The Objective Seriousness of the Offence
21 The objective circumstances of a crime include, of course, not only the elements of the offence, the physical circumstances of its commission and the nature and extent of any injury or loss caused but also the purpose and intention of the offenders and the extent of any planning. Here, the offence involved breaking into a person's home and the infliction of physical injury upon him that, it is obvious, must have been not only terrifying but also very painful and that for some time. All unlawful violence must be regarded as a serious infraction of the criminal law. Indeed, it can fairly be said that the primary purpose of the criminal law is to safeguard the physical integrity of each citizen. Nor can the law permit this protection to be undermined by persons who think, for some reason or another, that they are entitled to inflict violence on others, least of all in the security of the victim's own home.
22 In this case, a significant mitigating objective feature is that the respondents were not motivated by personal gain and the extent of violence, including bursting through the front door, resulted from a temporary loss of control by the respondents whose judgment had become temporarily warped by the sudden situation with which they were confronted affecting the youngest member of their family, a girl who had only just turned 14 years of age. In my view, having regard to the manner in which the proceedings were conducted below, it should be accepted that they did not intend at first to do more than to frighten Mr Hughes and that they did not intend any actual violence.
23 It was not submitted by the prosecutor below that the respondents were motivated by a desire to revenge themselves on Mr Hughes. It is obvious that they were angered by what they believed was his conduct towards their sister and that this anger fuelled the violence that occurred. However, there is no proper basis for concluding that they were motivated by the desire for revenge. The learned sentencing judge accepted the truthfulness of the respondents' evidence about their motives and his Honour's conclusions should be accepted for the purposes of this appeal.
24 It is clear, however, that the respondents - at least at the time when they committed these offences - considered that they were somehow acting rightly. This aspect of the case demonstrates the continued relevance of the element of general deterrence, even where, at one level, motives are not conventionally criminal.
25 Other objective features of Joel Tory's offence are that it was committed in the company of his father and his older brother. He was not the first to enter the house and he did not wield the club. He was, of course, a participant in both the violent entry and the infliction of violence.
The subjective features
26 I come now to the subjective circumstances of the respondents. Joel Tory had no prior criminal convictions. This was his first offence. The learned sentencing Judge rightly described the character evidence in respect of Joel Tory as "most impressive", noting that they demonstrate that he was steady going, conscientious, hard working and a law abiding citizen. His Honour concluded, again I think rightly, that an offence of the kind which he committed is completely out of character.
27 Luke Tory had several convictions, one for stealing electricity when he was 18 years of age, a conviction for mid-range PCA and two low PCA offences. On the other hand, there was overwhelming evidence of his personal integrity and the high respect in which he is held in the community in which he lives and works. For many years he has been actively involved in charitable work in the district. That has included not only raising substantial sums for various voluntary welfare organisations, the children's ward at Wollongong Hospital, the St Vincent de Paul Society and the Aboriginal community, but also being actively personally involved in assisting and counselling persons in need. Conduct of this kind, in which an offender actively makes a real and substantial contribution to his or her community, must always be given considerable significance when a question arises as to the appropriate punishment which should be meted out when he or she breaches the criminal law. This is especially so, in my view, where the offence is not committed for motives of personal gain and as the result of a temporary aberration of judgment.
28 As I have already indicated, the substantial good character of the respondent Luke Tory provides a strong basis for inferring that, indeed, his involvement in this offence was a momentary and aberrant error of judgment brought about by his being suddenly confronted with what he perceived as not only serious misbehaviour on the part of his younger sister but the serious risks to her posed by a combination of that misbehaviour and the conduct and character of the victim. I should add, though it is not necessary I think to detail this material, that extensive psychological testing of both respondents support this characterisation of what occurred.
29 The learned sentencing judge accepted (as this Court should) that the respondents were truly remorseful and contrite for what they had done. There is every reason for accepting the evidence of both respondents that they will not offend in this way again.
30 I should mention, as affecting Joel Tory, that the restrictive conditions of his bail had the result that he was unable for a season to play representative football for his club. This meant that he could not earn the $250 per game that he would have been paid. He was also required to report to Blacktown Police Station daily for some months.