R v Meers
[1998] TASSC 32
•7 April 1998
32/1998
PARTIES: R
v
MEERS, Simon James
MOLES, Leigh John
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 10/1998
CCA 11/1998
DELIVERED: 7 April 1998
HEARING DATE/S: 10 March 1998
JUDGMENT OF: Cox CJ, Wright J and Slicer J
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law Officer - Powers of appellate court - Generally - Discretion of court - Whether to interfere - Manifestly inadequate sentence.
R v Percy [1975] Tas SR 62, R v Causby [1984] Tas R 54, R v Allpass (1994) 72 A Crim R 561, R v Gordon [1994] 71 A Crim R 459, referred to.
Aust Dig Criminal Law [1021]
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law Officer - Application to increase sentence - Offences against the person - Grievous bodily harm and aggravated burglary - Manifestly inadequate sentence.
Aust Dig Criminal Law [1023]
REPRESENTATION:
Counsel:
Appellant: D J Bugg QC, K Eales
Respondent: W Hodgman
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Wallace Wilkinson & Webster
Judgment category classification:
Court Computer Code:
Judgment ID Number: 32/1998
Number of pages: 16
Serial No
File No CCA 10/1998CCA 11/1998
THE QUEEN v MEERS and MOLES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
WRIGHT J
SLICER J
1998
Order of the Court
Serial No
File No CCA 10/1998CCA 11/1998
THE QUEEN v MEERS and MOLES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
1998
For the reasons which are to be given by Wright J and which I have had the advantage of reading in draft form, I agree that the sentence of one year's imprisonment, the execution of the last ten months of which was suspended on condition that the respondents be of good behaviour for a period of two years, was manifestly inadequate having regard to the gravity of their conduct. I respectfully adopt his statement of the factual background to the appeal and his characterisation of the respondents' behaviour as extremely serious because it involved a violent intrusion by two strong young men into a family dwelling in the middle of the night whereafter they deliberately set upon an elderly man with punches and kicks and inflicted injuries properly described as "grievous". Notwithstanding a lengthy and painful convalescence, he has still not completely recovered from them.
It is, accordingly, incumbent on this Court to exercise its own discretion in passing an appropriate sentence. This, it must be admitted, is a very difficult task because of the need to balance the requirement to condemn the conduct in question by imposing a sentence which gives effect to the retributive and deterrent aspects of punishment with the claims to some tempering of its severity which the powerful considerations of youth, contrition, previous good conduct and prospects of rehabilitation invoke.
Before adverting to some of the latter considerations, I think it necessary in the circumstances to emphasise the unacceptability of engaging in violent acts of this kind for the purposes of personal revenge. Notwithstanding the mistaken belief of each respondent that the complainant had many years earlier sexually molested the sister of one of them and the girlfriend of the other when she was a very young child, the Court cannot condone the punitive expedition in which they engaged. In the case of Meers, the sense of grievance in respect of the complainant was of several years' antiquity, although in Moles' case it appears that he learnt of the allegation from Meers in the course of a drinking session with him at a hotel earlier that night. Meers' belief came from anecdotal statements from other members of his family, while Moles accepted it without any attempt to seek substantiation of it. Both worked themselves up into an emotional state of resentment against the complainant. Brennan J (as he then was) in Neal v R (1982) 149 CLR 305 at 324 acknowledged that "The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender just as it is entitled to have regard to the motive for the offence". At 325 he continued:
"It is erroneous to neglect consideration of emotional stress which explains criminal conduct; that factor is material to the assessment of proper retribution and it may be material to deterrence ¾ at all events if those to be deterred are likely to be subjected to similar emotional stress."
It has been said that provocation can be a mitigating factor (Pearce v R (1983) 9 A Crim R 146, Unal Okutgen v R (1982) 8 A Crim R 262) as can an honest belief in the existence of circumstances which, if true, would constitute provocation (R v S [1991] Tas SR 192). The term "provocation", however, is used in a number of different contexts and the mitigating effect varies with the circumstances said to constitute it. At one end of the spectrum provocation can reduce what would otherwise be murder to manslaughter. At the other it can be said to do little more than induce a state of emotional stress in which a wrongful act, still worthy of significant punishment, was performed. In the context of a homicide, the Criminal Code, s160(2) provides:
"(2) Any wrongful act or insult of such a nature as to be sufficient to deprive an ordinary person of the power of self-control, and which, in fact, deprives the offender of the power of self-control, is provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool."
Attorney-General's Reference No 1 of 1992 (1992 - 1993) 1 Tas R 349 made it clear that to avail himself of this defence, not only must the offender act upon the provocation on the sudden, but his loss of the power of self-control must follow immediately upon the wrongful act or insult relied upon. The doctrine by virtue of which murder may be extenuated:
"... was not evolved to feed resentment or excuse revenge no matter how grievous the initial wrong. Though 'the law condescends to human frailty, it will not indulge human ferocity' (R v Kirkham (1837) 8 Car & P, 115). More aptly still it has been said by the Judicial Committee, "some provocative act must not be seized upon by the accused (who does not as a result act suddenly and in the heat of passion) as providing an appropriate moment and a convenient excuse for carrying out some previously existing purpose or acting upon an old grudge'. (Parker v The Queen 111 CLR 665 at 681)" ¾ per Crisp J in Hall v R 85/1968 at 8.
In this case it is not suggested that there was provocation of the kind which s160 would have made relevant had the respondent's actions been intentionally fatal, nor could it be contended that only provocation of that kind could be taken into consideration as a mitigating circumstance whatever the crime; but resentment at past wrongs, real or imaginary, and whether known to the offender for a lengthy period of time as in the case of Meers, or revealed to him only shortly before the commission of the crime, as in the case of Moles, does not, in my view, warrant being accorded any great significance as a mitigating factor. In the circumstances of this case the respondents' belief that in the distant past the complainant had molested someone dear to them and had not been called to account for his actions neither justified their serious assault upon him nor significantly reduced their moral responsibility in respect of it. A sentence of twelve months' imprisonment did not, in my respectful view, sufficiently address the need to condemn acts of private revenge nor the need to deter those minded to commit them, especially with the ferocity and serious consequences which accompanied these crimes.
On the other hand, each of the respondents is relatively young, Meers being 22 years of age and Moles 29. Neither had a criminal record of any kind. Both have good work records and were in steady employment at the time of sentencing. Their previous good character was attested to by numerous referees and on the materials available to the Court, their actions on the night they offended were completely out of character. The learned sentencing judge, in reducing the period of actual incarceration to be undergone by them, sought to ensure thereby that their punishment should not result in their lives being thrown away with the consequence that they might lose their jobs and place in society. The Court can be confident, having regard to their antecedents and the contrition manifested by them, that repetition of behaviour of this sort is highly unlikely. That being the case, I tend to the view that a substantially increased head sentence is appropriate to mark the opprobrium in which the community holds this kind of behaviour and that suspension of the execution of a part of that sentence is nonetheless appropriate to acknowledge the mitigating features to which I have adverted.
In R v Percy [1975] Tas SR 62, the issue was whether a wholly suspended sentence of three months' imprisonment for a serious case of dangerous driving was manifestly inadequate. The Court, by a majority, held that it was and substituted a sentence of four months' actual imprisonment. Neasey J, at 73 - 74, said:
"In any particular case there may be such mitigating circumstances relating to an offender or his offence that a sentence of imprisonment, or indeed any other penalty, would not be imposed where in the absence of mitigating circumstances it would have been appropriate. But I should have thought it rare that a sentence of imprisonment would be suspended on account of mitigating circumstances. In my view the logic of the process is to take mitigating circumstances into account in deciding what the proper penalty is, and then if imprisonment is thought to be appropriate to consider suspension of the sentence if the prospect of rehabilitation is a sufficiently weighty factor in all the circumstances to warrant suspension. However, I do not presume to suggest that there is only one valid way of approaching the matter."
In R v Causby [1984] Tas R 54 at 57, I acknowledged that there was a view "that contrition and the prospect of non-repetition ... are factors which should be taken into account in determining the initial sentence rather than being treated as factors calling for clemency by way of a suspension of the sentence or some part of it". I went on to say that I would not contend that clemency should never be extended in this way, but that it seemed to me that the prime purpose of suspension of the execution of a sentence was that the offender should be thereby moved towards reform of his conduct. I am still of the view that this is the prime purpose of a suspended sentence. I also maintain that the view that contrition and the prospect of non-repetition are factors to be taken into account in setting the initial sentence is simply one view. In my opinion it is still legitimate for the sentencer to treat these matters as factors relevant to the suspension of a sentence in whole or in part and I dispute the proposition that the sentencer can only give them effect by way of a reduction of the initial sentence. Matters such as contrition and good previous conduct are indicia of the fact that the offence in question is out of character. A breach of the condition of good behaviour upon which the execution of a sentence is normally suspended is prima facie evidence that this is not the case and such a breach may warrant the activation of the initial sentence, not by way of punishment for the wrongful conduct which constitutes the breach, but by way of meting out to the offender the just deserts of his conduct on the earlier occasion having regard to his true character.
The Court of Appeal of New South Wales has made two significant points about resentencing after a successful Crown appeal against sentence. In R v Allpass (1994) 72 A Crim R 561 at 562, the Court, constituted by Gleeson CJ, Hunt CJ at CL and McInerney J, said:
"3If a Crown appeal against sentence is successful, and the appellate court resentences the respondent, it does so in the light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant.
4When, in response to a Crown appeal, the court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance."
The Court reaffirmed the latter point in R v Gordon [1994] 71 A Crim R 459 at 470.
At first glance, this may seem somewhat inconsistent with the Criminal Code, s402(4) which states:
"(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
However, as Gibbs CJ pointed out in Lowe v R (1984) 154 CLR 606 at 609 - 610, similar words appear in the statutes of the other Australian States other than Queensland, which he was considering, and that "they are wide enough to empower the Court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender". It follows that a Court of Appeal is not obliged to impose the sentence which, but for later events, should have been imposed at first instance (R v Maniadis [1997] 1 Qd R 593; Plumstead v R 157/1997). The fact that the respondents had been subjected to double jeopardy in these proceedings has undoubtedly placed them under extra strain and I think it proper to temper the sentence which otherwise "should have been passed". This does not detract from the Court's function on a Crown appeal of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths v R (1977) 137 CLR 293 at 310).
In my opinion the gravity of the respondents' conduct would be suitably marked and the need for general deterrence suitably met by a sentence of three years' imprisonment, but the suspension of the execution of a one-third part of it would satisfy the claims to some ameloriation of it by reason first of their having been exposed to double jeopardy and second of the other mitigating circumstances which their antecedents and remorse warrant. I would impose a sentence of three years' imprisonment from 13 February 1998, but order in each case that the execution of the last twelve months of that sentence be suspended upon condition that the respondent in question be of good behaviour for a period of two years from the date of his release from prison.
Serial No 32/1998
File No CCA 10/1998CCA 11/1998
THE QUEEN v SIMON JAMES MEERS and LEIGH JOHN MOLES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
7 April 1998
The Crown has appealed against a partially suspended sentence of imprisonment imposed upon each of the respondents in respect of their joint participation in crimes of aggravated burglary and causing grievous bodily harm committed on 9 August 1997. These crimes were committed when the offenders attended the home of an elderly couple at Mornington in the early hours of the morning. When the 74 year old male householder answered the door, the respondents forced their way into his home and attacked him by punching and kicking him about the head and body. During the course of this onslaught, the elderly victim fell to the floor where the assault upon him was continued. The offenders fled soon after and the police and ambulance were summoned. The complainant was admitted to the intensive care unit at the Royal Hobart Hospital with serious injuries. He had bruising to the left ear and to the left side of his face. He had fractured ribs on both sides of his body. These injuries caused his lungs to be punctured with a resultant pneumothorax on each side. He had blood in the chest, abdomen and left pleural cavity. Consequently, and not surprisingly, he sustained a lower respiratory tract infection and required mechanical assistance to enable him to breath. He required treatment at the hospital as an inpatient for a period of approximately six weeks. Descriptions of the original injuries and the treatment administered, which are contained in a medical report supplied by the hospital, suggest that the complainant's convalescence would have been both unpleasant and painful. At the date on which sentence was pronounced upon the respondents, the complainant was still under the management of a general practitioner, visiting him approximately once per fortnight, and was also consulting, on a regular basis, a renal specialist. The exact nature of his residual problems were not specified. His wife was psychologically traumatised and is now fearful of being at home alone.
The respondent Meers was aged 22 and Moles was aged 29 at the relevant time. They were both in stable employment and neither had prior convictions. They explained their criminal conduct, both to investigating police officers and, through their counsel, to the Court, as resulting from their belief that the complainant had committed some kind of sexual offence or offences involving Meers' sister many years previously. The two respondents had been drinking heavily on the night of the offences and had incited each other to violent anger whilst discussing this matter. Crown counsel accepts that both respondents genuinely held the stated belief, but contests any suggestion which might be made that either respondent had a valid basis for the belief or that the belief was correct. From the material supplied to the Court, it seems that Meers had held the belief for a number of years, but that Moles had only become acquainted with allegations of sexual misconduct against the complainant on the night that the crimes, now in question, were committed. As a consequence of their mutual agitation, the offenders formed the common intention of visiting the complainant to "punch him a few times" and "to let him know that other people were aware of his alleged misconduct".
His Honour, the sentencing judge, accepted that there were several circumstances which could and should be regarded as mitigatory, but in doing so he made it very clear that there was absolutely no evidence to support the belief which each offender had entertained concerning the elderly complainant. Counsel for the two offenders sought to make it clear that neither of his clients sought to establish the truth of their beliefs about the complainant's past behaviour. It is plain, therefore, that this cannot be regarded as a case in which a criminal has received no more than his just desserts at the hands of outraged family members, nor can it be equated with the situation in which an offender has been caught actually committing a violent crime and has been beaten by angry friends of the complainant. The present complainant had never been prosecuted and no complaint had ever been made to the police in respect of his supposed misconduct. In such circumstances it would therefore be quite wrong to take account of the respondents' beliefs, except for the very limited purpose of understanding the state of mind of each of them as they sought out and assaulted the complainant. It is also appropriate to note that even if their beliefs had been firmly grounded on established fact, it would have provided no justification for their violent actions. The Court can never condone punishment by private vendetta.
His Honour, the sentencing judge, accepted that both offenders were relatively young, that neither of them had a criminal record and that both were remorseful for their conduct. He noted that they had pleaded guilty and assisted police inquiries. His Honour also accepted that the offences were out of character. This assessment was strongly supported by numerous written references which were tendered to his Honour by defence counsel. On the other hand, his Honour correctly characterised each crime as "very serious indeed". He also correctly pointed out that the intoxication of each offender provided no excuse for the criminal conduct. He also took the view, again, correctly in my opinion, that a sentence of imprisonment was necessary, both as a mark of public denunciation and as a deterrent to the offenders themselves and like-minded young men with a propensity for violence.
His Honour sentenced each offender to twelve months' imprisonment but he suspended ten months of each sentence. The Crown submits that such sentences were manifestly inadequate. I entirely agree. Offences of this kind were practically unheard of a few years ago. Now, whilst not exactly prevalent, they are becoming more common. I regard so called "home invasions" as a particularly serious type of offence. Such criminal conduct undermines the feeling of security that most members of the community expect to enjoy in their home environment. The violent intrusion of strong young men, whether alone or in a group, into a family dwelling in the middle of the night, or, indeed, at any other time, must be a terrifying experience for the householder and his or her family. Such crimes constitute criminal conduct of the utmost gravity and must be met with firm and resolute punishment by the Court, particularly if serious injury has resulted from the attack.
I regret to say that although his Honour correctly identified all relevant circumstances bearing upon the disposition of each offender in the present case, I have formed the clear opinion that his sentencing discretion miscarried when he pronounced sentences which were manifestly inadequate in all of the circumstances. In my opinion, not only was each sentence of twelve months' imprisonment itself manifestly inadequate, but such inadequacy was then compounded by the suspension of five-sixths of that sentence. His Honour, the trial judge, rightly acknowledged that imprisonment was necessary to "mark condemnation of this kind of criminal conduct and to serve as a deterrent, not only to the prisoners, but to others who might be minded to take the law into their owns hands and use violence to right perceived wrongs." But, by then proceeding to impose a comparatively short sentence and suspending the greater part of it, he immediately denuded it of any generally deterrent effect (see R v Percy [1975] Tas SR 62 per Neasey J at 74 and Chambers J at 82; R v Causby [1984] Tas SR 54 per Neasey J at 62 and Cox J at 67).
There is frequently an almost insoluble tension created for a sentencing judge between the need to denounce serious criminal conduct by imposing condign punishment and the natural inclination to acknowledge past good behaviour and to assist an individual to overcome his criminal propensities by tailoring a more lenient sentence and thus softening the penal blow. When such a situation arises, a choice must be made. Some crimes are so serious and involve such an affront to peaceful community coexistence and security that a custodial sentence combining the joint purposes of retribution and general deterrence is plainly called for. Serious crimes of violence nearly always fall into this category, and causing grievous bodily harm is obviously a very serious crime of that type. If such a crime is coupled with aggravated burglary where the aggravating factor of joint participation is further compounded by entry into a dwelling house for the very purpose of inflicting substantial violence on an elderly and vulnerable person, it is beyond argument that a substantial custodial sentence is demanded (cf Bennett v R 17/1990). It was not contended by counsel for the respondents that the Court should exercise a residual discretion and decline to interfere with the sentences appealed from. The principles which should inform the Court on such matters were discussed by me in R v Harland-White 23/1997. Indeed, far from there being grounds for reluctance to overturn the relevant sentences, I think there are particularly compelling grounds for the Court doing so in the present case. I refer to what I said in R v Marshall 70/1990 at 6 of my judgment:
"In my opinion, recognition should also be given to a further principle which should guide this Court in considering whether or not to allow Crown appeals in cases of the present kind. In my view, allowing a plainly inadequate sentence to stand has a severely detrimental effect upon good order and public confidence in the criminal justice system. Such a process also has an insidious secondary result by adding to the general data base of sentences. An inadequate penalty encourages lighter and lighter sentences to be imposed as the years go by, particularly if resort is had to the so called 'tariff principle'. A weakly merciful or inappropriately lenient sentence saps public respect for the criminal justice system, and in addition, it has a demeaning effect upon the victim of crime. The criminal victim, already an individual much neglected by the legal system, is encouraged to foment discontent with the legal process, and in extreme cases, to take the law into his own hands and exact a personal vengeance. In my opinion, victims of crime are entitled to expect vindication from the sentence of the court. Their feelings of hurt and violation should not be aggravated by inadequate punishment, and the penalty imposed should not encourage them to seek their own retribution upon the offender."
In my opinion, the sentence of each respondent should be quashed and in lieu thereof each should be sentenced to three years' imprisonment to commence upon 13 February 1998. In my opinion, it would not detract from the purpose of general deterrence and would not be contrary to the principles stated in Percy (supra) and Causby (supra) to suspend part of this sentence. Such a course would also give recognition to the fact that an element of double jeopardy is inherent in an appeal against sentence which should be acknowledged when resentencing takes place. (R v Allpass (1994) 72 A Crim R 561 and R v Clarke [1996] 2 VR 520 at 522.) Accordingly, the last twelve months of each sentence should be suspended for a period of two years on condition that each offender be of good behaviour during that period. Each should also be ordered to pay a victim of crime compensation levy of $100 to the Clerk of Petty Sessions, Liverpool Street, Hobart within ninety days of release from prison.
Serial No 32/1998
File Nos CCA 10/1998
CCA 11/1998
THE QUEEN v SIMON JAMES MEERS
LEIGH JOHN MOLES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
7 April 1998
The Crown seeks review of sentences of imprisonment imposed on the respondents following their pleas to crimes of aggravated burglary and causing grievous bodily harm. Each respondent was sentenced to a term of imprisonment for twelve months, the last ten months of which were suspended on condition of good behaviour. The sole ground of appeal in each case is that:
"The sentence imposed was manifestly inadequate, having regard to all the circumstances of the case."
Following the decision of the High Court in Phillips and Everett v R (1994) 181 CLR 295, the Criminal Code (Tas) 1924, s401(2)(c), was amended so as to permit the Crown a right to seek review of sentence without the requirement of leave. Nevertheless, as Wright J observed in R v Harland-White 23/1997 at 1:
"Nonetheless, if and when the Crown, exercising its unfettered right under the Code, s401(2)(c) files and prosecutes an appeal against sentence, I think that the Court has a duty to determine that appeal in accordance with the legal tests which are appropriate to the grounds specified, and is not free to imply strictures upon that process which are not found in the legislation. Consequently, in a case in which the ground invoked is, for example, manifest inadequacy, the Court will be obliged to consider that question and will not be justified in declining to do so on any of the discretionary bases which heretofore may have justified a refusal of leave."
The principles discussed by the Court of Criminal Appeal in Harland-White (supra) and its subsequent decision in R v Woore 30/1997 (by a court differently constituted) require consideration of a Crown appeal on a basis different from that of a convicted person. An appellate court ought pay regard to the question of "double jeopardy" (R v Dowie [1989] Tas R 167) and acknowledge that:
"... an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." Griffiths v R (1977) 137 CLR 293, Barwick CJ at 310.
That statement of the rare circumstances should:
"... be expanded by the inclusion of express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which Barwick CJ saw as being 'error in point of principle' ... Otherwise, it should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country." Malvaso v R (1989) 168 CLR 227, Deane and McHugh JJ at 234.
It is these principles of disparity and inconsistency which require consideration in these appeals.
Background Circumstances
The respondent Meers was a member of the family of the complainant, aged 74, who lived with his wife in a Hobart suburb. Some seventeen years previous, he had been responsible for some form of care of Meers and his sister whilst their parents were at work. Meers told police that he had a recollection of improper sexual conduct by the complainant towards his sister, then aged 4. He claimed to recall that he and his sister were not allowed into a particular shed because that was where impropriety had occurred. That there was some discord within the family unit concerning alleged misconduct is evidenced by the evidence of the complainant during the course of criminal proceedings (recorded in the Crown papers and mistakenly included in the appeal book) although he said that in reality the complaint ought to have been directed at another person. However, he agreed that reference to that complaint of misconduct had been directed at him some twelve months before the date of committal proceedings. The Crown, quite understandably, did not concede the accuracy of the account, but conceded that Meers may have held a mistaken belief. Counsel for the respondent told the Court that Meers had grown up:
"... with Emma being depressed, crying, for what he thought was nothing, as she grew older, using soft drugs and drinking to excess."
and that at the time Meers thought it was part of growing up, but he could not understand why she was more depressed and rebellious than her friends. Meers, at the age of approximately 15 or 16, overheard his mother and Emma (the sister) speaking about the complainant, and in the words of his counsel:
"... what occurred was that the accused Mr Meers was looked after by the complainant, as was his sister Emma. Mr Meers then spoke about the fact that he wasn't allowed in to a garden shed with the complainant and Emma and he was told what Emma was asked to do in that shed ..."
Counsel, quite properly, did not invite the Court to consider the truth of any alleged conduct of the complainant, being content to rely, as a mitigating factor, on the belief held by the respondent. During the course of the sentencing hearing, a letter was tendered to the Court from the mother of the respondent Meers. The relevant parts of that letter state:
"I, Suzanne Churchill, mother of Simon James Meers and Emma Kate Meers, have documented what I consider to be significant events in their childhood years.
[F] and [B] [X] cared for Simon and Emma from 1977
Emma was 4 months old and Simon 3 years old.Simon was a very difficult child at this time but I have no proof there was a problem with the care they received at this time.
When Emma was approximately 3 years old there was a marked change in her behavior she became extremely difficult and hysterical when I took her there and on numerous occasions it was impossible and I was forced to take her to my mothers place.
I spoke to [B] about this and she told me Emma would not go outside unless forced. She became very upset and thought I was being critical it was hard to make her realize I was trying to find out why Emma would not go outside. At this time Emma started wetting the bed and would sleep with me every night.
My mother on one occasion commented abut an incident in Eastlands Shopping Centre. She had Emma with her and they met [F] [B] in the supermarket. Emma ran behind Mum and would not come out or acknowledge him. My mother remarked on it as he had been caring for Emma for some time and Mum was concerned about Emma's behavior.
Eventually I was forced to leave the work force full time and to care for Emma. A neighbour offered to care for Emma and she went willingly and happily to her place.
There were moments in her childhood which concerned my husband and myself as she would not go near any men, only my father.
Emma progressed fairly happily throughout the rest of her childhood until she was 16. She did extremely well at school and participated in all sports, school band, concerts etc.
Problems again arose when she started going out with boys. Her first boyfriend at the age of 16 did, unknown to us try to force Emma to have a sexual relationship. Force is the correct word in this case and Emma started to have flash backs to when she was young. Her schoolwork deteriorated along with her behaviour, as she was unable to cope with the memories and nightmares she was having at time (sic). She could not talk to me or anyone about the particular episodes she remembers occurring at the [X's].
I took her to a psychologist who advised us not to press charges, as the whole procedure is too painful for the victim. I confided in my mother and we decided not to tell any of our family as the whole thing was too painful and difficult enough for us to cope with.
Emma from 16 to approximately 18 years of age continued to battle with the memories and dropped out of College and experimented with drugs. Her behaviour, going from a high achiever to lying around doing nothing, confused and angered members of the family and eventually we were forced to tell others what had happened.
I told Simon as I felt he might also have been a victim. He was absolutely disgusted and horrified as only a 19-year-old boy can be. As far as I know he was not a victim but can remember various incidences such as being locked out of the garage whilst[FX] had Emma in there.
My father was devastated and an incident occurred at Eastlands Shopping Centre where he confronted [FX].
This occurrence set off the chain of events up until the present time.
[F X's] daughter [V] contacted me and asked why my father had confronted him. I briefly told her of the assault on Emma when she was cared for by him. She became very upset and said she was very sorry (it had happened). I felt sorry for V and asked her to meet me for a coffee when she could. She was agreeable to this but never rang again.
To 'de-fuse' the emotional situation, which was becoming very apparent at home, I sent Emma to Darwin to stay with my sister. The family in the meantime tried to cope with the guilt we felt in not being able to prevent it happening. I knew Simon felt this guilt most of all as he was at the house when this was happening to Emma.
In 1996 Emma became severely depressed and I sought the help of a psychologist who specialized in dealing with people who were traumatized in childhood. She attended the psychologist for sometime [sic] and it seemed to help. I attempted to get Simon to attend too, as I knew he was having trouble dealing with his guilt. He declined and I was forced to let it drop."
That material was relevant and cogent. The learned sentencing judge asked counsel for the respondent what he should make of the document and whether he should draw inferences from it. Counsel for the respondent replied:
"No, I'd ask that you don't do that, if it please your Honour. I would ask that the only inference that can be gained from it ... is an inference that Mr Meers believed, as a result of certain things that occurred ... during the accused's adolescent years and earlier years, which led him to a certain belief but in no way, because, as I say, one can't cast accusations without, and one can't blame anybody until they've been through a court system and I wouldn't ask you to be doing that at all."
The respondent Moles was the "boyfriend" of Emma. In the words of his counsel, he:
"... had been living with Emma and had been her boyfriend for approximately twelve to fifteen months ... (had awareness of) Emma waking up, crying, sobbing ..."
It would appear from the plea in mitigation that Emma had, at some time, recounted to him what had occurred.
At the conclusion of the plea in mitigation and the additional material furnished to the Court, counsel for the Crown replied:
"... the beliefs that have been discussed by my learned friend, I would just like to state the Crown's position that they are only a belief that was held by the accused and that it was not a fact."
It was appropriate that the accuracy or otherwise of the claimed events not be canvassed on a sentencing hearing. Nevertheless, the material afforded a firm foundation for a finding that there existed an honest belief, not unreasonably held, which had given rise to the criminal conduct.
Circumstances of Crime
The respondents were friends who had been drinking at an hotel on the evening preceding the attack, where they had discussed the reason for Meers' hostility towards the complainant. In the words of counsel:
"They then started talking between themselves and started talking about Mr Meers' sister, Emma. Mr Moles asked Mr Meers 'Why does Emma do this to me?', that is not come home, stay out and drink. And then a conversation occurred about her drinking and her waking up at nights sobbing and crying. Mr Meers grew up with Emma being depressed, crying ..."
"The night grew older, more alcohol was consumed, the conversation continued along those same lines, as to 'how could somebody get away with it while Emma has to live with it'. She had received counselling for approximately five years from the Vietnam Veterans Counselling Service."
Apparently, Moles had lived with another woman who had suffered abuse. The respondents found themselves, during the course of the evening, in the same locality as the complainant. On impulse, they decided to go to the complainant's house in order to "punch him a few times for previous [sic] that he's done for the family." At about 12.40am they went to the door of the complainant's house and wakened him. They forced open the door and pushed him back onto a couch. He was repeatedly punched to the head and kicked in the upper body. He was thrown to the floor and further kicked to the head and body. The complainant called out to his wife, turning on to his stomach in order to protect himself. When the wife called police, the respondents fled. The beating was prolonged and life-threatening to an elderly man. The complainant "suffered fractured ribs, punctured lungs and bruising to the ear, face and back." The learned sentencing judge was told (incorrectly) that the complainant had spent some fifteen days in hospital (in fact, it was for some five to six weeks). The ongoing trauma suffered by the complainant and his wife was significant. The only motive for the attack was the perceived grievance (exacerbated by alcohol) held by the two respondents. Both readily admitted responsibility and showed genuine contrition.
Approach Taken by Sentencing Judge
Neither respondent had previous convictions. Meers was aged 22, whilst Moles was 29. Both had excellent work records and were regarded by others as responsible and caring persons. Both had been involved in the community through sport and other forms of social activity. References were tendered to the Court attesting to their respective characters, employment record and commitment to others. Those references referred to the absence of natural violence, aggression or spite in either man. The learned sentencing judge was required to afford balance and consideration between the need to condemn brutal conduct occasioning serious harm, the factors giving rise to conduct which was out of character, and the probable consequences of corruption by the lengthy imprisonment of two men otherwise devoid of criminal characteristics. On the basis that sanction is governed by retribution, the learned sentencing judge was too lenient, whilst on an approach solely dependent on the subjective characteristics of the offender, he was too harsh. His sentence attempted a balance of competing considerations. In passing sentence, he paid regard to the following matters:
The community must not condone the criminal activities of persons seeking redress for perceived private wrongdoings, real or otherwise.
Whilst making no finding of actual wrongdoing on the part of the complainant, he accepted that each respondent held an honest belief as to the previous conduct of the complainant.
The community is concerned about "home invasion" and violence.
The conduct had caused serious harm and warranted imprisonment "as a deterrent, not only to the prisoners, but to others who might be minded to take the law into their own hands and use violence to right perceived wrongs."
The personal characteristics of the respondents, including their ages, lack of record, remorse, character and stable employment, warranted amelioration of sanction.
That in assessing the competing requirements of sentencing, he attempted to "achieve a balance between punishment, deterrence, retribution, but not throwing away lives so that they will completely lose their jobs and place in society."
The Crown does not contend that any of the above principles were incorrectly applied. Instead, it concentrates its claim on the pillars of retribution, deterrence and the claimed perception of society and contends that the sentence is inconsistent with appropriate sentencing standards.
Deterrence
The attack was not random. It was directed at and motivated by the perceived conduct of a particular victim. That it was vicious and cowardly goes without saying. Insofar as it could be said that general deterrence was required, it could only be directed at those persons in the community who harboured a need for retaliation for past wrongs of the nature believed by the offenders. The need for general deterrence was met by the imposition of an actual prison sentence. Insofar as the question of special deterrence arises, the imposition of a partially suspended sentence was apposite. It was unlikely that each respondent would re-offend, but, the composition of the sentence, as determined by the learned sentencing judge, adequately met that requirement by maintaining the threat of sanction.
Retribution
I do not presume to be able to asses the response of an "informed" community to the conduct of the respondents. I suspect that it would be a confused mixture of abhorrence of violence to an elderly man in his own home and an understanding of the anger of a person who believed that a sister or lover had been betrayed and abused. But one can presume to state that the community would understand that this was no ordinary home invasion, and that fear of random harm was not a feature of this case. Had the attacks occurred during the course of social contact between the offenders and the victim, different considerations concerning sentence would apply. Again, if the beliefs of the offenders were accepted by the community as being true, one suspects that desire for retribution would be lessened. It is these considerations which require a sentencing regime based on judicial discretion and principle, rather than clamour. The sentencing tribunal was not required to consider the truth of the "perceived misconduct" but to accept the existence of a belief as an ameliorating factor. The purport of the above observations is to conclude that the community would regard the circumstances of this case as being distinct from a typical "home invasion" accompanied by violence.
Belief and Conduct
Both respondents believed that the complainant had caused harm. In R v S [1991] Tas SR 192, an attempt was made to categorise the principles relevant to the determination of penalty for a crime committed as retribution. The judgment at 198 sets out the following propositions:
"1That 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 The Queen (1988) 164 CLR 465 at p 476.
2That an honest but mistaken belief operates as a mitigating factor in the same way as would the existence of a belief which was accurate. Reg v Campbell (1984) 12 A Crim R 272 at p 277.
3That provocation or a belief as to a state of affairs which could constitute provocation should be regarded as a mitigating factor. Pearce v The Queen (1983) 9 A Crim R 146; Unal Okutgen v The Queen (1982) 8 A Crim R 262.
4That 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. Reg v Dowie 1989 Tas R 167.
5That the emotional state of the offender is a factor to be considered as mitigatory. Neal v The Queen (1982) 42 ALR 609, at pp 624, 625, 149 CLR 305, at p 324."
That decision paid regard to similar authorities of the High Court and Criminal Courts of Tasmania and other jurisdictions, and the principles identified therein were elaborated in the following terms (at 199):
"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.
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.
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.
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."
In my respectful opinion, those principles are both valid and apposite to the determination of the sentence of each respondent. The circumstances of this case show the utility of courts paying regard to the existence of an honest belief as a significant mitigating factor. If it be not so regarded, then the obligation of counsel for the respondents was to assert the reality of the conduct and, if challenged, require the calling of evidence. The sentencing hearing would be thereby transformed into a tribunal determining whether or not the complainant was guilty of abhorrent sexual crimes against a child. The sister of Meers might have been obliged to give evidence, and other family members called to state accounts of confrontations, family councils and the like. The past conduct of the complainant and the veracity of the sister would become central to the deliberations of the sentencing tribunal. The area of historical sexual misconduct within families is fraught with difficulty. Its complexity renders a sentencing tribunal as an unsuitable vehicle for the determination of conduct involving subsequent private redress. But belief remains a significant mitigating factor and must be accepted if held on an honest basis. The approach taken by the learned sentencing judge reflected the complexity and sensitivity required by the material placed before him He was entitled to consider the social utility of not corrupting or ruining the lives of persons who were otherwise of good character (Goodman v Schindler A16/1980; R v Phillips B48/1993 and R v Draper [1970] QWN No 20 at 219).
Principle
The appellant contends inconsistency by comparison with other sentences imposed following "home invasion" and the causing of grievous harm (Bennett v R A17/1990, R v Nowicki, comments on passing sentence, Tasmania 5 December 1997) and that the suspension deprived the sentence of any personal or general deterrent effect (R v Causby [1983 - 1984] Tas R 54, R v Percy [1975] Tas SR 62). But the principle of consistency requires comparison with like crimes. This was not an ordinary case of "home invasion" and, for reasons already given, there is small need to pay regard to general deterrence. The deterrent was required to be directed at "retribution cases" not criminal conduct at large. The imposition of the sentence with its suspension operates as a personal deterrent against both respondents. In my respectful opinion, no principle of inconsistency or disparity arises.
Conclusion
Given the particular circumstances of this case, the belief held by the respondents, their subjective characteristics and the nature of a Crown appeal against sentence, I do not regard the ground of appeal as having been made out. I would dismiss the appeal.
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