Owen Patterson v Wendy Brookman - [2021] ACTMC 16

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 26^th 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 26^th of January is known to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Owen Patterson v Wendy Brookman

Details

AGLC: Owen Patterson v Wendy Brookman [2021] ACTMC 16
Case: [2021] ACTMC 16
Decision Date: 25 November 2021

CaseChat Overview and Summary

In the Galambany Court, Owen Patterson was prosecuted for an assault occasioning actual bodily harm against Wendy Brookman. The case turned on the defendant's claim of provocation and the relevance of his background and experiences as a First Nations person in assessing the gravity of that provocation. The court was required to determine whether the sentence imposed by the Circle Sentencing Court was appropriate, particularly in light of the defendant's assertions regarding the cultural and historical context of the incident, including the significance of Invasion Day, Survival Day, and Australia Day.

The central issue for the court was whether the Circle Sentencing Court had appropriately considered the defendant's background, including his experiences as a First Nations person, in assessing the gravity of the provocation and in determining the appropriate sentence. The court needed to evaluate whether the sentence imposed was just and whether it adequately reflected the circumstances of the case, including the defendant's cultural and historical context. Additionally, the court had to consider whether the Circle Sentencing Court had erred in its approach to sentencing and whether the sentence was disproportionate.

The Galambany Court found that the Circle Sentencing Court had not adequately considered the defendant's background and experiences as a First Nations person in assessing the gravity of the provocation. The court held that the Circle Sentencing Court's failure to properly consider these factors constituted a significant error in the sentencing process. Consequently, the court deemed the sentence imposed by the Circle Sentencing Court to be unjust and disproportionate. The Galambany Court ordered that the matter be remitted to the Circle Sentencing Court for resentencing, with specific directions to ensure that the defendant's background and experiences are appropriately considered in determining the appropriate sentence.

The final order of the court was to remit the matter back to the Circle Sentencing Court for resentencing, with the direction that the court must consider the defendant's background and experiences as a First Nations person in assessing the gravity of the provocation and in determining the appropriate sentence. The court provided detailed directions to ensure that the resentencing process was conducted in a manner that appropriately reflected the circumstances of the case.

Orders

Orders of the court

See [91]

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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