In that case co-offenders were sentenced for a home invasion where a man was badly injured. They claimed in mitigation their belief (since accepted as mistaken) that the victim had raped the sister of one of the men.
Buchanan JA [at 15]:
15 Although the sentencing judge and counsel for the appellant characterised the respondents’ conduct as that of vigilantes, that description must be placed in context. I accept that the victim was innocent, but the respondents held another view. The relationship between [one co-offender] and his sister imposed a cultural obligation upon the respondent to take the matter up with the victim for the purpose of ensuring his sister’s future protection. His co-offenders were bound to him by ties of blood and marriage.
The Court of Appeal didn’t say that these facts were mitigating (Buchanan JA went on to list the matters which the court was entitled to take into account) but in my view the paragraph above from Pham sits uneasily with
previous decisions on vigilante conduct: see Wilshaw & Lowe  VSCA 35, R v Rushby  VSCA 44 and DPP v Miller  VSCA 137.
In last week’s decision in Sumner v The Queen  VSCA 221 the offender had been sentenced for the abduction and murder of a man who he believed had raped his brother. He appealed the sentence, asserting (among other things) that sufficient weight had not been given to the circumstances leading to the commission of his crimes.
Bongiorno JA [at 84, Mandie and Redlich JJA also agreed],
84 In his sentencing remarks the trial judge specifically referred to the fact that the applicant believed that his brother has been anally raped by the deceased, although his Honour also found that it was unlikely that such a rape had in fact occurred. Counsel for the applicant in this Court conceded that the law does not countenance vigilante conduct and that there can be no lawful justification or excuse for such behaviour. However, he also submitted that ‘… the law recognises that, when faced with such disturbing revelations, human frailty can be exposed and can act out of understandable anger and distress’.
85 Assuming such a principle exists, the difficulty with the application of it in this case is the degree of premeditation and planning in which the applicant engaged before killing the deceased and disposing of his body. The evidence before the Court was that he told [someone] on the evening of 24 April that he intended to find the deceased and kill him because of what he believed he had done to his brother. The applicant then spent the next day or so carrying out this plan; finding [the victim], kidnapping him, killing him and subsequently disposing of his body. This activity involved the applicant in driving long distances and engaging in significant logistical planning. Whilst such activity may be not inconsistent with continuing anger – even rage – it did give the applicant ample time and opportunity to reflect on his decision and to reconsider it. On the evidence before the Court he probably had Allen in the vehicle he used for the kidnapping for some time before he killed him. At any point during that period he could have desisted from his original plan. He did not.
86 There is no basis for ameliorating a proper sentence in this case by any consideration of distress and human frailty. Murders are committed for a variety of reasons and none. This murder was a premeditated act of revenge for a perceived wrong to the applicant’s brother. It was, in effect, a vigilante killing. He took the law into his own hands, something which he had no right whatsoever to do.
87 In his sentencing remarks the trial judge referred to Brooking JA’s judgment in DPP v Whiteside and Dieber where his Honour condemned vigilante action in no uncertain terms, adverting to the fact that such activity often involves violence ‘… inflicted on individuals who are quite innocent of any offence whatsoever’. His Honour said [at 339]:
Vigilante enterprises must be suppressed, as appellate courts have made clear. Where four men, acting on ‘rumour and innuendo’, assaulted a fifth for ‘messing with kids’, the Court of Appeal endorsed the judge’s description of the ‘vigilante action’ and said that it called for serious reaction from any court anxious to preserve the rule of law; R v Sheekey  EWCA 385. Similar offences committed by only one or two offenders have, as one would expect, drawn the same response: Attorney-General’s Reference (Nos. 17 and 18 of 1994) (1995) 16 Cr App R (S) 418 [at 421]: (‘That is what this case was about, people taking the law into their own hands. It has to be stopped’); R v Kennedy: (‘vigilante enterprises of this kind are simply not tolerated by the community’); R v Demittis (Unreported, Queensland Court of Appeal, 29 May 1997), 5-6 (McPherson, JA): (‘The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever. It is not the view adopted in this Court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community.’); R v Brelsford (Unreported, Queensland Court of Appeal, 14 September 1995), (McPherson JA): (‘Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice.’)
These comments are apposite in the context of this case. This ground should not be upheld.
The Court of Appeal did stress that the significant preparation for the killing in Sumner contradicted an assertion that the murderer acted spontaneously. The confrontation in Pham was less organised, but vigilante conduct was present in both cases.