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[1991] TASSC 18
Supreme Court of Tasmania
1991-09-03
Slicer J
Original judgment source is linked above.
Sentence - Mitigating factors - Belief of offender.
SLICER J Because this judgment refers to sexual activity on the part of a young woman who is neither a witness nor a complainant, I have decided to give effect to the spirit of the provisions of s.103AB of the Evidence Act and record the name of the offender by the first letter of his surname. This course is taken, not to mask the identity of the offender, but to prevent possible identification of the young woman by reference to the judgment.
2. In this case S has pleaded guilty to one count of abduction and one count of assault. The circumstance which surround the commission of the crime warrant the imposition of a substantial penalty. There are matters put in mitigation, namely the existence of a belief that he was punishing the rapist of his daughter, which are relevant to the sentencing process. It is the nature of the belief and its effect on the penalty which warrants detailed consideration.
3. On 2 March 1991 the daughter of S met with C, who was aged 17, at the Bridport Hotel. C was later to be the victim of the abduction and attack. On the material put before me consensual sexual relations eventuated. Later during the evening the complainant and the daughter returned to the hotel and subsequently attended a party. The following events occurred, which are described by the victim of the subsequent attack:
"When I was at the party I went into a bedroom with T, and we
was kissing and that, and her friend, that is M, came in and
said 'Leave her alone' so I left".
4. On Wednesday 6 March 1991 C was brutally abducted, at early evening time, from his home. S was the instigator and organiser of the abduction. The young man was forced into a motor vehicle and was driven some distance to a quarry near Scottsdale. On the journey he was assaulted and accused of rape. Despite his denials, there were further assaults. At the quarry he was taken from the motor vehicle and brutally assaulted by, and in the presence of, a large number of persons. Those assaults caused him to become unconscious. He was left in an injured and unconscious state. The episode was fraught with a real risk of death or permanent disability to the victim. The complainant eventually recovered consciousness, made his way to a nearby house from whence he was taken by ambulance to hospital. He had suffered severe injury around his left eye and tenderness to the spine, was kept in hospital for a few days and discharged when it was evident that there was no major damage to the eye itself. However, subsequent examination revealed the presence of a medial wall blow out fracture, subsequently repaired. Since the operation he has continued to have double vision. The operating doctor is of the opinion that it is too early to say what the eventual result of the injury will be.
5. The nature of the crime warrants a substantial term of imprisonment on the basis of the need for a general and subjective deterrent and the requirement of the imposition of a punishment commensurate with the crime and its consequences.
6. At the time of the abduction and the assault, S believed that the victim had raped his daughter. His account is set out in those portions of the record of interview which were referred to me by prosecuting counsel. The substance of that account is as follows.
7. S was telephoned on Sunday 3 March by D, who had previously been engaged to the daughter, but who was at the time estranged from her. He was told that something had happened to the daughter. No details were given, but later S was told that she had been bashed by a person who had wanted sex with her. I was later told that the belief of S as of Sunday was that she had been assaulted. The belief as to rape was held as a result of a later conversation. He knew that his daughter had bruising. On the Sunday evening, a group of 7 - 8 people went to Bridport to find C, but were unsuccessful. On Tuesday, S was again rung by D, who asked what was going to be done about it. By this time the address of C was known. It was decided that the man would be accosted on the Wednesday, 6 March. It was clear that violence was intended.
"Q.25. Whose idea was it to go and 'bash' Terry?
A. Ahm well it was one person's idea it was mine, see when
Kent rang me on the Sunday he asked me what we were going to
do about it and I said, We'll go down and get him.
Q.26. Meaning what?
A. We was gonna give him a hiding."
8. On the Wednesday, three vehicles travelled to Scottsdale carrying nine males and four females.
"Q.40. How did all these persons become involved?
A. I organised them."
9. Eventually the victim was abducted and taken to a quarry and brutally assaulted. At least five people punched and kicked the victim into a state of unconsciousness. The victim denied, to no avail, that he had raped. S delivered one blow, a hard punch to the face whilst the victim was in a crouching and helpless position. He said when asked if he was concerned that he had gone too far:
"A.115. I just knew that we was doing the wrong thing, but
all I could do was keep thinking about my daughter."
10. After the attack, the group of people left the victim to his fate. On the version given in the record of interview, the victim was crouched on the ground. On the basis of the memory of the victim, it is more likely that he was unconscious. On either basis, he was severely injured and his life or safety was at risk.
"Q.127. At the time you left the gravel pit, were you
concerned for the well being of Mr. C... at all?
A. I was worried about what we'd done.
Q.128. Did you do anything about it?
A. No sir."
- That S had an honest belief that the victim had raped his
daughter.
- That such belief was held as a result of information
provided to him by another, coupled with corroboration from
his daughter.
- That at the time he commenced to organise some act of
retribution, which included a search for the victim, he held
a belief that his daughter was a victim of assault but not of
rape.
- That he subsequently believed that rape had occurred.
- That having exacted retribution you abandoned an injured
and unconscious man at a deserted place and in circumstances
where there was a real risk of death or incapacity to the
victim.
- That the acts were ones of retribution. I accept that he
did not believe that there would be any police involvement or
prosecution. His counsel submitted that there was a belief
that the authorities would not have an opportunity to impose
a punishment or bring to trial the person who had committed
the acts, and had the police been involved, the events would
not have occurred.
12. Different considerations would apply in sentencing a person who had attempted to obtain legal redress without success. In this case no report had been made to the police.
13. That approach to the evidence was challenged by the Crown, and an opportunity afforded S to call evidence. That opportunity turned out to be unnecessary. The interruption to the proceedings may have been due to my caution. A considered proposition was put in the following terms:
"It is a mitigating factor against the public policy against
revenge and vigilante attacks that the accused held the
belief that the matter would not be reported to the police by
his daughter. The accused maintains that if the police had
been involved he would not have acted in the way that he
did."
14. Further reference was made to this question in the report of Dr. Ratcliffe, tendered on the hearing, concerning the inability on the part of S to discuss the matter with his daughter.
15. The basis articulated by counsel was not challenged by the Crown, and accordingly, on the material before me, I find that S did not believe that the matter would be reported to the police. He sought advice from a solicitor and was given the telephone number of a counsellor. He did not contact the counsellor. He was unable, because of his own communication skills, to discuss the matter with his daughter. He believed that there would be no redress for the perceived wrong done to her.
- In what way should society's abhorrence of rape and the
natural desire of a father to avenge his daughter's rape be
reflected in the sentencing process?
- Should the sentencer pay regard to whether the particular
causative act was a crime which had in fact been committed?
Should regard be paid to anything other than the existence of
an honest belief that rape had occurred?
- To what extent should the need for general deterrence
against people taking the law into their own hands, be
reflected in the sentence?
1. That a crime of the nature committed in this case warrants
a substantial punishment on the bases of general and
subjective deterrence and social retribution. Veen v. R.
[1988] HCA 14; (1988) 164 CLR 465 at p 476.
2. That an honest but mistaken belief operates as a
mitigating factor in the same way as would the existence of a
belief which was accurate. R. v. Campbell (1984) 12 A Crim R
272 at p 277.
3. That provocation or a belief as to a state of affairs
which could constitute provocation should be regarded as a
mitigating factor. Pearce v. R. (1983) 9 A Crim R 146; Unal
Okutgen v. R. (1982) 8 A Crim R 262.
4. That even where the existence of the belief can be shown
to have little objective foundation, the Court should accept
the proposition put forward on the part of the offender. The
Queen v. Dowie Tasmanian Unreported No.41/1989
5. That the emotional state of the offender is a factor to be
considered as mitigatory. Neal v. R. [1982] HCA 55; (1982) 42 ALR 609, at
pp 624-5.
18. On the basis of these general principles, I would apply the following propositions.
19. The sentencing process should pay regard to the nature and severity of the crime committed and should disregard society's attitude to the actions which gave rise to the act of retribution. However, it should pay significant regard to the nature of the alleged causative action on the person committing the act of retribution. That regard should take into account the relationship between the actor and the person from whom he was exacting revenge. That is not to condone the conduct but to take into account the effect on the actor.
20. The sentencer should not pay regard to any finding that the causative act had occurred. It may be tempting to approach the question with a sense of comfort, that in reality the victim deserved the act of retribution. But to pay regard to the reality of the causative act would be to involve the court in a hearing within a hearing. Equally wrong would be a finding that the causative crime had occurred. The exception to this may be where the offender witnessed the causative act, but in such a case, presence may go to the intensity of outrage within the mind of the actor.
21. For similar reasons the sentencer should not pay regard to the degree of reasonableness of the belief. It ought not to characterise the belief as very reasonable, reasonable, or not very reasonable. It is the honesty of the belief which is the relevant factor. If the existence of an honest belief is challenged, then evidence as to the reasonableness of the belief may be used to determine whether or not an honest belief was held. This should only be done after the parties have been afforded the right to call evidence on the issue.
22. The sentencing court should pay regard to the need for a general deterrence. One of the developments of any society has been to remove retribution from the hands of the victim or associates. The reasons for regularising the determination of culpability and punishment are obvious. Small social groups, such as aboriginal tribes, are best able to achieve a mix which involves collective responsibility for the determination of culpability and punishment with a degree of involvement on the part of the victim or family. Numerically larger societies find that process impossible because of their very size. In all societies personal vengeance, in the absence of group sanction, is prohibited.
23. Weighing the above, I would regard an appropriate sentence as lying at the lower end of the range of penalties warranted by the nature of the crimes committed. Although there are two crimes involving separate elements, I will proceed to sentence them by the imposition of the one penalty. However, I regard as an aggravating factor his decision, having exacted retribution, to leave the victim to his fate. I regard that action as being inherently dangerous and not as being caused with a simple desire for retribution. He had exacted his revenge and any anger ought to have been assuaged.
24. In this case I take into account the following matters as going in mitigation to penalty, namely:
- age and previous good character;
- absence of previous convictions;
- remorse;
- that he was well regarded by others within the community;
- material as to reaction to marital separation and the death
of his mother.
25. I do not regard the plea as having any great significance in the circumstances of this case.
26. Counsel referred me to the comments on passing sentence by Crawford J in the case of the two co-offenders, namely CL and H.
27. In the case of H, he was 20 years of age and had served a sentence of imprisonment for assault. He was one of the men who delivered some 12 - 14 blows and further kicks to the body of C. He was sentenced to a term of imprisonment of eight months. The other man, CL, was aged 19 and had also served a term of imprisonment. His Honour accepted that his intention was to act as a support, and that he did not envisage becoming personally involved in any acts of violence. His direct involvement was the delivery of one kick to the body of the victim. He received a sentence of imprisonment of two months. However, there are significant differences in the factors which would affect the sentence. His Honour was dealing with young men, who were not the instigators or the organiser of the plan and the attack. They may well have acted as a result of group dynamics, but it was the action of S which created the situation which led to such group behaviour.
28. However, there are significant differences in the factors which would affect the sentence. His Honour was dealing with young men, who were not the instigators, and who, in all probability, were carried away by the sequence of events. They did not bear anywhere near the degree of responsibility which can be attributed to S.
29. Taking into account the above, I regard a sentence of imprisonment of eighteen months as being appropriate.
30. There are factors which I regard as warranting the suspension of a portion of the sentence. They arise out of the contents of the report of Dr. Ratcliffe. I accept the tenor of the report. It indicates the existence of an alcohol problem, coupled with an inability to properly understand and give expression to emotional responses. As was stated in the report, "He is not alienated from society, not sociopathic, but has lived in a subculture tolerant of a level of socialised delinquency". The report also pays regard to the question of whether he was a "dominant" character. In this case he has been sentenced to a substantial term of imprisonment, warranted by the nature of the crime. The suspension of a portion of the term of imprisonment will enable him to consider the implications of his conduct, its purpose being to assist the process of rehabilitation. It is done in the positive sense, namely that the suspension will enable him to appreciate the severity of his actions, undiverted by any false sense of grievance which would affect the process of understanding necessary to the process of rehabilitation. It will go to the necessary process of appreciating the objective harm caused to the victim and, hopefully, will further operate as a future subjective deterrent. The latter consideration is of importance because of the comments contained in the report of Dr. Ratcliffe pertaining to "tolerance of a level of socialised delinquency".
31. Accordingly, the operation of the last six months of the term of imprisonment will be suspended.
32. The judgment of the Court owes much to the careful and thoughtful manner in which counsel for the prosecution, Mr. Lovett, and counsel for the defence, Mr. Blandford, presented the factual material which formed the basis of the sentencing process, and the helpful submissions made by each of them.
33. The sentence imposed by the Court is the imposition of a period of eighteen months' imprisonment, the operation of the last six months of which is suspended on condition that S enters into a bond to be of good behaviour and commit no crime or offence involving violence for a period of three years.
# R
S \[1991\] TASSC 18;
(1988) 164 CLR 465
(1982) 42 ALR 609