I wrote recently about the prevalence of personal smear tactics by both major parties in the current NT election campaign. It is one of the more repugnant aspects of modern politics, exemplified at federal level by the current Ashby v Slipper shenanigans.
Last week the tactics of smear and sleaze rebounded on one of the parties, namely the Henderson Labor team, in a big way. A new Independent candidate named Peter Rudge announced that he was standing in the hotly contested Darwin suburban seat of Nightcliff, which is being vacated by the retiring ALP Speaker Jane Agaard. Rudge had been convicted of manslaughter for the killing of a violent drug dealer in 1998.
Chief Minister Paul Henderson immediately went public and condemned Rudge’s candidacy, saying that he would consider legislative change to require candidates to publicly disclose any criminal history. Implicitly he was accusing Rudge of trying to keep his criminal record history secret. However, among other problems, the very story which broke the news of Rudge’s candidacy was headlined Convicted killer joins election race with ‘one promise’. Obviously Labor wasn’t going to let inconvenient facts get in the way of striking a “tough on law and order” pose to impress disengaged swinging voters. The CLP was evidently equally willing to smear Rudge despite the fact that he appears to pose little threat to either of the major parties.
However that was only the beginning. Someone, most likely the CLP, knew or discovered that Ken Vowles, Labor’s candidate for the seat of Johnston((arguably the most vulnerable current ALP seat with the retirement of incumbent Minister Dr Chris Burns. ~ KP)) also had a criminal conviction skeleton in his closet. They tipped off the Northern Territory News. Vowles had been convicted of assault and resisting arrest in his youth 20 years ago after he had a fight with another bloke who he discovered in bed with his girlfriend.
You wouldn’t have thought such a revelation would do any significant harm to Vowles’ election prospects, in fact it might even enhance them with some voters. However presumably the Labor strategists thought it would make Hendo look rather sloppy and hypocritical to have condemned Peter Rudge for supposedly failing to publicly disclose a criminal conviction when his own party candidate had done likewise (albeit that the apparent gravity of the two convictions isn’t really comparable).
Labor’s senior media adviser Jamie Gallacher apparently tried to bully the NT News out of running the story by threatening criminal proceedings if it ran the story about Vowles’ assault conviction. It was a “spent” conviction and it is an offence to disclose such convictions without the consent of the convicted person.
Labor eventually backed off and allowed Vowles to consent to disclosure (which he subsequently said he had always been willing to give) after NT News editor Matt Cunningham said he would otherwise publish the next day’s paper with a blank front page containing only a sticker reading “censored by the Labor government”.
But things then got even worse for the “Henderson team”. Hendo himself claimed that he hadn’t known about or authorised attempts to muzzle the NT News or indeed about the fact that Vowles had an old conviction on his record. Hendo claimed that he had issued a direction that Vowles’ conviction be disclosed as soon as he learned about it.
The problem was that Gallacher continued to bully and threaten the NT News for an hour or so after Hendo had supposedly issued this direction to his team. The NT News wasn’t going to let Hendo off the hook. It ran another story saying that Hendo must be either lying or had completely lost control of his own office. That was the clincher. Hendo decided to make media chief Gallacher cop a bullet for the team. Gallacher wrote a letter confessing that he had kept bullying the NT News without authority and contrary to Hendo’s instructions, and has been sent to the naughty corner until after next Saturday’s election.((After which he almost certainly intended to retire anyway. Gallacher has been doing the senior media adviser job for over 20 years and certainly doesn’t need either the money or the glory such as it is. Of course, the addictive qualities of political adrenalin might be another thing. ~ KP))
The whole story is recounted in even more detail by the NT News here (and see linked stories). For Labor’s campaign it’s been somewhere between a major setback and a complete disaster. At the very least the story has dominated the news for almost the whole second last week of the campaign, swamping the positive messages Hendo would have wanted to feature.
More insidiously but perhaps even more damaging, the sequence of events paints the Chief Minister in a very bad light. Not only was he seen as a hypocrite for condemning Rudge while living in a glass house with Ken Vowles, but he ruthlessly and selfishly forced his longstanding, loyal chief media adviser to “walk the plank” instead of taking the blame himself. Former Queensland Premier Peter Beattie was a past master at the strategic mea culpa. Beattie turned taking the blame for team stuff-ups into an art form that actually made him more rather tha less popular with voters. None of that for Hendo though. He seems to have been happy to blame anyone but himself. Of course, maybe it really was all Jamie Gallacher’s fault, although the fact that he agreed to take a fall for the team doesn’t prove it. Something doesn’t add up. Why would Gallacher keep bullying the NT News in the face of a clear contrary direction from his boss? Maybe we’ll find out one day.
Meanwhile, poor old Peter Rudge has been largely forgotten in all the sound and fury. Not by me though. I have a fundamental and visceral objection to personal smears in politics. I’ll be putting Rudge above both Labor and the CLP on my ballot paper. I also invited Peter to put up a corflute banner on our front fence, an invitation he accepted because it’s a good prominent location.
Perhaps even more importantly, I asked Peter if he could tell me more about his manslaughter conviction, about which I knew nothing other than what I had read in the media recently (which is very little) . He did better than that. He gave me a copy of the judge’s sentencing remarks from 1998. I’ve spent all morning retyping them and they’re reproduced below. The story is quite long but extraordinarily sad and powerful. I urge you to take the time to read it. If Hendo had bothered to do so perhaps he might have had the common decency to resist his (possibly) politically fatal smear in the first place. Then again maybe not …
HIS HONOUR: On Monday, 25 May 1998, the prisoner, Peter Mark Rudge, appeared before me in answer to his bail on a charge of having, on 2 December 1996, at Darwin, murdered Michael Anthony Lewis. The prisoner was arraigned and pleaded not guilty to murder, but guilty to manslaughter. That plea was accepted by the Director of Public Prosecutions, in full satisfaction of the indictment., by reason of provocation.
I accept the plea and convict the prisoner accordingly.
Facts and submissions were heard on Wednesday, 27 May 1998. The proceedings were lengthy, for a plea of guilty, and occupied the whole of that day. I do not imply any criticism of counsel because of this, but mention it only because it is not possible to mention, today, in detail, every matter which has been agitated before me.
What I have to say about the facts will necessarily be a summary only, but I have considered all of the facts and, just because some matter may not be mentioned, does not mean that it has been overlooked.
The facts, which I find, are a combination of the Crown facts, exhibit P1 – which are not in dispute – and the facts as put to me in submissions by Mr Kent QC, who appeared for the prisoner, and which were not disputed by the Crown. Those facts are as follows.
Prior to the commission of this offence on Monday, 2 December 1996, the prisoner and the victim, Michael Lewis, were barely acquaintances. They had met through a common friend, a man called Leon Howard, who was a reasonably close friend of the victim and had been friends with him over the preceding six or seven years.
In August 1996, Mr Howard had arranged to move into Mr Lewis’s flat in Drysdale Street, Parap, which Michael Lewis shared with Belinda Poole, his de facto wife of six years. Howard lived with him for approximately six to eight weeks between August and September of 1996. Howard moved out of the shared premises at the end of that period, and there was some question about whether he owed a small amount of money for some rent.
Mr Howard then moved to 66 Parer Drive, Wagaman, the address of the prisoner and his family. Howard knew the prisoner because they had both been taxi drivers together.
In about August 1996, Howard was a passenger in the prisoner’s car which the prisoner was driving along Bagot Road. Lewis, who was driving his car in the same direction, drove alongside and demanded money from Howard. Lewis suddenly veered towards the prisoner’s car, brandishing a tyre lever. The prisoner veered away to avoid Lewis, who stuck his fingers out of the window and aimed them at Howard as if he had had a pistol, pretending to fire.
Shortly prior to 1 December 1996, Howard attended at the Shell Casuarina Service Station where Belinda Poole worked. As a result of the conversation that took place between them, on Sunday, 1 December 1996, Lewis and Poole, in Lewis’s car, arrived at the premises at 66 Parer Road, the home of the accused, looking for Howard.
The Crown facts assert they drove into the driveway, which was gravel, and apparently it was a noisy arrival. The victim, Lewis, alighted from the car and approached the accused who was in the front garden doing some watering. Almost immediately, it seems, Mr Rudge and Mr Lewis had a noisy disagreement. The accused wanted Lewis off the property, and the victim wanted to see Howard who, on that particular day, was staying at the accused’s block down at Adelaide River.
The accused apparently felt threatened by Lewis’ presence and picked up a shovel, which was in the garden area, and hit Lewis in the region of his collarbone, a blow which caused some minor bleeding and grazing to the victim’s neck area. The victim became very angry and remonstrated with him.
It is clear that there was a nasty situation, and an argument developed. The only blow aimed and struck was that with the shovel, by the accused. The victim, Lewis, was not however knocked to he ground. At about that time the front door was opened. The children and Mrs Rudge came out. They saw and heard what appeared to be an argument going on, involving their father, and they started crying and screaming.
They were taken back inside the house by Mr Shane Sutcliffe, a friend of the accused who was then staying in the house. The accused retreated into the house with his family and Mr Sutcliffe rang the police.
The victim and Belinda went next door to number 64 Parer Road, and knocked on the door there. Mrs Trudy Bland, who had heard something of the argument from the verandah of her house, answered the door. The victim was outside, on the other side of the metal screen. He asked her to telephone the police. She understood him to want to gain access to her house himself to telephone the police. She resisted that access and told him that he could not come in. He became argumentative towards her, in turn, for not calling the police and taking the side of her neighbours.
Mrs Bland was frightened by him and was threatened by his presence and demeanour. Her husband, who had been on the telephone, came to the front door and placated Lewis almost immediately, telling him that he would ring the police, and led him out the front of the property.
The police arrived at the same time, as a result of the call from the accused, and spoke to the victim, Belinda Poole, and the accused. The accused was upset. The victim was yelling loudly and complaining about what had occurred. The victim, Lewis, asked the police to charge Mr Rudge in respect of the blow with the shovel. He was told to come back to the police station to make a statement. He said he did not have time. A vague appointment was made for the following day for him to come to the police station and make a statement, for the matter to proceed, and the time suggested was 11 o’clock the next morning, Monday 2 December 1996.
There was some discussion as to whether the victim, Lewis, was going to proceed with charges. He and Belinda Poole then departed Parer Drive. The police were aware it was a dramatic exchange between the people involved, but no action was then contemplated by the police, the parties having satisfactorily separated.
Lewis’s reputation as a violent, aggressive and intimidating person who took drugs, had committed rapes, had killed his own brother …
I interpolate that it is apparent that, before this time, the prisoner already knew something of Lewis’s reputation as a violent, aggressive and intimidating person who took drugs, had committed rapes, had killed his own brother, and that he had been warned that he was unstable and to have nothing to do with him.
When Lewis and his girlfriend, Belinda Poole, arrived at the prisoner’s home on 1 December, they were looking for Howard. The prisoner was minding his own business, watering the garden, when Lewis sped into the gravel driveway and skidded to a halt, the vehicle coming to a stop at a position between the prisoner and the front of his home.
Lewis’s behaviour towards the prisoner was intimidating and threatening. The prisoner’s account, in his record of interview, shows that he was terrified of Lewis who threatened to “do him” if he did not get Howard out in three days. The prisoner, when he picked up the spade, ordered Lewis off his property, but Lewis approached closer towards him. It was then that the prisoner struck him with the spade in order to knock him over so that the prisoner could reach the safety of his house.
Lewis stood there looking at the prisoner and said, “That didn’t hurt”. He moved back to his car, but Ms Poole jumped out with a tyre lever, threatening him with it, and Lewis came at him with a shaped stick, exhibit 3, and knife, saying, “I’m going to kill you”.
The prisoner was able to evade them both and make for his front door, yelling to the occupants inside to call the police. He got inside, locked the door and called the police. Lewis then got into his vehicle, parked it in the street, got out and yelled abuse from the front fence. After that he went next door and spoke to the occupant, Mrs Bland, whom he also intimidated and threatened.
Throughout, the prisoner’s children were very upset and frightened by Lewis’s behaviour. When the police arrived, Lewis told Sergeant Martin his version of what had happened, which, not unexpectedly, painted a picture that he went to the prisoner’s house to collect some rent due to him by Mr Howard, when the prisoner attacked him with a shovel.
He said Lewis was very agitated and aggressive and wanted to go back into the prisoner’s premises. Sergeant Martin told Lewis to wait and he went to the house and spoke to the prisoner, who, he noted, was shaking and sweating, very nervous, and on the point of crying, and he saw two children who were crying and upset.
The prisoner gave Sergeant Martin his account of what happened and, whilst this was going on, Lewis yelled out, from the entrance of the driveway, words to the effect that the prisoner was a coward and he would get him, on several occasions, and he also tried to re-enter the premises and was instructed by Sergeant Martin to stay outside. Sergeant Martin also heard Lewis threaten the prisoner that he would “come back and get him”.
Sergeant Martin explained to the prisoner that he had the right to use reasonable force to eject a trespasser, but there was little the police could do unless Lewis came back. Ms Poole was also seen by the prisoner making motions with her hand, indicating that the prisoner would have his throat cut.
It was submitted that this was extremely provocative behaviour by Lewis. Objectively, I think this is a fair description, and I consider the prisoner’s actions in assaulting Lewis with a shovel to be justified. Moreover, I have no doubt that, by this time, the prisoner was in fear of Lewis and believed it likely that Lewis would return and offer violence to him or to his family.
I return to the Crown facts.
That night the accused took his wife and family to Adelaide River because he was frightened for his family and he thought that the victim might return that night. While he was at Adelaide River, he obtained a shotgun which he kept at that address, loaded it, and brought it back to Darwin with him when he returned on the Monday.
At approximately 4pm on the Monday, the victim and Belinda Poole, again in their motor vehicle, drove past and stopped outside the address of the accused on Paprer Drive, Wagaman. They were there to take the number plate of Mr Rudge’s vehicle, preparatory to making their statement to the police. In fact, Belinda Poole did record the number plate at that time.
[T]he victim called out, “You’re dead”, before driving off.
The accused saw their vehicle and called out to them, “Fuck off”, whereupon the victim called out, “You’re dead”, before driving off. The accused was both angered by this and fearful for his family. At 4;10pm Mr Rudge telephoned the police and told them that Lewis had just been there; his family felt threatened and frightened and there was some discussion about whether Lewis had, in fact, instituted proceedings against him; had he turned up and made any statements; and he, Rudge, told the police officer, who was Sergeant Wallace, he himself was contemplating whether he would make a complaint in respect of what had occurred in the two visits to the premises.
At about 5 o’clock the children were sent next door to be looked after by the neighbous, the Blands, whilst the accused took his wife to the doctor, for an unrelated illness. They then returned home and she went next door to the Bland family.
I interpolate here, that when the prisoner left his home that night to go to Adelaide River, I accept that he had decided to leave Darwin for good and that this decision was entirely prompted by Lewis’s behaviour. I accept also that he took the shotgun with him, when he went back to Darwin the next day, only to protect himself and his family from Lewis.
I accept also Mr Kent’s submission that there was no logical reason for Lewis and Ms poole to go to the prisoner’s house to get the number of the prisoner’s care connected with any charge for assault that Lewis may have wanted to pursue. The obvious reason was to intimidate the prisoner, and it had this effect as the prisoner complained to the police, but again he as told that there was little the police could do.
I return now to the Crown facts.
The accused then decided that he would go to the Aviation Institute, a bar and social club located near the airport, to talk to his father who resided there as the caretaker. There he had two drinks between approximately 6.30 and 7.30 pm, but did not talk to his father.
I interpolate that the prisoner did not speak to his father, although he saw him at the Aviation Institute, because there were ongoing problems in their relationship at that time.
Returning to the Crown facts.
At approximately 7.30 pm the accused drove into Parap, to Drysdale Street. When he got to Drysdale Street, he parked his vehicle in front of the flats where Lewis resided, angle-parking directly in front of the flats, with his lights on high beam flashing into the flat occupied by the victim and Belinda Poole.
After a while the victim went to the door, not recognising who was in the vehicle, and asked the peson to put his lights off. The lights did not go off and the accused reversed the vehicle out and moved up Drysdale Street. A short time later the accused drove back and the same thing occurred.
Belinda Poole then went outside. The accused has driven his vehicle up to the corner, up to the service station which is on the corner of Drysdale Street and Parap Road. He was stationary there for a short time. Belinda Poole ran up to the corner and recognised that it was the accused, who said words to the effect, to her, “I don’t want you. I want to speak to Michael”, indicating the victim.
Belinda Poole then ran back to the flats, some 50 metres away. The car then drove around the block once more, and ultimately was parked by the accused on the side of Drysdale Street closest to the Parap Shops, facing north away from Parap Road. The accused got out of his vehicle and stood by the door of the vehicle, with the door opening, leaning on the end of the door.
The victim and Belinda Poole came out onto the area near the parked cars and some discussion took place between them and the accused. This discussion was taped by the victim, who had a small hand-held tape recorder in his hand. The discussion was to the effect that Lewis had threatened Rudge’s family. He denied that in the discussion and said that his only interest in going out to the property was to see Howard; it had nothing to do with Mr Rudge. There was some swearing between the two men; a suggestion by Lewis that they should have a fight with their fists; and at one point, Lewis – the last thing he says on it – said, “Get the lever”. This was apparently to Poole, who was behind him, and the tape then ends.
The accused said words to the effect, “Come on”, to Lewis. Lewis in fact started to approach him from where he stood, approximately 15 metres away on the roadway. The victim then walked towards the accused with a tyre lever in one hand and the tape recorder in the other. This was the last straw for the accused, after the events of the preceding day, who became angry at what he perceived to be the unjustified pursuing of him by the victim.
At that time the accused thought that he was being set up by the victim and was being taunted by the tape recorder, on the one hand, and encouraged to act by the tyre lever in the other.
As the victim approached quickly towards him, the accused reached into his vehicle and produced the shotgun. The victim saw the shotgun and started to run back towards his flat when the first shot was fired by the accused. The shot, birdshot, sprayed Lewis’ buttocks with pellets. The victim then ran from the road, in between the vehicles.
The accused was, at that time, standing directly over the victim, who was then shot four more times, as he lay on his back, from almost point-blank range.
The accused followed the victim and shot him twice more before the victim collapsed on the nature strip in in front of the flats, underneath a clumping palm. The victim looked up at Belinda Poole, who was standing approximately two metres away, told her he loved her and said goodbye. The accused was, at that time, standing directly over the victim, who was then shot four more times, as he lay on his back, from almost point-blank range. A total of seven shots were fired by the accused, all hitting Michael Lewis over a period of approximately 15 to 20 seconds,
Belinda Poole was present and tried to assist the victim, while screaming at the accused. The accused then pointed the empty shotgun at her and told her to shut up. The accused then returned to his vehicle. Belinda Poole was shouting, “He killed my husband; get help.”
The accused went to his car, picked up his mobile phone, and, at 7.50 pm, telephoned the police. He reported the fact that he had just shot Michael Lewis dead and told them where he was and where Lewis was. His last words to the police were, “I’ve got to ring my wife.” He then rang his neighbours, the Bland family, where his wife was at the time, and informed her of what he had done.
The fear engendered by Lewis, on the prisoner and his family, was such that, as the prisoner said in his record of interview, notwithstanding that they barricaded themselves in the house; that they would not let the children go outside to play or go to school; the gates were kept shut; he and his wife took shifts watching and waiting for Lewis to come back.
It is not surprising, given that the prisoner had been unable to obtain protection from the police, and the state of fear that he was in – not only for himself but for his family – that he would want to confront Lewis rather than have to wait for Lewis to make the first move, which could come at any time or place, and perhaps when the prisoner was caught off-guard.
It is clear that the prisoner was in a highly emotional and agitated state., and that he shone the headlights into Lewis’s flat to get him to come out because he was afraid to go to the flat. On the tape recorder, the prisoner was asked by Lewis what he wanted to talk about. The prisoner said, “You’re terrorising my fucking family and myself”.
During the altercation between them, which Lewis taped, it is clear that Lewis accused the prisoner of threatening Ms Poole – there is no evidence of this; of unjustifiably insulting him; of being afraid and a coward; and that he was putting a self-serving version of the events on the tape recorder.
When Lewis approached the prisoner, the prisoner believed he was armed. In fact, the tyre lever and another bludgeon were found under Lewis’s body, and Lewis’s knife was also found nearby.
The prisoner did not shoot in self-defence because when Lewis saw the shotgun he retreated, and the first shot sprayed Lewis in the buttocks. But it is clear that Lewis had provoked him and that the prisoner lost his self-control.
Nevertheless, it is close to self-defence. … if the prisoner had not taken out the shotgun, Lewis intended to give the prisoner a hiding, or perhaps worse.
It was Lewis who armed himself first, and I consider that it is clear that, if the prisoner had not taken out the shotgun, Lewis intended to give the prisoner a hiding, or perhaps worse.
Returning to the Crown facts.
The accused sat in his car and waited till the police arrived, whereupon he surrendered his weapon without incident. Police attending the scene described him as “trembling and terrified”. He was arrested and subsequently taken to the police station where he participated in a record of interview with the police.
The ambulance attended and found that Lewis was still barely alive, but he died shortly after at approximately 7.56 pm. The weapon used by the accused was a Bentley .12 gauge pump-action shotgun, service number A59089.
That is the end of the Crown facts.
I accept that the prisoner did not try to flee; in fact, rang the police on his mobile phone while sitting in his car, ad he left the shotgun sitting on the bonnet. The account he gave to the police the next day was given before he had obtained legal advice, and was corroborated by other witnesses. I see no reason not to accept it. He was still in a state of abject fear when the police arrived, and was till shaking during the record of interview.
There is no doubt that Lewis had a reputation for being a violent, aggressive, intimidating and manipulative person who had committed rape and homicide and was a heavy drug user who would behave irrationally. It is difficult to feel sympathy for the deceased. His reputation was probably well-deserved. he had been charged with many serious offences in this court, including rape, three times, murder and drug offences. But he was rarely convicted, and, when convicted, was remarkably successful in having his convictions quashed on appeal, and usually he was competent enough to secure his successes before the Court of Criminal Appeal by appearing to argue his cases himself.
A number of his cases are reported in the Law Reports. See (1987) 29 A Crim R 267; (1989) 41 A Crim R 414; (1989) 41 A Crim R 365; (1992) 3 NTJ 990.
In addition, his criminal history is before me as exhibit P3. Apart from his conviction for the manslaughter of his brother, which the Court of Criminal Appeal reduced to aggravated dangerous act, he has convictions in the lower courts mostly for minor drug and traffic offences, except for a conviction in 1980 for threatening a witness, which earned him a suspended sentence.
Whether or not his reputation is deserved, there is no doubt that his reputation was known to the prisoner and that that engendered significant fear i the prisoner at the time of these events.
Nevertheless, his life was taken in circumstances amounting to manslaughter. The Crown has tendered victim impact statements from the deceased’s mother, brother, and from his de facto wife, Belinda Poole – each of which I have read. As would be expected, those who loved the deceased were stressed and worried by his loss. Ms Poole, in particular, who was present when the deceased died, and who had the shotgun pointed at her as well, has suffered a post-traumatic stress syndrome; has lost her home and her job, and is now on a disability pension.
It is understandable how they feel. Perhaps they knew a different side to the deceased’s character. It must be difficult for them to accept that the deceased was not a nice person. I take these matters into account.
As to the circumstances of the offence, it is necessary for me to have regard to the fact that this was an intentional killing – or at least one in which the prisoner intended to cause grievous harm. As I have said, it was close to self-defence, and reduced to manslaughter because of provocation. In provocation cases, it is necessary to take into account three particular matters, referred to my Hunt CJ at Common Law in the case of Alexander (1995) 78 Crim R 141 at 144.
Th first of these is the degree of provocation offered, or alternatively, the extent of loss of self-control suffered, which when great, has the tendency of reducing the objective gravity of the offence.
I find that the deceased offered severe and extreme provocation which was sustained until moments before the time of his death, and that the extent of the loss of self-control was of a very high order.
The second factor is the time between the provocation, whether isolated or cumulative in its effect, and the loss of self-control which, when short, has the result of reducing the gravity of the offence.
Here the degree of violence offered was excessive. Lewis retreated before the first shot was fired. The first shot, birdshot, sprayed Lewis’ buttocks. The prisoner chased Lewis and shot him twice more. Lewis collapsed on the nature strip. By this time Ms Poole was two metres away and the prisoner stood over him and fired four more shots into him from point-blank range as he lay on his back.
The prisoner does not remember firing other than the first two shots. This is not surprising. It indicates, together with the degree of violence used, the extent of the loss of self-control. However, a deadly weapon was used and seven shots in all were fired, all of which hit the victim.1 It is a reasonable inference that the first shot would not have proved fatal. These matters have the tendency of increasing the objective gravity of the offence.
A sentence to be imposed must take into account the very many different purposes which the sentence is designed to serve: the protection of society; personal and public deterrence; retribution and reform. As was said in Veen (No. 2) by the High Court, these purposes overlap; none can be considered in isolation and are like signposts which may point in different directions.
In this case I am satisfied that society does not need to be protected, and there is no need for personal deterrence or reform, so far as this prisoner is concerned. He has prior convictions, but none for violence. Such priors as he has relate mostly to possession of cannabis and traffic violations. There is nothing in his part history which bespeaks of him as a man of violence likely to ac in this way again.
I accept the evidence of Mrs Taylor and Mr Griffith that the prisoner is a quiet family man with a strong work ethic, honest, polite, friendly and peaceful, and a good father. I note also that he has expressed remorse. I have had similar opinions expressed in the numerous references tendered on his behalf. I note also that he is a person who cares for his fellow man, so despite his convictions, I find him to be a person of good character.
I will not dwell on the prisoner’s personal circumstances, but will mention a few matters briefly. he is now 34 years of age, married, with three children. He suffered from dyslexia so his school years were a struggle, but he has succeeded in obtaining steady employment, and he has a stable and loving relationship with his family. These matters confirm what I have already said about the need for personal deterrence, protection of society, and reform.
On the other hand, except in well-defined circumstances such as youthfulness or mental incapacity, public deterrence is generally regarded as the main purpose of punishment, and personal circumstances are necessarily subsidiary to the duty of the court to see that the sentence imposed will operate as a powerful factor to deter others who might be tempted, by the prospect of a light sentence, from behaving in a similar fashion.
Mr Kent QC acknowledged that the authorities say that general deterrence is of significance even in provocation cases. Se for example Alexander’s case 142 to 143. But provocation necessarily means that there has been a loss of self-control and that an ordinary person, similarly circumstanced, would have acted in the same or a similar way.
It is difficult to see how a sentence can deter other people who are in this category, but perhaps it can act as deterrent, to some degree, in that it might effect a change in the course of events which allow the provocation to reach that stage. Something along these lines was suggested by Mr Wild QC, who submitted that Rudge, by taking the weapon with him, went looking for trouble. He was expecting a confrontation and he knew who Lewis was and he knew what Lewis was like.
I accept that this was not a sensible thing to do, as Mr Wild submitted, although very understandable given the lack of support he had from police. I expect that there were other options available to either to clear the air or at least secure the prisoner and his family from any imminent threats. Perhaps they might not have been effective, but they were not given a chance; whilst the prisoner’s actions, in confronting Lewis, were fraught with danger. I expect it took a lot of courage to do this, by the way, but that does not make it any the more wise.
As was also said by Hunt CJ in Alexander, at page 143, retribution or the taking of vengeance for the injury done by the prisoner is also an important aspect of sentencing. Not only must the prisoner be given his just desserts, but it is important that the victim’s loved ones feel justice has been done, or at least that the community, knowing how they feel, consider that justice has been done.
Of course, I accept that Lewis was, to a large measure, to blame for his own death; not only because of the way he provoked the prisoner by his threats, intimidation ad taunts of cowardice, but by the fact that it was Lewis who first put a weapon in his hands shortly before he was shot.
It is therefore of less significance in this case that the prisoner went to see Lewis, armed as he was. As I have said, the prisoner’s acts were close to self-defence and it further reduces the gravity of this offence. Nevertheless, he did not shoot in self-defence, and provocation is not a excuse for intentional killing. The effect of the provocation is to reduce what would otherwise be murder to that of manslaughter, ad the prisoner must be punished for that crime.
I take into account also the plea of guilty. It now seems to be accepted that the Sentencing Act requires that, in addition to remorse or resipiscence, the court is to give weight to a plea where this reduces the cost to the community of a trial and obviates inconvenience or suffering to those who would be called upon to give evidence.
I note that Ms Poole, in her victim impact statement, says that she was “anxious and nervous at the prospect of having to give evidence at the prisoner’s forthcoming trial”.
[Mildren J’s consideration of other manslaughter cases for comparative sentencing purposes is intentionally omitted.]
The principal contention of Mr Kent QC, for the prisoner, is that I should impose a head sentence of less than five years and order the prisoner’s immediate release on a suspended sentence, with appropriate conditions.
The principal contention of Mr Wild QC is that this case was not a case at the lowest end of provocation manslaughter cases and that I should fix an actual custodial sentence of more than five years, thereby attracting a non-parole period of at least 50% of the head sentence. The substance of Mr Wild’s submission was that an appropriate head sentence should be slightly more than six years.
it gives me no pleasure to send to gaol someone who is fundamentally a decent person who was stretched beyond endurance by Lewis’ conduct.
I do not accept either submission in its entirety. In my opinion, the factors that I have mentioned warrant, as a head sentence, one of four years’ imprisonment. On the other hand, I do not accept that this is an appropriate case for release on a wholly suspended sentence.. I acknowledge, like Hunt CJ in Alexander, that this prisoner will suffer in order to satisfy the need to deter others, and, to some extent, for retribution, and it gives me no pleasure to send to gaol someone who is fundamentally a decent person who was stretched beyond endurance by Lewis’ conduct.
As I have said before, provocation reduces to manslaughter that which would otherwise be murder, there is an intention to kill or cause grievous harm, and the prisoner must be punished for that offence.
I note also that he is the breadwinner in his family and that his family will suffer as well, but that is not a matter that I can give any weight to. Nevertheless, in accordance with established principles, and in accordance with the Sentencing Act, I have a discretion to impose a partially suspended sentence or to fix a non-parole period.
The preferable course is to order a partially suspended sentence in cases where the prisoner’s prospects of rehabilitation are good, and the court is in as good a position as the Parole Board to determine when he should be released.
This is the case here. In my opinion, justice will be served if the prisoner’s sentence is supedned after having served 18 months of that sentence.
I fix a period of four years as the period of time during which the prisoner is not to commit another offence punishable by imprisonment if he is to avoid being dealt with pursuant to section 43 of the Sentencing Act.
As the prisoner has already spent eight days in custody, I order that the sentence be deemed to have commenced on 26 May 1998. I also make an order for the forfeiture of the firearm, exhibit P2.
An extraordinarily sad, complex and difficult case, I’m sure you’ll agree. Moreover, I think Mildren J exhibited something close to the wisdom of Solomon in his approach to sentencing, although Lewis’s relatives no doubt have a different opinion.
Readers may recall that I wrote an article a couple of weeks ago canvassing the desirability of abolishing the defence of provocation, as has already occurred in some other states and territories. I noted that:
The provocation defence is most often deployed by violent males who kill their wives in a fit of jealous rage. Sometimes it’s also used by blokes who kill to affirm their (presumably very fragile) masculinity after a homosexual advance.
However I also noted that there are some cases that illustrate a need for at least a flexible sentencing approach when events genuinely show a situation where a reasonable person similarly circumstanced might act similarly to the accused. I suggested that the case of Jeffrey Gilham might be an an example.
I also noted that the situation of “battered” wives, who kill a violent husband in desperation after years of terror and abuse, also poses a challenge to advocates of abolition of the provocation defence. Sometimes the abused wife in such a situation kills her husband while he is sleeping. Fact situations of that sort probably don’t fall into the existing defence of self-defence, because the threat of violence from the victim is not absolutely immediate and at least in theory the wife has other options,even if in many such cases there is a history of the husband tracking the wife down and forcing her to return when she tried to leave him. The abused wife may know very well that she faces an effectively unavoidable future of continued violence and terror unless she takes drastic action. She also knows from experience that the legal system does a very poor job of protecting women in such situations, a proposition graphically demonstrated by the recent Four Corners program A Matter of Life and Death.
It seems to me that the situation Peter Rudge faced with Michael Lewis was analogous to that of the abused wife. He might not have faced absolutely imminent danger from Lewis while he held a shotgun in his hands, but he or his family were certain to face violent retribution in the very near future, (as Mildren J observed) quite possibly at a time when he was unawares and unable to defend himself effectively. Perhaps there should be an extended defence of self-defence in such situations, although it would need to be very narrowly confined.
- I can’t help noting that this was a prodigious demonstration of marksmanship for someone suffering such a loss of self-control, unerringly hitting a running target at night in bad light. But perhaps a well-trained shooter’s instincts still operate even in such extreme circumstances. Peter Rudge describes himself as an “army brat” who was very well-acquainted with firearms from childhood. ~ KP