Extra-Curial Punishment and Mitigation of Sentence

Extra-curial (or extra-judicial) punishment might broadly be described as serious loss or detriment suffered by an offender as a result of having committed an offence.

The loss or detriment might be attributed to some misadventure experienced during or after the offence. For example, where, during a robbery, an offender accidentally shoots himself causing serious injury.1 Or, where a methylamphetamine manufacturer suffers serious burns when chemicals used in the manufacture explode.2

Alternatively, the loss or detriment might be directly or indirectly attributed to the actions of friends, family or associates of a victim; or to community members generally. For example, where an offender takes part in a robbery, is then savagely beaten by friends of the victim, and suffers serious injuries as a result.3

Or, where an elderly man committed a sexual offence against a girl and then suffered, along with his wife, a campaign of abuse and harassment, involving threats of serious injury to person and property. Where that campaign caused the offender to be admitted to a psychiatric clinic for treatment, and caused the couple to leave their home and live elsewhere under assumed names.4

Or, where a truck driver drove dangerously causing the deaths of two people, and grievous bodily harm to two others. Where that driver suffered a high degree of unresolved trauma as a result of the deaths and injuries, and threats and harassment from the victims’ families, and where those circumstances inadvertently led to the loss of his business and home.5

A further example is where an Aboriginal offender, suffers, or can expect to suffer some traditional punishment or ‘payback’.

Extra-curial punishment is not expressly referred to in the Penalty and Sentences Act 1992 (Qld). (‘the Act’) Nonetheless, both legislation and common law provides that facts amounting to extra-curial punishment might be taken into account on sentence.

Section 9(2) of the Act provides that in sentencing an offender, a court must have regard to certain specific matters, including:

Clearly, serious loss or detriment suffered by an offender as a result of having committed an offence, may be relevant under either sub-section.

The common law also provides that a sentencing court has power to take into account any mitigating factors. Indeed, a sentencing court should consider all mitigating and aggravating circumstances. In Neal v The Queen, Murphy J reckoned that credit should be given for mitigating factors in all but exceptional circumstances. He said:

Finally, the Australian Law Reform Commission noted a further basis upon which extra-curial punishment might be considered. The Commission recorded that there is an important common law principal that a person not be punished twice for the same offence.7

This principal must also be considered in light of s 16 of the Criminal Code 1899 (Qld). (‘the Code’) This section enshrines the above principal, saying:

Applying this section, the Queensland Court of Appeal found that a child’s expulsion from school for misconduct, did not amount to punishment for the purposes of the section. Therefore, the criminal justice system could further deal with the child for that misconduct.8 Mackenzie J opined:

It is argued that because some detriment is not punishment for the purposes of s 16, this does not mean it ought not be taken into account by a sentencing court. Such detriment remains a relevant consideration under the Act and common law principals, and may thereby mitigate penalty.

There are several basis upon which extra—curial punishment might be used to mitigate a judicial sentence. For example, such punishment may: A.    instil genuine remorse; B.    punish in its own right; C.    deter the offender from the same or similar conduct; or, D.    deter others from the same or similar conduct.

A.    Instilling Genuine Remorse

Remorse (or contrition) is a matter that the Act says must be taken into account on sentence.10

An example of how extra-curial punishment might lead to remorse was described by Judge Woods, the judge at first instance, as reported in Daetz. He had said:

His Honour had gone on to say:

This last mentioned ruling, was disapproved by the New South Wales Court of Criminal Appeal (IV B below).

B.    Punishing In Its Own Right

The Act states one of the purposes for which sentences are imposed is to punish an offender to an extent and in a way that is justified in the circumstances.13

In Daetz, Justice James, after thoroughly reviewing previous authorities, said:

The Queensland Court of Appeal approved the above reasoning in R v Hannigan15. That was an appeal against sentence in which Chief Justice de Jersey joined with Justice Chesterman in a majority judgement (V below).

C.    Deterring The Offender From The Same Or Similar Conduct

The Act states one of the purposes for which sentences are imposed is to deter the offender or other persons from committing the same or a similar offence.16

The possibility of extra-curial punishment deterring an offender was specifically recognised by Justice Chesterman in Hannigan:

D.    Deterring Others From The Same Or Similar Conduct

The Act states one of the purposes for which sentences are imposed is to deter the offender or other persons from committing the same or a similar offence.

It might be argued, though less forcefully, that others learning of the loss or detriment suffered by offenders in the aftermath of an offence, might also be deterred from the same of similar offending conduct.

In Hannigan, the Queensland Court of Appeal articulated the position in Queensland.

The case involved an offender sentenced for dangerous operation of a vehicle while adversely affected by an intoxicating substance. During a police car chase the offender’s vehicle was damaged in a collision with a medium strip and traffic sign. The vehicle later stopped as a result of the damage. A witness to subsequent events deposed that:

The witness and statement only came to light after sentencing. On appeal, Justice Chesterman found that the applicant had no recollection of the incident and was unaware he had been struck. Any injuries were minor and their effect went unnoticed and in any event would have been transient.18

His Honour ignored certain evidential and procedural matters in order to determine the substantive issue: whether the alleged assault upon the offender, if known to the sentencing judge, should have mitigated penalty?19

While accepting the mitigating force of extra-curial punishment (IV C above), his Honour found that it was not available in that case. After quoting the portion of Daetz noted at IV B above, he said, ‘[i]t is in my opinion, significant that His Honour referred to an offender suffering “serious loss or detriment as a result of having committed the offence.”’20

He went on to review a number of authorities and the alleged circumstances and injuries in the instant case. He then continued:

It appears then, that for extra-curial punishment to have any mitigating effect in Queensland, it must be sufficient to deter the offender from re-offending. That is, it must result in serious loss or detriment, sufficient to remind an offender of the unhappy consequence of offending.

Justice Chesterman noted two further considerations when determining if extra-curial punishment should mitigate penalty.

Firstly, he gave effect to the exception contemplated by Murphy J in Neal (III above). Chesterman noted that a punishment that distinctly deters was particularly important in Hannigan’s case. He referred to the offender’s appalling traffic history, previous drink driving, and the fact he was unlicensed, grossly intoxicated and driving in a highly dangerous manner when pursued by police. He opined that if offenders of this type are not punished severely, the offending will likely continue with tragic consequences being almost inevitable. He said, ‘[t]he punishment imposed on the applicant was apt to persuade him of the seriousness of his behaviour and to provide a sound incentive to reform. It served to protect the public.’22

Secondly, the notion of somehow sanctioning the perpetrator of the extra-curial punishment should play no part in the process of sentencing the original offender. The process of disciplining, prosecuting or otherwise sanctioning the conduct of the architect of the extra-curial punishment must be considered quite separately. There exists legitimate means to achieve this, including for example, disciplinary or civil action, or a criminal prosecution.23

How much mitigation might be afforded by extra-curial punishment is a matter of fact and circumstance.

The court in Daetz stated:

The statement was cited with approval in Hannigan.25

In Daetz a sentence of six years with a non-parole period of three years was substituted by a sentence of five and a half years with a non-parole period of two years nine months.

In R v Shane Thomas Davidson, Judge Dearden sentenced an offender who had committed a relatively low range indecent treatment offence against a ten year old boy.26 Immediately after the offence there was what his Honour described as ‘… an utterly catastrophic response …’ by the boy’s father. Davidson was savagely beaten leaving him with serious head injuries requiring surgical reconstruction of much of his face. He suffers permanent facial deformity, cognitive deficits and chronic post traumatic headaches. His Honour imposed a nine month intensive correction order in circumstances where, but for the extra-curial punishment, he would have imposed a sentence of twelve months including a period of actual imprisonment.

It seems then,  that in appropriate circumstances the mitigating effect of extra-curial punishment might be significant. By way of contrast, in Sharpe v R27  the court was not satisfied that injuries sustained by the applicant should have led to any reduction in sentence. In that case the offender was shot in the leg by a security guard protecting property. He was said to have endured a passing physical injury and four days hospitalisation. There was a suggestion of post-traumatic stress disorder unsupported by satisfactory evidence. The court opined that ‘Even if these circumstances attracted the extra-curial punishment principle, this evidence would provide very little assistance to the Appellant on sentence…’28

Both the Penalty and Sentences Act 1992 (Qld) and the common law provide a basis for extra-curial punishment to be considered by a sentencing court.

There are a number of ways in which it might be argued that extra-curial punishment should mitigate a judicial sentence. Extra-curial punishment might: instil genuine remorse; punish in its own right; and, deter the offender and others.

How much mitigation is afforded an offender is a matter of fact and circumstance. In some cases the mitigation may be substantial.

Where extra-curial punishment exists, a sentencing court will be expected to make an appropriate reduction in sentence, unless there are other compelling considerations.

Frank Richards

Footnotes

1.   R v Fletcher a Victorian Court of Appeal decision discussed in a note by F Rinaldi in (1980) 4 Crim LJ 244.
2.   Alameddine v R [2006] NSWCCA 317.
3.   R v Daetz (2003) 139 A Crim R 398 (‘Daetz’)
4.   R v Allpass (1993) 72 A Crim R 561.
5.   R v Clampitt-Wotton [2002] NSWCCA 383.
6.   Neal v The Queen (1982) 149 CLR 305 at 319.
7.   Aboriginal Customay Laws (ALRC 31) tabled 12 June 1986 at paragraph 508.
8.  R v NG [2006] QCA 218 (Regarding this point, an application for special leave to appeal to the High Court was refused. NG v The Queen [2006] HCATrans 671) .
9.   [2006] QCA 218 at paragraph 78.
10.   S(4)(i).
11.   (2003) 139 A Crim R 398 at paragraph 26.
12.   Ibid.
13.   S9(1)(a).
14.   (2003) 139 A Crim R 398 at paragraph 62.
15.   [2009] QCA 40 at paragraph 15 (‘Hannigan’).
16.   S9(1)(c).
17.   [2009] QCA 40 at paragraph 25.
18.   Ibid at paragraph 15.
19.   Ibid at paragraph 14.
20.   Ibid at paragraph 16.
21.   Ibid at paragraph 25.
22.   Ibid at paragraphs 27.
23.   Ibid at paragraphs 28 and 29.
24.   (2003) 139 A Crim R 398 at paragraph 62.
25.   [2009] QCA 40 at paragraph 15.
26.   Beenleigh District Court 15 June 2009.
27.   [2006] NSWCCA 255.
28.   Ibid at paragraph 67.