Citation: Hardie v Regina; Phillipsen v Regina [2012] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 8 February 2012
Judge(s): Basten JA, RS Hulme J, Schmidt J
Background
In the early hours of 24 October 2009, two applicants and a third co-offender entered a residential dwelling through an open window after receiving no answer at the front door. Once inside, the first applicant went to the victim's bedroom and struck her repeatedly, delivering 30 to 40 blows to the head, neck, torso, arms and legs. The assault caused severe and lasting injuries, including permanent hearing loss requiring a hearing aid, permanent jaw damage, chronic headaches, post-traumatic stress disorder, and an inability to work since the attack.
Both applicants pleaded guilty in the District Court. The first applicant was convicted of entering a dwelling with intent to commit an indictable offence, assault occasioning actual bodily harm in company, and intentionally damaging property in company. The second applicant was convicted of remaining in a dwelling with intent to commit an indictable offence, assault occasioning actual bodily harm in company and in a dwelling, and stealing in a dwelling.
The sentencing judge acknowledged strong subjective circumstances for both offenders, including their youth, guilty pleas attracting a 25% discount, absence of prior adult convictions, and good prospects of rehabilitation. He nonetheless imposed full-time custodial sentences: one year and eight months (with a ten-month non-parole period) for the first applicant, and one year and six months (with a nine-month non-parole period) for the second.
Legal Issues
- Whether the sentencing judge erred by failing to expressly consider all alternatives to full-time imprisonment before imposing custodial sentences, as required by s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentences imposed were manifestly excessive having regard to the nature of the offences and the offenders' subjective circumstances
Decision
On the first ground, the Court held that even if the sentencing judge had not followed the precise procedural steps described in R v Zamagias (2002) when articulating his reasoning, any such error would merely require the Court of Criminal Appeal to consider re-sentencing. The Court was not persuaded that any different sentence was warranted. Basten JA noted ongoing questions about how satisfaction under s 5 must be expressed in reasons, referring to his own earlier remarks in Amado v R [2011] NSWCCA 197, but concluded that those questions did not affect the outcome here.
On the second ground, the Court rejected the contention that the sentences were manifestly excessive. RS Hulme J noted that the extended nature of the attack, the unlawful entry into the victim's home, and the severity of the resulting injuries called for a substantial sentence. The Court acknowledged that the boundary between actual bodily harm and grievous bodily harm is not always clear, and the sentencing judge was entitled to treat the injuries as falling short of grievous bodily harm. Taking into account the maximum penalties of seven years for most offences, the Court observed that the applicants were, if anything, fortunate the sentences were not higher.
Schmidt J agreed with both Hulme J and Basten JA without separate reasons.
Orders Made
- Leave to appeal granted for each applicant
- Each appeal dismissed
Key Takeaways
- Under s 5 of the Crimes (Sentencing Procedure) Act 1999, a court must consider all possible alternatives to imprisonment before imposing a custodial sentence. However, a failure to expressly articulate that consideration in reasons does not automatically lead to re-sentencing: the appellate court will assess whether any different sentence would have been warranted.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an extended, unprovoked assault inside a victim's home, causing permanent physical and psychiatric injury, warrants full-time imprisonment even for young, first-time adult offenders with strong rehabilitation prospects.
- Favourable subjective circumstances, including youth, guilty pleas, good character, and genuine rehabilitation efforts, reduce sentence length but do not necessarily displace a term of full-time custody where the objective seriousness of the offending is high.
- The line between assault occasioning actual bodily harm and grievous bodily harm can be unclear, and a sentencing judge has latitude to characterise injuries falling near that boundary without appellate error, provided the characterisation is reasonably open on the facts.
- Concurrent sentences for multiple offences arising from the same criminal episode remain available, but where maximum penalties are substantial (here, seven years for most counts), the resulting head sentence may still reflect the totality of the offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 114(1)(d), 148, 195(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 6, 7, 12
Cases:
- Amado v R [2011] NSWCCA 197
- R v Lovell & Dominey [2006] NSWCCA 222
- R v Zamagias [2002] NSWCCA 149
- Smith v R [2011] NSWCCA 209