Jadurin, J.A. v The Queen

[1982] FCA 238

Re: JACKY ANZAC JADURIN
And: THE QUEEN
No. NTG14 of 1982
Criminal law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
St. John, J.
Toohey, J.
Fisher, J.

CATCHWORDS

Criminal law - appeal against severity of sentence - plea of guilty to manslaughter.

Sentencing - principles - tribal Aboriginal - traditional punishment - whether taken into account in determining appropriate sentence.

HEARING

DARWIN

#DATE 27:10:1982

ORDER

The Court orders that the appeal be dismissed.

JUDGE1

On 16 July 1982 the Supreme Court of the Northern Territory sentenced the appellant, who had been convicted of manslaughter, to imprisonment for a term of four years with a minimum non-parole period of 12 months. He appeals against that sentence.

The appellant was convicted of the unlawful killing of his wife on 5 April 1982 at Victoria River Downs Station ("VRD"). He is an Aboriginal. Although his father is a member of the Gurindji tribe, the appellant considers himself Ngaringman. He was at the time of his conviction and sentence 31 years of age. He had been married to the deceased for about 14 years and there were two children of that union, born in 1969 and 1971. The deceased had two other children by a European father; the appellant and his wife had raised them together with their own.

At the time of the offence the appellant was head stockman on VRD, a position of some importance having regard to the fact that VRD is the second largest cattle station in the Northern Territory. He had no previous convictions and the matter proceeded before the learned sentencing judge and before this Court on the basis that until the events of 5 April 1982 the appellant was a man of good character.

The circumstances of the killing are in brief compass. On Sunday 4 April the appellant and other Aboriginals, presumably from VRD, went to Timber Creek to buy liquor. On their return they went to Centre Camp where they lived. The appellant, his wife, and a friend drank a carton of beer and then joined another man with whom they continued to drink beer and a bottle of rum. The group then decided to walk some two miles to visit a man known as Old Hector at the old hospital. The appellant and his wife followed the others. It was then after sundown. On the walk to the old hospital there was an argument and the appellant assaulted his wife with a piece of wood, breaking her left arm and inflicting a number of other injuries. The appellant then arrived at the old hospital and woke up his father to ask for the keys to his father's utility so that he might return to Centre Camp. He was given those keys.

The appellant then placed his wife in the front seat of the utility and, together with the friend with whom they had first been drinking, they drove to Centre Camp. The appellant and his wife went to bed but after a time his wife got up and began to walk around. Apparently this angered the appellant who struck her a number of times about the back with a piece of polythene piping. One of the blows caused a rupture of the liver and severe internal bleeding from which she died shortly after.

The appellant then woke other members of the camp; the matter was reported to the manager of the station; the local nursing sister viewed the body and the police attended the next morning.

At the committal proceedings Dr Bamford, a pathologist, gave evidence in these terms. On external examination the deceased exhibited 14 obvious injuries, six of which were on the left side of the back. There were two marked bruises, one of the vertex and the other over the posterior aspect of the skull. There was a laceration over the left forearm and directly beneath there was a compound fracture of the left lower third of the radius and ulna. There were two further injuries on the right hand side of the back. There were lacerations to the face. There was a laceration over the dorsal aspect of the right upper limb and an injury to the anterior lateral aspect of the right lower limb just above the knee.

Dr Bamford expressed the view that death was due to intraperitoneal haemorrhage resulting in shock, consequent upon the injuries to the back.

It is obvious that the deceased received a severe beating and that she did so on two separate occasions, some interval of time separating them. One matter should be disposed of at the outset. There was a suggestion made on behalf of the appellant, not by way of justification but by way of explanation, that in Aboriginal society it is not unusual for women to be beaten if they do not obey their husbands. In response to a question along those lines, Billy Campbell, a relative of the appellant who gave evidence in mitigation of sentence, answered "Yes, that happens sometimes, yes . . . ". In our opinion that answer goes no further than to describe something which may occur from time to time; it goes no distance towards establishing that such conduct is an accepted facet of Aboriginal society. The suggestion overlooks the fact that, at least in the experience of the courts, when such beatings take place it is usually after a great deal of alcohol has been consumed. It also ignores the very complex web of relationships between men and women in Aboriginal society. In the present case we are of the opinion that the Court should approach the matter on the basis that the appellant beat his wife in anger when they were drunk, and that this brought about her death.

In a well ordered argument counsel for the appellant submitted that in the circumstances a sentence of four years imprisonment, with a non-parole period of twelve months, was excessive. He stressed that the Crown had accepted a plea of manslaughter on the basis that the appellant did not intend to kill or do grievous bodily harm to his wife, his lack of intent being related to his drunken condition. Counsel also stressed that until the events in question the appellant was known as a man of excellent character; that following the events he showed obvious contrition and remorse for what had happened; that the death of his wife was a personal tragedy to him and that his imprisonment would impose serious hardships on his immediate family. These are considerations which the learned sentencing judge was entitled to take into account but there is nothing to suggest that he failed to do so. His Honour had the benefit of detailed submissions on behalf of the appellant, including oral evidence, and a reading of his reasons for sentence leads to no conclusion other than that he was alive to these considerations.

The principal submission in support of the contention that the sentence was excessive was based on rather different factors relating to the consequences the appellant's conduct had already had and might be expected to have within the Aboriginal community of which he was part. In particular it was urged on behalf of the appellant that the sentence imposed manifested a failure to take into account "that the Appellant is a full-blood Aborigine, who has undergone and is likely to undergo further traditional punishment".

The ground of appeal raises several matters for consideration, in particular whether there was evidence of tribal punishment undergone and to be undergone, whether the learned sentencing judge took that matter into account and, if he did not, whether the sentence he imposed was in consequence excessive.

As to the evidence, following the appellant's plea of guilty to manslaughter the Crown informed the Court that the appellant's father Anzac who was a senior member of the Gurindji had made these comments:

"Payback has already been done by the local people here and Yarralin. They chose one person to do this. It was carried out by Douglas Campbell with a boomerang. No major injury was caused to Jacky. The local people are now satisfied that honour has been met.".

As well there was evidence from Snowy Kulimillya, also from VRD, that some of the men took the appellant to Yarralin " . . . and 2 bloke they went up there and some blokes throwing boomerang for him, boomerang and nulla nulla".

The reference to no major injury having been caused is ambiguous. It may mean that some minor injury was inflicted or that there was no injury at all. No mention was made in the Supreme Court or in this Court of any particular injury. The use of boomerangs and nulla nullas may have been largely symbolic.

As to what may happen in the future, the statement furnished to the Court from the appellant's father continued:

"However they are still awaiting Janet's tribal relatives . . . Who will come after the court case is finished and any sentence complete. These people will come from Daly River, Port Keats, Kununurra, Hooker Creek and Wave Hill . . . They will tribally encircle Jacky and on a cue will be allowed to let fly with boomerangs, nulla nullas and spears. When a tribal elder chosen by the group feels that punishment is complete, he will take a spear, a woomera and a burning stick and signal that they are to stop. Anzac thinks that injury is likely to be sufficient to require evacuation and permanent crippling. A cleansing ceremony with smoke and water will then be carried out, of Jacky, and the area of the murder, and the whole issue will be forgotten. It is also possible that he will be banished from the area for two to three years, either instead of the above or following it. Meantime, Jacky is in good health and no-one is allowed to harrass him".

There was evidence from Billy Campbell, also from VRD and a relative of the appellant, that there would be a men's ceremony in a couple of months. Mr Campbell commented:

"It will take three to four weeks and it's a fairly hard punishment he'll get from that . . . Well like, getting hiding from everybody, and getting burnt by fires, and everything like that, in the ceremony".

Mr Campbell added that there would be men from Wave Hill, Kununurra, Peppimenarti and Port Keats, about 300 or 400, and that once the ceremony was over the appellant would have to be careful for a while. "Like won't take a year but it will take 4 or 5 years, 6 years".

Asked what would happen if the appellant was not available or did not submit to punishment, Mr Campbell said that members of his family would get into trouble. It was not made clear what trouble would result to the appellant's family. Some questions were put of a leading nature suggesting that the family would have to "stand in" for the punishment and that they would have to take the shame of what had happened. It is reasonable to conclude that if the appellant is not dealt with at the ceremony proposed, there will be repercussions for members of his immediate family and that those repercussions will be unpleasant. We are not prepared to conclude, on the evidence available, that any member of the family will be subjected to the physical punishment described by Mr Campbell. It is clear that whatever happens to the appellant at the hands of the community, he and his family will carry the very considerable shame of what he did. The emotion of shame has been described by the late Professor Stanner as "perhaps the most powerful in Aboriginal life" (W.E.H. Stanner: White Man Got No Dreaming 95).

It cannot be said that his Honour was oblivious to what had happened to the appellant or what was likely to happen to him and his family. He spoke of the death causing great problems to the appellant's children and to his own future in the community. He referred in express terms to the evidence of Billy Campbell that the appellant would undergo ceremonial punishment in addition to that which had already taken place. His Honour said:

"I am told that this is planned to take place in 2 month's time, but that delay will not lessen its inevitability. I accept that you will submit to this punishment. For you not to do so, could well result in those close to you suffering retribution instead.".

Faced with a submission on behalf of the appellant that an appropriate penalty would be a sentence of imprisonment suspended forthwith, the learned sentencing judge clearly gave earnest consideration to all matters relating to the appellant both as an individual and as a member of an Aboriginal community. But his Honour was of the opinion that these considerations should yield to the seriousness of an unlawfull killing resulting from violence. That he did take into account those matters urged on behalf of the appellant is, we think, shown by the sentence itself. A sentence of imprisonment for four years, suspended at the end of one year, would ordinarily be regarded as a very lenient penalty in the case of someone who brought about the death of his wife as a result of a violent beating, even though not intending to kill or do grievous bodily harm.

Once it is accepted, as it must be in the present case, that a court has taken into account the implications for a convicted Aboriginal within his own society, the argument that the offender is being punished twice loses some of its force. It does not disappear completely; the notion still remains but its extent must be measured by the circumstances of the particular case. It was not suggested on behalf of the appellant that he, being an Aboriginal, the Court should in any way abdicate its function of dealing with him. It was submitted that the Court should arrive at a penalty which reflected matters in mitigation arising from the appellant's personal situation and which recognised the structure and operation of Aboriginal society. This would avoid a situation in which the appellant was punished twice for what he had done, thereby producing in him resentment against a system of law of which he had little understanding.

It was urged on behalf of the Crown that the appellant was a man who had the benefit of two societies, that of the relevant Aboriginal community and that of the wider Australian community. He should not, it was said, be able to opt out of one. But it was not suggested on behalf of the appellant that he be released from the constraints of the wider society, only that the constraints of his own society be taken into account.

We were referred to the decision of this Court in Mamarika v. R., delivered 4 June 1982. There the Court was concerned with an appeal, in a case of manslaughter, against a sentence of imprisonment for a term of seven years and six calendar months with a non-parole period of two years. The Court had regard to the fact that, following the killing by the appellant of his brother, a number of men in the community at Umbakumba where the killing occurred inflicted serious injuries upon the appellant. Although those injuries were described by counsel as a form of tribal punishment and the term "payback" was used in connection with what had happened, the Court was not persuaded, on the evidence, that the actions taken against the appellant reflected the customary law of the community. But the Court did have regard to the fact that, by reason of his actions, the appellant brought upon himself the anger of members of the community and that as a result he received severe injuries. In the words of the Court, "So seen, it is a matter properly to be taken into account in determining an appropriate sentence, without giving any sanction to what occurred". The same may be said of such punishment as the appellant in the present appeal has undergone.

In Neal v. R. (unreported decision of the High Court, delivered 24 September 1982), Brennan J. commented at p.23.

"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".

In the context of Aboriginal customary or tribal law questions will arise as to the likelihood of punishment by an offender's own community and the nature and extent of that punishment. It is sometimes said that a court should not be seen to be giving its sanction to forms of punishment, particularly the infliction of physical harm, which it does not recognise itself. But to acknowledge that some form of retribution may be exacted by an offender's own community is not to sanction that retribution; it is to recognise certain facts which exist only by reason of that offender's membership of a particular group. That is not to say that in a particular case questions will not arise as to the extent to which the court should have regard to such facts or as to the evidence that should be presented if it is to be asked to take those facts into account.

In our view it is unnecessary in the present case to explore those questions. The learned sentencing judge had a wide discretion in arriving at a sentence to give effect to the various matters urged before him. One of those considerations was the likelihood of further punishment by the community to which the appellant belonged. It was a consideration which clearly was taken into account. We do not think it is possible to point to any identifiable error in the learned judge's reasons, nor is the sentence itself one from which error may be inferred.

In our view the appeal should be dismissed.