R v Hardy [2023] NSWDC 660

District Court New South Wales

Medium Neutral Citation: R v Hardy [2023] NSWDC 660 Hearing dates: 23 November 2023 Date of orders: 23 November 2023 Decision date: 23 November 2023 Jurisdiction: Criminal Before: Tupman DCJ Decision: 1. Offender is convicted. 2. For sequence 1, 2 and 3, offender sentenced to an aggregate term of imprisonment of 3 years with a NPP of 18 months. 3. Two Form 1 offences taken into account when sentencing for sequence 1. Catchwords: CRIME – sentence – sequence 1 and 3 – sexual intercourse with child between 14 and 16 – s66C(3) Crimes Act – maximum penalty 10 years imprisonment – sequence 2 – sexually touch child between 10 and 16 – s66DB(a) Crimes Act – maximum penalty 10 years imprisonment – two Form 1 offences – common assault – s61 Crimes Act – intentionally choking without consent – s37(1A) Crimes Act OFFENCE – ongoing intimate relationship – offender 32 – victim 15 and 5 months – victim had altercation with offender at his house – offender grabbed victim by the neck and dragged her to couch – unable to breathe – let go and slapped her – victim called triple-0 COMPLAINT – victim told mother she had unprotected sex that morning – mother told police – attended hospital and participated in a SAIK – offender's DNA recovered – facts about substantive offences come from one paragraph in agreed facts alone OBJECTIVE SERIOUSNESS – below mid-range – facts are very limited so difficult to make a finding – significant age difference – victim top of age range – not one-off offences – committed during course of domestic relationship – no VIS – relationship continued – offender breached ADVO – sentenced to 3 months imprisonment SUBJECTIVE CASE – Indigenous Australian – dysfunctional background – reduces moral culpability – significant domestic violence – mother abused alcohol – sexually abused as child and teenager – poor educational history – drug use – lengthy criminal history – risk of institutionalisation – PTSD – expressed remorse SENTENCE – general and specific deterrence – EAGP scheme – 25% discount – same episode of criminality – no accumulation – special circumstances Legislation Cited: Crimes Act 1900 (NSW): ss 37(1A), 61, 66C(3), 66DB(a) Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3, 5, 53A Category: Sentence Parties: Rex (Crown) Brett Hardy (Offender) Representation: Counsel: R Cavanagh (Offender)