STATE OF TASMANIA v MARCUS RAYMOND HARDWICK 4 DECEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Hardwick, you have pleaded guilty to one count of aggravated burglary and one count of assault. You have also pleaded guilty to the summary offence of common assault, which I have agreed to hear and determine pursuant to s 385A of the Criminal Code.
These offences were committed by you on 20 September 2019. They constituted family violence committed directly against your wife and 18-year-old son. Although your son is also a complainant, I will refer to your wife in these comments as the complainant. You and she had separated in May 2019, after a 22 year marriage. As has been stated today, it is clear that you were not coping well with the break-up of that marriage. You have three children, a daughter aged 20, your son aged 18 and another daughter aged 10. The children had, after the separation, continued to live with the complainant in the former matrimonial home, and you were living elsewhere. In the period leading up to these events, you had been behaving in what was described to me as an unpredictable manner. It seems that shortly after the separation, you had made an attempt at suicide, and your family continued to be concerned about your psychological state. The complainant had changed the locks on the house, and served you with formal paperwork, and, as I have clarified today, there was an agreement in place that you were not to attend the home without her consent, and that would seem to be the basis of the element of you being a trespasser on the day concerned, in order to sustain the charge of aggravated burglary. However, you had continued to have contact with the children, including, in particular, your 10-year-old daughter. In fact, arrangements had been made for your younger daughter to spend the forthcoming weekend with you.
On 19 September, your daughter decided that she no longer wanted to do this. The complainant advised you of this by text message. There was then an exchange of text messages, during which you made it clear that you blamed the complainant for your daughter’s decision not to spend the weekend with you. You also sent text messages to your eldest daughter, accusing her of not standing up to the complainant about this issue. You were clearly angry. According to your counsel, at this time, your psychological state was unstable and deteriorating.
You committed the relevant criminal conduct at about 6 am on the following morning. You had consumed a considerable amount of alcohol. Your counsel informs me that you had attempted to gas yourself in your motor vehicle before going to the complainant’s house. According to later statements made by you to a psychologist, this was not a genuine attempt at suicide, because it was your belief, based on what you had been told by a doctor after your earlier suicide attempt, that it was not possible to administer a fatal dose of gas by use of motor vehicle emissions. You told the psychologist that your intention was to use this act to communicate to the complainant that she was acting unfairly. In any event, after doing this, you went to the complainant’s home. The complainant and the children were all present in the home at that time, although the youngest child was asleep. It is not clear what you intended to do or why you went there. I will accept that you did not premeditate doing what you subsequently did do. I suspect, and will give you the benefit of the doubt, that what happened – whatever your intention was in going there – you snapped, and then acted, as you counsel has said and I completely agree, in a completely appalling manner. You attempted to violently force your way into the home. This included by attempting to smash a sliding door by throwing outdoor chairs and a table at it. Eventually, you were able to gain entry by smashing through a double glazed bedroom sliding door.
The noise woke the youngest child. The complainant and your eldest daughter were awake and witnessed your attempts to enter the house. One can only imagine what the complainant and the children must have been thinking as you were attempting to smash your way into the house. The complainant and your daughters attempted to barricade themselves in your son’s room. However, you chased them there, forced the bedroom door open and pushed the complainant onto the floor. She struck her head on an object as she fell. Your son attempted to stop you in order to protect his mother, but you pushed him away. You then got on top of the complainant placed both hands and arms around her neck and started to choke her. You squeezed tightly, which caused her to have difficulty breathing. The children, who all were present in the room while this was taking place, were distressed and screaming. Your son unsuccessfully attempted to pull you away from his mother. You then punched the complainant to the head and face a number of times and pulled her across the room by her hair, causing chunks of hair to come out of her head.
Your son continued his efforts to remove you from the house. It was at this stage that you committed an assault on him by placing him in a headlock and biting his right wrist, causing a break in the skin and bleeding. Despite this, he continued to struggle with you and eventually was able to restrain you to the point where he was able to convince you to let go of the complainant. You then ran from the bedroom, left the residence and drove away in your vehicle.
It seems that as you were driving away, you crashed your vehicle into a power pole. It is accepted that this was again an effort to harm yourself. You suffered minor injuries as a result of that collision.
As a result of your violence, the complainant sustained cuts, multiple bruises and swelling to her face and head, and to her right foot, chest and arms, back and left leg. She also suffered redness and swelling and soreness to both sides of the neck and upper chest as a result of being choked. She had abrasions on her upper lip, which caused bleeding. She was required to undergo a strangulation assessment. Your son received a laceration to his right wrist, caused by the bite. He also sustained some scratches to his neck.
I have received impact statements from the complainant and the children. Understandably, these statements express the impact of this criminal conduct within the context of your longer term behaviour. It is reasonable for them to express the impact in this way, but I must punish you only for the crimes to which you have pleaded guilty. It is clear from these impact statements, and completely predictable in any event, that your commission of these crimes has had a significant and devastating impact on all of them. The complainant describes the terror which she experienced when you were choking her. It is clear that she perceived this to be a potentially lethal attack and felt powerless to stop you. She has described in detail the ongoing physical and psychological consequences of your attack. So also have your children. Each has clearly been affected by your behaviour leading up to these crimes, but the unrestrained violence that characterised your conduct on the day in question has had a discrete and significant impact and caused ongoing fear and other significant psychological consequences. These consequences continue to affect their lives in a real and practical way, and this is likely to continue for the foreseeable future. When regard is had to the fact that your children were present and immediately witnessed what must have clearly been perceived by them to be an attempt to kill their mother, the severity of the ongoing impact is understandable. Of course, your son was directly assaulted and forced to struggle with you, his father, in order to protect his mother from you. It goes without saying that he should never have been put in this terrible position.
You are 51 years of age. Your criminal record consists only of traffic infringements. Your counsel has outlined an industrious employment history, as well as a considerable amount of community involvement, including as a volunteer with the Tasmanian Fire Service and as a sporting coach. I have received some references from persons associated with you in employment and the Fire Service which speak well of your general character. You have been self-employed, although my understanding is that in recent times you have experienced some financial and business difficulties. I have already indicated that I am aware that you have recently gone through a period of bankruptcy, but have come out of that period, and that you did sustain an injury in your employment which saw you in receipt of workers compensation for some time. However I do accept what your counsel has clarified today, that you do have significant potential for employment upon your release. I accept also that you do have strong family support, in terms of your extended family.
I have been provided with a forensic mental health assessment prepared by Dr Emma Rouse, a clinical psychologist. This assessment was apparently ordered by a magistrate for the purposes of a bail application. It is however a thorough assessment. The psychologist concludes that there is no evidence that you have a serious mental illness. This conclusion is consistent with that of a number of psychiatrists who have examined you after your remand in custody. The psychologist’s opinion is that you are experiencing an adjustment disorder with disturbed conduct, which is an emotional and/or behavioural reaction to stressors. The report notes those stressors as financial stress, your separation from the complainant, issues relating to child custody, your loss of employment and some ongoing litigation arising from an employment-related matter. She concludes that there is an ongoing risk of suicide, as well as a risk of perpetrating further family violence against the complainant. The psychologist also expresses the opinion that your personality traits, including narcissism, predisposed you to having “a severe explosive reaction to the relationship separation”. I infer that your personality traits also predisposed you to the specific behaviour involved in the commission of these crimes. None of this provides mitigation in the sense explained in Verdins. It does, however, provide some explanation for the emotions which precipitated your conduct, and provides information relevant to the assessment of the need for personal deterrence. I conclude that that sentencing consideration requires some emphasis in these proceedings.
That conclusion is also informed by what would seem to be a lack of insight and remorse, demonstrated in particular by comments made by you to the various mental health professionals, as related in Dr Rouse’s report. As I have already indicated in the course of your counsel’s submissions today, it seems to me it was also apparent from some comments reported in the pre-sentence report. The clear impression which I have gained from these comments is a minimisation of the seriousness of your conduct, and what seems to be a lack of insight in respect of this question. Your counsel obviously has made very strong submissions to the contrary. I accept that you have a degree of insight, but I still continue to speculate about whether that insight extends to a true appreciation of the effect of your conduct on your wife and children. But, I do accept that you have demonstrated remorse in a practical way. You should receive credit for your early plea of guilty, which I accept is a practical expression of remorse, and your response to these proceedings generally, which has been co-operative and appropriate. As I have said, those actions are consistent with a demonstration of some remorse.
Ultimately, however, the commission of these crimes constituted an extremely serious episode of family violence. There are a number of serious aggravating features of your conduct. The violence was unexpected, explosive and unrestrained. The assault on the complainant was brutal and had the potential to inflict serious injury. A particularly concerning aspect of that assault is your attempted strangulation of the complainant. In a recent sentence (the matter of Abel 29 August 2019), I made the following points about such conduct. The act of applying pressure to another person’s throat can easily result in death or serious injury. Death is most likely to result not from the restriction of breathing but from the blockage of the arterial blood supply to the brain, usually as a result of pressure applied to the carotid arteries. Attempted strangulation which does not result in death or visible injury can still have long-term physical and psychological impacts, and leave the victim susceptible to ongoing symptoms. In criminal assault, such acts are generally used to subdue and force compliance by the victim, without any real thought being given to the danger inherent in such conduct. Those dangers were clearly apparent in your actions in this case. Your rage and lack of restraint meant that you had no real capacity to judge or moderate your attack, and the complainant was therefore in real danger of serious injury or worse. Further, your culpability is aggravated by the fact that you only desisted from your attack because of the courageous actions of your son. It is not at all clear that you would have desisted of your own volition.
A further matter of particular concern is the presence of the children and the effect of your crimes on them. All three children, including your 10-year-old daughter, were directly and immediately involved and affected by your violent conduct. You assaulted your son when he was forced to protect his mother. I have already discussed their perception of the impact upon them, but as raw and real as that impact must seem to them at the moment, I think it must be the case that it is still too early to predict the full extent and duration of the effects of such a disturbing episode. Although the eldest two are adults, each of them is still in an important formative stage of his or her psychological and emotional development. In my view, your actions involved a serious breach of the trust inherent in your parental relationship with each of them. Further, your actions have permanently affected their relationship with and perception of you. It is reasonable to observe that they have lost the paternal support and example which each was entitled to expect from you. Whether you are able to regain their trust and affection sufficiently to reinstate yourself into that position, I imagine that it is doubtful whether that can occur, but if it does occur, it will only be because of your positive efforts. This case is a very profound manifestation of the policy underlying the statutory provision which provides for family violence in the presence of children, and I do consider the young adults to be children for these purposes, to be considered an aggravating feature of such conduct.
The requirement for an emphasis on general deterrence, denunciation of your conduct and vindication of the complainant and your children, and the serious nature of the criminal conduct, means that the only appropriate sentence is one of actual imprisonment. Having regard to your lack of relevant prior convictions, prior good character and your early plea of guilty, I intend to suspend part of the sentence. However, the suspension will be subject to probation supervision. I am not satisfied that the assessment of future risk or the need for supervision contained in the presentence report is accurate, particularly when I have regard to the contents of the forensic mental health report. I think there is a need for supervision. Suspension of part of the sentence will facilitate that supervision and provide a significant deterrent to the repetition of criminal conduct of this nature.
Marcus Hardwick, you are convicted of the crimes and the offence to which you have pleaded guilty. I impose a global sentence of two years and six months’ imprisonment. The sentence will be backdated to 20 September 2019. The last 12 months of the sentence is suspended for a period of 2 years, which will commence on the date when you lawfully cease to be imprisoned under this sentence. The suspension of the sentence will be on the following conditions:
1 That you are not to commit another offence punishable by imprisonment during that period.
2 That you will be subject to the supervision of a probation officer. You must comply with this condition for a period of 12 months. That period will commence from when you lawfully cease to be imprisoned under this sentence. The court notes that the conditions referred to in s 24(5B) of the Sentencing Act apply to this condition. These include that you must report to a probation officer within 3 clear days of the day that you lawfully cease to be imprisoned under the sentence. In addition to the core conditions the order shall also include the following special conditions:
(a) you must, during the operational period of the order, attend educational and other programs as directed a probation officer;
(b) you must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
(c) you must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
In relation to the operative sentence, I order that you not be eligible for parole before the expiration of 12 months of the sentence. Given your plea of guilty and lack of prior convictions I think it is appropriate to allow for early release on parole, but I think that the period of 12 months is the minimum term which you should spend in prison have regard to the seriousness of the criminal conduct.
I make a compensation order in favour of the Department of Police and Emergency Management in an amount to be assessed.
Pursuant to s 13A of the Family Violence Act, I direct that the crimes and offence of which you have been convicted be recorded on your criminal record as family violence offences.
I make a Family Violence Order in terms of the extant order, that is, the one made on 10 October 2019, contained in pages 10 and 11 of the Crown papers, but I vary the duration of the order to provide that the order will remain in force indefinitely until varied or revoked by a court of competent jurisdiction.