(the Court then enumerated four matters and continued:-)
"Finally, there was a particular and unusual feature of the case involving a form of punishment which certain members of the community had taken it upon themselves to inflict on the respondent prior to the sentencing proceedings.
The evidence showed that, following the events of 4 January 1992, the respondent and his elderly wife were subjected to a campaign of abuse and harassment, involving threats of serious injury to person and property. It should be added that the Crown concedes that it is relevant to the outcome of this appeal that this campaign intensified following the announcement of Judge O'Reilly's decision. It reached such a level that the respondent was forced into a psychiatric clinic for treatment, and, according to the evidence, he was pursued even there. The respondent and his wife have had to leave their home, removing their belongings under cover of darkness, and they now live elsewhere under assumed names. Quite apart from the decision of this Court, the respondent and his wife have paid a high price for his wrongdoing".
34 The Court of Criminal Appeal held that "notwithstanding the unusual and powerful subjective features of the case", the sentence imposed at first instance had been unduly lenient. However, in the exercise of its discretion the Court declined to uphold the Crown appeal against sentence. At pp 566-567 the Court said:-
"We also take into account, as the Crown concedes we are entitled to do, the extra-curial punishment that has already been meted out to the respondent by others, both before and after the sentencing proceedings".
35 Allpass was applied by this Court in R v Clampitt-Wotton [2002] NSWCCA 383, in which a Crown appeal had been brought against sentences imposed on a truck driver for two offences of dangerous driving occasioning death and two offences of dangerous driving occasioning grievous bodily harm. All of the victims had been in the same motor vehicle, with which the offender's truck had collided. The leading judgment in Clampitt-Wotton was delivered by Hidden J. In par 11 of his judgment Hidden J referred to a passage in a pre-sentence report stating that the respondent to the Crown appeal "displayed a high degree of unresolved trauma, which he attributed to the deaths and injuries to the victims and also to the alleged harassment and threats made to him and his family, which has led inadvertently to the loss of his business and home".
36 At par 21 of his judgment Hidden J said:-
"Of course, appropriate weight must be given to the respondent's subjective case. It is true, as Mr Dhanji pointed out, that he suffered a significant measure of extra-curial punishment as a result of the vandalism and harassment to which I have referred, leading to the collapse of his business and his financial ruin, and that that is a matter properly to be taken into account: cf R v Allpass (1994) 72 A Crim R 561 and 566…".
37 This Court was also referred to the decision of the Court of Criminal Appeal in R v Genz [1999] NSWCCA 285. In Genz the offender had committed a number of offences of defrauding the Commonwealth. After she had been arrested, charged and allowed bail, she disclosed what she had done to members of her family including her de facto husband. The following day the de facto husband attacked the offender and her two daughters by a previous relationship with a claw hammer. All three women suffered serious personal injuries. On a Crown appeal the Court of Criminal Appeal held that these events following the commission of the offences were so extraordinary that they could be taken into account in sentencing the offender.
38 I do not consider that Genz is of much assistance in determining the present application. In the judgments in Genz there is no reference to Allpass or to the concept of extra-curial punishment and the motive of the de facto husband in attacking the offender and her daughters remained unclear.
39 On the hearing of this application the Court was referred to some interstate authorities.
40 One of these interstate authorities was R v Cooney, a decision of the Queensland Court of Appeal (unreported 6 March 1998). In Cooney the offender had assaulted the victim with a glass. Immediately afterwards the offender himself was assaulted "perhaps in reaction to the assault which he had himself committed". Pincus JA, who delivered the leading judgment in the Queensland Court of Appeal, said at par 3 of his judgment:-
"It was contended, and it seems to me to be correct, that the judge was entitled to take that matter (the assault on the offender) into account as being a circumstance which might mitigate the punishment. His Honour in fact did so and the question is whether he did so sufficiently".
41 This Court was referred to a number of other interstate authorities in which the question arose of whether an offender who had been injured in the course of committing the offence should have that circumstance taken into account, in his favour, when he was sentenced for the offence. In R v Fletcher a decision of the Victorian Court of Criminal Appeal discussed by Mr F Rinaldi in a note in (1980) 4 Crim LJ 244 the court took the view that the fact that an armed robber had suffered serious injury when his gun discharged during the robbery should be taken into account in the sentencing of the robber. In R v Noble; R v Verheyden (1994) 73 A Crim R 379, a decision of the Queensland Court of Appeal, the two offenders in attempting to commit an armed robbery in a shop had themselves been shot by the proprietor of the shop, one offender being seriously injured and the other offender being only slightly injured. At p 381 the Court said:-
"We were referred to no authority on the question whether an offender who was injured in the course of committing an offence should have that taken into account in his favour. The point is discussed in a note to Fletcher (1980) 4 Crim LJ 244 by Mr F Rinaldi at 244-246. The writer discusses a decision of the Victorian Court of Criminal Appeal in a robbery case in which one of the robbers suffered serious injury when his gun discharged during the robbery. The court took the view that the injury should be taken into account on sentence. We would not accept, however, that any injury suffered in the course of committing an offence is necessarily a factor in sentencing.
But it is easy to postulate circumstances in which an injury so suffered would be relevant. If an offender has assaulted another without causing significant injury, and the other has defended himself so vigorously as to cause the offender serious injury, it would ordinarily be right to treat the injury the offender has suffered as at least part punishment - whether or not the retaliation was within lawful bounds. That is not this case, but we are of opinion that an injury suffered by a robber as a result of the victim's defence of the property may, in appropriate circumstances, go in mitigation of penalty…".
42 In R v Barci & Asling (1994) 76 A Crim R 103, a decision of the Victorian Court of Criminal Appeal, an armed robber had been shot by police at the scene of the crime. At p 110 the Court said:-
"We turn then to deal with the difficult question raised by ground 2 in Barci's application. Counsel for the Crown did not dispute that the receipt by Barci of severe and permanently disabling injuries was a fact relevant to the question of sentence. However, counsel added that Barci must be regarded as having brought his misfortunes upon himself by engaging in this criminally violent activity".
43 At p 111 the Court said:-
"It is, we think, and as the Crown concedes, not a complete answer to say that Barci brought his injuries upon himself. The fact is that these very serious injuries directly resulted from the commission of the crime itself. For the rest of his life, those injuries will serve as a savage reminder to Barci of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality".
44 In R v Haddara (1997) 95 A Crim R 108 the Victorian Court of Appeal held that it had not been shown that a sentencing judge had failed to give sufficient weight to the fact that an arsonist had himself suffered physical and psychological injuries in the fire which he had lit.
45 In my opinion, it is not necessary for the determination of Daetz's application to express an opinion on whether all of the interstate authorities to which I have just referred should be regarded as having been correctly decided.
46 At the hearing of the application the Court requested that it be furnished with authorities relating to the sentencing by courts of aborigines living in tribal communities who have undergone or who will undergo some form of traditional tribal punishment for their offence, such as being speared in the leg. In response to its request the Court was furnished with a number of authorities, including two appellate decisions being R v Jadurin (1982) 7 A Crim R 182 (a decision of the Full Court of the Federal Court) and R v Minor (1992) 59 A Crim R 227 (a decision of the Court of Criminal Appeal of the Northern Territory).
47 In Jadurin an aborigine had pleaded guilty to the manslaughter of his wife. On appeal against sentence it was argued that the sentencing judge had failed to take into account that the offender was a full-blood aborigine who had undergone and was likely to undergo tribal punishment.
48 At pp 186-187 the Full Court of the Federal Court said:-
"We were referred to the decision of this Court in Mamarika (1982) 5 A Crim R 354. There the court was concerned with an appeal, in a case of manslaughter, against a sentence of imprisonment for a term of seven years and six calendar months with a non-parole period of two years. The court had regard to the fact that, following the killing by the appellant of his brother, a number of men in the community at Umbakumba where the killing occurred inflicted serious injuries upon the appellant. Although those injuries were described by counsel as a form of tribal punishment and the term 'payback' was used in connection with what had happened, the court was not persuaded, on the evidence, that the actions taken against the appellant reflected the customary law of the community. But the court did have regard to the fact that, by reason of his actions, the appellant brought upon himself the anger of members of the community and that as a result he received severe injuries. In the words of the court, 'So seen, it is a matter properly to be taken into account in determining an appropriate sentence, without giving any sanction to what occurred'. The same may be said of such punishment as the appellant in the present appeal has undergone".
49 At p 187 the court also said:-
"In the context of Aboriginal customary or tribal law questions will arise as to the likelihood of punishment by an offender's own community and the nature and extent of that punishment. It is sometimes said that a court should not be seen to be giving its sanction to forms of punishment, particularly the infliction of physical harm, which it does not recognise itself. But to acknowledge that some form of retribution may be exacted by an offender's own community is not to sanction that retribution; In it is to recognise certain facts which exist only by reason of that offender's membership of a particular group. That is not to say that in a particular case questions will not arise as to the extent to which the court should have regard to such facts or as to the evidence that should be presented if it is to be asked to take those facts into account".
50 In R v Minor the respondent to a Crown appeal, an aborigine, had been sentenced for a number of offences including manslaughter. Pursuant to certain Northern Territory legislation the sentencing judge imposed sentences of imprisonment and fixed an automatic release date after the offender had served part of his sentence. One ground of appeal on a Crown appeal against sentence was that the sentencing judge had erred in setting an automatic release date by taking into account the desirability of the offender being released as soon as possible so that the offender could receive "payback" (a traditional punishment of being speared in the leg), which the sentencing judge found to be inevitable and which the offender consented to undergo. It was submitted on behalf of the Crown that in fixing the automatic release date the sentencing judge had sanctioned unlawful violence.
51 The principal judgment in Minor was delivered by Mildren J. At p 237 his Honour said:-
"The Director of Pubic Prosecutions did not suggest that his Honour erred in taking the possibility of future payback punishment into account. There is ample authority for that proposition. Indeed the Northern Territory has had a long history of taking into account tribal law when sentencing a tribal Aboriginal…".
52 At p 238 his Honour said:-
"The reason why payback punishment, either past or prospective, is a relevant sentencing consideration is because considerations of fairness and justice require a sentencing court to have regard to 'all material facts, including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice' (per Brennan J in Neal (1982) 149 CLR 305 at 326; 7 A Crim R 129 at 145. The Australian Law Reform Commission pointed out that another reason for this attitude 'derives from an important principle of the common law, that a person should not be punished twice for the same offence', noting that 'in practice it appears that some balancing of punishments is done within both systems': ALRC Report, par 508. Malcolm CJ, in Rogers and Murray (1989) 44 A Crim R 301 at 307, explained the rationale in terms of the court's general power to take into account mitigating factors…".
53 At p 239 his Honour held that the sentencing judge had not in fact sanctioned unlawful violence by the way he had structured the sentence. Mildren J held that there was no evidence on which the sentencing judge could have found that the assault involved in the infliction of payback was unlawful, because Minor had consented to payback being inflicted and an assault which Minor consented to would not be unlawful, unless the person committing the assault intended to kill or cause grievous bodily harm and there was no evidence on which such an intention could have been found.
54 However, at p 240 Mildren J said:-
"…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) 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".
55 In Minor Martin J said at p 23:-
"I agree with all his Honour (Mildren J) has had to say as to the reasons why punishment by way of payback is a relevant sentencing consideration, but I would reserve for further consideration, in the light of the facts of a particular case, whether such an activity is unlawful".
56 The other member of the court Asche CJ, although he generally adopted what Mildren J said in his judgment, expressed reservations. Asche CJ took into account evidence that infliction of payback would benefit the community to which the offender belonged, wiping out all feuds arising from the offender's action. His Honour also distinguished payback from vendetta. His Honour considered that it would be an abrogation of the court's duty, to reduce a sentence to any person because of assurances that friends or relatives of the victim were preparing their own vengeance for the assault.
57 There are obvious difficulties in seeking to apply these cases about aboriginal offenders, to the present case. Nevertheless, I consider that the cases about aboriginal offenders do lend some support to a view that extra-curial punishment can be a matter which a sentencing court can and should take into account, as part of its duty to take into account all material facts and to ensure that an offender is punished appropriately and not excessively for the same offence and that a sentencing court is not precluded from taking such a matter into account by any principle that the court should not take into account private revenge or unlawful violence.
58 Another case to which this Court was referred after the hearing of the application had concluded was R v Gooley (1996) 87 A Crim R 209, a decision of the South Australian Court of Criminal Appeal. In Gooley the offender had been seriously assaulted by persons connected with the victim of his offence on the day after his offence was committed and he had later been twice assaulted while he was in custody. At p 211 Doyle CJ said:-
"…I have considered the fact that the appellant was apparently beaten quite badly by persons connected with the victim on the morning after the offence and the fact that the appellant was later twice assaulted while in custody, apparently as a result of publicity his case received, and will probably have to serve his sentence in protective custody.
I do not consider that ordinarily illegal acts of other people can affect the punishment which an offender must receive. The law must do what it can to protect the appellant, as must prison authorities.
The conduct of the victim's friends or family cannot reduce the appropriate sentence, in my opinion. To allow it to do so would be to allow private revenge or punishment to replace punishment by the State. In my opinion, tribal punishment of Aborigines is in a different category".
59 Doyle CJ's judgment in Gooley would clearly assist the Crown on the present application. However, I note that Doyle CJ's judgment is fairly brief, would appear to have been extempore and does not refer to any authority. One of the other members of the court agreed with Doyle CJ's judgment but the third member of the court, for reasons which do not clearly appear from a brief judgment, dissented. Insofar as Doyle CJ's judgment suggests that a sentencing court should not take into account that an offender will have to serve his sentence in protective custody because of the risk of unlawful assaults by other inmates, it is contrary to longstanding New South Wales authority. R v Burchell (1987) 34 A Crim R 148 especially at 151.
60 Some losses or detriments which an offender has suffered as a result of committing the offence, for example that the offender has suffered serious financial loss, are frequently and uncontroversially taken into account by sentencing courts. An early example is the decision of the Full Court of the Supreme Court of Victoria in R V Wright (No.2) (1968) VR 174.
61 In the fairly recent decision of the High Court in Ryan v The Queen (2001) 206 CLR 267, an appeal against sentence by a person who had been sentenced for a number of sexual offences committed against boys and who had been a catholic priest at the time of committing the offences, there was a difference of opinion between Kirby J and Callinan J, on the one hand, and McHugh J, on the other hand, about whether public opprobrium which an offender has suffered and will suffer because of his crime would entitle the offender to a lesser sentence. Kirby J at par 123 and Callinan J at par 177 were of the opinion that public opprobrium could properly be taken into account. McHugh J at pars 52-55 of his judgment said that he was not convinced that public opprobrium should be taken into account but the reasons his Honour advanced for not being so convinced related specifically to public opprobrium. His Honour did not doubt that matters such as loss of employment and loss of financial benefits can properly be taken into account in sentencing an offender. At par 54 of his judgment his Honour said:-
"It is legitimate, for example, to take into account that the conviction will result in the offender losing his or her employment or profession or that he or she will forfeit benefits such as superannuation".
62 I have concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.
63 The concept of extra-curial punishment is not expressly referred to in the present section 21A of the Crimes (Sentencing Procedure) Act or in the former s 21A. However, it is clear from the terms of the sections that under both the former s 21A, which was in force when Judge Woods sentenced Daetz, and the present s 21A, the matters expressly stated do not exhaust the matters which a sentencing judge may properly take into account.
64 In the present case, his Honour found that, within a couple of hours of having committed the offence of robbery in company, Daetz was assaulted "badly", "savagely beaten" and "seriously injured". Although at p 10 of his remarks on sentence his Honour expressed some uncertainty about the motives of those who assaulted Daetz, at p 11 of his remarks his Honour referred to the "revenge" attack and to "revenge punishment", thereby clearly finding that the assault on Daetz was in revenge for the offence Daetz himself had committed.
65 However, notwithstanding these findings, his Honour declined to allow any "mitigatory effect" for the assault (apart from its being relevant to contrition). I have concluded, from my reading of his Honour's remarks on sentence, that the reason for his Honour declining to make any allowance for such a serious assault as being an independent mitigating factor, was that his Honour considered that, as a matter of principle, it was impermissible for him to take the assault into account as an independent mitigating factor, his Honour considering that it would be "subversive of the rule of law" for him to take such a matter into account.
66 In my opinion, his Honour was in error in considering that, as a matter of principle, it was impermissible for him to take into account the assault on Daetz as an independent mitigating factor. Furthermore, given his Honour's findings about the seriousness of the assault and the seriousness of the injuries Daetz had suffered as a result of the assault and about the connection between the assault and the offence Daetz had himself committed, the assault on Daetz was a matter his Honour was obliged to take into account as being a form of extra-curial punishment Daetz had suffered, quite apart from any relevance the assault might have to whether there was any contrition on the part of Daetz.
67 I am accordingly of the opinion that the first ground of appeal should be upheld. As I am of the opinion that the first ground of appeal should be upheld, it is necessary for this Court to consider what sentence it would impose on Daetz and in the course of that consideration itself to decide what weight should be given to the assault on Daetz.
68 I have already referred to the objective facts of the offence of robbery in company and to a number of the subjective circumstances of Daetz. One matter which should be mentioned but which his Honour did not was that at the time of the commission of the robbery Daetz was on bail in relation to the offences of demanding money with menaces. I take into account the provisions of the Crimes (Sentencing Procedure) Act. It is necessary to give further consideration to the assault on Daetz and to whether there was contrition on the part of Daetz.
69 In my opinion, given the seriousness of the assault on Daetz and the seriousness of the injuries suffered by Daetz, some allowance should be made in his favour for the assault as being extra-curial punishment.
70 His Honour said in his remarks on sentence that he was allowing a "substantial" discount for contrition.
71 It would not appear that his Honour did in fact allow a "substantial" discount for contrition. His Honour found that Daetz's plea of guilty to the charge of robbery in company was an early plea, yet he allowed a total discount of only 25 per cent for the utilitarian value of the plea of guilty and for contrition.
72 His Honour seems to have based his decision that he should allow a "substantial" discount for contrition mainly on two matters:-
73 (1.) His Honour's view that by having become a victim himself Daetz would have acquired a deeper understanding of what it is to be a victim of violence.
74 (2.) Daetz's mother's evidence given in the proceedings on sentence, which his Honour accepted, that since Daetz had been in custody he had had an increased understanding of his misbehaviour.
75 His Honour's view that by having become a victim of violence himself on 1 November 2001 Daetz would have acquired a deeper understanding of what it is to be a victim of violence, is difficult to sustain, in the light of Daetz subsequently on 23 March 2002 committing a further offence of demanding property with menaces with intent to steal and on 9 May 2002 committing a further offence of assault on the same victim to "punish" him for reporting the offence committed on 23 March 2002.
76 On the other hand, those further offences were committed before Daetz went into continuous custody and hence the commission of those offences is not in conflict with his mother's evidence that since her son had been in custody he had acquired an increased understanding of his misbehaviour. As the sentencing judge who had heard Daetz's mother give her evidence accepted her evidence, I consider that some allowance for contrition should be reflected in the sentence imposed.
77 Endeavouring to synthesise all the objective and subjective facts, I consider that a sentence of five and a half years should be imposed on Daetz for the offence of robbery in company. For the same reasons as were given by the sentencing judge I would find special circumstances and I would set a non-parole period of half the total sentence, that is a non-parole period of two years nine months.
78 I consider the following orders should be made:-
79 Leave to appeal granted. Appeal against sentence allowed in relation to the sentence for the offence of robbery in company. Sentence imposed by Judge Woods on 13 September 2002 for the offence of robbery in company quashed. In lieu thereof, impose a sentence of five and a half years commencing on 17 May 2002, with a non-parole period of two years nine months commencing on 17 May 2002 and expiring on 16 February 2005. The earliest date on which Daetz would be eligible for release on parole would be 16 February 2005.