Director of Public Prosecutions v Whiteside & Dieber [2000] VSCA 142

5. Pursuant to s.567A of the Crimes Act, the Director of Public Prosecutions has appealed to this Court against the sentences imposed. In each case, the grounds of appeal relied upon by the Director, stated in summary form, are that the sentences are manifestly inadequate; that the learned judge erroneously gave excessive weight to factors of mitigation and too little to the gravity of the offence and the need for general deterrence; and that he erred in concluding that the suspension of all but five and six months respectively of the sentences passed, resulting in immediate release from custody, was adequate to meet the circumstances of those offences, to meet the requirement for general deterrence and to provide sufficient time in custody. Before considering these grounds, it will be necessary to briefly rehearse the facts which his Honour had found.

8. The assault which led to the death of the deceased occurred in Lansdowne Street, East Melbourne, shortly after 7 p.m. on the evening of 25 April 1999. As a consequence the deceased suffered head and neck injuries which rendered him unconscious. He never regained consciousness and died on 6 May 1999.

11. The deceased, who was aged 45 years at the time of his death, was a quiet and unassuming man who was homosexual. He lived for many years with his partner, David Campbell. They lived quiet lives, enjoyed each other's company and were law-abiding citizens. At about 7 p.m. on Anzac Day 1999, they had parked their car on the eastern side of Lansdowne Street, a short distance to the south of Albert Street. It was their intention to walk in the Fitzroy Gardens, a pastime which they commonly enjoyed. They walked along a path in the Gardens which ran generally from the north-east to the south-west. Not long into their journey they were confronted by the two respondents, in circumstances which I will hereafter describe.

14. The respondents, as I have said, were also - at least until this day - men of good character and had led decent lives free from trouble with the law. They had been to the Anzac Day football game at the Melbourne Cricket Ground between Essendon and Collingwood. At about 11 a.m. they had attended at the "MCG Hotel" in Wellington Parade where, with a group of friends, they had had a couple of drinks before going to the football. During the game they had some more to drink, and after the game, they had returned to the MCG Hotel where they consumed further alcohol. At about 7 p.m. they left the MCG Hotel in a group of some six people, intending to walk to the city to have further drinks at Young & Jackson's Hotel. His Honour found that, when they left the MCG Hotel, they were not drunk.

17. They travelled on foot, west down Wellington Parade, along the southern perimeter of the Fitzroy Gardens. Along the route they encountered a woman in an obviously distressed condition. Although unknown to them, it later transpired that she had had an argument with her boyfriend whilst he was driving his car east from the city along Flinders Street into Wellington Parade. When the car had stopped at the Lansdowne Street lights, the woman had left the car and gone into the Gardens. After endeavouring to coax her back into the car - unsuccessfully - the boyfriend had driven off, leaving the girl to her own devices. She was in a distressed state when the group, including the two respondents, came upon her. Upon inquiry, she told the group that she had been sexually assaulted by two men. This complaint was false, as subsequent inquiry revealed. One of the members of the group placed a call for police and ambulance attendance.

20. Whilst the other members of the group remained with the distressed woman, the two respondents entered the Gardens with the intention of locating the persons responsible for what they believed had been a rape committed upon her. His Honour found that they entered the Gardens with honourable intentions - although it must be said - they had no idea of the identity or appearance of those for whom they were searching. There were a number of people in the Gardens who were approached by the respondents. Ultimately they came upon the deceased and Mr Campbell who were walking, so it would seem, towards the place where the girl had been assaulted. By the time they confronted Hibbins and Campbell, the respondents were belligerent, angry and smelling of alcohol. As his Honour said:

"You ran up to the two men. You were full of anger and indignation. You had not the remotest idea the two men were peaceable homosexuals. You did not wait to ask."

24. Although Hibbins and Campbell sought to pacify them by saying that they would do what they could to assist, they "sensed [the] palpable aggression" of the respondents and ultimately chose to run back in the direction whence they had come. This was apparently taken by the two respondents as a signal of guilt - something which his Honour described as "the fourth step in this unfolding tragedy". The respondents pursued them. Campbell tripped on the concrete base of a light pole and fell to the ground. Whilst he was on the ground, one of the respondents, as his Honour found, "briefly but forcibly assaulted him". Mr Campbell, whom his Honour accepted as a decent, truthful, reliable person and witness, described that assault in his statement to the police in the following terms:

"I don't know the exact words Keith said but he was asking why they were so aggressive with the two of us. Keith then said we were going off to get the police. Keith then said to me, 'We've got to get out of here, run'. ... It was obvious just before Keith said 'run' that both males were getting more aggressive and that Keith and I were the subject of that rage. When Keith said 'run', we ran. When we started to run I knew that the two men were chasing us ... I can recall tripping on something. As I was getting up off the ground, something hit me on the mouth and nose; I am unsure whether it was a fist or foot. I was then pushed back down onto the ground, front first. Whilst I was on the ground I was struck a number of times in the legs and face. It was at this time whilst I was on the ground that I heard a voice say, 'I'm going to fucking kill you' ... I recall Keith saying, 'Leave him alone'. I knew Keith had come back to help me. It was at this time that I was able to get off the ground and started to run again ."

28. The deceased had previously been in an accident which had broken his arms and legs. His bones had been pinned. He was not as swift as Campbell. He was described as running "like a tin man". He and Campbell ran towards Lansdowne Street. Campbell was able to cross Lansdowne Street in the vicinity of the Peter MacCallum Hospital. He flagged down a passing motor vehicle and Dieber, who had been chasing him, gave up that chase. Hibbins, who had been pursued by Whiteside, emerged into Lansdowne Street further to the north. It was here that Whiteside caught him. His Honour described what happened in the following terms:

"You, Mr Whiteside, reached him first on Lansdowne Street. In order both to apprehend and punish him, you commenced to punch him severely. You were soon joined by Dieber. Your assault was intended to punish Mr Hibbins, not just apprehend him. It was a brief but severe assault. A witness from the 7th floor windows of St Andrews Hospital (Peter MacCallum Clinic) ... described it in clear detail - numerous severe blows by the fist to Mr Hibbins' head. Mr Hibbins was assaulted against a parked car. Then he fell to the ground. He did not regain consciousness."

32. Although his Honour did not accept everything that the witness from the 7th floor of the hospital had to say, he said that the "factual substance of her evidence is undiminished and persuasive". The factual substance of her evidence was that Whiteside was:

"Just punching the crap out of him. He was using fists and elbows ... but I did not see any ... kicking. He was not stopping. He wouldn't stop for no-one. It was outrage; he was a bloody animal, savage".

36. The severity of the assault is graphically demonstrated by photographs of the deceased which were produced both to his Honour and this Court. The injuries were described by Dr Helen Parker from the Victorian Institute of Forensic Medicine. She saw the deceased in St. Vincent's Hospital whilst he was still unconscious on 28 April. She observed injuries to the head, neck, chest and right and left arms. The injuries to the head included injuries to the bridge of the nose, two black eyes, and bruising "all over the left ear". The injuries to the neck resulted in extensive bruising over the left side of the neck extending to the angle of the jaw. There were three adjoining bruises. The injuries, she said, were consistent with punches. Death ultimately resulted from the dissection of the left vertebral artery at level C2 which permitted bleeding into the cerebellum. The pathologist, Dr Dodd, concluded that death had resulted from "head and neck trauma". His Honour did not accept the evidence of one witness that "at least 20 punches" were thrown, but - as he pointed out - it was the evidence of Dr Dodd that there were "at least 6 to 8 discrete injuries on the head and neck area".

39. There was evidence that both respondents had inflicted these injuries to the deceased. This much each had conceded in his interview with the police. The evidence was that, at the time of the assault, the deceased was effectively "pinned" around the shoulders and unable to defend himself. In the course of their police interviews, the respondents had sought to lay blame on the deceased, Whiteside saying that the deceased had attempted to strike him first; and Dieber suggesting that the deceased had said to him, "I'm going to kill you, you dobber". In respect of these statements his Honour resolved the respondents from lack of remorse, saying:

"Although you downplayed the extent of your aggressive behaviour and wrongly sought partly to blame the victims, I do not consider that either of you deliberately sought to mislead the police; rather, you gave your answers as you each perceived in your state of high emotion - and the shock of finding yourselves in police custody".

44. After the deceased had fallen unconscious to the roadway of Lansdowne Street, the respondents left him there and went into St Andrews Place towards the entrance of the Peter MacCallum Hospital where they believed Campbell had gone. Campbell was in fact standing outside the hospital in company of the two people whose car he had previously flagged down. Those people were husband and wife and were seeking to console Campbell who, so they said, was distressed. Their statement to the police was that the respondents had come running towards them and that, as they did so, Campbell ran into the hospital. The husband stepped in front of the respondents. Both he and his wife described the respondents as "aggressive" and trying to pass them to get to Campbell. The wife said that the taller of the two respondents (presumably Whiteside) was the more aggressive and kept trying to push past her husband to get to Campbell. She said that both respondents were talking loudly saying that a girl had been raped in the park and that Whiteside had asked rhetorically:

"What would you do if you approached two guys, told them that and they ran off."

48. The wife said that she informed the respondent in the grey shirt (presumably Dieber) that Campbell could not have done it because "he's gay". Dieber replied, "That's a likely story". She also said that each of the respondents smelled of alcohol and was "slurring his words".

51. For the purpose of imposing sentence, the Crown contended that at all material times the respondents had been acting in concert and that there was no legitimate basis for distinguishing between them. This was the view adopted by counsel for each of the respondents; and it was the basis upon which the learned judge sentenced them. It has not been contended in this Court that it was an inappropriate view for the judge to take.

54. In imposing the partially suspended sentences which he did, and in concluding that it would be wrong to require the respondents to "return to custody", the sentencing judge concluded that the beating which they administered to the deceased was the last step in what he described as an "unfolding tragedy" towards which a "cruel, rare and perverse" confluence of inter-related events had inevitably "channelled" them. The "confluence of events" to which his Honour referred comprised the "false cry of rape", the decision by the respondents, in what his Honour described as an "upsurge of emotion", to "ensure that the law was not impotent and that yet another violator of women did not escape"; the fact that Hibbins and Campbell, when confronted by the respondents, ran away believing that the respondents might be "bashers of homosexuals"; and the fact that the reactions of the victims led the respondents to believe that Hibbins and Campbell "were the violators". His Honour took the view that, although the respondents' excessive and aggressive conduct towards the deceased was "to be condemned", this so-called confluence of events combined to put their crime of manslaughter in what he described as "the least culpable category". In reaching that view his Honour drew a sharp distinction between the respondents' conduct and what he described as "purposeful bashing of homosexuals"; "vigilante conduct" which his Honour described as "premeditated, purposive conduct wherein the actor takes the law into his own hands having eschewed due process of law"; and "a crime by aggressive drunken sports followers". If the respondents' crime had fallen into any of these categories, then, so his Honour said, "substantial terms of imprisonment would have been warranted".

57. During the hearing of the appeals, much emphasis has been placed by counsel for each respondent upon the principles which govern "Director's appeals". Those principles are too well-known to be restated at length. They are collected in such authorities as Griffith v. R. [1977] HCA 44; (1977) 137 C.L.R. 293; Malvaso v. R. [1989] HCA 58; (1989) 168 C.L.R. 227; Everett v. R. [1994] HCA 49; (1994) 181 C.L.R. 295; and R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520. Those authorities make it clear that the Court's jurisdiction under s.567A of the Crimes Act to interfere, at the instance of the Director of Public Prosecutions, with a sentencing discretion already exercised against a respondent, should only be used in those rare cases where, inter alia, it is necessary to maintain proper sentencing standards and principles. The Court does not interfere with a sentence merely because it thinks that it is less than it would itself have imposed; rather it only intervenes when material error in reasoning is discerned, or such inadequacy as is indicative of error or departure from principle; (R.v. Dodd (1991) 57 A.Crim.R. 349 at 351, per Gleeson, C.J., Lee, C.J. at C.L. and Hunt, J.)

60. In this case, the Director submits that the sentencing judge has, on the facts as he found them to be, seriously misconstrued the gravity of the offence committed by each respondent in depicting it as an almost inevitable consequence of "an unfolding tragedy" and, thus, classifying this manslaughter as one which was in "the least culpable category". The Director further contends that the learned judge compounded his erroneous view of the objective gravity of the crime by concluding that the "cruel confluence of events" rendered the purpose of general deterrence of little importance in fixing an appropriate sentence. On the other hand, the respondents have urged this Court to regard the sentences imposed as a sound exercise of discretion made by a judge very experienced in this jurisdiction, who had the opportunity of seeing and hearing some of the witnesses, and who clearly had thought long and hard before arriving at what he regarded as sentences appropriate to the circumstances. There was no manifest departure from proper principles of sentencing, nor manifest inadequacy of sentence, so it was submitted, which would justify this Court exercising its jurisdiction under s.567A so as to interfere with the disposition which the judge regarded as warranted.

63. Whilst I would normally hesitate to interfere with the sentencing discretion of this very experienced judge - particularly in a Director's appeal - I am satisfied that the Director is correct in his submission that his Honour has misconstrued the gravity of the offences committed by the respondents and, in doing so, has imposed sentences which are so disproportionate to the objective seriousness of those crimes that intervention by this Court is warranted. I cannot accept the submission that this Court is not in as good a position as the sentencing judge to form its own view of the gravity of these offences, because his Honour has found all the facts relevant to the formation of such a view. The gravity of the circumstances in which the innocent victim was beaten and killed cannot, in my opinion, be obscured by seeking to portray those circumstances as an unfolding tragedy in which the respondents became inevitably entangled. Their final assault on the 45 year old deceased was, as his Honour found, deliberate and vicious and carried out with the desire to punish. It ceased only when the victim fell senseless to the carriageway of Lansdowne Street. Their acts were not those of well motivated citizens seeking to apprehend and detain a person whom they had reason to believe had committed violent sexual offences. They had no such reason; they asked no questions and made no investigation. They made no attempt to hold and detain a much older man until the police arrived. They simply concluded guilt because their victim had sought to flee before their patent aggression. The viciousness of the assault and its lack of foundation, in my mind, smacks far more of a desire to avenge and punish by two persons disinhibited by liquor consumed than it does of misguided chivalry. It seems to me that no matter which way one tries to justify or explain the facts found by the judge, the conclusion remains inescapable that a decent life has been taken because the two respondents, hitherto of good repute, decided to take the law into their own hands and became, without proper justification, the judges and punishers of the deceased. Whatever good intentions may have existed when they chose to remove themselves from their own group and enter the Gardens, those intentions had dissolved by the time they aggressively confronted Hibbins and Campbell and then assaulted Campbell in the park, proclaiming that they were going to "kill him". Thereafter, their good intentions were replaced, as I see it, by an unjustified desire to catch and punish. Any suggestion that they were acting as citizens concerned for the rights of the distressed woman became, in my view, little more than a pale excuse for their unlawful conduct. Although his Honour acquitted them of being "vigilantes" (in the sense that his Honour used that term), the fact that he found that they had taken the law into their own hands, and had acted out of a desire to punish, suggests to me that their conduct did have within it an element of the vigilante as that term is popularly understood. In this regard, it is somewhat revealing that, when Whiteside was asked at the scene by Senior Constable Bowman why he had punched the deceased, he replied:

67. Like his Honour, I have been struck by the fact that the two respondents have, until now, been young men of good repute, have been good workers and are diligent and intelligent in their respective fields. Such factors, as his Honour noted, are clearly matters to be taken into account in fixing an appropriate sentence. However, and for the reasons stated, I cannot agree that these crimes were in the "least culpable category of the crime of manslaughter" and, in so categorising them, his Honour has, in my view, seriously and erroneously underestimated the objective gravity of the offences for sentencing purposes. I am also of the view that the conduct of the respondents was of such a nature that the principle of general deterrence should have influenced any sentence imposed; and that insofar as his Honour regarded such principles as irrelevant, he also fell into error. Cases of manslaughter can of course vary infinitely in their gravity. Some can amount to little more than "pure inadvertence"; others can amount to "little less than murder" (per Lord Salmon, D.P.P. v. Newberry & Jones [1976] UKHL 3; [1977] A.C. 500 at 507). In my opinion, these offences were, on the facts as found, serious examples of the crime of unlawful and dangerous act manslaughter. The law jealously guards the sanctity of human life, a fact underlined by the legislature in 1997 when lifting the maximum penalty for manslaughter from 15 years to 20 years. Those who act in disregard of it by taking the law into their own hands and inflicting punishment upon those whom they unreasonably believe have committed offences must expect condign punishment. In this respect it is perhaps pertinent to note that at one point in his reasons his Honour said that "if this manslaughter had been the purposeful bashing of a homosexual", he would have imposed lengthy terms of imprisonment. However, in contrasting this case, his Honour said:

"You punished the victim because you thought he was a violating heterosexual, not a homosexual".

71. Whilst I appreciate that his Honour was meaning that this was not a premeditated bashing of a person because of his homosexuality, it should not be thought that the law's protection does not extend equally to all innocent victims, regardless of their sexuality. However, what was important for the purposes of sentence in this case, was that the bashing was of an innocent person whom the respondents desired to "punish". Such conduct was not the result of a "cruel confluence of events", but very much of the respondents' own choice. I agree with the Director that a sentence of three years' imprisonment, with or without suspension, is quite inadequate; and that because three years is the maximum term within which suspension can be ordered, it necessarily follows that the suspension of the sentences imposed was also unwarranted. For these reasons, I am of the view that the sentences imposed were manifestly inadequate and that the appeal should be allowed and the sentences quashed. If the other members of the Court are of like mind, it follows it will fall to this Court to pass such other sentences in substitution for those passed by the judge which it thinks should be passed. In the course of submissions, counsel put before the Court some sentencing statistics for the crime of manslaughter for the years from 1986 to 1996. Such statistics are of little use to the Court, not only because, as I have said, crimes of manslaughter vary so widely in their circumstances, but also because the statistics relate to a period before the maximum penalty was lifted and when the maximum was effectively 10 years because of the influence of s.10 of the then Sentencing Act. However, even bearing those deficiencies in mind, the presented statistics do show that persons convicted of the crime of manslaughter, whether voluntary or involuntary, can usually expect to serve a custodial sentence with a median of between 4½ and 7 years and this is so even though, not uncommonly, manslaughter is a crime committed by those who have not offended before.

74. I am mindful, as counsel for the second respondent pointed out in argument, that such sentences as this Court imposes should be moderated to take into consideration the double jeopardy which the respondents have faced (R. v. Papazisis & Bird (1991) 51 A.Crim.R.242 at 247). I am also mindful of the powerful factors of mitigation to which his Honour referred; and I also bear in mind that, in this case, the respondents will lose the freedom which his Honour's sentences extended to them. After anxious consideration, I have come to the conclusion that, in the case of each respondent, the appropriate penalty which should be imposed is one of six years imprisonment. I would order that each serve a term of four years before becoming eligible for parole. I note that the first respondent has already served a period of 165 days in custody and that the second respondent has served in custody a period of 193 days.

78. "Yours was not vigilante conduct", his Honour said to the respondents. In a sense this was true. The police had been sent for; there was no organised group formed to deal with lawbreakers with entire disregard for the public system of law enforcement. But on the judge's findings - inevitable on the evidence - this was "vigilante conduct" in the sense that both men were motivated by a desire to punish a supposed rapist. They wanted to administer corporal punishment to an innocent, inoffensive and defenceless man whom they believed (quite unreasonably) to be a sexual offender. The case is made worse by the fact that, while the deceased was not set upon by a large number of persons, he was attacked by two men acting in concert. The victim was 45, with physical disabilities. His assailants were two young men in their twenties, both well built (especially Whiteside), both affected by drink and both out of control.

81. Vigilante enterprises must be suppressed, as appellate courts have made clear. Where four men, acting on "rumour and innuendo", assaulted a fifth for "messing with kids", the Court of Appeal endorsed the judge's description of the "vigilante action" and said that it called for serious reaction from any court anxious to preserve the rule of law; R. v. Sheekey [1996] E.W.C.A. 385. Similar offences committed by only one or two offenders have, as one would expect, drawn the same response: Attorney-General's Reference (Nos. 17 and 18 of 1994) (1995) 16 Cr.App.R.(S.) 418 at 421 ("That is what this case was about, people taking the law into their own hands. It has to be stopped"); R. v. Kennedy [2000] Q.C.A. 48 per McMurdo, P. ("vigilante enterprises of this kind are simply not tolerated by the community".); R. v. Demittis, Queensland Court of Appeal, unreported, 29 May 1997 at 5-6 per McPherson, J.A. ("The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever. It is not the view adopted in this Court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community."); R. v. Brelsford, Queensland Court of Appeal, 14 September 1995 at 4 per McPherson, J.A. ("Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice.")

84. In the present case the judge was right in saying that both offenders acted without premeditation. But there were other relevant considerations. While the crime was not premeditated, this was not a single blow struck in anger immediately after the supposed offender was apprehended. The whole episode, although brief, did take some little time. Most notably there was the prior attack on Hibbins's companion, Campbell, and the angry threat to kill him. This helps to show that both men were out to punish from the moment they gave chase. On the plea their counsel tried to persuade the judge to treat Campbell's evidence as unreliable, notwithstanding that neither respondent had given evidence challenging his account, and notwithstanding the limited challenge made in cross-examination at the committal. The judge accepted the evidence of Campbell completely, describing him as wholly truthful and accurate. According to Campbell's first statement, when he tripped and fell he was kicked and then he was punched in the face and heard a voice saying, "I am going to fucking kill you". He amplifies this in his second statement:

"As I was getting up off the ground something hit me in the mouth and nose, I am not sure if it was a fist or a foot. I was then pushed back down on to the ground, front first. Whilst I was on the ground I was being struck a number of times to the legs and face. It was at this time while I was on the ground that I heard a voice say, 'I am going to fucking kill you'."

88. Campbell swore at the committal that while he was on the ground he was kicked to the head, side and hips. He said that someone pulled his head back and he was hit in the mouth. His evidence was that it was both men who struck him. When the respondents came upon him and Hibbins they were aggressive, leaning forward and gesturing violently. He could smell liquor.

91. Not only does the judge say that he accepts Campbell as a thoroughly reliable witness, but he also expressly finds as a fact that he was forcibly assaulted. At one point he observes that Whiteside attacked Hibbins in order both to apprehend and to punish him and that the respondents' assault on Hibbins was intended to punish, not just apprehend. Neither respondent gave evidence on the plea. There was no warrant for a finding that the punching was intended in part to apprehend Hibbins. I refer, for example, to the evidence of Robert Scull that both offenders threw punches at the deceased and he did not throw any back; the evidence of Karen Powell, who said in effect that the attack went on for a long time ("I couldn't believe ..."); the evidence of Ross Junor that there was a lot of verbal aggression towards the deceased and that he was screaming for help; and the evidence of Beverley Baker that one man was "punching the crap out of him". There are also the highly improbable accounts given to the police by both respondents, which I shall summarise later, of the behaviour of the deceased, including, for example, Dieber's assertion that he said, "I'm gonna kill you, you dobber". The proper finding was that the blows of both respondents were intended only to punish. This was in the end, I think, his Honour's view, for later he said, "This was not a citizen's arrest because you punished the suspect, not apprehended him."

94. Asked by police at the scene whether he had punched one of the two men, Whiteside said he had punched him about four or five times. Asked what for, he replied, "You know, they know." According to Whiteside's formal statements to the police, he was a bit peeved off for personal reasons - someone close to him had been raped and that gave him a burning sensation in the gut. He grabbed Hibbins. Hibbins threw a punch at him but it did not connect. He then punched Hibbins about four times in the jaw in self-defence. They then wrestled and he was in a little bit of trouble - Hibbins nearly got on top of him - basically Hibbins was beating him - Hibbins got him in a hold where he could not do much. He called out to Dieber, "I need help", and Dieber then hit Hibbins two or three times, knocking him out.

97. According to Dieber's account to the police, Whiteside was holding Hibbins and he came up to him. Hibbins was yelling at him, saying "the usual" - "I'm gonna kill you, you dobber" - "and whatever". Hibbins was saying some violent things and swearing - oaths which Dieber was reluctant to repeat - and telling Whiteside to get lost. Hibbins tried to throw a punch. Dieber thought that Hibbins could have a knife or gun - he could have had anything. He was not sure whether the punch thrown by Hibbins at Whiteside connected. Hibbins tried to hit Whiteside two or three times. Whiteside hit Hibbins a couple of times. He himself (Dieber) threw a couple of punches. He was not sure if any of his punches landed. He probably did land a couple of punches on Hibbins. Hibbins ended up falling over.

100. Whiteside plainly gave the psychologist, Ms Warren, the impression that he was "punching back in self-defence, rather than turning away". This was the result of an assessment as recently as June 2000. Mr Cummins assessed Dieber, also in June 2000. Dieber told Cummins that he went to Whiteside's assistance when Whiteside appeared to be having difficulty subduing Hibbins. The respondents advanced to the police a false case of self-defence, which they were still maintaining in June 2000.

103. His Honour said to the respondents, "Each of you had consumed some alcohol that afternoon, but were not drunk", and that the crime had not been committed "by aggressive drunken sports followers". No doubt, in the sense in which the judge spoke of drunkenness, this was correct. Both respondents had been to a nearby hotel shortly before arriving at the football. By his own admission, Whiteside seems to have had two cans of full strength beer - or their equivalent - just before entering the ground. Dieber had drunk four or five pots of full strength beer before entering. Both men drank while they were at the football. Whiteside said that afterwards he had, in what must have been a relatively short time, five or six full strength beers at the hotel, and that after leaving that hotel they were walking to Young & Jackson's to have a couple more drinks. He said he was not looking for a big night because it was Sunday and he had to work. According to Dieber, after the football, in what must again have been a relatively short time, he had about five drinks, beer and spirits, which he described as "not much"; they left the hotel at closing time.

106. Campbell could smell drink when the two men got within a couple of metres of him. Michelle Rogers could smell drink on Whiteside's breath when he and Dieber ran up in pursuit of Campbell after Hibbins had been knocked to the ground. Both respondents, she said, slurred their words and looked as if they had been drinking. They were talking loudly and trying to talk over each other. Whiteside was very domineering and aggressive, she said.

109. No-one would suggest that the respondents had reached the stage of being unsteady on their feet, but their admissions and the evidence of their manner and behaviour show that drink had made them markedly disinhibited. They are in a dilemma. If their behaviour was not significantly affected by liquor, the vicious attacks on Campbell and then Hibbins and the threat, "I'm going to fucking kill you", cannot be squared with the picture painted by character witnesses of two quiet, very peaceable young men. If, on the other hand, the respondents, while not floridly drunk, were nevertheless intoxicated to the extent that the normal controls over emotions and behaviour were significantly weakened, then they must bear the consequences of having put themselves into what was (in that sense) a potentially dangerous condition.

112. Turning to another matter, I cannot agree with his Honour that "the cruel facts of this case" made general deterrence an irrelevant consideration; quite the reverse, they made it an important one.

115. One notable feature of this case is the respondents' failure to give evidence on the plea. A large quantity of evidentiary material was placed before the judge on their behalf. There were 44 pages of medical records dealing with Whiteside's fractured right thumb and other matters. A psychologist's report on Whiteside was put in evidence and the psychologist gave oral evidence. Five character witnesses were called on his behalf. Sixty written references, four medical reports and one report from the defence pathologist were put in evidence. In the case of Dieber, there was a psychologist's report, a bundle of certificates and five character witnesses. Ms Warren's report said that Whiteside had acted in self-defence, which she said showed that he did have "a few human frailties". Mr Cummins's report describes Dieber as believing at the time of the incident that he was using reasonable force in detaining the deceased and as stating that he had gone to Whiteside's assistance because Whiteside seemed to have difficulty subduing the deceased.

118. Respondents' counsel subjected the evidence of the Crown's witnesses to detailed examination and criticism but did not seek to cross-examine any of them. Neither applicant gave evidence about the killing or the alleged attack on, and threat to kill, Campbell. The judge was invited to treat Campbell's own evidence as unreliable. It is striking that so much effort should be directed to putting before the judge evidence of background and character and self-serving, secondhand descriptions via psychologists of the events of the night, but not a word from the respondents themselves about their own state of sobriety and state of mind and their own roles that night.

121. Moreover, while a judge can be much assisted by and must give careful consideration to evidence of mitigating personal circumstances led on the plea, where, as in this case, that evidence is uncommonly voluminous and the subject of long addresses, there is a danger that the stark and intractable circumstances of the crime and its effects will recede too much from view.

124. The judge referred to "this unfolding tragedy" five times and spoke of the "cruel" and "perverse" "confluence of events", a "malevolent star" and "the cruel facts of this case". By rhetorical addresses, counsel had tried to persuade him that the assault was the final and inevitable event in a foreordained tragedy of errors for which no-one need take full responsibility. Of course, his Honour declined to adopt this erroneous approach. Nevertheless, I do get the impression from the judge's reasons that he did regard the attack as something like the natural consequence of a chain of events in which the respondents had, with praiseworthy motive, become caught up. It does seem to me that the judge was led into passing altogether too lenient a sentence by his strongly held view that the respondents had been borne along by the tide of events and were the victims of misfortune.

127. The respondents and others happened at a certain time to be in a certain place where certain events occurred. The respondents then took matters in hand, set off into the gardens and encountered Hibbins and Campbell, who understandably fled from them because of their anger and aggression. Believing without reasonable grounds that they had found two rapists, the respondents took it upon themselves to punish their suspects by bashing them. This was their choice and they must be held responsible. Campbell was the first victim - he was attacked but got away after a time - and Hibbins, who did not get away, the second. Campbell was told, "I'm going to fucking kill you", a fact not mentioned by the judge in his reasons, although it follows from his findings that the threat was made. Hibbins, screaming out for help and trapped against a parked car, was given a severe beating by his two young assailants, who punched him in the head until he fell to the ground, and then left him lying on the roadway and went off in pursuit of Campbell.

130. His Honour described the death as unexpected, unintended and unlikely, a phrase on which the respondents' counsel relied without, however, analysing it. Had death been expected, the respondents would have been guilty of reckless murder. Had death been intended, their crime would have been wilful murder. As to whether death was "unlikely", the possibility that death would, by one means or another, result from an assault of this kind ("numerous severe blows by the fist to Mr Hibbins' head") was certainly not remote. Causing death by administering a vicious beating in concert in order to punish an unofficial suspect (unconvicted, uncharged and not identified by a complainant or by any description) for a supposed crime must be viewed seriously. When it turns out, not merely that the victim was entirely innocent, but that the supposed crime had not even been committed, the case becomes very striking.

133. I agree that this case was not in "the least culpable category" and I agree with what Winneke, P. has said about the sentences and with the order proposed by him.

137. I agree that these appeals under s.567A of the Crimes Act should succeed for the reasons given by the other members of the Court and I agree in the re-sentencing that is now proposed.

141. The formal orders of the Court will be as follows:

The appeals are allowed, the sentences imposed by the sentencing judge quashed, and in substitution therefor the Court sentences each respondent to a term of imprisonment of six years.

We direct that each respondent become eligible for parole after serving four years of that term.

In respect of the respondent, Whiteside, we declare pursuant to s.18(4) of the Sentencing Act that the period of 165 days during which he had been held in custody be reckoned as time already served under the sentence which we have imposed. In respect of the respondent, Dieber, we declare pursuant to s.18(4) of the Sentencing Act that the period of 193 days during which he has been held in custody be reckoned as time already served under the sentence imposed upon him.

We further direct that there be noted in the records of the Court the fact that each such declaration has been made and the details of each such declaration.

If it becomes necessary, we direct that a warrant of commitment do issue.

Pursuant to s.15 of the Appeal Costs Act 1998 we grant an indemnity certificate in respect of each respondents' own costs of the appeal.