Nathan Etheredge v Chaka Freeman

Case [2022] ACTMC 11

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Nathan Etheredge v Chaka Freeman

Citation:

 [2022] ACTMC 11

Hearing Date:

31 March 2022

DecisionDate:

20 May 2022

Before:

Special Magistrate Hopkins

Elders:

D. Ritchie

R. Longford

Court Co-ordinator

M. Abel

Decision:

See [65]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Galambany Court – Circle Sentencing – damage property – offence committed while in custody – grief and loss – parental incarceration – Bugmy principles

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 7, 63, 64, 72

Criminal Code 2002 (ACT) s 403

Cases Cited:

Biddle v Gatherer [2021] ACTSC 236

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Hogan v Hinch [2011] HCA; 243 CLR 506

Horan v O’Brien [2021] ACTSC 323

Hoskins v R [2021] NSWCCA 169

Ingrey v R [2016] NSWCCA 31

Owen Patterson v Wendy Brookman [2021] ACTMC 16

Postiglione v R [1997] HCA 26; (1997) 189 CLR 295

R v BS-X [2021] ACTSC 160

R v Mills [1998] 4 VR 235

R v Rappel [2019] ACTCA 11

R v Steen [2015] ACTSC 259

Texts Cited:

Parties:

Bugmy Bar Book, Incarceration of a Parent or Caregiver (November 2019)

Edwige, V and Gray, P, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021)

Nathan Etheredge (Informant)

Chaka Freeman (Defendant)

Representation:

Counsel

L Knobel (Informant)

T Cobden (Defendant)

Solicitors

ACT Director of Public Prosecutions (Informant)

Legal Aid ACT (Defendant)

File Number:

CC 6658 of 2021

SPECIAL MAGISTRATE HOPKINS:

  1. This is a sentencing decision of the Galambany Court. The Galambany Court is a specialised circle sentencing court, within the ACT Magistrates Court, established to provide a culturally relevant and restorative sentencing process for Aboriginal and Torres Strait Islander people who have pleaded guilty to an offence. In the language of the Ngunnawal people, Galambany means ‘we all, including you’. The capacity of the Galambany Court to achieve its objectives depends upon the dedication, commitment and wisdom of Elders, who sit and exercise First Nations authority in the Court, with the permission of Ngunnawal and Ngambri Traditional Owners of the land, upon which the Court sits.  

  1. Court proceedings take place in a circle. Words are spoken, listened to, and heard in the Circle. Though the law applied to those who are sentenced in the Circle is the same as in a standard courtroom, the process is different. This process enhances understanding. I have explained the process in detail in the decision of Owen Patterson v Wendy Brookman [2021] ACTMC 16.

  1. The delivery of this decision is also different. It is written to be spoken directly to you, Chaka. I acknowledge you as a proud Wiradjuri and Gamilaraay/Kamilaroi man.

  1. You are currently serving a sentence of two years' imprisonment, imposed upon you on 21 January 2021 for dishonesty and driving offences. That sentence commenced on 3 June 2020 and expires on 2 June 2022. A non-parole period of 15 months…

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Nathan Etheredge v Chaka Freeman [2022] ACTMC 11
Case
[2022] ACTMC 11
Decision Date

CaseChat Overview and Summary

The dispute in Nathan Etheredge v Chaka Freeman involved the defendant, Chaka Freeman, who was convicted of damaging property and committing the offence while in custody. The matter was heard in the Magistrates' Court of Victoria. The key issue before the court was whether the application of the Bugmy principles, which are designed to mitigate sentencing in cases involving Indigenous offenders, should be considered when sentencing Freeman. The court needed to determine whether the principles could be applied in the context of an offence committed while the defendant was in custody.

The court examined the principles set out in Bugmy v R, which focus on the unique circumstances of Indigenous offenders, including the impact of parental incarceration on children and the broader community. The court considered whether these principles could be applied to Freeman, despite the fact that he had committed the offence while in custody. The court noted that the Bugmy principles could be applied in a modified form to cases where the offender is in custody, provided that the circumstances of the offence and the offender's background are taken into account. The court also highlighted the importance of considering the impact of parental incarceration on children and the broader community.

Ultimately, the court determined that the Bugmy principles could be applied in a modified form to Freeman's case, taking into account the specific circumstances of the offence and Freeman's background. The court found that Freeman's actions had caused significant damage and distress to the victims and the community, but also recognised the importance of considering the broader context of Freeman's life and the impact of his incarceration on his family and community. The court imposed a sentence that reflected these considerations, while also ensuring that the sentence was appropriate for the seriousness of the offence.

The court ordered that the sentence be implemented in accordance with the principles set out in the judgment. The court also noted that the sentence would be reviewed in the context of a Circle Sentencing process, which would provide an opportunity for further consideration of the impact of Freeman's incarceration on his family and community.

Orders

Orders of the court

See [65]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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