I have considered it necessary to refer to these authorities in some detail because in my opinion they demonstrate that the sentencing judge did not in this case sanction unlawful violence by the way he structured his sentence. In the first place, all his Honour was doing and all his Honour intended to do was to give effect to the principles which I have outlined above. In the second place, there was no evidence upon which his Honour could have concluded that the form of punishment proposed was unlawful. An assault is not unlawful if authorised by the `victim' unless the person committing the assault intends to kill or to cause grievous harm: Criminal Code (NT), s 26(3). `Grievous harm' is defined to mean `any physical or mental injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health': Code, s 1. There was simply no evidence that the person administering payback punishment on behalf of the Aboriginal community would intend to inflict such an injury; on the contrary, the understanding I have had as a Territorian of some 20 years is that no permanent injury to health is intended when tribal spearings occur. I note that this was in accordance with the evidence given by the Superintendent at Hermannsburg in Gorey (unreported, Gallop J, 20 June 1978), quoted by the ALRC Report, par 508: `He might be speared, but never seriously and once that has been accomplished, then no-one can bring the matter up again.' ... In my opinion, no matter which of these views is preferred, there was no evidence that the injury caused by the proposed spearing must or even was likely to cause grievous bodily harm. There was no evidence as to the type of spear likely to be used (the spear might have been a single sharpened steel point, easily retrieved) and there was no medical evidence to show what permanent effect an injury likely to be caused by such an instrument might have. Thirdly, even if the spearing was unlawful, in my opinion the principles to which I have referred nevertheless required the court to take it into account: see, for example, Mamarika [1982] FCA 94; (1982) 5 A Crim R 354, where the Federal Court of Australia took into account punishment to an Aboriginal accused which was the result of anger rather than customary law. It is apparent from the facts of that case that the accused did not consent to his punishment and the injuries inflicted upon him were quite serious although he recovered without any residual disability. However that may be, I wish to make it clear that it is one thing for a court to take into account the likelihood of future retribution to be visited upon the accused, whether lawful or unlawful,; it is yet another for a court to actually facilitate the imposition of an unlawful punishment. The reason why courts usually say that they do not condone `payback' is because it is a form of corporal punishment carried out by persons not employed by the State to impose punishment; not because the imposition of the punishment is necessarily unlawful. But I have no doubt that it would be quite wrong for a sentencing judge to so structure his sentence as to actually facilitate an unlawful act. Indeed it is interesting to observe that Wells J in Williams (1976) 14 SASR 1 (referred to by the ALRC Report, par 492) imposed as a condition of a bond that the accused shall be, for a period of a year, `ruled and governed by the Tribal Elders and shall in all things obey their lawful orders and directions (emphasis added). To the extent that the contrary may be implied by the remarks of Forster CJ in Jungarai (1982) 5 A Crim R 319, I would respectfully disagree. However, for the reasons given above, I am not satisfied that this was the case here.