Owen Patterson v Wendy Brookman
[2021] ACTMC 16
•25 November 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Owen Patterson v Wendy Brookman |
Citation: | [2021] ACTMC 16 |
Hearing Date: | 25 November 2021 |
DecisionDate: | 25 November 2021 |
Before: | Special Magistrate Hopkins Elders: D. Ritchie A. Sambono S. Keed O. Kickett Court Co-ordinator M. Abel |
Decision: | See [91] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judgment and punishment – sentence – Galambany Court – Circle Sentencing – assault occasioning actual bodily harm – provocation – gravity of provocation assessed, having regard to relevant characteristics of defendant – experience of First Nations peoples - Invasion Day - Survival Day – Australia Day |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 17, 33(1)(m) & (q) |
Cases Cited: | Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58 |
Parties: | Owen Patterson (Informant) Wendy Brookman (Defendant) |
Representation: | Counsel I Coker (Crown) E West (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | CC 2149 of 2021 |
SPECIAL MAGISTRATE HOPKINS:
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, 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.
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. The delivery of this decision is also different. It is written to be spoken direct to you, Wendy.
Wendy, you are a proud Butchulla woman and Traditional Owner of K’Gari (Fraser Island). You are a recognised leader in the local and national First Nations community. Your husband, Alan Brookman, is a proud Gubbi Gubbi man. Together, you have five Butchulla/Gubbi Gubbi children, who have been raised strong in their identity and connection as First Nations people.
On the 26th of January 2021, you assaulted your neighbour by pushing her, causing her to fall to the ground and break her wrist. In so doing, in a single moment, in an otherwise remarkable life of service to family, First Nations peoples and the broader community, you committed an assault occasioning actual bodily harm. This is an offence with a maximum penalty of five years’ imprisonment.
This moment in time had its genesis in the events of 26 January 1788, with the arrival of the First Fleet to this continent that was then in the sole occupation and custodianship of sovereign Aboriginal peoples. Your people.
The 26th of January is known to many First Nations people as Invasion Day or Survival Day. It marks the beginning of colonial invasion, with all of the violence that has wrought upon the many peoples who were living and continue to live in connection with this continent, since time immemorial.
For many First Nations people, the 26th of January is a day of deep pain and sadness. It is a day of grief and loss: for ancestors, for kin, for culture and for Country. It is a day of mourning for all those who have suffered the intergenerational and ongoing trauma of dispossession and colonial control.
This past lives in the present. These lines of colonial force are with us, shaping lives and reproducing inequality. They structure relations between those who have belonged since time before time and those more recently arrived, whose claim to ownership rests upon the act of colonisation itself.
But the 26th of January is also known as Survival Day. It marks the continued strength and resilience of First Nations peoples – of culture and connection to kin and Country – in the face of these colonial lines of force. It marks a day on which the truth is told to those who are prepared to listen, in the hope that truth-telling, listening and understanding will lead to a future in which First Nations Peoples and newcomers can walk together in harmony.
10. A failure to understand and respect the meaning of the 26th of January for First Nations peoples is the backdrop to the moment that brought you before the Galambany Court, before Elders who share your experience and have a capacity to understand, in ways that newcomers do not.
11. At the end of the proceedings on 25 November 2021, after I had listened closely to the conversation between you and the Elders, to which I will come; after I had considered the submissions of your lawyer and the prosecutor, and adjourned to meet with the Elders to receive their recommendation, I sentenced you.
12. Your lawyer asked the Court to proceed by way of a non-conviction order.
13. The prosecutor, having herself listened closely to the conversation, did not wish to be heard against a non-conviction order. But she was clear, as you are, that a response of violence can never be condoned, even where there is provocation.
14. The sentence imposed was a non-conviction order. Without convicting you, I made an order that the charge be dismissed. I did this because I was satisfied that it was not appropriate, in all of the circumstances, to impose any punishment on you.
15. Because of the extraordinary nature of this case, at the time of sentencing you, I told you that I would provide written reasons for the sentence, inviting you to return to the Circle, where I would read them to you.
16. As far as I am aware, this is the first written decision of the Galambany Court. For this reason, I will briefly explain Galambany Court circle sentencing process that you were a part of.
Proceedings in the Galambany Court
17. Having pleaded guilty, you came before the Galambany Court on 25 November 2021, to sit in the Circle and speak with Elders. I sat in the Circle, as the presiding magistrate, joined by your defence lawyer and the prosecutor. Each of us is a newcomer to this land.
18. The process began with an Acknowledgement of Country, of Elders and ancestors. It began with an acknowledgement that sovereignty over the continent now called Australia was never ceded by First Nations peoples; that this was and always will be Aboriginal land. It was also explained that the Galambany Court exists to recognise the consideration that is due to First Nations people, as a consequence of intergenerational and ongoing trauma caused by colonisation, as well as, importantly, to recognise and draw upon the strength of First Nations People and communities.
19. Each participant in the Circle introduced themselves, acknowledging Country and their connection to it, as First Nations people or as newcomers. Those in the Circle also explained their role.
20. Each person has an important role to play. However, the process is designed to centre First Nations voices in the sentencing conversation. That is the conversation that you had with the Elders. It is this conversation that provides the foundation for understanding and enables the sentence that is imposed to take account of your experience as a First Nations person, within the broader context of the experience of your people.
21. The prosecution and defence tendered a number of documents and electronic files that provided the foundation for the conversation with the Elders. These included an agreed statement of facts, which establish the primary facts making up the offence to which you had pleaded guilty; audio-visual recordings of the assault and the circumstances in which it took place; printouts of Facebook communications between you and your neighbour, in the days before the assault; and letters that spoke of your good character, and your commitment and contribution to family, the First Nations community to which you belong and the broader Australian community.
22. There was no victim impact statement. This is not to say there was no impact. A broken wrist is a significant injury, which must be recognised. Out of respect for the victim’s privacy, I have chosen to refer to her in these reasons as your neighbour.
23. To facilitate the sentencing conversation, material tendered by the prosecution and defence was provided to the Court and to the Elders, before the Circle sentencing process started.
24. I will return later to what the letters say about your character and contribution. For now, I will explain the facts that relate to the assault that you committed, as understood from the material that was tendered.
The Facts
25. On the days leading up to the 26th of January 2021, you and your neighbour were involved in an altercation online about Black Lives Matter protests and Australia Day.
26. On 6 January 2021, on your Facebook account, you posted: ‘Just here to say…don’t celebrate “Australia day” if you posted about blm, otherwise your actions were just performative’.
27. In response, you neighbour posted a comment on your Facebook post, stating, ‘But fuck the BLM. I’ve been a white Australian for 46 years I’m sick to death of shit. My mum before me. You are offending me massively’.
28. You responded with ‘Keep scrolling then’.
29. There were then a succession of increasingly strident post responses from your neighbour and some interventions from others. One particularly inflammatory post read as follows ‘Our country wouldn’t be in existence without whites. Wake up and see it for what it is…’
30. To this you responded ‘go to sleep’.
31. At this point, it must be said that perhaps the best advice would have been to block your neighbour from posting on your account, though I understand that you have committed to engagement as a strategy of truth-telling and resistance.
32. The posts and responses continued. They include your neighbour posting the following to you: ‘Every year at this time you carry on about changing the date, changing the flag, changing the anthem. Why don’t you just carry on love and divide our nation. Go and protest again during the pandemic. You’re selfishness is unfathomable. What more do you want. You have been acknowledged and you got the apology. You have more rights and benefits than white Australians...’
33. Perhaps unwisely, with others also seeking to intervene to have your neighbour de-escalate, you continued in an attempt to explain yourself and the way you have raised your children to understand history. To this, your neighbour responded: ‘did you tell them about Burke and Wills discovering nsw did you tell them they would still be spearing kangaroos for dinner…’
34. This exchange speaks volumes. There are responses from you that I am sure you are not proud of, though they are borne out of an attempt to stand up for yourself, your children and your people against this sort of racism and ignorance, which reinforces the intergenerational and ongoing harm of colonialism. You did not seek out this confrontation.
35. Later that evening, your neighbour began screaming racial abuse over the fence so loudly that it woke your children and your mother.
36. On 7 January 2021, you received a post from your neighbour’s daughter, apologising for her mum offending you on Facebook when she was drunk. Indeed, you received a later post from your neighbour on Facebook, in which she said ‘I apologise for yelling over the fence in my drunken stupor. I’m sure I said some ugly things.’ However, she did not apologise for her opinions and restated that she was ‘offended greatly’.
37. This is all to give a flavour of what was coming to a head on 26 January 2021.
38. On 26 January 2021, your neighbour and her family held an Australia Day BBQ. In full knowledge of your views about the day, your neighbour deliberately threw ‘Australia Day’ balloons into your backyard. Some of your children responded by popping the balloons. Your children then ran to play out the front of the house, where they apparently popped more balloons. This angered your neighbour, who shouted insults at them and towards your house. She had been drinking throughout the day and was intoxicated.
39. I understand that shortly after your neighbour became angered at the children for popping ‘Australia Day’ balloons, one of them returned home to say that she had threatened to ‘flog’ them. In response to this, you and others decided to go and confront her.
40. At 7.50 pm, you, your husband Alan Brookman, Peter McFadzen, your children and friends, went and stood in the driveway of your neighbour’s home. Despite the efforts of relatives and friends on both sides to calm the situation, an argument erupted between you and your neighbour, which became heated and descended into name-calling, including racial slurs.
41. The Elders and I have watched the audio-visual recordings of the event captured both on CCTV and on a mobile phone. They are disturbing. Your neighbour stands wearing an Australia flag apron. You stand wearing a t-shirt with the Aboriginal flag on it. At one point, your neighbour can be heard to yell ‘take you kids home and educate them’.
42. You then entered into her front yard and pushed her forcefully with both hands, causing her to fall to the ground. This resulted in her wrist being broken, though this was not discovered until she attended hospital later that night.
43. There is one final piece of footage from 26 January 2021 to which I will refer. It captures your neighbour, after the push and after police had attended and left, with all parties agreeing to de-escalate. In that footage, she can be seen and heard to scream in the direction of your house, from her back balcony, ‘This is our country’.
The Sentencing Conversation
44. It is not easy to capture in words the emotion that was involved in the conversation that you had with the Elders. Often meaning is conveyed in silence, as much as it is through what is spoken. It was apparent from the time when you acknowledged Country and your connections that you understood the seriousness of the offence. You also thanked the Elders for allowing you to speak with them about what you did, why and the background from which the offence arose. You said: ‘I appreciate being able to come in here and discuss this, because I can assure you, it’s a lot more daunting sitting in front of five Elders than most magistrates’.
45. You explained that, on 26 January 2021, you and your family had attended an Invasion Day event, starting in the city and ending at the Tent Embassy. Just like you do every year. After arriving home with friends and family, you were approached by your neighbour’s daughter, who explained that her mother was already intoxicated. You were worried and the recent Facebook exchange was in the back of your mind.
46. You then described the ‘Australia Day’ balloons being thrown over the fence into your backyard, where children were playing. As you said ‘it was actually her that was chucking the balloons over and then she started getting upset, because my son, who was eight at the time, was popping them’. To avoid confrontation, you then told your children and others who were in the backyard to go and play out the front.
47. Though you weren’t out the front, you accepted that your son likely popped an ‘Australia Day’ balloon in your neighbour’s front yard. You were sitting out the back and one of your friend’s children came running in. He was upset. He told you that your neighbour had threatened to ‘flog’ him and the other children. You explained that you then walked out the front and said to your neighbour ‘what are you doing?’ At this point, you said that she was ‘raging at the kids and then she just started … talking down to my kids about how uneducated they were and [saying to them] that, “You’re not even black”’.
48. When asked by one of the Elders to tell them what racial slurs had been levelled at you and the children by your neighbour at that time and previously, you said, ‘So that night – well the most common used ones are dirty black, abo, black bitch, black slut, that’s me, for me. My kids are … half-caste, which is my pet hate.’ You then explained that your ‘daughter is blonde hair, blue-eyed’ and that your neighbour was saying to her, ‘You’re not black. You’re not black’.
49. It is difficult for a non-Indigenous person, as I am, to fully grasp the gravity of these harmful words and the denigration of the identity of you and your children that they entail. I do not, however, have to rely on my assessment. The Elders in the Circle have all shared your experience. They can relate. Tragically, this sort of denigration is the lived experience of First Nations people across this continent.
50. What happened next is best put in your words, though they were broken up by the fact that you were crying: ‘I’d had enough of the situation. It doesn’t excuse my, you know, what I did, and I’m here to take responsibility for that. [It’s] that she always goes after my kids, always.’
51. During the conversation, Uncle Allan Jangala Sambono captured the emotion of the moment you lost self-control, as a result of this provocation, as follows:
…what your case illustrates to us, and the rest of the world, is how us, as Aboriginal people, are forced to live in a country that doesn’t recognise or acknowledge our existence. So what that means is you have your neighbour, who’s pretty close by, screaming at you and your kids and calling you all kind of slurs … And as parents and grandparents ourselves, we understand that world. We know what’s going on and we’ve been through it. So it’s easy to have it in black and white and say, ‘This is the case, let’s proceed’, but unless you’ve lived it, unless you feel it every day…
52. As you explained, there was also a backstory to this moment that points to the systemic nature of your experience, the experience of your children, the experience of the Elders and of First Nations people. On Invasion Day 2019, your daughter posted a picture of herself at the rally on social media. She was then the subject of racial abuse. In seeking to set a positive example, you took her to the police station, to ‘make sure this stops’. There, your daughter was told that there was nothing the police could do, because ‘the court is going to see that … the reason why you were called those names is because of your post’.
53. You explained the impact of this experience on your daughter, as follows: ‘I’ve seen her lose her confidence of who she was. Like that stripped her … an incident like that can [strip a child] because to their belief that’s law … that’s the one who makes the decision. So, I don’t want to have that continued, do you know what I mean? That’s why it is so important that we keep that education, keep it going the whole time.’
54. You expressed shame about having pushed your neighbour. In your words, on 26 January 2021, you ‘hit her expectation’. You responded in anger. You used violence. As you said, you don’t want your children to ‘hit that expectation’, to ‘become a statistic’.
55. But you also expressed a commitment to using the experience of having lost self-control in this situation to continue to support your work as a cultural educator, and to continue to support your work as a mother who is raising ‘five up-and-coming’ Elders of the future.
56. Though there is no excuse for you pushing your neighbour, it must be said to you, to your children and to all First Nations people, that there is no excuse for the racial abuse and denigration that you suffered and will no doubt continue to suffer.
57. It is important to acknowledge that the Court did not have the opportunity to hear your neighbour’s account of the altercation. However, there is no reason to doubt your evidence. What you said was supported by the agreed facts and the audio-visual material. You also presented as a compelling, brave and honest witness.
58. Now I will address how the actions, words and behaviours of your neighbour on 26 January 2021 and in the lead-up to that day were taken into account in your sentence.
Objective Seriousness
59. A sentence imposed must be proportionate to the seriousness of the offence. This requires consideration of the nature of the assault, the harm that was caused as a consequence and your moral culpability for doing what you did.
60. In this case, moral culpability is very closely linked to the gravity of the provocation you experienced. Though provocation is not a defence or a complete excuse for what you did, at law it is treated as partially excusing your actions. I will come to the question of provocation and the assessment of the gravity of that provocation shortly.
61. The assault itself was a forceful push. It was made more serious by the fact that you entered the front yard of your neighbour and moved towards her, before pushing her. There was, however, limited, if any, pre-meditation. This is consistent with a finding that you reacted in response to what became, for you, intolerable provocation.
62. There is no evidence that you intended her to fall or that you intended injury. I accept that you did not. The offence of actual bodily harm does not require proof that you intended injury, just that you intended to apply force to your neighbour.
63. Your neighbour suffered a broken wrist as a consequence of your assault. This is a significant injury. It required treatment at the hospital. Though there is no victim impact statement, it must be accepted that this offence had a significant impact on her.
64. This brings me to the question of provocation. Section 33(1)(q) of the Crimes (Sentencing) Act 2005 (ACT) requires the Court to consider ‘the degree to which the offence was the result of provocation’. Allied to this, in the particular circumstances of your case, is the requirement in section 33(1)(m) that the Court take into account your ‘cultural background’.
65. Your cultural background, as a Butchulla woman, raising Butchulla/Gubbi Gubbi children, is critical to the assessment of the gravity of the provocation you experienced. And this assessment requires the Court to engage with the experience of First Nations peoples on this continent since 26 January 1788. Who better, therefore, to assess the gravity of the provocation than a panel of First Nations Elders?
66. As the High Court has explained in the case of Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58 (‘Masciantonio’), in the context of the partial excuse of provocation, that reduces a murder charge to manslaughter, attention must be directed to the nature of the ‘wrongful act or insult’, and whether this act or insult caused the person claiming to have acted under provocation to ‘lose self-control’.
67. In this case, it is clear that the words and actions of your neighbour, understood in their context, were grossly insulting, and that, as a result of the cumulative impact of these words and actions, you lost self-control.
68. As further explained by the High Court in Masciantonio at [34], attention is then directed to ‘whether an ordinary person could have lost self-control to the extent that the accused did’, with provocation being ‘measured in gravity by reference to the personal situation of the accused’.
69. The gravity of the provocation must therefore be measured by your personal situation, as a First Nations person, mother and cultural educator committed to ‘truth-telling’. It must be assessed against the backdrop of your experience with your neighbour and your experience as a First Nations person, who shares the collective experience of First Nations people on this continent since 26 January 1788.
70. Considered in this way, with the benefit of the assessment made by the Elders who share your lived experience, it is not difficult to conclude that the ‘ordinary person’ could well have lost self-control just as you did.
71. This does not excuse your actions. But it does weigh heavily in the assessment of the objective seriousness of the offence.
72. It is important here that I say something more about your neighbour. She was the victim of your assault. Considering a factual circumstance of provocation, as the Court has been required to do here, inevitably involves an element of ‘victim-blaming’.
73. However, as you said to the Elders, ‘I’m a huge believer that racism and this type of stuff, it’s taught, it’s taught behaviour’. Just as lines of force from the past and present bore upon you in that moment in which you lost self-control, so too did lines of force bear upon your neighbour, explaining the harmful words she spoke and actions she engaged in.
74. It is often said that we think the thoughts of our culture. This is a way of saying that our past experience, our cultural education in all its forms, shapes the present moment, our thinking and our actions. Two cultures met that day, as they do on the 26th of January each year. One that, despite everything to which it has been subjected, has survived in strength and connection. One that is yet to acknowledge the harm of colonial history re-enacted daily in the present.
75. This takes me to the work that you have done and no doubt will continue to do, as a cultural educator with an unwavering commitment to your people and to a brighter future for all people on this continent.
Subjective Considerations
76. Wendy, you are undoubtedly a person of exemplary character. You have no criminal record, but this fact alone says little about you. You provided the Court with six character references. I will refer to each of these in turn, as they are a remarkable testament to your character and commitment to your family, the First Nations community and the broader community.
77. Tegan Buttimore has known you for 11 years, having previously worked in your employ for nine years. You have a close personal relationship. Her view of you supports both the conclusion that you lost self-control due to provocation and also that the offence was out of character for you. Tegan wrote:
I have never seen Wendy become violent, she is extremely well educated and uses facts and information in any disagreement. I know for a fact this was the first avenue taken with her neighbour, as I witnessed the abuse and absolute racist comments Wendy copped over facebook for just simply posting something about her community and beliefs, something we are all entitled to. I have no doubt that [with] what occurred Wendy must have been provoked, I have been at her house with this neighbour yelling abuse over the fence before. I was at Wendy’s house earlier the day of the incident and she had just returned with her friends from the March at old parliament house and they were in a fantastic mood after being a voice for their community.
78. Julian Fitzgerald has known you for the past five years. You have worked with him, as part of the media team at the National Aboriginal Community Controlled Health Organisation. He writes of your capacity to manage large conferences, working to a high standard in a difficult environment, presenting as warm, welcoming and passionate about your job. He wrote about you undertaking this work, while managing a gym and raising five children, often as the major income earner, due to your husband’s medical condition. He referred to your work conducting interviews, writing articles, editorials, speeches and research briefs, whilst also working at the Canberra Institute of Technology (CIT) to inspire First Nations students. He said that you are ‘a positive and well-respected role model’ for your children and ‘a recognised leader in the local and national Aboriginal community’.
79. Patrice Soward has known you for 20 years. You were her personal trainer. You have also worked together at CIT. She writes of your tireless commitment to those you work with and of your ability to connect with students, to help them achieve their goals and aspirations. She said:
Wendy … is an amazing woman who is proud of her Aboriginality, stands up for injustice, advocates for the less fortunate, empowers people who feel like they are nothing, guides and leads people in our community and would do anything for anyone in a heart-beat.
80. Veronica Jordan, a Kalkadoon Pitta Pitta woman and fellow cultural educator wrote:
As a member of the Canberra region Aboriginal community, I have engaged with Wendy in a professional capacity and at a community level. I have always found her to be professional, passionate and supportive of all people.
Wendy has always been a strong advocate for Aboriginal and non-Indigenous people in the community, including standing against racism and inter-generational trauma, I have only ever known her to act in a professional manner.
81. Angela Donovan is a former legal practitioner and executive public servant. She has known you as a friend for 13 years. You have taught gym classes together and she watched you purchase and build a successful Fernwood franchise, while continuing your work in community organisations and raising your children. She wrote:
The thing that I admire most about Wendy is her strong cultural and community connections that support Aboriginal and Torres Strait Islander children and young people in our community. Wendy and her family are active in the community and she is always striving to make the future a better place for our kids.
I am aware of the charges that are against Wendy today and I am surprised as I find this to be out of character for Wendy. I believe that should Wendy not be able to continue her community work, many of our young people will be further disadvantaged.
82. William Bashford is a Yuin man dedicated to the advancement of First Nations people. He has known you for 10 years in a personal and professional capacity. You met when you were working as a volunteer in the award winning Solid Sista’s and Brotha’s Aboriginal Youth Program he co-founded. William then worked with you at CIT where he came to an even deeper appreciation of your commitment to your people. He wrote:
Wendy is passionate about giving back to community and helping our next generation. Her personal story and success is not one that [came] without sacrifice and hard work. Her journey is an inspiration to us all and her contribution to the community was not only amazing, but well received and welcomed.
As a proud Aboriginal woman and someone with integrity and of great character and value, I would like to see Wendy be given every opportunity as she has earned this by continuously giving back. She is a tremendous asset to the community, a loving mother, wife, and a valued and respected friend.
83. Your lawyer spoke to the Circle, supplementing what we learned about you from your character references. In particular, we were told that you now work at Winnunga Nimmityjah Aboriginal Health and Community Services, to tackle smoking within the First Nations community. There is no doubt that you have and are living an exemplary life of sustained service as a First Nations leader and mother.
A Non-Conviction Order
84. Your lawyer spoke of the concerns you have that a conviction might compromise your capacity to continue to work in many of your paid and voluntary roles, due to the requirement that you continue to qualify for a Working with Vulnerable People Card.
85. Though there was no evidence that a conviction would necessarily result in you being unable to continue to contribute to the community as you do, the possibility that it might is a significant matter. It is a concern that was referred to by a number of your character referees. It is clear that such an outcome, were it to eventuate, would be very damaging for the First Nations community and community at large.
86. Your lawyer asked the Court to exercise its discretion to make a non-conviction order under section 17 of the Crimes (Sentencing) Act 2005 (ACT). That section requires the Court to consider your character, the seriousness of the offence, and any extenuating circumstances, in which the offence was committed. It also enables the Court to consider anything else the Court considers relevant.
87. The prosecutor indicated that she did not wish to be heard against a non-conviction order. That means that she did not oppose the making of such an order. In all of the extraordinary circumstances of your case, this was a proper position for her to take.
88. We then adjourned, so that I could speak with the Elders and receive their recommendation. They were unanimous and resolute in their view that the Galambany Court should proceed without convicting you, dismissing the charge. As the presiding magistrate, responsible for imposing the sentence, I agreed with them. I am satisfied that it is not appropriate to impose any punishment on you.
89. Your exemplary character and contribution to the community as a First Nations leader, the seriousness of the offence, the extenuating circumstance that you were responding to grossly provocative words and actions, and the risk that a conviction could compromise your capacity to continue in the important work you are doing on behalf of the whole community, all combine to support the exercise of the discretion to impose a non-conviction order.
90. Wendy, your actions on the 26th of January 2021 cannot be excused. The significant injury caused to your neighbour cannot be disregarded. But your actions can be understood in the broader context in which they arose. More significantly, it is the Elders’ view, which I share, that your actions on that day pale in comparison to the evidence of your commitment to your family, your people and the whole community. We hope that, however challenging this experience has been for you, it will be inspiration for you and for others to continue to find ways to see and speak the truth of our shared history with clarity, and work together to bring about a future, of which we can all be proud.
Sentence
91. For these reasons, without convicting you, I ordered that the charge be dismissed.
| I certify that the preceding ninety-one [91] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Hopkins sitting with the Elders of the Galambany Court. Associate: A. Gallagher Date: December 2021 |
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