HARDIE v REGINA; PHILLIPSEN v REGINA [2012] NSWCCA 6

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HARDIE v REGINA; PHILLIPSEN v REGINA [2012] NSWCCA 6 Hearing dates: 8 February 2012 Decision date: 08 February 2012 Before: Basten JA at [28] and [31] RS Hulme J [2] Schmidt J at [30] Decision: Leave to appeal granted Appeals dismissed Catchwords: CRIMINAL LAW - sentence - assault occasioning actual bodily harm - entering or remaining in a dwelling with intent - sentencing process - sentences not excessive Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: 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 Category: Principal judgment Parties: HARDIE, Jessica Joan v REGINA; PHILLIPSEN, Stay-C v REGINA Representation: Crown: T Smith Appellants: K Averre Crown: S Kavanagh Appellants: Legal Aid Commission File Number(s): 2010/18260 2010/18348 Decision under appeal Date of Decision: 2011-08-26 00:00:00 Before: Colefax DCJ File Number(s): 2010/18260 2010/18348

Judgment 1RS HULME J: At about 4.00 am on 24 October 2009, Ms Simone Wilkie, then aged 20, was asleep in her bed. One of her two flatmates was also in the premises. The applicants and Ms Melinda Bird, after some substantial ingestion of alcohol, caught a taxi to those premises and after receiving no response to knocking on the front door entered the premises through an open window. Leading the other two, Ms Hardie went to Ms Wilkie's bedroom where she struck Ms Wilkie as hard as she could 30 to 40 times to the head, neck, torso, arms and legs. The attack was protracted. In addition to the blows, a metal deodorant can was thrown at Ms Wilkie striking her in the wrist. 2Ms Wilkie's flatmate unsuccessfully attempted to drag Ms Hardie off but ultimately Ms Wilkie managed to push Ms Hardie away. 3After the beating of Ms Wilkie stopped, Ms Bird put in a bag a number of items, being a laptop computer, a DVD player, a handbag, hairdryer and some electrical games and DVDs. As they were leaving the house, Ms Hardie picked up a scooter and threw it at the front door, smashing the glass panel. Ms Bird caused further damage to the panel with her fists. 4Ms Wilkie sustained very significant injuries - concussion, extensive bruising to her face and cheek, multiple abrasions to her face, injuries to her jaw, neck and left forearm, permanent damage and reduced function to her jaw, a permanent hearing loss in her left ear in the order of 40 to 50 decibels, which now requires her to wear a hearing aid, chronic headaches, sleep disturbance and nausea. She has also suffered a serious post-traumatic stress disorder and requires treatment from both a psychologist and a psychiatrist. Her psychological difficulties have precluded her working since the assault. 5The only evidence of motive was that there had been some sort of altercation between Ms Wilkie and her flatmates on the one hand and Ms Hardie's sister on the other and Ms Hardie had been informed that Ms Wilkie had attempted to sleep with Ms Hardie's boyfriend. 6Arising from this incident, Ms Hardie pleaded guilty to three offences. They, the section of the Crimes Act 1900 proscribing them and the maximum penalty for each is as follows:- 1. Entering a dwelling house with intent to commit an indictable offence, vis, assault - s.114(1)(d) - seven years. 2. Assault occasioning actual bodily harm in company - s.59(2) - seven years. 3. Intentionally damaging property in company - s.195(1A) - six years. 7Ms Phillipsen also pleaded guilty to three offences. Similar details are as follows:- 1. Remaining in a dwelling house with intent to commit an indictable offence, vis, assault - s.114(1)(d) - seven years. 2. Assault occasioning actual bodily harm in company and in a dwelling - s.59(2) - seven years. 3. Stealing in a dwelling - s.148 - seven years. 8Ms Bird also pleaded guilty and was sentenced but nothing turns on her charges or sentences and they need not be detailed. 9Colefax SC DCJ recorded that each offender had strong subjective circumstances. Ms Hardie was almost 21 at the time and had no prior convictions. His Honour said she was, therefore, entitled to rely on good character. She has a child, born about seven weeks prior to the sentences. Since her arrest she has lived with her mother and was significantly involved in the care of her siblings, one of whom was as young as seventeen months and one of whom suffers a chronic disability. Ms Hardie left school at seventeen after obtaining her School Certificate. She subsequently obtained a Certificate in Business Administration. Prior to the offences, she suffered significantly with depression and, as might be expected, this worsened considerably after the offences. 10Colefax DCJ recorded that Ms Hardie had not consumed alcohol since the offences, had undergone psychological counselling and at no time had consumed illicit drugs. His Honour found she had good prospects of rehabilitation. 11Ms Phillipsen was just over 18 at the time of the offences. She had three convictions as a juvenile. His Honour recorded they could not be held against her but she could not rely on previous good character. She suffered an abusive and neglectful childhood. Prior to the offences, she had a significant problem with alcohol but since them she has totally abstained from alcohol and other drugs. His Honour recorded she had made a serious and successful effort to reform her life and found she had good prospects of rehabilitation. 12After referring to these subjective circumstances, which he described as strong, his Honour went on to remark:- "Those subjective circumstances, however, cannot distract the Court from the extremely serious nature of the offences which have been committed, particularly by Ms Hardie and Ms Phillipsen. In relation to those two offenders, no sentence other than a period of full-time imprisonment is appropriate, although the length of the period of imprisonment will be modified by taking into account those subjective circumstances." 13After recording that each offender was entitled to a discount of 25% for her plea and finding special circumstances because of the applicants' ages, that they had not previously been imprisoned, and both had good prospects of rehabilitation which would be enhanced by a longer period on parole, his Honour, on 26 August 2011, sentenced the applicants as follows:- (1) In the case of Ms Hardie, wholly concurrent sentences of imprisonment for one year and eight months, including non-parole period periods of 10 months, both such periods commencing on 26 August 2011. (2) In the case of Ms Phillipsen, wholly concurrent sentences of imprisonment for one year and six months, including non-parole periods of nine months, both such periods commencing on 26 August 2011. 14Each applicant has appealed upon the grounds that:- (1) The learned sentencing judge erred in failing to take the proper steps in determining the appropriate sentence to be imposed on the applicant in that the sentencing judge erred in failing to consider that alternatives to full-time imprisonment were available and whether any of those alternatives ought to be utilised. (2) The sentences imposed were manifestly excessive.