R v Whiteside & Dieber
[2000] VSC 260
•23 June 2000
| SUPREME COURT OF VICTORIA |
| CRIMINAL DIVISION |
No. 1504/1515 of 1999
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN WHITESIDE and KRISTIAN PETER DIEBER |
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JUDGE: | Cummins, J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 30, 31 May, 7, 8 June 2000 | |
DATE OF SENTENCE: | 23 June 2000 | |
CASE MAY BE CITED AS: | DPP v Whiteside and Dieber | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 260 | |
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Criminal law – sentencing – manslaughter – pleas of guilty by co-accused – false claim of rape – fatal assault in purported citizens' arrest – deceased homosexual but that not known to accused – accused not vigilantes – considerations applicable – role of mercy in sentencing – suspended sentences.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | W. Morgan-Payler QC with S. Pullen | OPP |
| For the first accused | P. Dunn QC with | G.R. Bryant & Associates |
| For the second accused | I. Hill QC | Anthony Isaacs |
HIS HONOUR:
The Events
John Whiteside and Kristian Peter Dieber, each of you has pleaded guilty to the manslaughter on 6 May 1999 of Keith Hibbins. The events which caused the death of Mr Hibbins took place on Anzac Day last year – Sunday 25 April 1999. Mr Hibbins died 11 days later in hospital, not having regained consciousness. He was 45 years of age at the time of his death, having been born on 1 March 1954. You, Mr Whiteside, were 27 years of age, having been born on 18 August 1971. You are now 28. You, Mr Dieber, were 23 years of age, having been born on 2 November 1975. You are now 24.
You both, with a number of friends of similar age, had attended the Essendon – Collingwood football match at the MCG on Anzac Day last year. Each of you had consumed some alcohol that afternoon but were not drunk. You left the football at its end, sojourned briefly at the MCG Hotel in Wellington Parade, East Melbourne just north of the ground, and then, about 7.00 pm, commenced to walk westwards along the southern perimeter of the Fitzroy Gardens towards the city. Neither of you was looking for trouble. Neither of you was looking for a fight. Neither of you was bent upon any violence. Midway along the southern perimeter of the Gardens you came across a sobbing young woman. She said she had been raped. Her demeanour confirmed it. You believed her. Reasonably.
Neither of you knew that the young woman had had her own problems: see her prior convictions and cross-examination below (D. 164, l. 1-28) and which are not necessary to rehearse here. She had not been raped or sexually assaulted in any way. But she had had a history of difficulties, had been drinking, was upset after an argument, and most unfortunately said she had been raped. She was not to know what would follow, and it would be quite wrong to blame her for what followed. I do not. But her unfortunate cry was the first step in this unfolding tragedy.
Your belief that she had been raped is supported by the following circumstances. A jogger (whose occupation was business consultant) doing circuits of the Gardens ran past a young woman arguing with two men and he heard her sobbing loudly (D 979). On his return circuit, she was alone and crying more loudly, so he approached her to see if he could help. When he did this, she slumped to her knees, still crying, but declined his help. He then ran on, but kept an eye on her. Your football group was walking in the opposite direction, towards the city. Your group approached her to see if she needed help and she appeared to panic and she threw her wallet at you, saying “just take it and leave me alone”. The jogger ran back to the scene. He and your group discussed what to do and decided to call her a taxi to take her home. Her wallet was opened for identity purposes and it contained $550. A taxi was hailed but the woman said she wanted the police. Accordingly, the taxi was sent away and a member of your group, Mr Purdon, rang the police and ambulance for them to attend urgently. The Intergraph recording (exhibit “A”) of the mobile call demonstrates the solicitous concern of your group for the welfare of the woman and the apparently anguished state of the sobbing woman. The caller, Mr Purdon, gave his correct name and mobile telephone number. When one of your group asked the woman had she been raped, she “didn't really give a definite answer” according to the jogger so one of you (D 981) asked had she been sexually assaulted and she said “yes”. She then said she had been raped by two men (your Homicide interview, Mr Dieber, A. 32). You were told by the jogger that he had seen two men arguing with her (your Homicide interview, Mr Whiteside, A. 77). You both concluded, reasonably, that two men had been involved in her violation. A senior Melbourne City Council park ranger arrived. He identified himself as a park ranger. He described what then happened thus (D 1018):
“I asked her if she had been raped, to which she looked at me, then put her head down and gave what I thought was a false sounding cry. I again asked her if she had been raped, to which the reply was again a false sounding cry. When I asked her the second time she was looking at me again and she then put her head down and gave what I thought was a false type of cry. I felt that she hadn't been raped; however, I was very cautious in case I was mistaken.”
An ambulance arrived. The ambulance paramedic found the woman “curled up almost in the foetal position” (D 970), visibly distressed, and crying “Why me?” The police arrived. To them she said she had been sexually assaulted. She was removed by ambulance. At medical examination at 9.15 pm that night she said to the examining doctor she had been raped (D 703). She said to police she wanted to go home. She was permitted to do so. On 27 April, 1999 she made a statement to police alleging she had been raped. In the statement she graphically described a 28-30 year old male “with a deep voice, dark short hair, one length straight style” who had, in the Gardens, grabbed her, spun her around, forced her into the rear compartment of his utility, forced her pants down without undoing her zipper and that then she “could feel his semi-erected (sic) penis in between my legs near my upper thighs. He didn’t penetrate my vagina with his penis” (D. 643). All untrue. All made up. None of it happened. In her statement to the police on Tuesday 27 April 1999 at 5.05 pm at the Rape Squad in St. Kilda Road she said: “All I could think of was: Why me?” - the very words she had used two days earlier to the men who sought to console and help her in the Fitzroy Gardens: “Why me?” How unfortunate it was that your paths crossed hers. She persisted in this until, upon continuing police investigation, on 20 May 1999 she admitted to police her allegations were false. On 15 October 1999 at the Ringwood Magistrates' Court she was convicted of making a false report to police and was sentenced to two months’ imprisonment to be served by way of an intensive correction order. She had commenced Anzac Day, when she awoke at 9.30 am, with two cones of cannabis and had spent the afternoon heavily drinking alcohol. That night, in her purse, was found a silverfoil packet of amphetamine. She was given a concurrent sentence for that particular drug.
All of this was not known to you. But there is an abundance of evidence - notably your contemporaneous statements to persons in the Gardens that night, including to the victims - to establish that the young woman's conduct and words convinced you that she had been raped. Unlike the senior park ranger, you did not view her story with reserve. You, as decent and trusting young men, believed her. Reasonably.
That leads to the second step in this unfolding tragedy: the action you took.
Unprepared for what had befallen you, inexperienced in the ways of the criminal law, and in an upsurge of emotion, you decided to ensure, if you could, that the rapists did not escape into the dark recesses of the Fitzroy Gardens. You knew the police and ambulance were coming to attend the female victim, as you thought her to be. Urgent action was needed, you thought, to ensure the law was not impotent and that yet another violator of women did not escape. Your decision inherently and inevitably involved that you gave yourself no time for contemplation or reflection. As Mr Dunn QC correctly observed (T. 95), in such situations “judgments go awry”. So, in an upsurge of emotion, you commenced running through the Gardens in search of the violators. You spoke decently to persons who obviously were not violators: women, family members, children. One family group you advised to leave the Gardens as there had been a rape and they thanked you for your concern (D. 1021). You asked the members of that group had they seen “two guys” anywhere (D. 1022). You then “ran off into the park” (Mrs S. Powell: D. 1022). And then you came across two men.
This is the third step in this unfolding tragedy. Mr Keith Hibbins, a decent, honourable and law-abiding 45 year old homosexual, and his life partner Mr David Campbell, had entered the Gardens from the north west and were peaceably walking south east – in the direction, unknown to them, of the supposed victim. You both ran up to the two men. You were full of anger and indignation. You had not the remotest idea the two men were peaceable homosexuals. You did not wait to ask. That is the risk of citizen’s law enforcement: that mistakes occur. After a brief exchange, Mr Hibbins, seeing and sensing your palpable aggression, cried “Run!” and turned and ran. He did so because he too made an error: he thought you were two bashers of homosexuals. Like your mistake in believing the young woman who cried rape, so too his mistake in believing you were bashers of homosexuals was reasonable: he and his life partner were two peaceable homosexuals in a park at night, confronted by two aggressive young men smelling of alcohol and exuding violence. The fact that his mistake was reasonable brings shame on us all: shame that our society has been so inept for so long in eliminating violence or the risk of violence against homosexuals, and shame that by our failure homosexuals have become inured to violence or the risk of violence against them. But that is what he believed, and that is why he ran – followed by Mr Campbell.
The fourth step in this unfolding tragedy is that Mr Hibbins’ very understandable reaction communicated to you that here were the violators.
The deceased's partner, Mr David Campbell, tells the story. You had both run up to Mr Hibbins and Mr Campbell and accosted them in word and manner. As Mr Campbell said in his video re-enactment on 29 April, you were angry and smelt of alcohol. You said a woman had been raped in the Gardens. They said they'd call the police. Then Mr Hibbins said “Run!” and they ran. Both of you chased both of them. Mr Campbell tripped on a concrete apron under a light pole, still in the Gardens. One of you briefly but forcibly assaulted him – the subject of a separate charge. Mr Campbell got up and escaped east into St Andrew’s Place. You lost him. Mr Hibbins had gone more northwesterly, no doubt seeking the safety of his car which was parked further north up Lansdowne Street. You, Mr Whiteside, reached him first, on Lansdowne Street. In order both to apprehend and to punish him you commenced to punch him severely. You soon were joined by Mr Dieber. Your assault was effected and intended to punish Mr Hibbins, not just apprehend him. It was a brief but severe assault. A witness from the 7th floor window of St Andrew’s Hospital, above the scene, described it in clear detail: numerous, severe blows by the fist to Mr Hibbins’ head. Mr Hibbins was assaulted against a parked car. Then he fell to the ground. He did not regain consciousness.
In the foregoing I have drawn in particular upon the evidence of Mr Campbell, Mrs Skinner (formerly Baker) and Mr Junor. Mr Junor described your conduct as “very aggressive” (D 746). His rising tone of voice upon the Intergraph recording of his mobile call (exhibit “B”) that “they 're getting stuck into someone up here – make it quick! ” graphically communicates the fact. Mrs Skinner's view from above was unimpeded by street level distractions (as was Mrs Powell’s: D. 1022 and Mr Scull’s: D. 1026) and was specific. I do not accept that 20 blows were struck, and the prosecution very properly has conceded that the handling of the deceased when he was on the roadway was by another person, Mr Junor, in tending to Mr Hibbins, not by either of you. In those respects Mrs Skinner's evidence is imperfect. No doubt, too, her qualitative description of your conduct was affected by the extreme medical condition of her husband. But the factual substance of her evidence is undiminished and persuasive. Finally, I wholly accept the evidence of Mr Campbell. I have studied his statements, his video re-enactment, and his evidence below. He impressed me as a decent, truthful, reliable person and witness – afflicted by the tragedy that befell his partner and himself, but wholly truthful and accurate. His video re-enactment, in particular, was impressive. In that re-enactment, he described you both as “running frantically” in the Gardens “in a panic state” and that when you confronted him and his partner you were “very angry” and smelt of alcohol. I accept his evidence.
After a desultory attempt to find Mr Campbell, you both waited at the scene for the arrival of police, whom you knew would soon attend. Your group, indeed, had rung for the police only a few minutes before. The Intergraph event chronologies show that Mr Purdon’s mobile call from Wellington Parade was at 7.15 pm (D. 729) and Mr Junor’s mobile call from Lansdowne Street was at 7.34 pm (D. 732). All of this happened in a few minutes.
As the unconscious Mr Hibbins was being removed by ambulance from Lansdowne Street to St Vincent’s Hospital, on the opposite side of the Fitzroy Gardens the young woman was being removed by ambulance to the Royal Women’s Hospital to be given care and succour for a rape that never happened.
Each of you was removed into police custody and separately interviewed. Each of you answered all questions asked of you: in your case, Mr Whiteside, 213 questions, from 9.04pm on Sunday 25 April until 9.05 pm and then on Monday 26 April from 2.50 am until 6.20 am; and in your case, Mr Dieber, 295 questions, from 8.53 pm on Sunday 25 April until 8.55 pm and then on Monday 26 from 3.20 am until 3.35 am and then from 7.05 am until 8.30 am. You both fully cooperated with all police procedures. Although you both downplayed the extent of your aggressive behaviour and wrongly sought partly to blame the victims, I do not consider that either of you deliberately sought to mislead the police; rather you gave your answers as you each perceived in your state of high emotion it had been, and in the shock of finding yourselves in police custody. At the conclusion of those interviews, you each were charged with intentionally causing serious injury to Mr Hibbins. When, very sadly, Mr Hibbins died in hospital on 6 May 1999, you each were charged with his murder. You also were charged with assaulting Mr Campbell. Mr Campbell had received minor physical injuries but, very understandably, was severely traumatised by what had occurred in the Gardens and on Lansdowne Street, and deeply afflicted by the death and loss of Mr Hibbins. In that deep affliction, I have nothing but sympathy for Mr Campbell, a decent and honourable man who has lost his life partner.
The unconscious Mr Hibbins had been removed to St Vincent's Hospital, where emergency surgical procedures were undertaken. He did not regain consciousness. He died on 6 May 1999. On 11 May 1999 each of you was charged with his murder.
An autopsy upon the body of the deceased was conducted by Dr Malcolm Dodd, a distinguished pathologist, on Friday 7 May 1999 at the Coronial Services Centre, Southbank. The cause of death was “blunt head trauma with evidence of a traumatic left vertebral artery dissection” (D 775). That dissection was at level C2. Toxicological analysis showed no presence of alcohol or drugs in the deceased. The deceased suffered substantial bruising, but no skull fracture and no rib or other bony fracture, and no epidural or subdural haemorrhage. There was subarachnoid haemorrhage. In cross-examination below, Dr Dodd stated that the injuries to the front of the face of the deceased could have been caused three to four blows and that there were a total of “six to eight discrete injuries on the head and neck area” (D 514). The substantial bruising to the left chest (Autopsy report, injury No. 9: D. 765) extended through the muscle wall but did not involve subjacent rib fracture (Autopsy report, point 4: D. 770). In the light of the surrounding evidence that bruising was, I consider, caused not by a kick but by a severe punch or by Mr Hibbins forcibly striking the parked car in the assault, as Dr Dodd conceded it could be: see cross-examination below at D.513, l. 3-16. Effectively there were two injuries to the brain of the deceased: one at its base – the inner tube of the left cerebral artery being in part dissected, causing bleeding from the artery; and one at the top of the brain towards the rear, consistent with striking the roadway. Thus the cause of death was blunt head trauma with traumatic left vertebral artery dissection at C2; there were no fractures; there was soft tissue injury; and those injuries were caused by punches. The final step in this unfolding tragedy is that the death of the deceased was unexpected, unintended and unlikely.
The Considerations
I turn to the considerations, both factual and legal, which guide the sentencing discretion. First, the factual.
I have read the victim impact statements of the deceased’s mother, sister and life partner. They are moving and impressive documents. They reveal the deceased to be a gentle, caring person of integrity. Mr Campbell had been Mr Hibbins’ partner for 15 years and they had committed their lives to each other. Mr Campbell, most understandably, is traumatised by what occurred and deeply afflicted by the death and the loss of Mr Hibbins. He is suffering from Post Traumatic Stress Disorder and major depression. The centrality of Mr Hibbins to Mr Campbell is well documented in perceptive reports of Dr Gabriel Phillips, psychologist, of 20 August 1999, 7 February 2000 and 6 June 2000. Mr Campbell is now socially isolated. Dr Phillips in his report of 6 June 2000 and Dr J Anderson of the Carlton Clinic in his report also of 6 June 2000 join in expressing the extremis of Mr Campbell; the former “… in all my years of working I have not witnessed such excruciating suffering in a bereaved person”; the latter “…I have not encountered a more severe grief reaction”. One would have a heart of stone not to be moved by the statements of the victims – mother, sister and life partner.
In the 6 June 2000 report of Dr Phillips (after the prosecution had accepted pleas of guilty to manslaughter in this case), the psychologist reported that Mr Campbell experienced the prosecutorial decision as “an enormous breach of trust and travesty of justice”. It was neither. Legally, the prosecutorial decision was justified and correct. As I have said, the death of the deceased was unexpected, unintended and unlikely. Emotionally, however, that is little consolation to Mr Campbell.
I turn to each of you. Mr Whiteside and Mr Dieber, each of you is of exceptional good character. You come from families who are decent, honourable, and hard-working; plain, good values which no doubt engendered and nurtured your own good characters.
You, Mr Whiteside, as I have said are now 28 years of age. A comprehensive and eloquent plea has been made on your behalf by your senior counsel, Mr Dunn. You are the youngest of five children in the Whiteside family. You were raised and educated in the Ferntree Gully area and after leaving school – Knox Technical School in 1987 in Year 10 – you undertook an apprenticeship and then full employment in the air-conditioning field. You are hardworking and consistent. Over the years you have been active in local sports, especially cricket. A large body of character evidence (both viva voce and written) establishes that you are a loyal, decent, non-violent person and a good friend. You lost your beloved father when you were 14 and, sadly, your mother in 1998. You are of excellent character.
So, too, are you, Mr Dieber. You are now 24 years of age. You were raised and educated in the Ringwood area. You have one sister. You completed Year 12 at Parkwood Secondary College in 1993 with excellent results and thereafter a Bachelor of Economics at Monash University, likewise with excellent results. You participated in local sport, especially cricket and are a valued coach of younger sides. Upon graduation you obtained responsible employment in which you are still engaged. A large body of evidence (both viva voce and written) establishes that you are a person of integrity: capable,. loyal, hard-working and of considerable potential. You are not an aggressive or violent person. Your responsible and remorseful (in the proper, selfless sense) response to this tragic case has impressed me very considerably.
Expert psychological evidence confirms that neither of you is a violent or aggressive person and neither of you suffers any psychological condition predisposing you to violence or aggression: respectively, the tendered reports of Ms E. Warren, psychologist, of 1 June 2000 (and her evidence before me) and of Mr J.E. Cummins, psychologist, of 6 June 2000.
Holistically, I consider I should not distinguish in penalty between you. You are both young men of good character who acted together and knew what you were doing. You both were afflicted with the same spontaneous rush of emotion.
I turn to the legal considerations which guide the sentencing discretion. It is necessary to assess this crime in the wide range of gravity and culpability comprehended by the crime of manslaughter. Your offence is manslaughter by unlawful and dangerous act: the fatal assault upon Mr Hibbins.
If this manslaughter had been a purposeful bashing of a homosexual – that is, if you had bashed the victim because he was homosexual – I would have imposed upon you lengthy terms of imprisonment. That is because the law rejects violence against homosexuals and rightly will meet such violence with the full punitive and protective force of the law. But yours is not such a case. You punished the victim because you thought he was a violating heterosexual, not a homosexual.
If this manslaughter had been by vigilantes, I would have imposed upon you substantial terms of imprisonment. That is because the law rejects vigilante conduct. It is truly lawless conduct and must be curtailed both for its own sake and for the errors it engenders. There is a long history of the power of citizen’s arrest: generally, from Norman times and particularly, from the time of Henry II and the Assize of Clarendon (1166). It is an incident of the King’s (or Queen’s) Peace. See R v McKay (1957) VR 560 at 571-574 per T.W. Smith J (a highly distinguished jurist whose funeral was held in Melbourne yesterday and in whose debt we all remain), R v Turner (1962) VR 30 at 36-38 per curiam and R v Lerke (1986) 25 DLR (4) 403 at 408-410 per Laycraft CJA delivering the judgment of the Alberta Court of Appeal[1]. In Victoria, the position is relevantly governed by sections 458(1)(a), 461(1), 462 and 462A Crimes Act 1958. This was not a citizen’s arrest because you punished the suspect, not apprehended him. But neither were your actions the actions of vigilantes. For vigilante conduct is premeditated, purposive conduct wherein the actor takes the law into his or her own hands having eschewed due process of law. Such conduct should be punished substantially, both to uphold the rule of law and to deter others from following such a path. But your conduct was not that of the deliberative, process-eschewing vigilante. Yours occurred with no pre-consideration and no concerted rejection of lawful process. It occurred because of an unplanned, spontaneous, upsurge of emotion in each of you. That immediacy and lack of premeditation distinguish you from vigilantes. Yours was not vigilante conduct.
[1]See also Police v Hailemariam (1999) 73 SASR 319 at 322-323 per Mullighan J; R v Frugtniet and Frugtniet (1999) 2 VR 927 at 306-314 per curiam (tangentially); and the ever helpful works of the late Professor Glanville Williams “Arrest for felony at common law” (1954) Crim LR 408 and “Arrest for breach of the peace” (1954) Crim LR 578.
If this manslaughter had been a crime by aggressive drunken sports followers, I would have imposed upon you substantial terms of imprisonment. That is because the law and the community reject the arrogant and destructive behaviour of drunken spectators and punish it for its own sake and to deter others.
But your conduct was none of the above.
The constant in all categories of manslaughter is the unlawful killing of a human being. That, of itself and with no more, is grievous. Your aggressive and excessive conduct towards Mr Hibbins is to be condemned. It caused the death of a human being. But the categories of manslaughter range widely in culpability. Yours is in the least culpable category. That is so for the following reasons. Yours was the conduct of two young men of good character not looking for trouble, not looking for a fight, not bent upon violence; who truly and reasonably believed a woman had been raped and who without reflection or premeditation sought to ensure the perpetrators did not escape before the summoned police arrived; who then, in a rush of emotion, believing you had found the perpetrators, severely but briefly assaulted the victim. Finally, there is the rare and perverse confluence of events which channelled you towards this tragedy: the false cry of rape, your decent belief in its truth, and the socially-induced fear of the victims for which we all share blame. You are, of course, responsible for your own actions. No-one suggests otherwise:
“Men at some time are masters of their fates;
The fault, dear Brutus, is not in our stars,
But in ourselves…”[2]
But you and the victims were under a malevolent star that Anzac night.
[2]“Julius Caesar”, I 2,138-140
As I have already stated, the unlawful killing of a human being, of itself and with no more, is grievous. However, for the reasons I have stated, the manifold purposes of sentencing – condemnation, punishment, general and special deterrence, and reformation: all grounded upon the protection of the public – have but muted application to each of you. I have already condemned your conduct. You have received a degree of punishment: I shall say more about that shortly. The cruel confluence of events in this case surely serves for general deterrence. If persons are not deterred by this case from taking the law into their own hands, nothing I say and no penalty I impose will deter them. I think the cruel facts of this case will deter them. You need no further individual deterrence: you will not be back. And your prospects of rehabilitation are compelling.
There are 10 factors significantly in your favour. First, you each have pleaded guilty. That is of significance in itself, is of significance in obviating further trauma for the victims, and is of significance because it betokens remorse by each of you and is not a mere situational accommodation by you. Second, you each have genuine remorse for your crime: that is, remorse for the suffering you have caused others – not first for yourselves. Third, you both are comparatively young. That always is a matter of significance especially as to rehabilitation. Fourth, you both are of excellent character. Not only do you have no prior convictions, but there is before me a weighty and substantial body of evidence attesting to your positive good characters and your concern for others. Over your short lives and by your own efforts, you have built up a significant credit by your positive good characters and you are entitled to draw on that credit now. Fifth, and importantly, you are not persons of aggression or of violence. Sixth, you initially acted out of genuine and decent concern for the female victim, as you believed her to be. Seventh, you acted without premeditation, in a brief time frame, in the knowledge that the police were coming, and, despite your wrongful actions to the victims and which I have already characterised, you then each remained at the scene and waited for the police to arrive. Eighth, you each cooperated with police enquiries. Ninth, your prognoses are excellent: you each are determined that the criminal courts will not see you again. Finally, each of you has the potential, and the intention, which I believe you will fulfil, of contributing positively to society. It is proper, and not tautological,[3] that in such a case, mercy should operate. There is some commendably learned writing on the subject.[4] Shakespeare said it in three words: “mercy seasons justice”.[5]
[3]R.v Miceli (1998) 4 VR 588 per Tadgell JA at 592 (in whose judgment Winneke P. agreed) and Charles J.A. at 594 and R v Kane (1974) VR 759 at 766 per curiam.
[4]See the comprehensive article by Professor R.G. Fox, “When justice sheds a tear: the place of mercy in sentencing “ (1999) 25 Monash University Law Review 1 and N.E. Simmonds, “Judgment and Mercy”, (1993) 13 Oxford Journal of Legal Studies 52.
[5]“The Merchant of Venice”, 4.1.197. Windeyer J’s less than complete embrace in Cobiac v Liddy (1969) 119 CLR 257 at 269 of these words appears to be occasioned not by a lack of affection for them but by the necessary and relevant, although unpoetical, provisions of s.4(1) Offenders’ Probation Act 1967 of South Australia.
Those considerations lead, I consider inexorably, to the proper disposition in each of your cases.
Disposition
Each of you has served approximately six months in pre-sentence detention: in your case, Mr Whiteside, a period of 165 days and in your case, Mr Dieber, a period of 193 days. The usual, and regrettable, incidents of oppression of pre-sentence detention weighed heavily upon each of you. Each of you was innocent of those burdens until you were incarcerated. Further, and significantly, the oppressive quality of that detention was exacerbated by the ever present knowledge in each of you that you faced a charge of murder. It was not until 31 May 2000 - when the prosecution accepted pleas of guilty to manslaughter from each of you – that that burden of anxiety was lifted from you.
Pursuant to the provisions of s 18(4) Sentencing Act 1991, I declare those periods of pre-sentence detention as already served under the sentences I impose upon you and direct that the record of the Court be noted accordingly: that is, in your case, Mr Whiteside, the period of 165 days and in your case, Mr Dieber, the period of 193 days.
For the reasons I have stated, notably your clear belief that you were pursuing rapists, your total ignorance that your victim was homosexual, your lack of premeditation, the spontaneity of your actions, the fact that you were not acting as vigilantes, and your true remorse and your good characters, I have concluded that it would be wrong to require you now to return to custody. You have already each served six months in pre-sentence detention. That is enough detention. I propose to order that each of you be released immediately from further custody. I consider in each of your cases that a sentence of three years’ imprisonment (the maximum with suspended sentences) would be appropriate: s 27(3) Sentencing Act 1991, and that it is desirable in all the circumstances that two and a half years of that sentence should be suspended: s 27(1).[6] By reason of s 18(4) of that Act, the unsuspended six months of the sentences has already been served by you. Accordingly, in a few moments you will both be able to leave the Court and return to your families.
[6]As to the invocation of the power to suspend sentence of imprisonment, I wholly agree with Ipp J in Liddington (1997) 97 A.Crim.R. 400 at 407-408 who said: ". . . . . there is, in my view, no warrant for holding that the imposition of a suspended sentence should depend only or largely on the prospects of rehabilitation, or contrition, or any other factor. Once a suspended sentence is regarded merely as one of the sentencing options open to a judge, it should be employed as a sentencing disposition whenever warranted by all the circumstances of the case. There should be no rigid rule as to the primacy of any particular circumstance, and all factors which could possibly be relevant should be taken into account. Such factors would include the nature and seriousness of the offence, and all aggravating and mitigating circumstances, including circumstances relating to the commission of the offence and those personal to the offender. This is so notwithstanding that 'double weight' might have to be given 'to some factors for which the judge has previously made allowance [when determining the length of the period of imprisonment]': (P (1992) 39 FCR 276 at 285: 64 A Crim R 381 at 391). [Continued next page.]
6.[Continued.]
I see no incongruity in such an approach. After all, it is generally recognised that the seriousness of the crime is a factor that can militate against the suspension of a sentence. Yet the seriousness of the crime is a factor that will influence the length of the sentence imposed. Accordingly, just as the gravity of the offence and other aggravating circumstances will be taken into account both in determining the length of a term of imprisonment and whether that term should be suspended, so, in my view, should all mitigating circumstances be taken into account, not only in determining the length of the term of imprisonment, but in deciding whether or not to suspend that sentence."
Finally, two formalities.
First, is necessary (s. 27(4)) that I inform you of the purpose and effect of a suspended term of imprisonment. It is a term of imprisonment (s. 27(8)) but you are not held in custody. If you, during the two and a half years to go, commit another criminal offence, you may be brought back before me and required to serve the two and a half years balance. However I am confident neither of you will commit another criminal offence and neither of you will have to come before me again.
Second, I state the precise terms of the sentences I impose.
In your case, Mr Dieber, you have spent just over six months in pre-sentence detention. I sentence you, Mr Dieber, to three years’ imprisonment, and order that 30 months’ of that sentence be suspended. As you have already served the other six months in pre-sentence detention, you are now free to leave the Court.
In your case, Mr Whiteside, you have served just under six months in pre-sentence detention. The difference arises because you were granted bail on 6 October 1999 whereas Mr Dieber was granted bail on 3 November 1999. I consider it would be wholly inappropriate, and would place form above substance, now to require you to serve two weeks’ further custody to make up the round six months. Accordingly, in your case, I order that 31 months of your sentence be suspended. I sentence you, Mr Whiteside, to three years’ imprisonment, and order that 31 months of that sentence be suspended. As you have already served the other five months in pre-sentence detention, you too are now free to leave the Court.
Accordingly, and for the reasons I have stated, each of you is now released from custody, to serve the balance of your suspended sentences as citizens in the community.
Sine die.
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