensic psychologist as a 'pack of lies.'[15] The judge's dim view of the appellant's remorse and insight was underscored by the fact that the appellant had instructed his counsel to submit that the appellant had turned the CCTV camera away because he was afraid that he would be filmed collapsing,[16] and had told forensic psychologist, Mr Jeffrey Cummins, that the cable ties in his possession were simply an artefact of his farming activities.[17] Unsurprisingly, the judge found those implausible explanations to be untruthful, giving rise to great concern in relation to the appellant's professed remorse.

21 The judge accepted that his conclusion as to remorse was not an aggravating feature on sentence but was relevant to his assessment of the risk of future offending.[18] In that respect, the appellant had relied on a report of Mr Jeffrey Cummins who had assessed the appellant as a low risk of reoffending. I interpolate to note that Mr Cummins had assessed the appellant as suffering from a bereavement disorder in respect of which the judge expressed considerable scepticism.[19] On the question of risk the judge 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.[20]

22 The judge concluded that the appellant's prospects of rehabilitation were 'up to [him]'.[21] He indicated that he was not prepared to make any finding with regard to the risk of reoffending.[22]

23 The judge accepted that the appellant suffered from mild autism but that none of the Verdins[23] principles were applicable, save for principle five, which was that incarceration would be far more difficult than it would be for a person who did not suffer from his particular condition.[24]

24 The appellant's counsel described the present application as one involving a comparative exercise, largely dependent on comparing the sentencing outcome in this case with three other decisions of this Court: Director of Public Prosecutions v Meyers;[25] Hatzis v The Queen;[26] and Till v The Queen.[27]

25 More generally, the appellant submitted that the sentence was manifestly excessive because the judge did not give adequate weight to certain mitigating factors and the appellant's motive or intent was not to harm the victim.

26 The respondent submits that, having regard to the following factors, the sentence was well open to the judge:

(a) the offending occurred in the context of domestic violence;

(b) the offending was planned, with the accused attending the house with the implements needed to incapacitate the victim;

(c) the offending occurred at the victim's house where she was entitled to feel safe;

(d) the appellant adjusted a CCTV camera to avoid the offending being recorded;

(e) the appellant hid himself, lying in wait for the victim to arrive home;

(f) the appellant had previously offended against the victim;

(g) the offending occurred at a time of day when the appellant knew the victim would be home alone, as the children were at school;

(h) the assault occurred in the context of the victim trying to escape;

(i) the appellant sent the children away from the house whilst he had the victim, their mother, detained; and

(j) the offending only ended because of the victim's escape.

27 Meyers, a Director's appeal against sentence, undoubtedly involved more serious offending than the present case. In Hatzis, this Court described the offending and outcome in Meyers in the following way:

In Meyers, the respondent pleaded guilty to aggravated burglary; false imprisonment; intentionally causing injury; damaging property; and carrying a longarm firearm. His offending was premeditated. He went to his former domestic partner's home armed with a double-barrelled shotgun, the barrels of which he had earlier sawn off. Apart from the sawn-off shotgun, he was also equipped with a nail gun; crow bar; cable ties and rolls of 'gorilla tape'; various knives and cutting tools; and a plastic drop sheet or poncho. Having smashed the rear sliding door of his former partner's home, the respondent pushed her onto a bed and attempted to tie her up with cable ties. In so doing, he put his hands around her throat, making breathing difficult. When she tried to escape, he hit her over the back of the head with the shotgun, causing a laceration. She fell to the floor. As she tried to get up, the respondent brought the shotgun down on her face. As the respondent and his partner then struggled, he stuck a finger in her eye, bit her on the back of the head and strangled her. Eventually, he trussed her up on the bed with cable ties on her wrists and ankles, so that she was unable to move. The victim's ordeal ended only when police (including the Special Operations Group) attended.

Initially, the sentencing judge in Meyers imposed a sentence of three years' imprisonment for the aggravated burglary, a total effective sentence of three years and six months' imprisonment, and a non-parole period of 18 months. On an appeal to this Court against the inadequacy of the sentence, the Court imposed a sentence of four years' imprisonment for the aggravated burglary, a total effective sentence of five years and six months' imprisonment, and a non-parole period of three years.[28]

28 In Meyers, the Court noted some features that may be relevant to an assessment of the gravity of an aggravated burglary:

• the offender's intent at the point of entry (whether to steal or commit assault or cause damage);
• the mode of entry (eg, by forcing a door or breaking a window);
• whether the offender was carrying a weapon;
• whether the offender was alone or in company;
• the time of day at which the burglary took place;
• what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
• whether the offender was someone of whom the victim was particularly frightened.[29]

29 In Hatzis, the applicant was sentenced to five years and one month's imprisonment on a number of charges arising from incidents of domestic violence. The most serious charge was one of aggravated burglary which, at first instance, attracted a sentence of four years. In short, the applicant smashed the window of the premises where his former partner was living and climbed in (aggravated burglary). Afterwards he attacked a male acquaintance of his former partner, causing him to suffer a black eye and grazed cheek (intentionally cause injury), punched his former partner to the left cheekbone, grabbed her hair and tried to pull her arms behind her back (intentionally cause injury). He also pulled the telephone line out of the wall to prevent his former partner from calling police (criminal damage). The conduct also breached an intervention order.

30 This Court noted that the offending '[appeared] to have been a somewhat spontaneous and impulsive reaction borne of jealousy'.[30] Although serious, 'the offending that occurred after entry had been effected did not display the kind of gross violence displayed in Meyers'.[31] Counsel for the respondent had also 'conceded that the applicant's offending was not attended by a number of aggravating features often found in cases of aggravated burglary (for example, use of a weapon or offending in company).'[32] This Court concluded that the sentence was manifestly excessive. That conclusion was fortified by, but did not depend on, a comparison with Meyers. The Court noted that the sentence imposed for aggravated burglary was the same as was imposed in Meyers on appeal but the offending in Meyers was 'significantly more serious.'[33] The sentence on the aggravated burglary charge was reduced to three years and the total effective sentence to three years and six months' imprisonment with a non-parole period of two years and three months.

31 In Till, a sentence of eight years' imprisonment for aggravated burglary was upheld in this Court. The applicant and the co-offender forced entry into a flat occupied by an elderly woman, armed with a metal bar and knife. They were in search of drugs and money. The entry was aggressive and frightening, and was preceded by the applicant yelling at the door in a highly agitated state in a way designed to intimidate and terrify the occupant. The applicant had a 'long and bad' criminal history, including prior convictions for violence.[34] After entry, the applicant committed an armed robbery and recklessly caused serious injury to the elderly occupant in circumstances of gross violence. A total effective sentence of 12 years with a non-parole period of nine years was imposed. It was not disturbed in this Court.

32 To overturn the sentence on the basis that it, or its constituent parts, are manifestly excessive, the appellant must demonstrate that the sentence was wholly outside the range of sentencing options available to the sentencing judge.[35] In other words, it must be demonstrated that the sentence was so excessive as to reveal error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in the reasons for sentence.[36] The sentence must be 'plainly unjust' or 'manifestly wrong'.[37]

33 It is convenient to commence by an examination of the sentence imposed on the charge of aggravated burglary. The offence of aggravated burglary is a serious offence as is made clear by the maximum prescribed penalty of 25 years' imprisonment. It must be accepted that the circumstances in which an aggravated burglary may be committed range widely.

34 It is important to recall the elements of the offence as they applied to the appellant. First, the appellant, when he entered the victim's home, was a trespasser. Second, he entered with intent to commit an offence involving an assault to a person in the building. Those elements were sufficient to constitute the offence of burglary.[38] He was guilty of aggravated burglary because, at the time he committed the burglary, he had with him an offensive weapon.[39] The cable ties and duct tape fell within the definition of 'offensive weapon' in s 77(1A) of the Crimes Act 1958 because they could be adapted for use for incapacitating a person. Putting those elements together, the appellant entered the victim's home with intent to assault his estranged wife and had with him equipment that could be used to incapacitate her.

35 The appellant accepted that he entered the victim's home with intent to assault his estranged wife and sought to explain that conduct by submitting that he wanted to get answers from her. In my view, that explanation carries no mitigation in his favour but rather points up the serious nature of the offending.

36 It is true that the entry in this case did not involve any damage or threat to the fabric of the building as is often seen in an aggravated burglary. No doubt forced entry that involves smashing doors or windows may be highly confronting to an occupant, especially when it occurs at night. Forced entry was one of the factors that aggravated the offending in Till and was present in Meyers. And, usually, the occupant of the house will be inside the premises and it is the sense of invasion that can render the offence so egregious.

37 Notwithstanding the absence of those factors that, regrettably, are all too common in offending of this nature, there are other features of the present offending that made it serious in its own way. First, the appellant lay in wait for the victim. When the victim returned and approached the rear door, the appellant ran at her from behind, grabbed her torso and restrained her. This marked the commencement of the false imprisonment. He then assaulted her by placing her in a tight headlock and forcing her to the ground. He then bound her hands and, using the victim's key, pushed her into the house.

38 Although at the point of entry the victim was not resisting and the appellant was able to use a key to enter the house, nevertheless, it was a significant intrusion into the victim's home where she was entitled to feel safe. The fact that the incident arose in the context of a failed family relationship and the victim had earlier sought the protection of the law by obtaining an intervention order made the aggravated burglary more serious. Physically overpowering a person to facilitate entry to their home with intent to assault the person once inside is obviously a serious offence. It is not self-evident that it is less serious than smashing a window or door.

39 It is difficult to regard the offending as spontaneous, and as the judge found, it had a significant impact on the victim. The appellant waited some 40 minutes for his estranged wife to return to the house and had with him cable ties and duct tape. That shows a degree of planning and foresight. The appellant's explanation to Mr Cummins that the cable ties were used on his farm and were merely coincidently in his possession at the time was specious.

40 The appellant was the object of an intervention order obtained in November 2016 which was designed to protect the victim. The appellant breached those orders by attending the victim's house on two earlier occasions and was dealt with in the Magistrates' Court for that offending. The judge did not regard those matters as aggravating the objective seriousness of the offending, but said they were part of the overall context in which the offending took place and the history of the relationship.[40] Accepting that approach, the intervention order ought to have brought home to the appellant that the victim did not want the appellant to approach her.

41 It can be accepted that the aggravated burglary was less grave than that considered in Meyers. In that case, the offender smashed a rear sliding door and went upstairs carrying a sawn-off shotgun. Putting to one side the serious offending that took place after entry, it can reasonably be said that the offender forcibly entered the building with an extremely malign intent and was heavily armed.

42 If Meyers were a benchmark then the relatively modest difference of only 6 months between the sentences imposed in Meyers and in this case might provide some comfort to the appellant's argument. However, to reason in that way is impermissible.

43 It is important to recognise the proper role that sentences imposed in other cases may play in assessing a given sentence. Sentencing dispositions, including on a resentence undertaken in this Court, are not precedents. They may illuminate current sentencing practice for a particular offence and may assist in consistency, which is an important aspect of the rule of law. Critically, they may expose matters of principle that are of general application. However, they do not set the metes and bounds of a sentence that may be imposed for an offence.

44 Further, the outcome in one case does not set a benchmark or tariff. A single sentence, including one imposed in this Court, does not evidence a range, and says nothing as to where the sentence fits within a permissible range. There is an additional reason to be cautious in using the outcome in Meyers. Notably, in Meyers, this Court considered itself constrained by current sentencing practice for aggravated burglary. It said that having regard to the seriousness of the offence and the importance of general deterrence, a sentence of four years' imprisonment was warranted, without any departure from current sentencing practice as they then stood.[41] But for that constraint, the Court said that it would have imposed a substantially higher sentence.[42] In Director of Public Prosecutions v Dalgliesh (a pseudonym),[43] the approach taken to current sentencing practice adopted in Meyers was disapproved.

45 The appellant's position becomes only marginally better by reference to Hatzis. The offending in Hatzis was different, and, in some respects, perhaps more serious than the current offending. The sentence imposed by this Court on a re-sentence was six months' shorter. However, when regard is had to the significant factor that the applicant was liable to be deported by reason of the offending, there is no obvious discord between the outcome in that case and the sentence imposed on the aggravated burglary charge on the appellant.

46 Till was a very different case, involving very serious, violent offending.

47 In my view, the decisions in Meyers, Hatzis and Till reinforce the seriousness with which the courts view aggravated burglaries and identify typical matters that, if present, might aggravate a particular instance of the offence.

48 Having regard to all the matters, including what can be taken legitimately from Meyers, Hatzis and Till, I am not persuaded that the sentence on the aggravated burglary charge was manifestly excessive.

49 I would not go so far as the judge who described the offending as 'an act of extreme domestic violence',[44] but overall I agree with the judge that the offending was serious. In my opinion, it was open to the judge to have significant reservations in relation to the appellant's remorse and insight. In turn, those matters underpinned the need for a sentence that sufficiently addressed specific deterrence. Further, general deterrence is an important factor in the context of family violence.

50 I am not persuaded that the appellant has established manifest excess.

51 I have come to the same conclusion in respect of the false imprisonment charge and threat to kill charges. The false imprisonment extended over a period of time and involved physical restraint. The imprisonment in her own home, in the context of family violence would have been extremely distressing to the victim. It deserves powerful denunciation. Equally, the threat to kill was serious. The threat was made in circumstances where the appellant told his victim that he was concealing things 'that you don't want to see'. The whole incident did not have an obvious end point and the appellant's behaviour would have instilled a substantial sense of dread and fear. The victim's response when she managed to free herself attests to the seriousness with which she viewed the threat to kill.

52 Both the false imprisonment and the threat to kill involved separate and distinct criminality that called for separate punishment. That said, they arose during the one incident and a measure of concurrency was called for. I am not persuaded that the degree of cumulation decided upon by the judge rendered the total effective sentence manifestly excessive or that the non-parole period was manifestly excessive.

53 For these reasons, the appeal should be dismissed.

[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.

[2] Hardwick (a pseudonym) v The Queen [2020] VSCA 227, [58].

[3] Common law, Crimes Act 1958 s 320.

[5] Crimes Act 1958 s 77(1).

[6] Ibid s 20.

[7] Hardwick (a pseudonym) v The Queen [2020] VSCA 227 ('Leave Reasons').

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

[25] (2014) 44 VR 486; [2014] VSCA 314 ('Meyers').

[26] [2021] VSCA 43 ('Hatzis').

[27] [2018] VSCA 122 ('Till').

[28] Hatzis [2021] VSCA 43, [21]-[22] (Priest, McLeish and T Forrest JJA).

[29] Meyers [2014] VSCA 314; (2014) 44 VR 486, 498 [48]; [2014] VSCA 314.

[30] Hatzis [2021] VSCA 43, [23] (Priest, McLeish and T Forrest JJA).

[34] Till [2018] VSCA 122, [32], [52] (Maxwell P, Tate and Niall JJA).

[35] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).

[37] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 329 [22]; [2000] HCA 54 (Gaudron and Gummow JJ).

[38] Crimes Act 1958 s 76(1).

[39] Ibid s 77(1)(a).

[41] Meyers [2014] VSCA 314; (2014) 44 VR 486, 504 [76]; [2014] VSCA 314 (Maxwell P, Redlich and Osborn JJA).

[43] [2017] HCA 41; (2017) 262 CLR 428, 454 [83]; [2017] HCA 41 (Gageler and Gordon JJ).