Mumorika, M.J. v The Queen

[1982] FCA 108

Re: MOSES JAPONIA MAMARIKA
And: THE QUEEN (1982) 63 FLR 202
No. NTG2 of 1982
Criminal Law - Sentencing - Tribal Aboriginal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Toohey(1) and Sheppard(1) JJ.

CATCHWORDS

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

Sentencing - principles - determination of appropriate sentence.

Tribal Aboriginal - traditional punishment - request of offender's community - whether matters to be properly taken into account in determining appropriate sentence - necessity of evidence of customary law - weight to be given to such considerations.

Criminal Law (Conditional Release of Offenders) Act (N.T.)

Criminal Law - Sentence - Manslaughter - Plea of guilty - Severity of sentence - Tribal Aboriginal - Punishment imposed by tribal community - Necessity of evidence of customary law - Request of appellant's community as to punishment - Criminal Law (Conditional Release of Offenders) Act 1971 (N.T.)

HEADNOTE

The appellant, an Aboriginal man, was charged with the murder of a man of his own community but the Crown accepted his plea of guilty to manslaughter. He was sentenced to imprisonment for seven years and six months with a nonparole period of two years. He appealed against the severity of the sentence. The appellant suffered serious injuries at the hands of other members of his community immediately after the offence and had spent nearly twelve months in hospital or in prison at the time of the appeal. Members of the appellant's community had informed the trial judge of their wish that he be set free but be required to spend three years away from his own community.

Held: (1) The appellant had been severely punished as a result of the injuries he had received and the time he had spent in custody. A penalty appropriate to the offence was to suspend the balance of the appellant's sentence upon the appellant giving security in the sum of $1,000 with an appropriate surety in the same amount by recognizance to be of good behaviour for four years and to be subject during that time to supervision on probation, it being intended that the appellant spend at least three years away from his community.

Channon v. The Queen (1978) 33 FLR 433, referred to.

(2) Appeal allowed.

HEARING

Darwin, 1982, May 31; June 4. #DATE 4:6:1982

APPEAL.

The appellant was convicted of manslaughter and sentenced to a seven years and six months imprisonment with a non-parole period of two years. He appealed against the severity of the sentence.

C. R. McDonald, for the appellant.

P. J. Tiffen, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: North Australian Legal Aid Service Incorporated.

Solicitor for the respondent: G. R. Nicholson, Northern Territory Crown Solicitor.

T. J. GINNANE

ORDER

1. The appeal be allowed.

2. The sentence appealed from be varied by suspending that sentence as from 1 August 1982 upon the appellant giving security in the sum of $1000, with an appropriate surety in that amount, by recognizance to be of good behaviour for a period of four years and to be subject during that time to supervision on probation under a person to be appointed by the Director of Correctional Services Division.

3. There be liberty to apply.

JUDGE1

The appellant Moses Japonia Mamarika was charged with murder but the Crown accepted his plea of guilty to manslaughter. On 15 December 1981 the Supreme Court of the Northern Territory sentenced him to imprisonment for a term of seven years and six calendar months with a non-parole period of two years. He appeals against the severity of that sentence.

The appellant is an Aboriginal man from Umbakumba, a fairly remote community on Groote Eylandt. He is in his early forties He was also described by his counsel as being "married with at least three wives, and (having) a number of children".

It was not suggested during the hearing of the appeal that there was anything particularly extenuating in the circumstances in which the offence was committed. Indeed it is fair to say, having regard to the argument and the grounds of appeal, that if it were not for certain events that occurred after the offence no complaint would be made either of the head sentence imposed or of the non-parole period set by the Court. Nevertheless it is necessary to say something of the circumstances that lead to the appellant being charged with the offence of murder.

The appellant, the deceased and others had been drinking at Umbakumba during the late afternoon and early evening of 27 July 1981. In the material placed before the Supreme Court the deceased was referred to as the "brother" of the appellant. Before us they were referred to as "brothers" and "tribal brothers". It may be that they did not have, in Aboriginal terms, "same father, same mother", but were nevertheless closely related, perhaps as step brothers. There was some trouble between the appellant and the deceased, apparently over the latter demanding a can of beer. There was also an argument between two other persons who were present, one of whom was in the deceased's group, the other in the appellant's. The appellant drove home in his truck and went inside to tell his wives that there was trouble and that he was going away to avoid it. While reversing his Toyota utility from his home, the appellant bumped into the deceased's vehicle which had been parked nearby. Both men got out of the vehicles and, according to the appellant, the deceased tried to punch him. The appellant grabbed a fishing knife from the floor of his utility and stabbed the deceased in the leg. The deceased ran to his vehicle, swearing at the appellant. The appellant still carrying the knife, went across to the deceased's vehicle and reaching through the window stabbed the deceased twice in the neck. The injuries were fatal.

Before this Court some criticism was made by the appellant's counsel of what was said to have been the learned trial Judge's failure to articulate the nature of the manslaughter for which he was sentencing the appellant. In our view this criticism is ill-founded. After a plea had been taken the Crown Prosecutor said to his Honour that "the basis of the acceptance of the plea of guilty to manslaughter is provocation not self-defence, although the crown does concede that there are some matters perhaps relating to self defence that do appear in the facts." The appellant's then counsel, having referred to the circumstances of the offence, told his Honour that he could view the appellant's actions "as being either in the character of a provocation - provoked defence, or indeed as having some elements of self defence - self protection about it".

There was no significant difference in these approaches except that counsel for the appellant was also contending before the learned trial Judge that there was no concession of "an intention to kill or indeed to cause grievous bodily harm". It is hard to reconcile this statement with the notions of provocation and self defence, both of which assume an intention to kill or do grievous bodily harm, an intention which is then saved from the consequences of murder by the presence of provocation or self defence. Before the learned trial Judge the Crown Prosecutor said, in regard to the record of interview with the appellant :

"Your Honour will note for example, the word 'kill' is used in a number of cases without any clarification as to whether it is 'killing proper dead' or just 'killing little bit'."

This was apparently a reference to a statement by the appellant that "I wanted to kill him then because he had hurt me when he had punched me and grabbed me here (Indicates throat). I couldn't breathe.". It was also an acknowledgement that some Aboriginal people use the word "kill" to include inflicting injuries that are not necessarily fatal. When his Honour commented in passing sentence, that the appellant "deliberately stabbed a man, who was then in no position at all to resist", he should not be taken to have been expressing a view that the appellant intended to kill the deceased. In view of the rather tenuous way in which the basis for a conviction of manslaughter was put to his Honour, we do not think he can be criticised for not saying more about the matter.

The other grounds of appeal raised matters extraneous to the circumstances in which the offence was committed. It was said that the sentence imposed was manifestly excessive in all the circumstances; but counsel for the appellant acknowledged, if only tacitly, that this ground could not succeed independent of the more specific grounds. In essence the appellant's case was that the learned trial Judge had failed to pay sufficient regard to the traditional tribal punishment meted out to the appellant immediately after the killing, that he had failed to pay sufficient regard to the wishes of the Umbakumba community concerning the appellant and that he did not attribute sufficient emphasis to the isolated and tribal nature of that community.

It cannot be said that his Honour was oblivious to these considerations nor can it be argued that he treated them as irrelevant in determining a proper sentence for the offence which had been committed. The appellant's case, in the end, was and had to be that a sentence of seven and one half year's imprisonment with a non-parole period of two years demonstrated of itself that the learned trial Judge had failed to give these considerations the weight that they deserved.

It must be understood that neither before the Supreme Court nor before this Court did the Crown contend that the matters to which we have just referred were matters to which his Honour should have paid no regard. The Crown accepted, again if only tacitly, that they were considerations properly to be taken into account. But counsel argued that this was precisely what his Honour had done, giving them the weight that they deserved.

After the incident in which the deceased was killed, the appellant obviously anticipated trouble and armed himself with a tomahawk and spear. Several men arrived with spears and inflicted a number of injuries upon him. He received two stab wounds to the right upper arm, a large laceration in the area of right lumbar region right groin and right illiac fossa, a large laceration in the left groin and a small stab wound in the suprapubic region. The wounds were sutured by a doctor in Groote Eylandt and the appellant was then taken to Gove District Hospital where Dr. Irwin operated on him. A spear had penetrated the abdominal cavity but, fortunately for the appellant, it did not involve any vital organs. On 17 August Dr. Irwin operated again and removed an old blood clot from the abdominal wall and a piece of spear from the right upper arm. The appellant seems to have made a remarkable recovery. The medical report describes him as having been discharged "well" on 2 September and no mention was made before the Court of any residual disabilities.

The infliction of these injuries was referred to by counsel as a form of tribal punishment and his Honour used the term "payback" in connection with what had happened. Before this Court counsel for the Crown said that it was common ground that the attack upon the appellant had been in accordance with tribal "custom" but that the Crown did not accept that the injuries had been inflicted according to tribal "law". The distinction sought to be made, if we understood it correctly, was that while the injuries might be regarded as a form of customary retribution, there had been no time for any meeting of the community or of its tribal elders to have taken place so as to express a considered view as to any punishment which the appellant should undergo.

It is of course a fact, and one that cannot and should not be disregarded, that the appellant did suffer serious injuries at the hands of other members of the community. But, if it is to be asserted that conduct of this sort should be seen as a reflection of the customary law of an Aboriginal community or tribal group, we are of the opinion that there should be evidence before the Court to show that this was indeed the case and that what happened was not simply the angry reaction of friends of the deceased, particularly when the killing of the deceased and the injuring of the appellant occurred at a time when some, if not all, of those participating had been drinking.

In the circumstances we are of the opinion that this Court should approach the matter on the basis that, by reason of his action the appellant brought on himself the anger of members of the community and that as a result he received severe injuries from which he fortunately made a good recovery. 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 learned trial Judge was handed by the Crown Prosecutor a document purporting to have emanated from the Umbakumba community. Its genuineness was not questioned. Apparently it was brought to Darwin by people whom the Crown proposed to call as witnesses had the trial proceeded. It is a letter from Claude Mamarika, the president of the Umbakumba Community Council, counter-signed by some 20 members of the community. In part it reads:

"We would like him (the appellant) to be set free if possible, but not to come to Groote Eylandt. He would have to stay on an outstation on the mainland for three yrs or more. Banyalla o/s was suggested.

Whatever the court's decision is concerning Moses outcome in court we would still like him to spend his sentence on an o/s instead of prison. He has a large family of four wives and about twelve children. At the moment they get by with child endowment money but with Moses they could manage better."

The learned trial Judge made this comment to the appellant on that suggestion.

"Your community may regard what is virtual temporary banishment from your home land as adequate sanction and that I understand. I doubt whether imprisonment has ever made much sense to your people. Traditional punishment methods were probably far more effective, if at times salutary. But imprisonment is now well understood as a punishment handed out by the courts of this Territory and my experience is that an order for conditional release is too often misunderstood or ignored and your own recent record may illustrate this."

By "recent record" his Honour was no doubt referring to the appellant's several convictions for assault over the years. In particular in 1978, following a conviction of assault occasioning grievous bodily harm, the appellant was sentenced to six month's hard labour, to be released after three months on entering into a good behaviour bond for two years. After some 14 months he was convicted of aggravated assault and this time was placed on a good behaviour bond for one year.

Counsel stressed that if the appellant was discharged from custody on terms which required him to spend three years at an outstation on the mainland or, as was suggested as an alternative at Elcho Island, this "banishment" would be an effective and salutary sentence. On the other hand, it was said, the appellant has already spent nearly 12 months in hospital or in prison and that to spend at least another 18 months in prison, in the light of what he has already undergone, would be excessive and certainly would be seen by him to be excessive. Counsel stressed that to release the appellant from custody under such conditions would be to extend an effective form of restraint and would continue to deprive him of contact with his people. He would in the end return to Umbakumba with the permanent disgrace of a man who had killed his brother.

We were referred to a number of decisions in which the principles of sentencing have been discussed. Counsel for the appellant directed our attention to the remarks of Brennan J. in Channon v. R. (1978) 20 ALR 1 at p.5. There his Honour spoke of the necessary and ultimate justification for criminal sanctions as "the protection of society from conduct which the law proscribes" Dealing with the aspect of deterrence, Brennan J. commented.

"Deterrence (whether of the offender or others) from committing other kinds of crime, reformation in respect of other failures, or retribution for other kinds of social misconduct, are not purposes to which the judicial discretion in sentencing is directed. But a sentence which is imposed with the object of deterring the offender from committing offences of the same kind again, and with the object of rehabilitating him by reducing or eliminating the factors which contributed to the conduct for which he is sentenced serves the appropriate purpose, provided the sentence is apt to secure those objects."

In counsel's submission, in the circumstances of this case, the Court's disapproval of the appellant's conduct, and the need to deter others from committing offences of the same kind, would be sufficiently met in all the circumstances by the release of the appellant at this stage subject to conditions of the sort already mentioned.

On a proper analysis of the appellant's case, it was not his submission that the wishes of the community should prevail over what might otherwise be seen to be a proper sentence. Nor in truth was it suggested that the Court should simply substitute a method of punishment known to and accepted by Aboriginal communities in lieu of a more conventional sentence. Rather it was the appellant's case that he had already, because of the injuries he received and the time he has spent in custody, been severly punished. To release him now from custody but to place him under supervision and exclude him from his community for a period of say three years would, in all the circumstances, constitute a penalty appropriate to the offence. Anything more would be excessive. We find this submission persuasive in its general approach.

To give effect to the submission, the appropriate steps to be taken are to supsend the balance of the appellant's sentence pursuant to s.5(1)(b) of the Criminal Law (Conditional Release of Offenders) Act upon the appellant giving security, with or without sureties, by recognizance or otherwise, that he will be of good behaviour for such period as the Court specifies and will comply with such conditions as the Court thinks fit to specify.

In several decisions courts have stressed that a suspended sentence remains a sentence of imprisonment; "an offender dealt with in this way continues to be at risk, during the period of suspension of having his suspended sentence reactivated on reconviction, with the original term unaltered" (Walters J. in Wood v. Samuels (1974) 8 SASR 465 at p.468). See also R. v. Weaver (1973) 6 SASR 265 at p.267. But it is true that a suspended sentence has been seen to be more appropriate to the offender who has not been to prison before and to the person who is most likely to benefit from such an order. The appellant has been in prison before and it may be said, with some force, that two previous good behaviour bonds have not provided any guarantee that he will keep out of trouble.

However the situation is that the appellant has already undergone substantial punishment for what he did. In our view if the Court were to direct, not that the head sentence and non-parole period be altered, but that the appellant's sentence be suspended as from 1 August 1982 upon him giving security in the sum of $1000, with an appropriate surety in that amount, by recognizance to be of good behaviour for a period of four years and to be subject during that time to supervision on probation under a person to be appointed by the Director of Correctional Services Division, there will, in all the circumstances, have been an appropriate sentence for the offence committed. We are of the opinion that a surety is important in the present case. While that surety does not have to come from the Umbakumba community, the requirement gives the community an opportunity to demonstrate its support for the course which we are taking.

It is desirable not to tie too closely the hands of the Correctional Services Division but rather to give it some flexibility in dealing with the appellant. Nevertheless it is clearly the intention of the Court that, upon the suspension of his sentence, the appellant should spend at least three years away from Umbakumba, preferably at Banyalla, subject to such directions as his probation officer thinks appropriate.

In the result the appeal is allowed and it is ordered that the sentence appealed from be varied by suspending that sentence as from 1 August 1982 upon the appellant giving security in the sum of $1000, with an appropriate surety in that amount, by recognizance to be of good behaviour for a period of four years and to be subject during that time to supervision on probation under a person to be appointed by the Director of Correctional Services Division. There will be liberty to apply. That will be the order of the Court.