The Kapiti man who beat up his stepdaughter's rapist had acted "out of love", the Wellington District Court heard this morning.
It followed a solemn night in the defendant's house last night as he and his family faced the prospect of him being sent to prison for the attack.
This morning he told his daughter: "If I don't come home you might not see me for a couple of weeks."
Judge Peter Butler told the defendant this morning he would put his family out of their misery, saying he would not send the man to prison - but nor would he discharge him without conviction.
He noted the man has previous convictions and sentenced him to 240 hours of community work, saying the victim's injuries were "superficial".
The man was convicted this year after assaulting his daughter's rapist, Jason Haward, who was sentenced to seven years and six months' jail in February this year.
Defence lawyer Peter Foster said the stepfather should be discharged without conviction as the assault was out of "frustration" at "police inaction", and was also "primarily out of love".
"A conviction for someone like this who hasn't offended for some time is going to cause difficulties," Foster said.
The defendant did not want an electronically monitored sentence, as he believed it would negatively affect his stepdaughter.
"The offending was not premeditated but it was just opportunistic," Foster said.
"He's a man, as I said before, acting spontaneously out of love for his stepdaughter."
Foster said the defendant showed no remorse in a pre-sentence report, but felt a comment to the probation officer had been taken out of context.
"Though he's not sorry for what he's done, he wouldn't do it again.
However, Crown prosecutor Adele Garrick said the stepfather assaulted the rapist in revenge and said a starting sentencing point of two years' imprisonment would be appropriate.
She said the defendant's attitude in the pre-sentence report called for "significant deterrence" in the judge's sentencing.
Community work would be "insufficient" to denounce and deter similar offending, she said.
"This is the case of the defendant opportunistically, but nevertheless seeking to exact some sort of retribution or make the victim pay for the offending that he thought hadn't been addressed," said Garrick.
She said the victim suffers ongoing memory loss around the attack.
"I acknowledge there wasn't surgery or a broken bone but there was an injury to the brain."
She labelled the defendant's attack as "vigilante action".
She said the victim was scared to be at home after the attack and sent his son away because he was scared for his safety.
"That's exactly the kind of insecurity and fear that makes vigilante justice so concerning."
The stepfather, who cannot be named to protect the identity of his stepdaughter, has joined forces with the Sensible Sentencing Trust and will be appealing his conviction.
He was charged with injuring with intent after assaulting Haward in April last year.
On the night of the rape, the stepfather heard shrieks outside his house and found his 15-year-old stepdaughter crouching naked beside a car while Haward stood over her, grabbing at her.
Haward told him the girl stole his wallet, but he could not explain where her clothes were. The stepfather and the girl's mother then attacked Haward, punching him and kicking him. They were not charged for that assault.
The second assault happened a couple of days later, after police released Haward.
The parents were driving home with the evidence from the rape clinic two days later when they spotted Haward walking down the street.
The stepfather told a jury this year he had hoped to hold Haward there until police arrived and he could inform them about the evidence from the rape clinic.
He said Haward refused to stay put and began insulting his stepdaughter, which was when the stepfather began to hit him.
Members of the public intervened and held the two men apart until police arrived.
Haward reportedly suffered several seizures on the way to hospital, but a neurosurgeon gave evidence at the trial that he could detect no lasting injury.
Foster noted today that there was no evidence of a head fracture.
"Even if the jury found that the seizures were caused by the defendant, that the concussion was caused by the defendant, by the time he was seen by the doctor and scanned and all that, they weren't significant.
"All of the injuries mentioned, even if Your Honour was to sentence on that basis, it's my submission that they should not be classified as serious injuries."
The judge said Haward's injuries were "superficial".
"Your anger and outrage were understandable, as was your sense of frustration when you saw the victim walking freely in the street," Judge Butler told the defendant.
He said the stepfather had "a number" of previous convictions.
The defendant taking matters into his own hands was offset by the fact he was provoked, the judge said.
"I feel you were provoked by the actions of the victim."
The defendant's partner said she was relieved he was not going to prison.
Outside the court, the defendant told media he was "relieved" and "rapt" that he was not going to jail.
"I'm glad it's sort of all over," he said. "I'm still going to appeal the conviction. I've found that I've got a lot more grounds."
He said he was unhappy about the way police kept raising the level of the charge and trying to push him into pleading guilty. He also said there were inaccuracies with the evidence gathered against him by police.
He would not go so far as to say he regretted attacking Haward, but said he regretted how it turned out.
"It wasn't supposed to go that way."
The defendant remained skeptical about the seriousness of the victim's injuries, saying Haward was conscious, responsive, and talking to everybody at the scene of the attack until police arrived.
The whole saga had been "a nightmare for the family", and left the defendant with little faith in the justice system.
"It really ends up it's the victims that get punished at court."