James Alan Inkson v R [1996] TASSC 13;

James Alan Inkson v R [1996] TASSC 13; - TASSC 1996 case summary — Zoe

[130]

"Retribution is a factor to be considered in relation to the

imposition of sanction. ... To permit direct retribution

would be to allow emotion and blind unreason to hold sway.

That process would, in turn, change the nature of our

society to that of act, payback and ongoing retribution. It

is for that reason that courts are required to impose

sanction in accordance with the law. But that does not mean

that the sentencing tribunal ought not take into account the

need for the sanction to reflect the collective requirement

of a society to exact retribution for harm caused ...

The submission made on behalf of the Crown included the

following:

'It would not be overstating the matter to assert that the

circumstances surrounding and the events culminating in, the

death of Mr Stephens generated outrage and revulsion in the

Burnie community. Mr Stephens was a well liked and

respected member of that community. This sense of outrage

was exacerbated by the withdrawal of murder charges against

the accused and the substitution of lesser charges prompting

the circulation of a petition calling for changes to the

Criminal Code. The petition was circulated widely on the

North West Coast and attracted 7,500 signatures. The

existence of the petition prompted a decision by the DPP to

accede to the request of defence counsel for a change of

venue from Burnie to Launceston.'

The call for a change to the law governing the crime of

murder is not relevant to the determination of penalty for

crimes which we as a society have defined and proscribed.

Regard is had to the expression of community concern about

the death of a citizen insofar as it relates to the crimes

for which the offenders have been convicted but not for that

which some members of the community believe should be the

law.

Regard is had to the understandable community concern that

the crimes were committed against a person who was walking

in a public street and had not intruded in any way into the

activities of the offenders.

But the duty of our legal system is to achieve a balance of

competing demands. Insofar as the community wishes to pay

regard to retribution, it should consider the totality of

the penalty imposed rather than the component parts. A

respected citizen, walking the streets as was his right, is

dead. The treatment meted out to him by the three offenders

was cumulative, in that each inflicted a portion of the

totality of harm and indignity on him. So each ought not

individually bear the totality of sanctions imposed with

respect to the cumulative harm caused. The community should

pay regard to the fact that sentences of imprisonment

totally thirteen years have been imposed on three young men

for that sum of harm and anguish. The cumulative penalty is

anguish enough."

[158]

"The sentencing judge possesses a discretion of great

width. It would be improper to seek to define or prescribe

the area in which that discretion is to operate. It is for

the judge to interpret the quality and implications of the

plea. If it is one calculated to serve the public interest

it would be proper to consider whether to allow the plea to

act in mitigation, but not necessary to do so. For example,

the plea may be evidence of remorse, that is, regret as to

participation in the crime. If the Court of Criminal Appeal

in Queensland in R v Cox, (1972) QWN 54 held that a plea of

guilty could operate in mitigation only in so far as it

evidenced genuine remorse, that, in our opinion, would be a

too restrictive view. There are other factors that operate

in the public interest. The plea may operate, and may have

been so intended, to save a prosecutrix the ordeal of giving

evidence in a sexual case. The plea may serve, and may have

been so intended, to save the State a lengthy and expensive

trial. Yet in neither of such cases might the accused feel

genuine remorse. There may be cases in which the only

sorrow felt by him is in the fact that he has been detected.

But, having been detected, he has had to do the best he can

for himself. Weighing the strength of a possible defence

against the likely penalty upon conviction he may elect

deliberately to adopt a course which involves a measure of

public utility in the belief that his own ultimate interest

is best served by doing so. The judge may (not shall) take

such circumstance into account in the accused's favour. If

such action be tainted overmuch by self-interest it probably

will not avail the accused. Professor Sir Rupert Cross in

his book The English Sentencing System (1971), p153 suggests

that it is in the interest of the present judicial system

that provided they are in fact guilty, accused persons

should plead guilty. No doubt great cost to the community

in time, convenience and money is thereby saved. However

expedient this may be from the point of view of the

executive, it is not a matter which requires the sentencing

judge to reduce the sentence below that which he otherwise

believes to be proper in the circumstances.

On the other hand, there may be pleas of guilty which are

not designed to serve the public interest or may do so only

marginally or incidentally. That is to say, the accused's

self-interest is completely predominant in the decision

reached by him. One such case will be when the accused is

quite unrepentant and confesses his guilt simply because the

case against him is overwhelming and, in a practical sense,

unanswerable."

At a glance

Court

Decision date

Before

Source

Judgment (167 paragraphs)

James Alan Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1 (21 March 1996)

Parties

Cases Cited (12)