STATE OF TASMANIA v JACOB VERNON HARDY 2 MAY 2019
COMMENTS ON PASSING SENTENCE BLOW CJ
I have to sentence Mr Hardy for two crimes – aggravated burglary and causing grievous bodily harm. One evening in November 2017, not long after his relationship with a long-term partner had ended, he went to the home of that woman’s new partner, entered without permission, and attacked him. It is conceded that he committed the crime of aggravated burglary by entering the premises as a trespasser with the intention of causing grievous bodily harm. He was indicted on a charge of aggravated burglary and on a charge of committing an unlawful act intended to cause bodily harm, contrary to s 170 of the Criminal Code. He pleaded not guilty to that second charge, but guilty to causing grievous bodily harm. The Crown accepted that plea.
After Mr Hardy pleaded guilty, I was told of several disputes as to factual matters, and invited the parties to call evidence, which they did. There were four principal areas of dispute:
- The Crown asserted that Mr Hardy had driven from Gretna to the complainant’s home at Primrose Sands with the intention of assaulting him. However Mr Hardy asserted that he went there at the request of his former partner. He said that she had asked him to collect some items belonging to her from the complainant’s home and return them to her, and that he had no intention of doing anything violent before he arrived at the premises.
- The Crown asserted that, at the time of the attack, Mr Hardy knew that the complainant was suffering from multiple sclerosis, and that he had suffered serious injuries in another attack some 12 months previously. Mr Hardy did not dispute the contentions as to the complainant’s state of health, but denied that he knew anything about the multiple sclerosis or the earlier injuries at the time of the attack.
- Mr Hardy asserted by way of mitigation that he went to the complainant’s door unarmed, and armed himself with a metal tool only after seeing the complainant inside his house through a window and observing that he was carrying a metal object that looked identical to a rifle. He asserted that he then returned to his vehicle, armed himself with an L-shaped metal tool, returned to the house, saw the complainant opening the front door with his left hand while carrying a rifle in his other hand, took the rifle from him, and threw the rifle on the ground, before attacking the complainant. The complainant denied that he had armed himself with a rifle or anything else.
- By way of mitigation, Mr Hardy asserted that his former partner had commenced a sexual relationship with the complainant while she was still cohabiting with him. The Crown accepted that Mr Hardy believed that to be true, but did not concede that it was true.
I received evidence for the purpose of making findings as to these factual disputes. The Crown called five witnesses – the complainant, his father, and three police officers. The Crown also relied on a recording of an interview of Mr Hardy by police officers, in which Mr Hardy denied going to the complainant’s home. Mr Hardy also gave evidence.
In my view Mr Hardy was a most unreliable witness. If his version of events was true, he saw that the complainant was armed with something that looked like a rifle, went back to his vehicle, and then, instead of retreating to a place of safety, advanced with a weapon where there was a strong risk that he would be shot. None of the other witnesses gave evidence of seeing a rifle. Mr Hardy did not claim to have removed it, and did not give any evidence as to it being moved after he threw it to the ground. At the conclusion of the attack, the complainant was so badly injured that he crawled to his phone and phoned his father, who lived nearby and arrived quickly. The three police witnesses also arrived. The father denied seeing or moving the rifle. The police officers all said they did not see a rifle. There was nothing about the father or the police officers or the evidence that they gave that caused me to doubt their honesty and reliability.
It seems most unlikely that Mr Hardy was able to see the complainant inside the house on his arrival. There were windows in the house near the front door, but they had blinds in them, and those blinds were down when the third of the police officers arrived and took photographs. None of the other Crown witnesses had any memory of blinds having been up or having been lowered. There was no suggested reason for the complainant to have gone to a point in the house where he could have been seen through the windows in question.
The severity of the complainant’s injuries tends to suggest that Mr Hardy bore him far more animosity than he was willing to concede.
By contrast, the complainant appeared to be an honest witness. He readily gave evidence about his own drug use, and readily conceded that he might not have made Mr Hardy aware of his multiple sclerosis or of the fact that he had previously been attacked and injured.
In my assessment, the evidence of Mr Hardy, where it conflicts with the evidence of any of the prosecution witnesses, should not be accepted. When findings of fact need to be made for sentencing purposes, the Crown bears the burden of proving aggravating facts beyond reasonable doubt, whereas the defence bears the burden of establishing mitigating facts on the balance of probabilities: R v Olbrich [1999] HCA 54, 199 CLR 270. I am not satisfied on the balance of probabilities that the complainant armed himself with a rifle or anything else. I am satisfied beyond reasonable doubt that the complainant was unarmed. I do not accept that the original purpose of Mr Hardy’s journey was to obtain any belongings of his former partner at her request. I infer that he made that journey intending to inflict violence upon the complainant. I am not satisfied beyond reasonable doubt that Mr Hardy knew of the complainant’s multiple sclerosis, nor that he knew anything about the previous attack, although his counsel conceded that he was aware that the complainant was seeing doctors about something. I do not think I need to make a finding as to whether Mr Hardy’s former partner had commenced a sexual relationship with the complainant before ending cohabitation with him. They separated about eight months before the attack on the complainant. After that period of time, I do not think a sense of grievance about infidelity or perceived infidelity should be regarded as a significant mitigating factor.
On the evening in question, Mr Hardy bashed the complainant with the metal tool to his face, arms, back, left shoulder, left leg and left foot. The complainant shielded himself to some degree with his hands and arms. He fell to the floor and landed face down. He tried to get up but slipped on his own blood. It was after that that Mr Hardy struck him to the back. He felt his ribs break as a result of two of those blows. Mr Hardy eventually ceased the attack. Before leaving, he said words to the effect that he would kill the complainant if he stayed with the woman I have mentioned, or ever got back with her.
As I have said, the complainant crawled to his mobile phone, and phoned his father. His father phoned for an ambulance, went to his home, and provided some first aid before the ambulance arrived. The ambulance took the complainant to hospital. The hospital staff noted multiple injuries including a fractured skull, a fracture to the jaw, fractures to two ribs, a fracture to the shoulder, a broken front tooth, and various bruises, lacerations, grazes and areas of swelling. The complainant was discharged from the hospital the following day.
This attack exacerbated the complainant’s pre-existing medical conditions, and caused substantial psychological damage. The complainant’s symptoms include nightmares, flashbacks, social withdrawal, and anxiety about possible intruders.
Mr Hardy was 36 years old when he committed these crimes and is now 37. He is a qualified painter and decorator, and has a reasonable work history. At one stage he operated his own business with eight staff. He will suffer financially as a result of going to prison. He was sentenced to imprisonment on a number of occasions in 2001 and 2002. When he committed these crimes he had not been to prison for 15 years. His prior convictions are mainly for crimes of dishonesty and driving offences. He has no convictions for offences involving violence. In January 2017, on charges of driving whilst disqualified and a breach of bail, a magistrate sentenced him to two months’ imprisonment, which was wholly suspended on condition that he not commit another offence punishable by imprisonment for a period of two years. That condition was still in force when he committed the crimes for which I am about to sentence him. That weighs in favour of a heavier sentence.
He was charged in relation to this incident in November 2017, and granted bail. In March 2018 he failed to answer his bail, and a warrant was issued for his arrest. He was arrested in Western Australia on 15 June 2018 and has been in custody ever since.
In August 2018 a magistrate sentenced him for various offences that he committed in 2017 and early 2018, including two charges of driving with an illicit drug in his blood. That magistrate activated the two-month suspended sentence that I have referred to, backdating it to 19 June 2018, and imposed a cumulative two-month sentence. As a result, the sentence that I will impose will be backdated to commence on 19 October 2018.
Because the sentence that I am about to impose will come on top of those other sentences that total four months, I will observe the “totality principle” by imposing a slightly shorter sentence than I would otherwise have imposed. Because those sentences made no provision for parole, I will impose the shortest possible non-parole period.
Mr Hardy pleaded guilty, and as a result saved the State the cost and inconvenience of a trial. However he seems to have pleaded guilty because convictions were practically inevitable. The fact that he absconded to Western Australia indicates that he has not had any significant desire to facilitate the administration of justice. His counsel indicated to the Crown last October that he was willing to plead guilty to causing grievous bodily harm, but not to the s 170 charge. Even though he pleaded guilty, that did not result in the complainant being spared the ordeal of having to give evidence. In the circumstances, I think the plea of guilty warrants a sentencing discount in the order of only about 5%.
This was a vicious and cowardly attack on an unarmed man. He was a vulnerable victim. Serious injuries were inflicted on him in his own home, where he had a right to feel safe. The motive was sexual jealousy. In the circumstances, the only appropriate penalty is a significant prison sentence.
Jacob Vernon Hardy, I convict you and sentence you to 34 months’ imprisonment with effect from 19 October 2018. You will not be eligible for parole until you have served 17 months of this sentence.