Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Factual basis for sentence - Proof and evidence - Standard of proof - Onus of proof. Nash v Haas (1972) Tas SR 1, Smith v R (1979) Tas R 311 (NC) Serial No 48/1979, Law v Deed (1970) SASR 374, Van Reesema v Flavel (1992) 57 SASR 590, applied. R v Chamberlain [1983] VicRp 110; (1983) 2 VR 511, applied in part.

Solicitors for accused M and R Turnbull: Legal Aid Commission

Solicitors for accused C Turnbull: Piggott Wood and Baker

Mark Raymond Turnbull and Raymond George Turnbull both to be sentenced to imprisonment for six months. In each case the last three months of that sentence will be suspended upon condition that they are of good behaviour for a period of two years from their release from prison. Christopher George Turnbull sentenced to four months' imprisonment all of which will be suspended upon condition that he is of good behaviour for a period of two years.

CRAWFORD J The three accused pleaded guilty to one count of aggravated burglary and one count of assault. The facts stated by the prosecutor were that at 2.20am on Sunday 17 January 1993 the complainant, Mr Gilbert Strong, received a telephone call at his home at Middleton where he lived with his wife and three young children. The caller was Mrs Sue Turnbull, the wife of one of the accused, Raymond George Turnbull, and the mother of the other two accused. She would not identify herself on the telephone. She accused Mr Strong of making threats against her son. Then a male took over the telephone from her and challenged Mr Strong to a fight and said that "they would be around in a minute".

2. Mr Strong secured the house and asked his wife to telephone the police while he dressed. Mrs Strong was attempting to contact the police by telephone when a motor vehicle drove into their yard and stopped in front of the front door with its headlights illuminating the house. The three accused were in the vehicle. Mark Raymond Turnbull smashed open the front door by either kicking it or by using a cricket bat with which he was armed and he then entered the house. Mrs Strong saw him use the bat to smash the telephone from the lounge room wall. As she fled the house she heard Mark Turnbull say "where is he" and as she left the front door she saw Raymond George Turnbull standing in the front porch.

3. Mr Strong had seen the telephone smashed from the wall and came into the lounge where he was confronted by Mark Turnbull. Mr Strong next remembers regaining consciousness on the floor, suffering from bruising to the head and lacerations to his ear. Mark Turnbull had struck him about the head, either with the cricket bat or with his fists, rendering him unconscious. Medical evidence suggested two or possibly three blows were struck. There were two minor splits in the anterior aspect of the left earlobe and a deep burst type laceration in the posterior aspect extending to cartilage. The lobe was generally swollen and purple with tenderness and swelling extending over and superior to the mastoid bone. There was also diffuse swelling in the right temporal area with two small petechial areas centrally, while pain was evident with jaw movement. There was pain and tenderness over and behind the right ear and pain in the right ankle. On the following day swelling, bruising and tenderness were apparent on the medial side of the right ankle joint and he had a notable limp. There was no fracture. His wounds were dressed and six sutures were required for the left posterior ear laceration. The ankle was bandaged and mobilisation encouraged a week later.

4. Mrs Strong was seen by a doctor on the day following the assault on her husband. She related the sequence of events the previous day, in particular seeing her husband supine on the floor with eyes "glazed" after the attack. She presented as fearful and ambivalent about the direction she should take, particularly in relation to the children.

5. The Crown cannot prove that the bat was used to assault Mr Strong although shortly after the assault his 8 year old son saw one of the men poking the bottom of the bat under the back of his father's head while he was lying unconscious and bleeding on the floor.

6. The three accused had left their nearby home with the intention of forcibly entering Mr and Mrs Strong's house and assaulting Mr Strong. Christopher George Turnbull aided the commission of the crimes by driving them there in his car. Raymond George Turnbull entered the house after Mark Raymond Turnbull and aided and/or abetted Mark Turnbull's assault on Mr Strong by encouragement and presence. He appears to have been the instigator of the crimes.

7. It was common ground that some 5 or 6 years earlier Mr Strong was growing a small number of marihuana plants on his property and Mark Raymond Turnbull stole them. It was also common ground that Mr Strong had at the time asked Mark Raymond Turnbull about the matter. Mr Strong's version of that conversation is that Mark Turnbull denied having stolen them whereas the latter claims that he admitted it.

8. Counsel for the Crown said that Mr and Mrs Strong could not offer any explanation why the three accused would have wanted to commit the crimes. They maintained that they had done nothing to justify or provoke the conduct of the three accused. However Mr Strong had told counsel that two days before the assault he had spoken to Christopher George Turnbull and told him that if he did not stop driving in the manner in which he had been doing he would kill himself or somebody else, adding that he was concerned for the safety of his young children. Mr Strong's version of the conversation was that he was not angry or threatening but just making it known to Christopher Turnbull that he was concerned.

9. At the time of the crimes Mark Raymond Turnbull was almost 23 years of age, Christopher George Turnbull was almost 20 years and Raymond George Turnbull was 43 years of age. Their counsel said that Mr Strong and his family had moved into the house near to that of the three accused in the early 1980's and their relationship was amicable until about 1988 when Mark Turnbull had stolen Mr Strong's marihuana plants. Mark Turnbull maintained that about two weeks later he had admitted to Mr Strong, when asked, that he had been the thief. Counsel for the accused said that rumours began circulating around the Middleton/Gordon area that Mark Turnbull was a thief and committing crimes in the area. The rumours upset the Turnbull family, particularly Mark Turnbull's mother, Mrs Sue Turnbull. The family attributed the source of the rumours to Mr Strong. Then in January 1989 yellow slips of paper were seen by the Turnbulls and many other people lying on the sides of roads. The family found hundreds of them at Middleton, Gordon and Woodbridge and as far away as Cygnet, some fifteen to twenty kilometres away, and at Kingston. They lay on the roadsides for a number of weeks. Friends and other people told them of seeing the yellow slips at other places. Each of the slips contained the words "Mark Turnbull of Gordon Vandal and Thief". Counsel said that Mark Turnbull collected two full supermarket shopping bags of the slips from the side of the road outside the Middleton shop. Three of them were tendered by counsel. They were created by cutting words and letters out of newspapers or other printed materials, placing them on paper and copying them, presumably by a photocopying process. According to their counsel the Turnbulls had no evidence as to the source of the slips but they heard rumours that Mr Strong was responsible. They were distressed about the matter, particularly Mrs Turnbull.

10. Counsel for the accused said that the rumours about Mark Turnbull continued to circulate. In February 1992 he became fed up with the stress he believed he was causing his family, and particularly his mother, by his mere presence in the area, and he moved to Queensland where he stayed for about ten months. While he was away Christopher Turnbull worked at a boat building company alongside Mr Strong. He claimed that on a number of occasions while they were working together Mr Strong said to him that his brother Mark was a thief. Christopher Turnbull reported it to his parents. In the course of 1992 a cousin of the Turnbulls, Jason Soden, was given a lift by Mr Strong from the Woodbridge Hotel to the bottom of Mr Strong's driveway. Counsel said that in the course of the journey Mr Strong said to Mr Soden that Mark Turnbull was dishonest and that he would "get him". Jason Soden reported what he had been told to Mr and Mrs Turnbull. The Turnbulls also maintained that despite Mark Turnbull's absence from the State rumours concerning him continued and Mrs Turnbull was distressed. People were reporting to her that other people and friends were saying that Mark was dishonest. Mrs Turnbull commenced to suffer hypertension and heart problems.

11. In November 1992 Mark Turnbull returned from Queensland to live with his parents at Middleton. Counsel for the Turnbulls said that on 15 January 1993, two days before the commission of the crimes, Christopher Turnbull was at a residence at Gordon with a number of people when Mr Strong told him that he drove his car too fast and that he was an idiot and a danger on the road. Christopher Turnbull got up to leave during the conversation and Mr Strong pushed him in the chest back into his chair. Christopher Turnbull went home and reported to his family.

12. As to the events leading immediately to the commission of the crimes, counsel for the accused said that the Turnbull family had been out for the evening at the Woodbridge Hotel and returned home. Most of them had gone to bed and in the early hours of the morning the telephone rang. It was answered by Mrs Turnbull. Counsel said that in the course of the previous years there had been a number, not exceeding six, of either silent or abusive and anonymous telephone calls. On this occasion a male person made a threat by saying "we will get you". Mrs Turnbull maintained that she responded by saying "is that you Gilbert". The person hung up. She could not be positive about the identity of the caller but she believed it was Mr Strong. She became hysterical and woke everybody up. Turmoil was created in the house. She looked up the Strong's number in the telephone directory and rang Mr Strong. She was upset and in tears. When Mr Strong answered she accused him of having just called and made a threat. He denied it. She accused him of having pushed her son Christopher the night before. She said that the dispute which she perceived had gone on between the families had gone on for long enough. She was shouting and crying and was generally upset. Mark and Christopher Turnbull were still in their beds but could hear her. Her husband, the accused Raymond Turnbull, took the telephone from her and said to Mr Strong, "I'm sick to death of all this shit - I'm coming round to your place to sort this out". Raymond Turnbull maintained that Mr Strong responded and said "come on, there is a few of us here". Raymond Turnbull angrily slammed the telephone down. By this time the other two boys were up and they accompanied their father out the door to the car. They travelled to the home of Mr and Mrs Strong where the crimes were committed. Mark Turnbull maintained, according to counsel, that he forced the front door open with his shoulder, knocked the telephone off the wall with the cricket bat to prevent Mrs Strong from using it and then struck Mr Strong to the left side of the neck with a right fist and then again to the face with the same fist. He maintained that he did not strike Mr Strong with the bat. Mr Strong fell to the ground. Then Raymond Turnbull entered the house for the first time, saw Mr Strong on the floor and told Mark Turnbull to leave with him. They all left.

13. Counsel for the accused also said that about five months later Mrs Turnbull suffered a heart attack. Medical opinion was that stress was a substantial contributing cause. Shortly after the Turnbulls were charged with the crimes they put their family home on the market. It was eventually sold in December 1993 and the family moved into Hobart away from the area where they had always lived. Their sole reason for the move was to get away from the source of their problems. Before the move Raymond Turnbull worked two days a week in the area as a farm hand and he now undertakes a ninety minute round trip from Hobart to get to and from work.

14. On behalf of the three accused their counsel asked the court to accept that while the crimes were unjustified there were subjective reasons for their commission in the form of the words spoken by Mr Strong, the scurrilous rumours and the yellow slips which the family attributed to Mr Strong, and Mrs Turnbull's ill heath. The Court was asked to accept that the crimes were not premeditated but a spontaneous response to the hysterical and tearful state of Mrs Turnbull who at the time was suffering from heart problems and hypertension. None of the three accused has a record for crimes or offences of violence.

15. Counsel for the Crown advised the following matters of dispute:

1 Mr Strong said that Mark Turnbull did not admit to him

that he had taken the marihuana plants.

2 Mr Strong denied that when he worked at the same place as

Christopher Turnbull he told him that Mark Turnbull was a

thief.

3 Mr Strong denied that he had told Jason Soden that Mark

Turnbull was dishonest and he would get him.

4 Mr Strong denied that when he spoke to Christopher

Turnbull about his driving, two days before the commission

of the crimes, he pushed him in the chest.

5 Mr Strong denied that he had telephoned the Turnbulls

shortly before the crimes were committed.

6 Mr Strong denied that he responded to what was said over

the telephone by Raymond Turnbull by saying "well come on,

there is a few of us here".

16. I informed counsel that the first matter in dispute was an immaterial one and its resolution was unnecessary. It was resolved that I should hear evidence to resolve the other matters of dispute. Evidence was given by two of the accused, Raymond George Turnbull and Christopher George Turnbull, Jason Timothy Soden and Mr Strong.

17. I will refer to some of the evidence and to the states of mind I am in concerning the other matters of dispute which were identified by counsel for the Crown.

18. Christopher Turnbull had a job for two or three months. He thought that it was in early 1992. Mr Strong worked at the same place. There had been no animosity between them and about a month before obtaining the employment Christopher Turnbull had purchased an old car from Mr Strong and had done it up. One lunch hour at work he joined Mr Strong in the latter's car and they ate lunch together and talked. Christopher Turnbull's evidence was that in the course of the conversation Mr Strong asked him where his brother Mark was and he replied that he was on the Gold Coast. He claimed that Mr Strong then said that Mark had stolen something from him and was a thief, to which Christopher Turnbull replied "that's Mark, I'm Chris, I'm his brother". He said he reported the conversation to his parents that night. He also gave evidence that on a later occasion at work Mr Strong again asked where his brother was and called him a thief to which Christopher Turnbull did not respond. In cross-examination he agreed that notwithstanding these events he was content to have lunch with and talk to Mr Strong on other occasions and to maintain friendly terms. He said he had known there was animosity between his brother and Mr Strong but had not known what it was about.

19. Mr Strong's evidence was that he had worked at that place of employment in 1989/1990 for about six months. On about six occasions over the two months or so when Christopher Turnbull worked at the same place the latter joined him in his car at lunch time and talked mainly about the car he had purchased from Mr Strong and problems he was having with it. On one such occasion, according to Mr Strong, the subject came up about Mark Turnbull taking Mr Strong's marihuana plants and Christopher Turnbull mentioned that his brother Mark had been growing some plants and a young brother Damian had pulled them out. Mr Strong maintained in evidence that he had not referred to Mark Turnbull as a thief. In - cross-examination he explained that in 1988 he was growing six to eight marihuana plants when they were stolen (as he later discovered) by Mark Turnbull. That had caused him to think of Mark Turnbull as dishonest and a thief. He told about half a dozen close friends that Mark Turnbull had stolen the plants.

20. Because they agree I have no reasonable doubt that on one occasion when both Christopher Turnbull and Mr Strong were working for the same employer the subject arose between them about Mark Turnbull having stolen Mr Strong's marihuana plants. I am not persuaded on the balance of probabilities that Mr Strong referred to Mark as a thief. I am not persuaded on the balance of probabilities that he did not do so. Insofar as their evidence conflicted I am unable to resolve the conflict on the balance of probabilities.

21. Jason Timothy Soden is a nephew of Mrs Sue Turnbull. He gave evidence that on an occasion in 1992 he was given a lift in Mr Strong's car from the Woodbridge Hotel to the bottom of Mr Strong's driveway at Middleton. Mr Soden was going to visit the Turnbulls who lived nearby. Mr Soden's evidence was that during the journey he asked Mr Strong if he knew Mark Turnbull and Mr Strong replied "yes, he stole something off me a few years ago and we're going to get him when he gets back". Mr Soden said that he reported the matter to the Turnbulls.

22. Mr Strong's evidence was that on one occasion in 1993, after the commission of the crimes, he gave such a lift to a person who may well have been Mr Soden and who said he was a cousin of the Turnbulls. The person said he was going to visit the Turnbulls and Mr Strong said to him "did you know they assaulted me". The person said "no". Mr Strong denied Mr Soden's version of the conversation and disputed its date.

23. I am satisfied beyond reasonable doubt that Mr Strong gave Mr Soden a lift in his car. I am unable to reach a conclusion on the balance of probabilities whether that occurred in 1992 or 1993 and which version of the conversation is more likely to be true.

24. Although other persons were present in the room when the conversation between Mr Strong and Christopher Turnbull occurred concerning the latter's driving, none of the others was called to give evidence. Once again I am left with conflicting versions of conversations between Mr Strong and another.

25. The conversation occurred on 15 January 1993, two days before the crimes, at the home of one Mark Sawbridge. According to Christopher Turnbull he was sitting in an armchair when Mr Strong approached him and said that his brother was a thief and "we're going to get him". Mr Turnbull responded by saying that his brother had nothing to do with him, he did not know what Mr Strong was talking about and he was a different person. Then Mr Strong said he, Christopher Turnbull, was an idiot and was going to end up killing himself and someone else, the way he had been driving. Mr Strong mentioned concerns he had for his young children. Christopher Turnbull said he responded by telling Mr Strong that he did not own the roads and that he would drive however he felt like. He told Mr Strong to ring the police. He said he then tried to stand up to go and move his car out of the way of a car he could hear coming up the driveway and Mr Strong pushed him in the chest, back into the chair. When he got home he told his parents what had occurred. Christopher Turnbull admitted in cross-examination that he may have been driving faster than he ought.

26. Mr Strong's version of that conversation was that he told Christopher Turnbull that he could not take his children on the road on their pushbikes because of the danger and that if Christopher Turnbull did not stop driving the way he had been he would end up killing himself or someone else. The response of Christopher Turnbull had been agreement with what was said about his driving. Mr Turnbull could remember nothing else said between them. He did not threaten or push the other and there was no mention of Mark Turnbull.

27. I gained the impression from the cross-examination of Christopher Turnbull that he was making up some of his evidence concerning what was said on that occasion. On the balance of probabilities I prefer the version of Mr Strong but I am not persuaded of it beyond reasonable doubt. The version of Christopher Turnbull is possible but unlikely.

28. Mr Strong denied that he had telephoned the Turnbulls shortly before the crimes were committed. There was no evidence from any witness that he did so and I must therefore reject the suggestion that he did. It is completely unsupported by evidence.

29. Mr Raymond Turnbull gave evidence that when he took the telephone from his wife, shortly before the commission of the crimes, he said: "What are you on about now. I'm sick of this whats-a-name shit that's going on and everything about Mark and everything. I'm coming around to your place to sort this out." Mr Strong responded with: "Well come round, there's a few of us here". Raymond Turnbull added that during the conversation Mr Strong said "is that you Mark" to which he responded "no, this is his dad". Mr Strong's version of the events was firstly that Mrs Turnbull telephoned him when he was in bed asleep. She was screaming out that he was threatening her sons and making accusations about them. He kept on asking what he was supposed to have said and then a male voice came on the telephone which he thought was that of Christopher Turnbull. He therefore asked "is that you Chris". The male said "we want to meet you down the road and give you the same as we gave Sawbridge", to which he responded that he was not going anywhere. The male said "we'll be round in a minute". Nothing else was said between him and the man. He told his wife to telephone the police because the Turnbulls were coming. He had thought it was them but was not sure.

30. I am satisfied beyond reasonable doubt that Raymond Turnbull told Mr Strong that "we" were coming round and that there was communicated a threat that violence would be committed by whoever did go to the Strong's home. I am not persuaded on the balance of probabilities that Mr Strong responded with "well come on, there is a few of us here" or anything like it. I tend to the view that it was not said but do not say that with great confidence. In any event it was not claimed on behalf of the accused that the uttering of those words made any difference to what occurred thereafter.

31. The evidence called by the parties concentrated on the disputed issues as identified by counsel for the Crown. However some evidence was given by Raymond Turnbull which, if accepted, explains something of the animosity felt by him and his family towards Mr Strong. He said that "we" had received threatening telephone calls in the past. On the occasion of one of them, at about 10pm, a caller, presumably male, had said "your son Mark will be dead in the morning", and hung up. He did not have a clue who made the telephone calls. He agreed that Mr Strong had never demonstrated any animosity towards him personally. He was asked in cross-examination to what he had been referring when he told Mr Strong that he was "sick of all this shit what's going on" and he responded by referring to "what he was saying to Chris" and to information he was receiving from a lot of people "about Gilbert (Strong) accusing Mark of stealing drugs, and that which I knew, which I knew he accused Mark" and which he did not know was true, although he had never asked his son Mark about it. He complained of a lot of rumours. He was asked what rumours there were and he said that a bloke he knew only as Rod told him that Mr Strong and his mates had taken up a collection to pay someone "to get rid of the boy" (Mark). He did then ask Mark about the marihuana plants. He said that Rod also told him that he walked in on one of the meetings Gilbert and his mates had about Mark and what they were going to do about him. They were worried about Mark because he was "knocking their drugs and everything off". He said Mr Strong and his mates were known as "the clan" and that he had heard they were drug dealers who grew dope. Raymond Turnbull said that he had reported none of the threats to the police because he had no evidence and he knew that the police would not act on rumours. Raymond Turnbull was not asked about the yellow slips which had been found by the sides of various roads but I will accept what counsel told me to the effect that the Turnbulls suspected Mr Strong to be responsible for the slips.

32. Counsel disagreed as to where the onus of proof lies and as to the standard of proof which applies when a dispute as to facts is to be resolved by a sentencing court. My investigations have revealed some lack of agreement in superior courts throughout Australia. I will confine my discourse to the circumstances which arise here, where sworn evidence has been presented by both parties directed at a disputed fact or facts relevant to the sentence to be imposed by the court.

33. I will deal first with authorities in this State. In Nash v Haas (1972) Tas SR 1 at 2 and 3 Burbury CJ accepted as sound law a number of principles which he extracted from four decisions of the South Australian Supreme Court. R v Maitland (1963) SASR 332, Schugman v Menz (1970) SASR 381, Law v Deed (1970) SASR 374 and Weaver v Samuels (1971) SASR 116. They included the following:

That a defendant must be given the benefit of any reasonable doubt

on matters of penalty as well as on matters of guilt or innocence.

- That where aggravating circumstances are asserted by the

prosecutor and admitted by the defendant, or mitigating

circumstances are asserted by the defendant and not

admitted by the prosecutor, the proper course is to take

sworn evidence, because, where there is a dispute as to the

facts on a plea of guilty, THE FACTS CAN ONLY BE DETERMINED

by the ordinary judicial process IN ACCORDANCE WITH the

rules of evidence, including THE BURDEN AND STANDARD OF

PROOF applicable in criminal cases.

- That where the court does not take sworn evidence, but

only has before it unsworn material, it is the duty of the

court to act upon the version of the facts which, within

the bounds of possibility, is most favourable to the

defendant.

The words I have capitalised must be taken to mean that throughout the fact finding exercise the onus of proof lies throughout on the prosecution and the standard of proof is beyond reasonable doubt. The Chief Justice drew this conclusion from what was said by Bray CJ in Law v Deed (supra), which included that once the defendant has raised a fact in mitigation and conflicting evidence is received about it, there is an onus on the prosecution to negative the existence of the fact beyond reasonable doubt.

34. Nash v Haas (supra) was considered by the Court of Criminal Appeal in Smith v R (1979) Tas R 311 (NC) Serial No 48/1979. That case concerned facts which had been stated by prosecuting counsel as part of the circumstances of the crime at the time of its commission. The prosecution version of an assault on a police officer included that the accused tried to escape and struggled with the police officer. Those matters were disputed by counsel for the accused. At 6 of the unreported judgment of the Court of Criminal Appeal the court referred to the Criminal Code, s386(10) which provides that if a convicted person challenges the truth of any information received under subs(7) "the judge may require that information to be proved in like manner as if it were to be received at a trial". The appeal against sentence by the convicted person succeeded in that case because the sentencing judge had not resolved the conflicts of fact which had emerged. However in obiter dicta the court said that in Nash v Haas (supra) Burbury CJ had held, in substance, that a defendant must be given the benefit of any reasonable doubt on matters of penalty as well as on matters of guilt and innocence, and the court expressed its opinion that was correct law.

35. A contrary view was taken by Green CJ in Wilson v Genge Serial No 22/1977 concerning facts asserted by the defence in mitigation. A person convicted of a breathalyser offence had asserted that unknown to him his drinks must have been laced. Without referring to authority the Chief Justice at 5 applied the balance of probabilities as the standard of proof the defendant had to fulfil to establish this assertion.

36. In South Australia the general rule applied by the courts is that any facts asserted by the Crown and disputed by the accused must be proved by the Crown beyond reasonable doubt, and any facts asserted by the accused which are disputed by the Crown must be negatived by the Crown beyond reasonable doubt, provided that where the facts are asserted by the accused they have been sufficiently raised as credible issues much in the same way as the defences of self defence and provocation must be raised. See Law v Deed (supra) at 377-379 and Van Reesema v Flavel (1992) 57 SASR 590 at 592.

37. I have not found any New South Wales authority on the point. The Supreme Courts of Queensland and Western Australia have applied different principles. In R v Welsh (1983) 1 Qd R 592 at 594-595 the Court of Criminal Appeal considered a submission which raised questions concerning the burden and standard of proof when facts are before a sentencing judge of a nature likely to mitigate sentence or make consideration of the offence more serious. The court agreed with the contents of an article by Judge Loewenthal in 10 UQLJ 145 in which consideration was given to the question whether, in relation to matters other than the commission of or details of the offence, the golden thread of Woolmington's Case [1935] UKHL 1; (1935) AC 462 is to be continued beyond conviction and to matters considered upon sentence. The court said it was clear that Woolmington was confined to "proof of guilt of an offence". The court continued:

"Judge Loewenthal after referring to a number of

authorities in other States which at first sight might

suggest that the Crown carries an onus of proving beyond

reasonable doubt facts alleged by it and relevant to

sentence, or exclusion beyond reasonable doubt of matters

which might come in mitigation, explains those authorities

correctly, in our respectful opinion, as being confined

again to proving DETAILS OF THE OFFENCE. Reference is also

made in the article to decisions of this Court which

indicate that facts relevant to sentence other than DETAILS

OF THE OFFENCE may be accepted or rejected as a matter of

probability. ... The view expressed by Judge Loewenthal

that the sentencing judge is entitled to act on probability

is in our view correct, and we would only add to it a

qualification to the effect that a trial judge would

necessarily be guided or influenced in his acceptance or

rejection of particular facts by having regard to the

significance of their bearing upon the increasing or

reducing of what might be considered an average or normal

sentence (cf Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336).

If differing versions of relevant events have like

probability then that one of them which is favourable to

the accused will be accepted. It does not follow, however,

that the sentencing judge is to be satisfied beyond

reasonable doubt before he acts on one of such versions."

(My capitalisation.)

38. Welsh was revisited by the Queensland Court of Criminal Appeal in R v Jobson (1989) 2 Qd R 464 (reported also as J(Jnr) (1989) 41 A Crim R 466) and reconsidered in the light of R v Chamberlain [1983] VicRp 110; (1983) 2 VR 511 which had been determined some seven months earlier than Welsh but not referred to by the court in that case. I will return to Jobson in due course, after dealing with the attitude of the Western Australian Court of Criminal Appeal and with Chamberlain's case. In Liu (1989) 40 A Crim R 468 Franklyn J (with whom Malcolm CJ agreed) held at 474-475 that the law in Western Australia was as expressed by the Queensland Court of Criminal Appeal in Welsh. In the light of Liu it seems that in Western Australia the views of Burt CJ in Aloia (1982) 6 A Crim R 345 at 348 will not be applied. The Chief Justice said in that case that if facts of aggravation, extending beyond the elements of the offence, are challenged by the prisoner they must be proved by the prosecution "and I think the same may be said of the defence and of facts put up by counsel on behalf of the accused in mitigation. Such facts, if challenged, require some evidence to support them, which is not to say that the accused carries the onus of establishing them".

39. I next deal with the judgment of the Full Court of Victoria in R v Chamberlain (supra). The case concerned findings of fact as a basis for sentencing following the conviction of a prisoner by a jury's verdict of guilty of trafficking in a drug of addiction, namely amphetamine. At the trial the version of the accused had been that when he was found in possession of the drug his intention was only to personally use it. The police gave evidence that he told them that he had purchased it on credit and was going to sell it to friends for what he had to pay for it. He later told the police that he was going to give the drug away to friends. When sentencing the judge said he was satisfied that the prisoner acquired the drug in a commercial transaction and proposed to sell it at a profit. It was this finding which was attacked on appeal, the argument being that the judge could not have so found unless satisfied beyond reasonable doubt and on the evidence it was not open to the judge to be so satisfied. Much of the judgment of the Full Court is applicable to the determination of facts following the hearing of evidence upon a plea of guilty as well as to the determination of facts following a verdict of guilty. At 514 the Full Court said:

"The basal requirement of the criminal law is that each and

every element of the offence charged should be proved

beyond reasonable doubt in order to justify a conviction.

The requirement does not mean that every fact alleged by

the Crown must be proved beyond a reasonable doubt. One

piece of evidence may be open to doubt but when it is

coupled with other pieces of evidence, each of which may

itself be open to doubt, persuasion beyond a reasonable

doubt of the ingredient of the offence may result. It

follows that when forming his own view of the facts for the

purpose of passing sentence a trial judge cannot be

required to be satisfied beyond a reasonable doubt of every

fact which he considers relevant. ... On the other hand, to

allow the finding of a fact which is critical to the

determination of the sentence to be imposed upon a basis

that admits of the existence of a reasonable doubt about

the existence of that fact would plainly be unfair.

Between those two extremes a large number of possibilities

exist."

40. The court then referred to the judgment of Dixon J in Briginshaw v Briginshaw (supra) especially at 360-363. Briginshaw v Briginshaw was a civil case concerned with the standard of persuasion required for proof of adultery. The Full Court quoted a passage from the judgment of Dixon J at 361-362 which included the following:

"Except upon criminal issues to be proved by the

prosecution, it is enough that the affirmative of an

allegation is made out to the reasonable satisfaction of

the tribunal. But reasonable satisfaction is not a state

of mind that is attained or established independently of

the nature and consequence of the fact or facts to be

proved. The seriousness of an allegation made, the

inherent unlikelihood of an occurrence of a given

description, or the gravity of the consequences flowing

from a particular finding are considerations which must

affect the answer to the question whether the issue has

been proved to the reasonable satisfaction of the tribunal.

In such matters 'reasonable satisfaction' should not be

produced by inexact proofs, indefinite testimony, or

indirect inferences. Everyone must feel that, when, for

instance, the issue is on which of two dates an admitted

occurrence took place, a satisfactory conclusion may be

reached on materials of a kind that would not satisfy any

sound and prudent judgment if the question was whether some

act had been done involving grave moral delinquency."

"The guidance for sentencing judges which we would draw

from this passage is that the degree of persuasion required

will vary with the nature and consequence of the fact or

facts in question. If, for instance, a sentencing judge

were disposed to make the determination whether to impose

or not to impose a custodial sentence depend upon the

existence of a particular fact or facts he would certainly

require to be satisfied to a high degree of the existence

of those facts. But if the fact in question were no more

than a part of the narrative a similar degree of persuasion

is obviously not required."

42. In R v Jobson (supra) the Court of Criminal Appeal reconsidered what had been said in R v Welsh (supra) in the light of Chamberlain's case. At 475 Ryan J, with whom Connolly J agreed, said that it was not required in a criminal trial, nor in sentencing, that every fact alleged by the Crown must be proved beyond reasonable doubt. The requirement was that every element of the offence charged must be proved beyond reasonable doubt before a person could be convicted; and by pleading guilty a person admits all the essential elements of the offence charged though he does not admit to the truth of all that is contained in the depositions. Ryan J referred to Chamberlain and its reference to Briginshaw v Briginshaw (supra). In particular he referred to the statement of the Full Court in Chamberlain that when forming his own view of the facts for the purposes of passing sentence a judge cannot be required to be satisfied beyond reasonable doubt of every fact which he considers relevant but, on the other hand, to allow the finding of a fact which was critical to the determination of the sentence to be imposed upon a basis which admits of the existence of a reasonable doubt about the existence of that fact would plainly be unfair. Ryan J did not expressly say whether he approved or disapproved of that but it would seem that his Honour did not entirely embrace it. He was concerned with a charge of incest against a young man who was alleged to have committed the crime against his 15 year old sister. Ryan J said:

"In my view, the question whether the act of intercourse

was instigated by the complainant was not required to be

established beyond a reasonable doubt. It was irrelevant

to the issue of guilt, and went only to the question of the

circumstances in which the offence was committed. The same

may be said of the evidence as to the relationship of the

prisoner and the complainant. At the same time, no regard

should have been paid to them unless the court was

satisfied about them on the Briginshaw v Briginshaw test.

It does not appear what standard of proof was applied in

this case, but there is no reason to think that an

incorrect standard was applied."

43. It therefore appears that the majority of the court in Jobson was of the view that proof beyond reasonable doubt was only required to establish the elements of the offence charged, that is the issue of guilt, and was not required when, for the purpose of imposing sentence, the judge considered the circumstances in which the offence was committed. However Ryan J also considered that when determining the circumstances in which the offence was committed, for the purpose of imposing sentence, the judge should not have regard to those circumstances unless "satisfied about them on the Briginshaw v Briginshaw test." It would seem that his Honour was reaffirming but explaining a little further what the Court of Criminal Appeal had said in R v Welsh that the facts relevant to sentence other than details of the offence may be accepted or rejected as a matter of probability, although "a trial judge would necessarily be guided or influenced in his acceptance or rejection of particular facts by having regard to the significance of their bearing upon the increasing or reducing of what might be considered an average or normal sentence (cf Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336)." (R v Welsh (supra) at 595.)

44. The third member of the court in Jobson, Thomas J, did not completely agree with the other members of the court. At 467-468 Thomas J noted that in Chamberlain it was observed that it would be unfair to allow a finding of a fact which was "critical to the determination of sentence" to be used if it admits of the existence of a reasonable doubt. His Honour thought that the adoption of such a test might create difficulty, particularly in defining facts which are "critical" to the determination of a sentence. On one view "critical" facts would include any fact which had an aggravating or increasing effect upon the sentence and in that respect it would go much further than the decision of the court in Welsh. His Honour considered that the court in Jobson was bound by the decision in Welsh which required proof beyond reasonable doubt only of "the commission of or details of the offence". Those were the only facts which attracted the golden thread of Woolmington's case (supra). Thomas J recognised that in a defended criminal trial it was not necessary that every fact alleged by the Crown be proved beyond a reasonable doubt and that such a requirement only attached to the elements of the offence charged, or every fact on which the jury relied as necessary to sustain proof. He regarded that it could not be seriously suggested that all facts necessary to be ascertained in the sentencing process must be established beyond reasonable doubt. He thought that whether one used the Victorian test in Chamberlain of facts critical to the determination of the sentence or the Queensland test in Welsh of details of the commission of the offence it may in the end involve a mere matter of words. At 468 his Honour continued:

"The details of the commission of the offence are the

essential facts that will afford the primary basis of the

court's sentence. They will show the nature of the actions

by which this particular offence was committed. Such facts

may well be the same as those that would be embraced under

the Victorian formula. For example, it seems obvious that

in a case of unlawful carnal knowledge, the critical

details may well include facts that would show it to be a

case of seduction by a step-father of a minor as distinct

from consenting parties of similar age. In a drug

possession case, they will include details such as at least

the approximate quantity of the drug, and may if

sufficiently relevant, include the purpose of the

possession. Criteria cannot effectively be laid down in

advance for particular offences, because a factor which may

have a dramatic bearing on one case will be of little

importance in another. There may of course be some facts

(such as alleged good character, work record and the like)

as to which the prisoner bears an evidentiary and

persuasive onus. The essential practical guidance appears

in R v Welsh 'a trial judge would necessarily be guided or

influenced in his acceptance or rejection of particular

facts by having regard to the significance of their bearing

upon the increasing or reducing of what might be considered

an average or normal sentence (cf Briginshaw v Briginshaw

[1938] HCA 34; (1938) 60 CLR 336).' (R v Welsh at 595.)

It is therefore possible to see the whole proceeding as

covered by the single sliding scale recognised in

Briginshaw. At the lower end of the scale, most

antecedents would need to be proved only on the balance of

probabilities. At the higher end of the scale the details

of the offence itself will need to be established beyond

reasonable doubt. In between these extremes the necessary

degree of satisfaction will vary according to the gravity

of the fact to be proved and its potential effect upon the

prisoner."

45. The adoption of "the Briginshaw v Briginshaw test" by Ryan J (with whom Connolly J agreed) in Jobson and of "the single sliding scale recognised in Briginshaw" by Thomas J in the same case, and the application of Briginshaw in the same way by the Full Court in Chamberlain ("the degree of persuasion required will vary with the nature and consequence of the fact or facts in question") are now open to question in light of the comments of the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170 and 171. It was there pointed out that in a civil case the standard of proof remained proof on the balance of probabilities notwithstanding what was said in Briginshaw. The majority clearly rejected any suggestion of a sliding scale for the standard of proof.

46. In this case I consider it just and appropriate to apply the following principles which I have extracted from cases to which I have made reference. "When forming his own view of the facts for the purpose of passing sentence a trial judge cannot be required to be satisfied beyond a reasonable doubt of every fact which he considers relevant ... On the other hand, to allow the finding of a fact which is critical to the determination of the sentence to be imposed upon a basis that admits of the existence of a reasonable doubt about the existence of that fact would plainly be unfair. Between those two extremes a large number of possibilities exist." R v Chamberlain (supra) at 514. If the Crown challenges facts which are put forward by counsel for the accused in mitigation, which are critical to the sentence which will ultimately be imposed, then some evidence to support them may be required, which is not to say that the accused carries the onus of establishing them. Aloia (supra) at 348. What facts are critical to the determination of the sentence may be difficult to determine and no rule for making that determination is capable of simple definition. I will apply to the determination of the critical facts in this case what was said by Burbury CJ in Nash v Haas (supra) at 2 and 3 and which was approved by the Court of Criminal Appeal in Smith v R (supra). The accused will be given the benefit of any reasonable doubt on disputed facts which are critical provided that they sufficiently raised their version of those facts as credible issues in much the same way as the defences of self defence and provocation must be raised. Once they became issues, in the sense that there was some evidence about them from some quarter, then the onus was on the prosecution to negative them beyond reasonable doubt. Law v Deed (supra) at 377-379; Van Reesema v Flavel (supra) at 592. In this case I find it unnecessary to determine whether there should be applied a special rule as to the onus and standard of proof with regard to facts critical to sentence which are solely within the knowledge of the accused.

47. Of the matters of dispute which were identified by counsel for the Crown the only one which I consider was critical to sentence was the fifth, which concerned whether Mr Strong telephoned the Turnbulls shortly before the crimes were committed. There was no evidence that he did and I therefore determine that dispute in favour of the Crown.

48. I am not persuaded on the balance of probabilities that the Turnbulls had any evidence, of a real kind, that justified the holding of a belief that Mr Strong had been maligning and threatening Mark Turnbull. Certainly there was no evidence that he had been maligning and threatening any other member of the family. But because the motive and state of mind of each of the accused are in my opinion facts critical to the determination of the sentences, I will give them the benefit of the reasonable doubt I have and accept for the purpose of sentencing that they honestly believed that Mr Strong had been maligning Mark Turnbull and making threats. I also find that they determined to commit the crimes only after Mrs Turnbull, in the early hours of the morning, became distressed and hysterical and let everyone in the house know that she believed it was Gilbert Strong who had just telephoned and made a threat.

49. So it was with a real sense of grievance that the three accused stormed round to the house of the Strong family and the crimes were committed. However I positively reject any suggestion that they were justified in acting in the way they did. The settling of grievances by the use of violence is to be deplored and condemned by the courts in the public interest. In this case the criminality of the violence used was aggravated by the time of night, the breaking into the house of Mr and Mrs Strong and their young children for the purpose of doing violence, the carrying by Mark Turnbull of a bat as a weapon even if it was not used to administer personal violence, the smashing of the telephone from the wall to prevent a call for help and the presence of more than one assailant. After careful and anxious consideration I have concluded that the only appropriate sentence for each accused is one of imprisonment. I have had regard to their lack of prior convictions of relevance, to the circumstances I have related earlier in these reasons and to their counsel's submissions.

50. Mark Turnbull was the one who carried the bat, forced entry into the house, smashed the telephone from the wall and personally assaulted Mr Strong rendering him unconscious. Although Raymond Turnbull did not do those things he was the instigator of what occurred and supported it with his presence. As the father and leader of the other two accused he must bear particular responsibility for what occurred. Christopher Turnbull's participation was to drive them to the home of Mr and Mrs Strong. He was the youngest of the three and aged 19 at the time. He is entitled to more leniency.

51. Mark Raymond Turnbull and Raymond George Turnbull will both be sentenced to imprisonment for six months. In each case the last three months of that sentence will be suspended upon condition that they are of good behaviour for a period of two years from their release from prison. Christopher George Turnbull will be sentenced to four months' imprisonment all of which will be suspended upon condition that he is of good behaviour for a period of two years.