GJ v The Queen

[2006] HCATrans 252

[2006] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D2 of 2006

B e t w e e n -

GJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 19 MAY 2006, AT 10.20 AM

Copyright in the High Court of Australia

MR L.C. CARTER:   If the Court pleases, I appear for the applicant.  (instructed by Northern Australian Aboriginal Justice Agency)

MR T.I. PAULING, Solicitor‑General for the Northern Territory:   May it please the Court, I appear with MS S.L. BROWNHILL for the respondent.  (instructed by Director of Public Prosecutions (Northern Territory))

MR CARTER:   Your Honours, special leave should be granted in this case because the Court of Criminal Appeal was wrong to intervene in the Chief Justice’s exercise of the sentencing discretion, wrong to return a released man to prison by a factor of 18 giving rise to a miscarriage of justice in the instant case.  Second, and perhaps just as cogently, the grounds of appeals raise questions of fundamental importance to the administration of criminal justice in this country on which there is a division of judicial opinion within a court in relation to the issue of traditional law and custom and between intermediate courts in respect of the issue of double jeopardy and how the magnitude of the discount is to be measured.  I want to deal with the last matter first because it is, in my respectful submission, clear‑cut within the terminology of the Judiciary Act that special leave should be granted on that matter.

HAYNE J:   Can I just understand the premise for this branch of the argument.  This branch of the argument assumes, does it, that the Court of Criminal Appeal or the Court of Appeal concludes that the sentence imposed at trial is manifestly inadequate?

MR CARTER:   Your Honour, can I take you to application book 37, the ground itself.  Ground 3, of course, accepts that that is what has happened, but the ground is careful:

having wrongly determined that the sentence was manifestly inadequate –

fell into further error.  It is ground 3(a) that brings up the conflict.  In the recent matter of York, which is behind tab 13, in the joint reasons their Honours Justices Callinan and Heydon noted that the basis of success in that appeal – this is at page 267:

relieve us of any necessity to consider the other submissions of the parties. 

And the footnote is, at 51:

the principle that courts should impose sentences at the lower end of the scale in appeals by the prosecution -

Just while I am continuing to talk, if I could have a one‑page document handed up.

There is, in the written submission, the survey of approaches in the jurisdictions throughout Australia – it does not purport to be exhaustive but it is sufficient, with respect, to demonstrate that the statement of your Honour Justice Kirby in Dinsdale - that is contained behind tab 3 - is being treated differently.  The document that I have just handed to your Honours, with respect, is a comment of the Chief Justice in the running of argument in York where he, with respect, at about point 8 formulates the question, the very question that we seek special leave on here.  Clearly in the second line, to read the full sentence:

It is expressed in significantly different terms from time to time, sometimes as –

and it says “police”.  I would suggest it should say “the least” –

sentence that might properly be imposed -

I will not read the rest.  Nobody suggests this is an appropriate case to investigate it, do they?

CRENNAN J:   What was the maximum sentence that could have been imposed?

KIRBY J:   It was 16 years, was it not?

MR CARTER:   Yes.

KIRBY J:   I cannot get out of my mind that the maximum sentence was 16 years.  On one view, this was quite a serious offence and therefore that even when one does moderate the sentence, assuming that that is the correct approach, that what has been imposed is really rather moderate for the offence – leave aside the Aboriginal issue – against a girl of this age by a man of that age and in the circumstances described in the evidence.

MR CARTER:   Your Honour, none of that, with respect, even if I cannot persuade you today, and hopefully on the grant of special leave otherwise, defeats the issue of principle as to whether on discounting having intervened it is some moderation or it is, with respect, somewhat more than that, the least sentence which could be imposed at first instance.

KIRBY J:   I do not think – and I sat for many years in the Court of Criminal Appeal of New South Wales, I do not think I ever heard anybody say it is the least sentence.

MR CARTER:   If your Honour could turn behind tab 4 to a decision of the Court of Criminal Appeal in New South Wales in 2004, a decision of Justices of Appeal McColl, Howie and Buddin ‑ ‑ ‑

KIRBY J:   Is this King?

MR CARTER:   Yes.

KIRBY J:   What paragraph?

MR CARTER:   If your Honour goes, perhaps immediately, to paragraph 181 in the judgment of Justice of Appeal McColl.  There is a synthesis of statements from the Court that your Honour speaks of.  After referring to ‑ ‑ ‑

KIRBY J:  

“The least sentence which could properly have been imposed ‑ ‑ ‑

MR CARTER:  

“the least sentence . . . “one which is at the bottom of the range” . . . and one “towards the lower end of the range of available sentences” . . . or the “minimum sentence which should have been imposed at first instance” ‑ ‑ ‑

KIRBY J:   Let us go back to the principle here.  The principle is that the appellate court, having found error, is doing its own job ‑ ‑ ‑

MR CARTER:   Yes.

KIRBY J:    ‑ ‑ ‑ and therefore it is performing, according to law, what should have been done in the first instance, but then there is this element of double jeopardy, which requires moderation of the appellate court performing its own job because of the fact that the person has stood for sentence twice and is being exposed twice to punishment.

MR CARTER:   Yes.

KIRBY J:   So, I think if you are looking at it as a matter of principle, it is a matter of moderating what Parliament has given the appellate court the power to do but not to the point that it prevents the appellate court performing its function according to law.

MR CARTER:   Your Honour, we have some way to go in this application.  It is in the application of that principle that, in my respectful submission, there is an importance divergence of principle.  Perhaps if I could take you to the Victorian position - your Honour having seen those statements from New South Wales.

KIRBY J:   Yes.

MR CARTER:   Behind tab 7, a judgment of his Honour Justice Callaway in the matter of BAB at paragraph 3:

the concept of double jeopardy . . . does not require us to impose a sentence at or near the bottom of the range.  All that it requires us to do is to give the respondent an adequate discount for having to stand for sentence -

Your Honour, I hope already, will appreciate that there is some tension between that and the statements in New South Wales.  When one looks to the footnote, his Honour refers to the matter of Clarke, a commonly quoted case from Victoria on which your Honour Justice Hayne was a member of the bench:

I do not think that Kirby, J. intended anything different by his observation in Dinsdale . . . at [62] -

It goes on.  His Honour does not refer to your footnote in Dinsdale which, of course, says cf Clarke.  The following case makes the conflict between the approaches even more stark in Lepoidevin behind tab 8.  His Honour, Acting Justice of Appeal Cummins, at the bottom of paragraph 37, the second page extracted:

I respectfully agree with Callaway J.A. –

I do not need to read that out again –

Wood C.J. at C.L. in Loh (and in whose judgment Sully and Dowd JJ. agreed) said as to Director’s appeals

“ . . . if the Court elects to resentence, then the sentence imposed should normally be one towards the lower end of the range -

The following paragraph Acting Justice of Appeal Cummins following Justice Callaway in BAB is setting himself against that saying, in the final sentence:

On a Director’s appeal there is no reason, as a matter of fairness, principle or policy, to gravitate, on account of double jeopardy, towards “the lower end of the range.”

KIRBY J:   I think you have made some points here and there are differences.  What concerns me is whether this is an appropriate case to examine that because I cannot, I am afraid, think that the sentence that was imposed was anything but – if you remove the aboriginality issue – a very light sentence.

MR CARTER:   There is a big difficulty with the “if you move the aboriginality issue” but I am going to get that in about three minutes, your Honour.

KIRBY J:   I realise that.  That is your first point.

MR CARTER:   There are three reasons why this case is a good vehicle, your Honour.  The first is that Justice Mildren who, in his reasons at application book 27, paragraph [39], purports to apply, without reference to the sort of authorities that I have taken you to, the principle that usually results in a lesser sentence.  There is no intention in the intermediate court here to pass a sentence that is, for example, at the bottom end of the range. 

The second matter is this – and this, I hope, starts to join issue with what your Honour Justice Kirby is putting to me about the seriousness of this matter.  The new sentence cannot be said to be at the bottom of the range.  That is an impossible submission to sustain by the Crown in circumstances where this was the first case of its kind dealt with under the change of the section.

HAYNE J:   In what sense?

MR CARTER:   In the sense that Parliament changed the law after Jamilmira ‑ ‑ ‑

KIRBY J:   It had been seven years, I think, had it not?

MR CARTER:   Yes, but I am saying the notion of bottom of the range which is the written submission of the Crown is difficult to sustain in circumstances where this was an entire new situation.  Would your Honour allow me to ‑ ‑ ‑

HAYNE J:   True it is the judge who sentences does not have past sentencing practice to look to.  The judge has the maximum imposed by the statute, the particular conduct concerned.  That, at least to my mind, does not deprive the expression “bottom end of the range” or lesser sentence of content. 

MR CARTER:   Your Honour, Parliament as well as increasing the maximum, did two other important things in the Northern Territory.  One was to place the reception of customary law on a statutory footing through the enactment of 104A.  The other was to not interfere with the only limitation required on sentencing for sexual offences contained in section 78BB, namely that a term of imprisonment had to be imposed that was not wholly suspended.  The only limitation on the Chief Justice sentencing at Yarralin was that there be a term of imprisonment.  He resisted the plea that it be to the rising of the court and the man was taken away in front of his people for a month.

The third reason why this case is a good vehicle, with respect, your Honour, on the point of principle where the Judiciary Act says if there is a conflict between the intermediate courts it is important that the Court look at it, is that there has been an active growth in Crown appeals throughout the Commonwealth ‑ ‑ ‑

KIRBY J:   An active what?

MR CARTER:   An active growth in the number of Crown appeals brought.  It is important that this Court clarify the governing principle so that all players that are sentenced, especially respondents to such appeals, understand the ground rules.  This Court has given considerable attention, in particular in Lowndes and Dinsdale, to analysing the basis for intervention and the requirement to delineate error.  It is my respectful submission that the principles that govern resentencing are just as important and when you have a conflict in statements as to how it is to occur, this Court should intervene. 

Ground 3(b) does not raise the same question of conflict between the intermediate courts but its resonance for the individual miscarriage is stronger.  By no rational observation of any double jeopardy principle were the Court of Criminal Appeal entitled, in my respectful submission, to return a person - a traditional Aboriginal man who had served his one month and had been released - to prison for a further 17 months.  That is an 18 fold increase in the immediate time to be served.

This ground raises a separate aspect of the operation of the double jeopardy principle in resentencing.  It is put against me that the submission is in fact in error because I am looking at it the wrong way around.  My submission, based on authority, is that that is not so.  Behind tab 10 there are the joint reasons of the Victorian Court of Appeal in the matter of the DPP v Johnston.  Johnston had received a wholly suspended sentence.  The Director’s appeal was allowed.  At the top of page 97:

Finally, the court is bound by authority to apply the well‑recognised concept of “double jeopardy” in two ways to this sentence and to this appeal.

It continues – this the section I want to bring up for the purposes of this ground:

Further, if the court feels itself impelled to resentence, the range for appropriate sentences is limited by the need . . . to impose only a moderately increased sentence -

So my submission is that when a court on a Crown appeal is dealing with a situation who has liberty - perhaps most poignantly, has liberty back after serving a sentence imposed in the exceptional circumstances that this one was – that there is a requirement to look at double jeopardy from the bottom end as well.

HAYNE J:   The difficulty in that is what is its content?  The hypothesis for debate is that to sentence this man to a month’s actual imprisonment was manifestly inadequate.  If that is the premise for the debate, where do you go from there?

MR CARTER:   Your Honour, where I go from there is to say, in reliance on Johnston, that I have just taken your Honour to, in reliance on principle it is entirely appropriate to be looking at the magnitude of an increase in immediate imprisonment imposed on released person in discharge of double jeopardy restraint and moderation.  I am really just joining issue with the Crown’s submission that I am looking at it back to front.  That deals with the double jeopardy ground.  In my submission, special leave should be granted on each of them.

Coming back to ground 1 in traditional law, that which does truly make this case special on the fact, it was accepted that the applicant, aged 55, a traditional Aboriginal man without any schooling who spoke English only as his fourth language, believed that he was entitled under his traditional law to have intercourse with the complainant as she was 14 and physically matured.  Second, it was believed that the complainant was in fact consenting.  Thirdly - and this is the case even if the refusal in Jamilmira – special leave in Jamilmira be uncontroversial, that elevates the case – he did not at the time of his acts know he was breaking the criminal law of the Northern Territory.

HAYNE J:   That is in respect to the sexual offending, is it?

MR CARTER:   Both.

HAYNE J:   In respect of the assault?

MR CARTER:   Yes.  That was the evidence, those matters were accepted by the Crown, your Honour, and that is the basis upon which the matter went forward.  To give you some idea of how pivotal those matters were to the exercise of the Chief Justice’s sentencing discretion, if your Honours look briefly at page 12 of the application book, line 13:

this is a very, very difficult case.  Your beliefs mean that your own moral culpability is less than those who know that this type of thing is wrong . . . 

The penalties I am about to fix are less than would be applied in most cases because of all the matters that I have mentioned which are somewhat unique to your case, including your lack of knowledge that you were committing an offence and your belief that what you did in your law was permissible and justified.

The Crown attacked, under cover of manifest inadequacy, the regard that the Chief Justice sitting in a special historical sitting at Yarralin - he, the sentencing judge, with the advantage of the viva voce evidence of the elders attacked the exercise of his discretion inter alia on the grounds that he had given too much weight to traditional beliefs.

KIRBY J:   Were the elders all male?

MR CARTER:   Yes, the two that gave evidence were male and there was discussion of that on the plea, the Chief Justice indicating at one point that clearly, and counsel indicating, that this was a difficult matter for women to give evidence in respect of. 

KIRBY J:   But is that not something of a difficulty, that the perspective only of the male elders was received?  Is there not a risk in that that the courts of Australia will receive a rather warped view of what Aboriginal society really expects?

MR CARTER:   Your Honour, with the greatest of respect, the Chief Justice was completely alive to that and made comments to that effect to defence counsel in the running of the plea.  The notion that one is dealing here with some sort of soft option in the one month is flawed, in my respectful submission. 

HAYNE J:   His Honour the Chief Justice also, at the page to which you referred us, identified his duty to protect vulnerable members of the community, particularly women and children in Aboriginal communities. 

MR CARTER:   Yes.  Your Honour, the next step is the means to that end and there were two aspects at work here.  One was the imposition of the immediate term of imprisonment, but the other was the use of this hearing as a mechanism for educating the broader community.  The Chief Justice describes the sentencing as part of the process of reconciling traditional laws with the Northern Territory.  He sends the warning through the sentence, through his reasons, that in the future – further up the page that your Honour Justice Hayne is on, page 12:

it should be expected by all within the communities that Judges will be slow to accept that people within the communities do not know -

This is a case, your Honour, where the evidence from the elders was that the Chief Minister had not consulted this remote community, 600 kilometres from Darwin, on the changes to the law – the very important changes to the law – just months earlier in the earlier part of 2004 that removed the requirement for the Crown to prove that the intercourse was unlawful took away the defence of traditional marriage. 

The errors, with respect, fallen into by Justice Mildren in upholding the submissions of the Crown as traditional law are found at application book 25.  First of all, in the final sentence of paragraph [29]:

the respondent ought to have realised that he was mistaken and that she was not in fact consenting.

It is not quite a De Simoni point, your Honours, but it is close.  Having accepted that he was not presented for rape and that the absence of consent was irrelevant, here it is being reintroduced.  It goes further in the following paragraph, though, and this is the first error pleaded within the ground of appeal.  Midway through the paragraph -

But the question must be asked, less morally culpable than what?  Mr Pauling QC submitted that the respondent had already received the benefit of his traditional beliefs because he had not been charged with -

and I will shortcut that, rape.  In my respectful submission, that was an irrelevant matter to consider in analysing the mitigatory force of traditional law and custom.  It was tantamount to saying, “Well, you are lucky you weren’t charged with rape”.

HAYNE J:   The trial judge, or the primary judge, had found at page 11, line 28 that:

This is a case of an older man forcing his attentions upon a young child who was not consenting and was objecting to what was happening.

That is the finding of fact.  Did he not stand for sentence on that finding of fact?

MR CARTER:   Another finding of fact, your Honour, if we go back to page 8, the final paragraph:

while I might have misgivings about your state of mind . . . it is a reasonable possibility that your fundamental beliefs, based on your traditional laws, prevailed in your thinking and prevented you from realising that the child was not consenting.

In any event, the plea went forward on the basis that he had believed that she was.  The next aspect of, in my submission, the erosion of the proper weight given to traditional law by the Chief Justice is the holding on – or the statement that there was no finding by the Chief Justice that he was under any pressure to do as he had done.  That is true that it is not stated in terms in his reasons but the whole plea, all of the evidence, was about drawing the Chief Justice’s attention to the complexity of human interaction within which this offence had occurred.  Indeed, the Crown Prosecutor at plea – I understand that your Honours have been provided with this separately – in a submission to the Chief Justice referred to the similarities between this case and Jamilmira in the sense of ‑ ‑ ‑

KIRBY J:   What page is this?

MR CARTER:   Page 61 of the plea transcript in the third full paragraph:

There are undoubtedly many similarities between Mr Jamilmirra’s case and the present matter . . . 

He felt some pressure from relatives to consummate the promise marriage because of similar beliefs to this offender, that his promise wife was already sexually active.

It was the same here in the sense that the Chief Justice found, correctly, with respect, that the offences occurred because of the background of the complainant being a promised wife.  Page 10 of the application book, point 45:

I accept that these offences occurred because the young child had been promised to you.

What, with respect, is entirely missing from his Honour Justice Mildren’s analysis of the significance of customary law at paragraph [30] that I have taken your Honours to is a grappling with the significance of he not knowing he was breaking the criminal law of Australia – in this case, the Northern Territory.  That was fundamental to the way the Chief Justice approached it.  It is not so in the case of Justice Mildren who focuses more on the fact that he should have realised that she was not consenting.

That is one reason why, in my respectful submission, the dicta, the principle of Justice Brennan in Neal does not stand as an obstacle, should not stand as an obstacle, to the granting of special leave on this issue in this particular case.  It is not realistically possible, with respect your Honours, to dismiss this as a mere difference in weight that can be sorted out within the jurisdiction of the Northern Territory because the Chief Justice, if ever there was an advantage to the first instance sentence or it was the advantage that he had at Yarralin, has imposed one month immediate liberty and members of the court on which he regularly sits have upped that by a factor of 18. 

What this points out, in part, is that Justice Brennan’s statement of principle, back in 1982, which does not deal at all with the topic of customary law, that the case indicates that if you apply that to customary law there are still questions left unanswered.  How significant is the absence of choice in circumstances where the offender is unaware that they are breaking the criminal law of Australia?

KIRBY J:   I think that your time might have expired.

MR CARTER:   If your Honour pleases, other than that I rely on the written submissions.

KIRBY J:   Thank you for putting the matter so helpfully, Mr Carter.  Yes, Solicitor.

MR PAULING:   Your Honour, can I take you to the application book at page 27, paragraph [39] of the judgment of Justice Mildren.  In the middle of that paragraph he says:

In my opinion, the circumstances of this case called for a head sentence of approximately 5 years imprisonment, of which a considerable proportion should have been served before the respondent became eligible for release.  However, as is well recognised, the principle of “double jeopardy” usually results in a lesser sentence being imposed where the Court of Criminal Appeal decides to intervene on a successful Crown appeal.  In this case, bearing in mind all of the circumstances and the application of that principle, I consider that the Court should now impose a head sentence of 3 years 6 months, cumulative upon the sentence of 5 months for count 1 making a total sentence of 3 years, 11 months. 

In respect of the principal offence, his Honour has put in a discount of 18 months.  The question must be asked, if a different formula of words were used by Justice Mildren, “the bottom end of the range”, the first question you would have to ask is, what is the range and who sets it - is it the range of permissible sentences or the range of sentences that would not outrage the community.

KIRBY J:   Can I go back a step because I understand - I think we understand the argument on the double jeopardy point but going back a step.  First of all, we have here a conflict between the Chief Justice of the Territory and the Court of Appeal on a matter which is arguably of general importance for the law.  Secondly, we have the particular matter that that law was changed, that this is a person accepted to be a traditional Aboriginal and that the change was made, so it is said, without any consultation or knowledge, consultation with or information to, the particular community.  That, therefore, adds a special burden on an Australian Aboriginal living after traditional ways in a remote area 600 kilometres from Darwin.  What is the answer to those submissions?

MR PAULING:   The answer to those submissions is the principle laid out by Justice Brennan in Neal that a sentencer in a Territory, aware of the circumstances and so on, has to take into account those factors which arise only because of the ethnicity, or in this case the traditional way of life of, the particular person and give it appropriate weight. 

KIRBY J:   The suggestion is that the Chief Justice who was on the spot and who was there and consulted with the elders of the community reached a radically different approach from the approach that was taken by the Court of Appeal. 

MR PAULING:   It was radically different and the Court of Appeal took the view that it was inadequate to such a degree that a substantial increase had to occur.  This is not the case where you would go tinkering with what the Chief Justice did, to use a term your Honour used in Dinsdale.  It is a case where the actual sentence imposed by his Honour, a month to serve, was offensive to public principle. 

KIRBY J:   Do you criticise in any way the procedures that the Chief Justice adopted in consulting with the Aboriginal community – this traditional Aboriginal man?

MR PAULING:   Not at all, your Honour.  Can I just refer to something that is raised in the reply by my learned friend.  It is suggested that since Neal things have moved on and that somehow or other traditional laws are being given some sort of recognition because of what the Northern Territory Law Review Committee propounded. That is at page 63 of the application book, your Honour, referring to the Sentencing Amendment (Aboriginal Customary Law) Bill.

Your Honour, what that board was to deal with followed a case called Munungurr, which we have referred to in our submissions, your Honour, where a letter was handed up expressing community interest in saying that this person should not go to jail.  The Court of Criminal Appeal in the Northern Territory said this cannot go on, we cannot get informal stuff like that, if they want to prove anything customary, call evidence, which is what happened at Yarralin.  There was no consultation, evidence was called and witnesses were examined and cross-examined.  That is what the section of the Sentencing Act provides for – all this informal unsupported propositions from the Bar table have been going on for too long and the Court said it cannot be and the legislature responded. 

KIRBY J:   Did the Chief Justice conform to this new regime?

MR PAULING:   Yes, absolutely. 

KIRBY J:   Therefore, this is in a sense, is it, the first case where the Chief Justice or a judge has gone about the matter in the way that is now required by the law of the Northern Territory. 

MR PAULING:   No, I do not believe it is the first case, your Honour.  It allows for evidence on affidavit and that has happened in relation to anthropologists and statutory declarations can be made.  It may be the first time that – it is certainly the first time in a community – evidence has been called on oath to substantiate a matter.

KIRBY J:   Does that law restrict the taking of the evidence from male elders of the community or is the taking of evidence of community traditions and customs and practices also extended to taking evidence of female members of the community?

MR PAULING:   There is no gender requirement, your Honour.  In some communities in the Northern Territory, by far the women are the powerful people and the ones you would go to for information.  In others, the men dominate – it is a question of history, often.

KIRBY J:   Can I add to the matters that are concerning me the fact there is such a difference between the sentence that the learned Chief Justice saw as appropriate having regard to the advantages he had of hearing the tribal elders and the sentence which the Court of Appeal then considered was the minimum, or was the low sentence, that they should impose themselves.  Does the fact that there is such a discrepancy present a special leave question?

MR PAULING:   Not in our respectful submission.  It merely indicates that the sentence imposed by the learned Chief Justice was terribly low and crying out for correction.  Your Honour, the way in which the matter proceeded at Yarralin had with it a comparator – a matter called Jamilmira which came up to this Court for special leave some time ago.  Leave was rejected on the basis that the point of principle sought to be raised could not improve on what Justice Brennan said in Neal.

There was an earlier case, again, which raised the same thing and said 20 years have gone by since Neal’s Case, we want to talk about the Stolen Generation and say that some special rule should be worked out for how courts sentence people who were part of the Stolen Generation.  The Court said what Justice Brennan said in Neal deals with that – the sentencing judge will take that into account because it is something that especially arises because of this person’s aboriginality or, in this case, traditional lifestyle, as I said, with aboriginality.  This Court has made it clear ‑ ‑ ‑

KIRBY J:   I think we understand that, but you did not answer the question which was in Mr Carter’s submission that given this change in the law that there ought to have been some consultation with or notification to this community or, at least, that that is a matter very relevant to the sentencing of this particular applicant who was entitled to assume that the position was the same and was accepted, so I understand, as a person who did not know that this was against the law. 

MR PAULING:   That would make a very strange situation if it was a defence to a prosecution that the government did not come and consult me before they changed the law and I do not know about it.  It would turn the idea that ignorance of the law is no excuse on its head.  You would have to prove as a positive matter that somehow you consulted.  If your Honours get to read the material, the evidence that was given, whenever questions were put to the two male witnesses who gave evidence about whether the sexual relationship was all right or not, the usual answer, “I do not know, I was not here, I was out fishing”.

Jamilmira was supposed to be the message that it was all over – that having sexual relations with your promised bride under age was not acceptable but that message did not get out.  I mean, it is impossible to imagine what sort of principle the court could enunciate that would say that where you are dealing with a tribal Aboriginal person, there is some extra requirement that they need to have been consulted about a change to the law before they can be liable to be prosecuted under that changed law.

KIRBY J:   It was accepted that the present applicant was unaware of the fact that the law had been changed and that he was also not aware that this was contrary to the criminal law applicable to all people in the Northern Territory.

MR PAULING:   What was not put was that, “Look, I have a defence, I did not know about this law, I am ignorant, I should be dealt with in a way” - it was submitted that he should be sentenced to the rising of the court.  Based on that, it is a matter that the Chief Justice took into account in his whole summation of what factors led to the sentence.  His Honour the Chief Justice took it into account but the Court of Criminal Appeal said that the resulting sentence was, just by looking at it, obviously, manifestly inadequate which is the proper test, of course.

The things that your Honour is suggesting were all put to the Chief Justice and one of the witnesses said, “We didn’t know the law had changed from 14 to 16”.  What had changed was that the defence of marriage which could only apply to Aboriginal traditional marriage since the Marriage Act was amended in 1991 - that was removed and, at the same time, consent became irrelevant.  The fact of the matter was that for protection of girls under 16 the law was that people could not have sexual intercourse with them, consenting or otherwise.  That is what the law was and the witnesses seem to indicate a clear idea that the consenting age had gone up to 16.

It is not a special leave point to try and imagine how one would formulate some dual law that says that in relation to everybody else, ignorance of the law is no excuse but if you are a tribal Aboriginal person and you have not been consulted and you do not know about the change in the law, somehow or other the sentence has to reflect those facts.  I just cannot imagine a legal principle that would stand up – that would properly say that because then you get to the edges and you say what about Aboriginal people living in Redfern.  Are they in the same situation, should they be consulted?  What about degrees of Aboriginality?

KIRBY J:   We do not have that problem in this case because it is accepted that this was a traditional Aboriginal man living according to traditional ways.

MR PAULING:   Yes, but if leave were granted the Court would be enunciating a principle of general application.  That is why special leave would have to be granted.  Such a principle of general application would, in my respectful submission, be a monster – extraordinarily difficult to know how to administer it, how to cope with it in the court. 

We say that – just getting back to the double jeopardy point for a moment – although there are differences of expression, they all end up, in our respectful submission, and my learned friend suggests no lower sentence in this particular case, they all end up with the same thing that you take into account the fact that a person is standing for the second time for sentencing and you moderate the sentence you otherwise might have given, which is exactly what Justice Mildren, the other judges agreeing, did.

This is not a case where you say it would make a practical difference if the Court took it up on that point and said what he should have got was the lower end of the range and we think the range was nought to 16, so he should have got nought.  That is one possibility, I do not know what my friend is suggesting is the realistic possibility but it is not a proper case.  I think, in our respectful submission, that distinctions are semantic.

KIRBY J:   Yes, thank you. 

MR PAULING:   Otherwise, your Honour, in relation to the written submissions, we just rely on those.

KIRBY J:   Thank you, Solicitor.

MR PAULING:   Thank you.

KIRBY J:   Yes, Mr Carter.

MR CARTER:   Just a number of matters by way of reply.  The point in relation to conflict of intermediate courts in respect of measuring the discount cannot be semantic in circumstances where multiple justices of appeal, at least in Victoria, have specifically pointed up the contrast with New South Wales.  That is the first point. 

KIRBY J:   You only get to the second point if you have substance in the first, really, because otherwise, on the face of things, it was very significant moderation of the sentence that the Court of Appeal would have otherwise imposed had it felt itself free to do so.

MR CARTER:   Your Honour, with respect, none of this submission and none of the Crown’s submissions deal now or have dealt at any stage with the question of how is there moderation from the one to the 18 on the minimum.  That is a separate double jeopardy principle.  It is an important double jeopardy principle in a climate where people receive wholly suspended sentences or short sentences.  It is followed by a media campaign, the Crown appeals and up it goes.  This Court needs to say what is the governing principle in that situation.

The second point by way of reply, your Honour, is this.  We do not come to this Court seeking the pronouncement of any lofty principle with respect to traditional law.  We come to have the exercise of the sentencing judge’s discretion, regarded by this Court as so basic to the administration of justice in Australia, restored.  We do so by pointing to specific sentencing error in the way that the Court of Criminal Appeal approached the question of traditional customary law.  We raise the debate about whether Neal deals with the matter because that is the basis upon which the respondent resists the grant of special leave. 

The only other thing I have to say about traditional law – and this may be an imperfect form of advocacy, your Honours will forgive me – is that whilst the textbooks say that this Court rarely grants special leave in sentencing cases, the practice has, with respect, changed.  There has been increasingly attention given by this Court to sentencing matters over the last decade.  In my respectful submission, the proper principle that ought govern, for example, the mitigatory force – there was no question of defence here, this man was pleading guilty before his community of ignorance of a recent change of the law – is a matter that is equally cogent, equally as important for this Court’s consideration as many of the other matters that have been granted special leave in recent years.

Otherwise, to answer your Honour Justice Kirby’s question about who gave evidence, I may have misled your Honour, there were certainly female elders present, including the applicant’s wife, but no women gave evidence.  That was something that the Chief Justice was conscious of. 

HAYNE J:   Page 32 records that some women were approached but they were “basically ashamed to do that”.

MR CARTER:   Yes.  The complexity that we are dealing with – my learned friend refers inaccurately, with respect, to the evidence of the two men who gave evidence.  The lack of discussion about sexual activity with specificity was put down to cultural reasons.  This was an extraordinary plea hearing.

The final matter, your Honours, and it is not strictly by way of reply but it arises and it is in the written material.  We do not come with a ground of manifest excess because it is not a ground that ever gets special leave, on my researches, but we raise issues of principle.  It is said, though, that the five year starting point, the 3 years 9 months that was ended up with is a crushing sentence.  What a lot of the considerations that have been - your Honour Justice Hayne looks aghast but ‑ ‑ ‑

HAYNE J:   No, I simply ‑ ‑ ‑

MR CARTER:   This was a special case, your Honour.  The notion of raising the bar and making an example of this man – and that is what the undercurrent is here – in circumstances where the law had been so recently changed should have impacted on the question of whether the Court of Criminal Appeal exercised their discretion not to intervene, lest he bear an unfair burden on behalf of the rest of the community.  That was something that clearly caused his Honour Justice Southwood – it is not a dissent, but it clearly caused him anxiety.  It is submitted, with respect, that Justice Mildren looks at the discretion far too narrowly.  The real factors that should have enlivened the discretion were, this man is out, the laws are new and the sentence was, in part, intended to send an example through someone who was unaware he was breaking Australian criminal law to the rest of the community.

KIRBY J:   Thank you.  Your time is up, thank you for your assistance.  The Court will adjourn now for a short time to consider the disposition of this application. 

AT 11.04 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.09 AM:

KIRBY J:   In the Supreme Court of the Northern Territory the applicant pleaded guilty before Chief Justice Martin to two offences against a young girl “aged 14, or perhaps just 15”.  The offences involved unlawful assault and sexual assault on the girl, a child under the age of 16 years.  The maximum penalty for the first offence was five years imprisonment.  For the second offence it was 16 years imprisonment.

The applicant, who is aged 55 years, contended that the complainant had been promised to him as his wife when she was four years old and that what he did conformed to his culture and traditions.  Chief Justice Martin described the case as one involving “not just a clash of laws or of culture [but] a clash of generations”.  The Chief Justice convicted the applicant and sentenced him to five months imprisonment on the first count and 19 months imprisonment on the second count but ordered that the sentence be suspended upon the applicant’s entering into a recognisance in the sum of $250 to be of good behaviour for two years.

The prosecution appealed.  The Court of Appeal of the Northern Territory allowed the appeal and substituted a sentence of three years six months imprisonment on the second count, making a total term of imprisonment of eighteen months which it ordered be actually served.  The applicant seeks special leave to appeal to this Court on the basis that the Court of Appeal erred in the weight it gave to the traditional beliefs of the applicant and that, in re‑sentencing, it failed to observe the usual principles of moderation applicable to successful prosecution appeals.

We are not convinced that error has been shown in the approach and orders of the Court of Appeal.  The principle to be applied in such cases was stated by Justice Brennan in Neal v The Queen (1982) 149 CLR 305 at 326 when his Honour said:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group.  But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group.  So much is essential to the even administration of criminal justice.  That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance . . . ”

In the circumstances of this case the actual sentence imposed by the Court of Appeal, as moderated, was not inappropriate to a successful prosecution.  The question which the applicant seeks to agitate about the application of what is sometimes described as the double jeopardy principle in re‑sentencing following a successful prosecution appeal would not arise for consideration in an appeal, were special leave granted.

Although the issues of the relevance of Aboriginal customary laws, if proved, for the general criminal law are important, we are not convinced that this is a suitable case in which to explore those issues further.  Nor are we convinced that, in the circumstances of this case, an appeal would succeed in reducing the custodial sentence of the applicant.  Accordingly, special leave is refused.

The Court will now adjourn whilst the link to Perth, Western Australia is established and in order to reconstitute.

AT 11.13 AM THE MATTER WAS CONCLUDED