Regina v DAETZ; Regina v WILSON

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0458; 02/11/0191 FILE NUMBER(S) : 02/11/0327; 02/11/0328; 02/11/0446 LOWER COURT WOODS QC DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60107/03 60104/03

TOBIAS JA JAMES J HULME J

Wednesday 6 August 2003 REGINA v Jayantha DAETZ REGINA v Kirk WILSON

2 JAMES J: Jayantha Harold Daetz and Kirk Tane Wilson applied for leave to appeal against sentences imposed on them in the District Court on 13 September 2002 by his Honour Judge Woods QC. With the consent of both applicants and the Crown the two applications for leave to appeal were heard together. 3 On 13 September 2002 his Honour Judge Woods sentenced both applicants for a common offence of robbery in company which they had committed together with each other. His Honour also sentenced each applicant for other offences in respect of which the particular applicant had been the only offender. Each applicant had pleaded guilty to all of the offences for which he was sentenced. 4 The sentences imposed on the applicant Daetz were as follows. For each of two offences of demanding money with menaces with intent to steal, which were both committed on 8 September 2001, his Honour imposed a term of imprisonment of eighteen months commencing on 17 May 2002 with a non-parole period of nine months. For the offence of robbery in company with Wilson, which had been committed on 1 November 2001, his Honour imposed a sentence of imprisonment for six years, also commencing on 17 May 2002, with a non-parole period of three years. 5 The sentences imposed on the applicant Wilson were as follows. For an offence of aggravated robbery, the circumstance of aggravation being the use of corporal violence, which was committed on 24 October 2001, his Honour imposed a sentence of imprisonment for eighteen months commencing on 9 September 2002, with a non-parole period of nine months. For the offence of robbery in company with Daetz committed on 1 November 2001 his Honour imposed a similar sentence to the sentence his Honour had imposed on Daetz for that offence, namely a sentence of imprisonment for six years with a non-parole period of three years, but commencing on 9 September 2002. For an offence of common assault committed on 1 November 2001 his Honour imposed a sentence of a fixed term of imprisonment of eighteen months commencing on 9 September 2002. His Honour declined to set a non-parole period for this last sentence, because of the other sentences he had imposed on Wilson. 6 Robbery in company is an offence under s 97 of the Crimes Act for which the maximum penalty is imprisonment for twenty years. Demanding money with menaces with intent to steal is an offence under s 99 of the Crimes Act for which the maximum penalty is imprisonment for ten years. Aggravated robbery is an offence under s 95 of the Crimes Act for which the maximum penalty is imprisonment for twenty years. Common assault is an offence under s 61 of the Crimes Act for which the maximum penalty is imprisonment for two years.

Application for leave to appeal by Daetz 7 In his remarks on sentence made in sentencing Daetz Judge Woods briefly stated the facts of the offences of demanding money with menaces with intent to steal, which had been committed by Daetz on 8 September 2001. On the evening of 8 September 2001 Daetz was in the vicinity of North Sydney railway station. He separately approached each of the two victims, demanding money and making threats of violence. Small amounts of money were handed over by the victims to Daetz. Daetz made a threat "if the police get involved, I know your faces". Later the same night Daetz was located, arrested and charged. The following day conditional bail was granted and Daetz was released on bail. 8 The trial of Daetz on the charges of demanding money with menaces with intent to steal commenced on 3 April 2002. On the second day of the trial Daetz changed his pleas to pleas of guilty. After pleading guilty, he was granted bail, pending being sentenced. 9 In the remarks on sentence his Honour set out a statement of the facts of the offence of robbery in company committed on 1 November 2002 and his Honour referred to this statement of the facts of the offence in the remarks he later made when he sentenced Wilson for the same offence. 10 His Honour commenced his statement of the facts by saying:- "About 7.30 p m on 1 November the two offenders Daetz and Wilson were in the Mandarin Centre at Chatswood and they recognised somebody called Lachlan Cottee, who was inside the Centre with the other victim Adam Ross. Wilson initiated a conversation with Cottee and said: 'I know you, I've been to your house, I know your sister'. This, of course, was bordering on threatening. Daetz came over, the offenders walked the courtyard area with Ross and Cottee and Daetz suggested they go outside for a cigarette. The background to this is that both offenders, Daetz and Wilson, had been drinking. In the courtyard Wilson said to Cottee, 'your sister rorted me for money'. And he proceeded to make some kind of a threat against Ross, involving the assertion that his sister had deceived or otherwise shortchanged Wilson of $180. The talk about the money then proceeded, with Daetz demanding money from Ross and Cottee and being offered some mere coins. The offender Daetz replied: 'I don't want that shit, just give me your phone'. He then tried to remove Ross' mobile phone from his left hand when Ross was using it. Ross, not unnaturally, refused to surrender his telephone and a wrestle developed over that. Daetz then punched Ross in the face a number of times with a closed fist. Wilson, as well, punched Ross in the side of the face with a closed fist, causing Ross to fall to the ground". 11 In his remarks on sentence his Honour then said that he saw no reason why he should not accept answers which had been given by Cottee when he was interviewed by police, that Daetz had punched Ross three times in the head and had then kicked Ross in the head repeatedly, about six or seven times, and that Wilson had kicked Ross in the head, back and sides, four or five or maybe six times. 12 However, his Honour then interrupted his remarks on sentence to ask counsel for Daetz in the proceedings on sentence, whether his Honour could have regard, in sentencing Daetz, to answers which had been given by Wilson when he was interviewed by the police. After discussion with counsel for Daetz, his Honour concluded that he could have regard in the sentencing of both offenders to the answers given by Wilson in his interview. 13 Resuming his remarks on sentence, his Honour noted that Wilson had said in his interview that he had kicked Ross only once and that he had seen Daetz kick Ross twice. 14 After referring to what Wilson had said in his interview, his Honour continued:- "Now taking even that version in preference to that of Mr Cottee, as to the number of kicks that were inflicted, it was, on any view, a vicious and nasty assault on a person who was helpless on the ground". 15 His Honour commented that kicking someone who was lying on the ground indicated a serious loss of self-control on the part of the person doing the kicking and that kicking a person lying on the ground could result in death or permanent injury to the victim. 16 In his remarks on sentence his Honour then turned to the subjective circumstances of Daetz. 17 Daetz was born on 3 September 1983 and was accordingly eighteen years old at the time of committing the offence of robbery in company and had just turned nineteen by the time he was sentenced. Daetz is of Sri Lankan extraction and was adopted by the parents who have raised him. He was not successful at school. After leaving school he had some jobs in restaurants. His Honour found:- "He got involved with various people hanging out in the Chatswood Railway Interchange and appears to have made something of a peculiar criminal life there for himself, by way of harassing and annoying people with demands for money". 18 His Honour noted that Daetz's pleas of guilty to the two charges under s 99 of the Crimes Act were not early pleas of guilty but his Honour said that he would allow some discount for the utilitarian value of the pleas in sentencing for those offences. 19 With regard to Daetz's plea of guilty to the charge of robbery in company, his Honour said:- "There is a plea, as I say, at an early point in relation to that matter and I allow from what otherwise would be an appropriate sentence a discount of some twenty-five percent. There is real contrition, flawed by the immaturity which still persists of this young man and there is, of course, the benefit to the system of justice of the plea". 20 His Honour was prepared to find that by the time he was being sentenced Daetz had manifested "rather more contrition" than had been apparent in a pre-sentence report. His Honour accepted evidence by Daetz's adoptive mother that she had visited Daetz in prison and that since Daetz had been in custody and had no longer been using alcohol and cannabis he had come to have an increased understanding of his misbehaviour. 21 His Honour found that, because of his youth and his slight build, Daetz would be vulnerable within the prison system and found that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act, consisting of Daetz's youth and vulnerability and his need for an extended period of supervision after he was released from custody. 22 A matter which is crucial to the determination of Daetz's application for leave to appeal is that later in the evening of 1 November 2001 Daetz was himself assaulted. 23 As has already been noted, the offence of robbery in company was committed shortly after 7.30 on the evening of 1 November 2001. After committing the robbery, both applicants remained in the vicinity. According to statements by witnesses and transcripts of interviews of witnesses which were admitted into evidence in the proceedings on sentence, the following events occurred. At about 9.30 that evening a group of persons including some adult men approached Daetz and Wilson. A number of the persons in the group were carrying objects variously described as metal poles or garden stakes. One man in the group demanded of Daetz whether he knew Adam Ross. Daetz denied knowing Adam Ross. Another person in the group grabbed Daetz by his shirt and demanded to know his name. Daetz said "Jaya". Persons in the group then hit Daetz around his head with the poles or stakes. Two or three people in the group also approached Wilson and struck him. 24 Daetz was seriously assaulted by the group of assailants. After the assault on Daetz had concluded Daetz's head was covered in blood, he could not stand up and he had difficulty breathing. An ambulance was called and Daetz was taken to Royal North Shore Hospital. 25 Daetz was admitted to Royal North Shore Hospital and was a patient at the Hospital from 1 November to 8 November. Photographs of him lying in a bed at the Hospital connected by tubes to items of medical equipment were admitted into evidence in the proceedings on sentence. The discharge summary for Daetz from the Royal North Shore Hospital stated that Daetz had suffered 'traumatic bilateral extradural haemorrhages and left cerebral contusions, skull fracture and scalp laceration". While he was in the Hospital a left fronto-temporal craniotomy had been performed for evacuation of an acute extradural haemorrhage. After he was discharged from Royal North Shore Hospital Daetz briefly attended a rehabilitation hospital as an out-patient. A psychologist who assessed Daetz on 3 July 2002 stated that Daetz was not then conscious of "any particular problems arising out of his assault other than extensive scarring across the crown of his skull". 26 In his remarks on sentence made in sentencing his Honour said with respect to the assault on Daetz:- "I take note of the submissions carefully put on his behalf by Ms Loukas. She asks me to take into account in mitigation exhibit SB and the surrounding material. Exhibit SB is a series of photographs of Mr Daetz after he was attacked. What appears to have happened is that the robbery of Ross and Lachlan Cottee was communicated - whether by the grapevine or directly by one of the people involved, it is not entirely clear, but, in any event a group of other people in the vicinity who, clearly, were of a criminal bent decided (whether for reasons of competition or friendship with one of the victims is not clear) to join in. They, badly, assaulted Daetz. They attempted to badly assault Wilson but he did not get the same treatment that Daetz got. The photographs show him in hospital, trussed up with more tubes and medical equipment than one would normally feel comfortable with and, clearly, he had been savagely beaten. The skull was fractured and, as the medical report before me shows, he was, indeed, seriously injured. Exhibit SC is the discharge summary. It shows acute temporo parietal extra-dural haemorrhages, etcetera, and, indeed, a skull operation was performed for evacuation of the blood from the haemorrhage. He could have been killed in this episode. He was beaten on the head, apparently, by an iron bar. Ms Loukas urges me to take this fact into account, this extra-curial punishment of the offender, in mitigation. She urges upon me the authority of a decision of the Court of Criminal Appeal in which that court did, it seems, allow some mitigatory effect for extra-curial punishment inflicted on an old child molester. In that case, R v Allpass , 20 April 1993, his Honour the Chief Justice of New South Wales, as he then was, 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'. I do not regard that observation in the Court of Criminal Appeal as binding me to a general principle that wherever a revenge attack occurs on somebody who commits a crime, and in consequence of that revenge attack the original offender is hurt, that in some way mitigates the punishment that should be imposed by the Court for the original offence. No doubt the Court of Criminal Appeal in the particular case of Allpass regarded it as appropriate, but in my view the court in that case was not laying down any general rule. One can see from a case such as this present one that any such general rule allowing a mitigatory effect to revenge punishments would be potentially subversive of the rule of law. The effect, as I see it, that may properly be given in the present case to the photographs, exhibit SB, and the acknowledged fact that he was, in fact, injured as I have described is that: that, no doubt, he is contrite and, no doubt, he has a deeper understanding of the position of being the victim of an offence than otherwise he might have had. Of course, in the real world one knows that being a victim does not necessarily, and automatically, produce sensitivity. Nonetheless, in the present case, particularly taking into account his mother's evidence, I accept that he has, indeed, become so sensitised and it is for that reason, amongst others, that I have allowed a substantial discount, and will allow a substantial discount, for contrition. But I do not allow any separate mitigatory effect by way of a reduction of the sentence which I will otherwise impose due simply to the fact that he has had his skull fractured in a revenge attack after he, himself, had been engaged in a violent and a vicious attack on a person".

27 The grounds of appeal against sentence relied on by counsel for Daetz were:-

1. The learned sentencing judge erred in declining to treat extra-curial punishment, constituted by an assault upon the applicant immediately after his commission of the offence, as a matter of mitigation in the sentence imposed for robbery in company .

2. His Honour erred in failing to otherwise give appropriate weight to the above assault and consequent serious injury of the applicant, whether as a matter of mitigation, a matter going to contrition, to deterrence, or otherwise .

3. The sentence imposed for the robbery in company is manifestly excessive in the circumstances . 28 I will now deal with the first ground of appeal. If the first ground of appeal is upheld, it will be unnecessary to deal specifically with the other two grounds, because, if the first ground of appeal is upheld, this Court will have to decide, taking into account the assault on Daetz as being extra-curial punishment, what sentence it considers would be warranted for the offence of robbery in company. 29 I have already set out in full the passage in his Honour's remarks on sentence, in which his Honour considered, and rejected, a submission made on behalf of Daetz in the proceedings on sentence, which was based on the decision of the Court of Criminal Appeal in R v Allpass (1993) 72 A Crim R 561, that the sentencing judge should take into account the assault on Daetz and its consequences, as being extra-curial punishment which Daetz had already suffered for the offence committed by him. 30 On this application it was submitted on behalf of Daetz that, even if the Court of Criminal Appeal in Allpass did not lay down a general rule, that, whenever there is a revenge attack on an original offender and the original offender is injured, that circumstance should mitigate the punishment a sentencing court imposes on the original offender, nevertheless in the present case the assault on Daetz (including its consequences) was so serious and was so directly connected with the offence of robbery in company Daetz himself had committed, that his Honour had erred in the exercise of his sentencing discretion in not taking the assault into account as being extra-curial punishment which Daetz had already suffered and in not making some allowance in favour of Daetz for that extra-curial punishment. It was submitted that his Honour had declined to take the assault on Daetz into account as being extra-curial punishment, because his Honour was of the opinion that it would be contrary to principle ("subversive of the rule of law") to take the assault into account and it was further submitted that his Honour had erred in forming such an opinion. It was not sufficient, it was contended, that his Honour had taken the assault on Daetz into account, as being a matter going to contrition. 31 On this application it was submitted on behalf of the Crown that the sentencing judge in his remarks on sentence had not declined to follow the decision of the Court of Criminal Appeal in Allpass but had merely held that Allpass did not lay down any general rule; that the sentencing judge had taken the assault on Daetz into account as a matter going to contrition and had then allowed a substantial discount for contrition; and, a discount having been allowed for the assault, it was not material how that discount had been classified by the sentencing judge. It was also submitted that equating unlawful reprisals with curial punishment would be subversive of the rule of law. 32 The decision of the Court of Criminal Appeal in Allpass was heavily relied on by counsel for Daetz, both before the sentencing judge and before this Court. In Allpass an elderly man had pleaded guilty to a sexual offence against a girl. A Crown appeal was brought to this Court against the sentence passed by the sentencing judge. The bench of this Court which heard the Crown appeal and which delivered a unanimous judgment of the Court was a particularly strong bench, which included Gleeson CJ and Hunt CJ at CL. 33 At p 566 of the judgment in Allpass the Court said:- "The subjective matters which were properly taken into account by Judge O'Reilly, and which would have justified a degree of leniency (in addition to the respondent's plea of guilty and his contrition), were as follows….

(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.

Application by Wilson 80 In his remarks on sentence made in sentencing Wilson Judge Woods briefly stated the facts of the separate offence of robbery committed by Wilson on 24 October 2001. On 24 October 2001 in a shopping mall near Chatswood railway station Wilson approached the victim and a friend of the victim and offered to sell some cannabis. A deal was struck between Wilson and the victim's friend for the supply by Wilson of some cannabis. Wilson said that he did not have the cannabis with him and that the victim and the victim's friend should follow him. Wilson asked the victim to follow him into a toilet block. Inside the toilet block Wilson asked to look at the victim's mobile telephone. Wilson took the mobile telephone and punched the victim a number of times in the face and then kicked the victim in the face. He made a threat "don't tell the cops or I'll kill you". 81 On 16 November 2001 the victim of the robbery caught sight of Wilson in the same area and alerted staff at the railway station. Police arrived and Wilson was arrested and charged. He was released on bail the following day. 82 His Honour did not in his remarks on sentence make any statement of the facts of the offence of common assault committed by Wilson on 1 November 2001. It appears from a facts sheet that was before his Honour that the offence was committed by Wilson during the confrontation between himself, Daetz, Ross and Cottee, when Wilson lunged at Cottee's head with a half-full bottle of whiskey. Cottee managed to avoid being struck with the bottle. 83 In the remarks on sentence when sentencing Wilson his Honour said that he did not accept that Wilson had any lesser role in the commission of the offence than Daetz. His Honour continued:- "He (Wilson) did not have any hesitation, apparently, about punching and kicking (and indeed kicking the victim when he was on the ground) and I do not accept that he is to be treated, in factual terms, less seriously than his co-offender". 84 His Honour said that a matter of aggravation in Wilson's case was that Wilson was on a bond when he committed the offence of robbery in company. 85 His Honour found that Wilson had entered early pleas of guilty on all matters and was entitled to a discount for his pleas of guilty of 25 per cent. 86 His Honour found that Wilson had demonstrated contrition and noted that "like his co-offender he is disconcertingly young to be involved in criminal conduct which necessitates the imposition of a gaol sentence". His Honour found special circumstances consisting of Wilson's youth and vulnerability. 87 The grounds of appeal relied on by counsel for Wilson were:-

1. The sentence imposed in respect of the offence of robbery in company at Chatswood on 1 November 2001 was excessive and demonstrates error of principle.

2. The sentence imposed in respect of the offence of common assault on 1 November 2001 was excessive. 88 It was conceded by counsel for Wilson that as the sentence imposed by the sentencing judge for the offence of common assault was wholly concurrent with a part of a non-parole period of the sentence for robbery in company, it would not be necessary for this Court to consider the second ground of appeal, unless the Court allowed a ground of appeal against the sentence for robbery in company and disturbed the sentence for robbery in company which had been imposed by the sentencing judge. 89 Two general submissions were made in support of the first ground of appeal, namely:- 90 (1.) The sentencing judge had failed to give any, or any proper, weight to the extra-curial punishment which Wilson had suffered, when he, as well as Daetz, was assaulted after committing the offence of robbery in company. 91 (2.) The sentencing judge had failed to give proper weight to Wilson's state of intoxication at the time the offence of robbery in company was committed. 92 As to (1.):-

It was pointed out by counsel for Wilson that the sentencing judge had expressly found that both Daetz and Wilson had been attacked. Reference was also made by counsel for Wilson to evidence given by Wilson's mother in the proceedings on sentence that after the assault she had observed marks on her son's back, neck and head; to answers given by Wilson in an interview by police on 5 November 2001, in which Wilson said he had been hit with a stick (garden stake); and to part of a statement of a girl who had been with Daetz and Wilson when the attack started. 93 In his remarks on sentence made in sentencing Wilson, in contra distinction to his remarks made in sentencing Daetz, Judge Woods did not refer to the subject of extra-curial punishment. In the proceedings on sentence Wilson's legal representative had said that "Mr Wilson was himself injured but he hasn't made a major factor of that". 94 It is true that Wilson, as well as Daetz, was assaulted after he had committed the offence of robbery in company. However, his Honour did not find that Wilson had been seriously assaulted and the evidence before his Honour in the proceedings on sentence did not establish that Wilson had suffered any serious injury. Wilson had not sought or received any medical or hospital treatment for any injury he might have suffered. The evidence given by Wilson's mother in the proceedings on sentence did not establish that any emotional distress Wilson suffered because of the assault on Daetz lasted longer than the night of 1 November and possibly the following day. 95 I would reject the submission that by reason of the assault on him Wilson suffered extra-curial punishment of such significance that his Honour erred in not taking that matter into account in sentencing Wilson. 96 As to (2.):-

Judge Woods expressly found that both Daetz and Wilson had been drinking alcohol before they committed the offence of robbery in company. 97 Reference was made by counsel for Wilson to R v Coleman (1990) 47 A Crim R 306 at 327, where Hunt J, as his Honour then was, said that intoxication might be a mitigating factor in sentencing, as being relevant to the degree of deliberation with which the offence had been committed and as showing that in committing the offence the offender had acted out of character. 98 However, there is no suggestion in his Honour's remarks on sentence that his Honour sentenced Wilson on the basis that the commission of the offence of robbery in company was the result of any marked degree of deliberation or premeditation. Furthermore, the evidence admitted in the proceedings on sentence indicated that it was not out of character for Wilson, notwithstanding his youth, to drink alcohol to excess. There is nothing to lead to the conclusion that alcohol was a mitigating factor here and thus I would reject the submission that his Honour failed to give any proper weight to Wilson's intoxication at the time of committing the offence. 99 The remaining submission made by counsel for Wilson in support of the first ground of appeal was that the sentence of imprisonment imposed on Wilson for the offence of robbery in company was manifestly excessive. It was submitted that, if his Honour had indeed allowed Wilson a discount of 25 per cent for his early plea of guilty, his Honour must have started, before deducting the discount for the early plea of guilty, with a sentence of eight years and that such a starting point would have been outside the range of a proper exercise of his Honour's sentencing discretion. 100 The guideline judgment of R v Henry (1999) 46 NSWLR 346 was concerned with armed robbery and not robbery in company. However, it has been accepted that the judgment in R v Henry affords at least some guidance in sentencing for robbery in company. The present case is similar in some respects to, but different in other respects from, the category of case of armed robbery specified by the Chief Justice in par 162 of his Honour's judgment in Henry, which his Honour said should generally attract a total sentence of four to five years. On the one hand, neither Daetz nor Wilson had any weapon in committing the offence of robbery in company, although his Honour did also sentence Wilson for the separate offence of assault on Cottee by lunging at Cottee with a whiskey bottle. On the other hand, Daetz and Wilson were in company and there was actual violence, including the kicking of the victim after he had fallen to the ground, which his Honour found to be a seriously aggravating factor. In the earlier offence committed on 24 October 2001 Wilson had punched the victim a number of times in the face and had then kicked him in the face after he had fallen to the ground. His Honour found that Wilson had made an early plea of guilty to the charge of robbery in company. The category of case specified by the Chief Justice in par 162 of Henry includes a discount for at least a late plea of guilty. 101 It was submitted that Judge Woods had erred in finding that Wilson had not had any less role in the commission of the offence of robbery in company than Daetz had. However, this Court has only a limited power to review findings of this sort made by sentencing judges and, in my opinion, there was evidence before his Honour capable of supporting such a finding. 102 In any event, it would be difficult for this Court to make a finding of its own about the comparative objective criminality of the two offenders. As is indicated in his Honour's remarks on sentence in sentencing Daetz, there was a wide disparity between the answers given by Cottee when he was interviewed by the police and the answers given by Wilson when he was interviewed by the police, about the number of times each of Daetz and Wilson had punched Ross and had kicked Ross. There are other inconsistencies between answers given by Cottee and answers given by Wilson in their interviews. 103 Cottee was not necessarily a reliable witness. He was a friend of Ross and was himself the victim of the separate assault by Wilson. At the time he was interviewed by police and gave his answers it would have been apparent to Cottee from the questions he was asked that he was suspected by police of instigating or at least being complicit in the assault on Daetz and Wilson. 104 The statement by the victim Ross is of only limited assistance in determining the comparative objective criminality of the two offenders, because Ross said in his statement that the last thing he could remember about the confrontation, was struggling with Daetz for possession of Ross' mobile telephone and hence his statement throws no light on the extent to which each of the two offenders punched and kicked him. 105 In my opinion, the sentence imposed on Wilson for the offence of robbery in company was not manifestly excessive. 106 Wilson is not entitled to have his sentence reduced, because his co-offender Daetz's sentence has been reduced by reason of the extra-curial punishment Daetz suffered. The extra-curial punishment Daetz suffered was personal to Daetz and I have already concluded that Wilson did not suffer any extra-curial punishment of any significance. 107 Having rejected the submissions made by counsel for Wilson, I would not uphold the first ground of appeal. As I have not upheld the first ground of appeal, it is unnecessary to deal with the second ground of appeal. 108 In my opinion, the following orders should be made:-

Grant extension of time in which to file an application for leave to appeal (the making of this order was not opposed by the Crown), grant leave to appeal against sentence, dismiss the appeal against sentence. 109 HULME J: I agree with the judgment of James J.

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