Whipping as a Penal Sanction: Its Consideration in a Recent Case
| Date | 01 March 1968 |
| Published date | 01 March 1968 |
| DOI | 10.1177/000486586800100103 |
Whipping as a Penal
Sanction:
Its Consideration
In
a Recent
Case
IN JANUARY, 1966,
the
accused, Douglas, aged 26
years,
was
before
a
Victorian
Court
of General Sessions
(Judge
Rapke)
and
was
found
guilty
of
robbery
in company.
The
trial
judge
was
concerned
as to
the
propriety
of ordering a
whipping
as
part
of
the
sentence
to be passed.
The
following
pages
set
out
the
concern
of
the
judge
as to
how
he
should
use
his judicial
discretion,
the
reports
submitted
by
a
psychiatrist
and
acriminologist
at
the
request
of
the
court,
and
the
judgment
of
the
trial
judge
when
passing
the
sentence
(Editor).
Following
the
conviction of Douglas
the
trial
judge
commented:
"In
this
matter
Douglas,
the
prisoner,
was
found
guilty of robbery
in
company
and
Ireman.ded
him
in
custody
for sentence.
In
my
opinion
the
commission of
the
offence
in
this
case was
attended
with
or
accompanied
by
cruelty
or
great
personal
violence
within
the
meaning
of
the
language
of
section
477,
sub-section
(1) of
the
Crimes
Act 1958.
The
fact
that
that
opinion is
held
by
me
means
that
I
now
have
to consider
whether
or
not,
in
addition
to
whatever
punishment
I
award,
I
should
direct
that
the
prisoner
be once, twice
or
thrice
privately
whipped
and
what
number
of
strokes
should
be
inflicted
and
what
instrument
should be used. I
must
frankly
confess
that
I
find
the
greatest
difficulty
in
exercising a
judicial
discretion
on
the
matters
on
which
I
am
required
to exercise
discretion
under
this
section because I
am
completely
uninformed
by
any
background
information
or
any
criminological
material
as
to
what
are
the
proper
considerations to
apply
to
the
question
as to
whether
or
not
whipping
should
be
directed
in
this
case
or
at
all. At
first
glance
it
is
clear
that
the
prisoner
presents
as a
vicious
man
who,
in
the
most
outrageous
fashion, robbed
with
violence a
man
who
is a
totally
and
permanently
incapacitated
pensioner, frail,
wan
and
in
desperate
health
and
that,
as a
result
of
the
violence
that
he,
and
his
friend
who
was
with
him,
inflicted
on
this
unhappy
man,
he
was
put
back
into
hospital
from
which
he
had
come 24
hours
earlier.
When
you
hear
that,
in
addition,
the
prisoner
and
his
friend, or associate,
assaulted
a70-odd
year
old
man
and
an
82 ye.ar old
man,
friends of
the
victim who
came
to
his
assistance,
the
matter
becomes very
much
more serious. Added to
that,
the
prisoner
admits
nine
prior
convictions,
and
among
the
nine
is
assault
with
intent
to
rape,
two
charges
of
unlawful
assault, two of
assault
by
kicking, offensive
behaviour
and
assault
occasioning
actual
bodily
harm,
for
which
he
has
served considerable
terms
of
imprisonment.
From
all
of
this
it
is
quite
clear
that
the
Court
must
have
relevant
material
at
its
command
in
order
to consider
whether
or
not
the
punishment
provided by
this
legislation
must
be used
and
invoked or disregarded. To
make
the
choice on a
[udlctal
basis requires
information
and
I
have
put
my
mind
to
10
AUST. &N.Z. JOURNAL OF CRIMINOLOGY (1968): 1
1-1
the
question of how I
can
get
that
best
and
I
am.
now inviting
the
Crown
to
be good enough to
arrange
for
the
attendance
of a
man
who
may
be able
to assist
the
Court, namely, Mr.
Stanley
W. Johnston,
the
Director
and
head
of
the
Department
of Criminology
at
the
University of Melbourne,
and
I would invite
the
Crown
and
be very indebted if
the
Crown would
arrange
for
the
attendance
of
this
gentleman
and
also to give Mr.
Johnston
the
depositions
and
the
record of
the
prisoner
and
such
other
material
as
it
thinks
proper to enable
him
to qualify himself as a witness
in
this
matter,
and
to
attend
and
give expert evidence on
the
question of
whether
the
Court
should exercise
the
powers given
it
by Section 477
and
what
are
the
relevant
circumstances on which
the
exercise of
the
discretion should go
or
not
go.
In
reply to a comment from
the
Prosecutor
the
judge continued:
"I
have said
that,
in my opinion,
the
conditions precedent to
the
exercise
of
the
discretion have been established, namely,
that
this
is a crime of
great
personal violence accompanied by cruelty. I
think
that
the
facts show
that
much.
But
I
have
not
exercised my discretion. I
am
refraining
from
doing
anything
in
the
way of exercising my discretion
until
Ihave some
information
as
to
the
principles
and
materials
on which
the
discretion
should go. I
want
guidance
the
same as we get on sentence day from
psychiatrists
and
welfare workers. I
need
guidance on
this
matter.
The prisoner was
remanded
in
custody pending
the
Court receiving a
report
from
Mr.
Johnston
and"
as was requested later, apsychiatric report.
PSYCHIATRIC REPORT by
Dr.
Allen
A.
Bartholomew,
Psychiatrist
Superintendent,
H.M.
Prison
Pentridge,
Melbourne,
Victoria.
"I
HAVE
examined
the
above
named
prisoner,
read
the
depositions
and
transcript
concerned
with
the
case,
and
considered
the
whole
matter
against
the
background of
the
relevant section of
the
Crimes Act,
1958,
and
the
judgments
of
the
Full
Court (Lowe,
Gavan
Duffy
and
Smith
JJ.)
in R v
Taylor
and
O'Meally [1958] V.R.285.
Ishould preface
this
report
by
stating
that
I
am
neither
an
avid
proponent or opponent of corporal
punishment
in adults,
and
can
recall
two recidivists
(both
in
the
United Kingdom) who appeared to
have
ceased
becoming involved in violent crime following being whipped, Although, on
the
face of it, these two cases
might
be
thought
to argue for
the
efficacy
of whipping as a
deterrent,
it
must
be recognized
that
in
both
cases
many
other
factors were involved,
the
most obvious being
(a)
the
passing of a
long prison sentence
and
(b)
the
increasing age of
the
prisoners
and
the
probability of
their
increasing
"maturity".
Iconsider
that
corporal
punishment
is properly to
be
thought
of as
an
extremely severe
punishment
(see
Smith
J. [1958] V.R. 285
at
293),
and
some support for
this
view may be found
in
Crimes Act 1958 s.477
(Ia)
,
where whipping
has
been added to
the
tariff
of
punishment
for kidnapping.
This
point of view is
important
from
the
psychiatric
standpoint
(the
psychiatrist working in a social
setting),
as offenders
and
prisoners have
aquite highly developed appreciation of
the
"justice"
and
"equity" of
any
sentence passed upon
them
or
their
peers.
In
a case
such
as
the
present
one,
it
would
appear
that
the
prisoner (DOUGLAS), who
has
been con-
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