Police v Coe

[2024] ACTMC 6

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Coe

Citation: 

[2024] ACTMC 6

Hearing Date: 

18 March 2024

Decision Date: 

3 April 2024

Before:

Special Magistrate Hopkins

Elders:

W Tompkins

E Roberts

S Munro

Coordinator: 

R Roberts (Acting)

Decision: 

See [72].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judgment and punishment – sentence – Galambany Court – Circle Sentencing – assault occasioning actual bodily harm – damage property – extenuating circumstances – emotional stress – provocation – assessed, having regard to relevant characteristics of defendant – character – strength of character - experience of First Nations peoples – Aboriginal Tent Embassy - non-conviction order – Good Behaviour Order

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) ss 17, 33(1)(m), 33(1)(q)

Crimes (Sentence Administration) Act 2005 (ACT) s 85

Crimes Act 1900 (ACT) ss 24, 116(3)

Cases Cited: 

Bennett v Daley [2021] ACTSC 15

DPP v Chen [2023] ACTSC 154

DS v R; DS v M [2022] NSWCCA 156; 109 NSWLR 82

Kinnane v Beattie [2022] ACTSC 265

Love v The Commonwealth [2020] HCA 3; 270 CLR 152

Mammoliti v Callagan [2021] ACTSC 259

Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58

Murray v Tulikaki [2022] ACTMC 12

Neal v Queen [1982] HCA 55; 149 CLR 305

Norman v Jones [2024] ACTSC 11

Owen Patterson v Wendy Brookman [2021] ACTMC 16

Paterson v R [2021] NSWCCA 273

Postiglione v The Queen [1997] HCA 26; 189 CLR 295

Proud v Sladic [2014] ACTCA 26; 67 MVR 485

QU v Cattanach [2018] ACTSC 163

R v Fi [2017] ACTSC 190

RLG v Donnelly [2012] WASC 230

Tepania v R [2018] NSWCCA 247

Parties: 

Monica Jane Ballard ( Informant)

Nioka Coe ( Offender)

Representation: 

Counsel

L Thomas ( Crown)

S Brown ( Offender)

Solicitors

ACT Director of Public Prosecution

Legal Aid ACT ( Offender)

File Number:

CC 1271 of 2023

CC 437 of 2023

SPECIAL MAGISTRATE HOPKINS:

Introduction

1․Late on 26 January 1972, four men erected a beach umbrella on the lawn outside the Australian Parliament (now Old Parliament House) and established the Aboriginal Tent Embassy (ATE). So began what may be one of the longest protests for First Nations land rights, self-determination and sovereignty in the world, on what has become a celebrated site of continued resistance to colonial rule, and a place from which First Nations people call for justice and a national reckoning with “the deeper truth” of our history: Love v The Commonwealth [2020] HCA 3; 270 CLR 152 at [289]-[290].

2․One of those four men was your father, Billie Craigie. What he did on that day, and in the days, weeks, months and years that followed, to maintain the ATE, together with your mother Isabelle Coe, gave strength to a movement of First Nations peoples all across this continent who have fought and will continue to fight for justice. Following the example of your parents, who have now both passed, you have dedicated yourself to supporting and protecting the ATE and to the broader movement for First Nations justice.

3․Nioka, today you are to be sentenced for two offences you committed on the site of the ATE on 5 January 2023. One offence of assault occasioning actual bodily harm and one offence of damaging property. ­­These offences were committed at a time when you were the caretaker of the ATE, in the context of a long-running dispute about access to the site. During this dispute, the victim of your assault sought to evict you and other long-term custodians, repeatedly encroached on the site and breached protocol that you saw as your responsibility to uphold.

4․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.

5․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.

6․As I explained in Murray v Tulikaki [2022] ACTMC 12 at [40] (Tulikaki):

In addition to making recommendations, Elders take primary responsibility for the sentencing conversation with the defendant, centring First Nations voices and a process of listening. This provides a foundation for understanding, enabling the sentence that is imposed to take account of the experience of First Nations persons before the court, within the broader context of the experience of their people.

7․Expressed another way, facts that exist by reason of your experience as a First Nations person came to light in the conversation. This is because it was a conversation with Elders who share your lived experience and engaged with you in a respect relationship that acknowledges “First Nations authority … derived from connection and relationship to Country, kin and community”: Tulikaki at [43]. For this reason, the process can be understood to promote the “even administration of justice”, enabling account to be taken of “relevant differences” as is required by the principle of equality before the law: Neal v Queen [1982] HCA 55; 149 CLR 305 at [326]; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301.

8․At the end of the sentencing conversation, your lawyer asked the Court to proceed by way of a non-conviction order for both offences. He submitted that this was justified by your good character in combination with the extenuating circumstances in which you committed the offence. In relation to good character, he focused on your life-long commitment and dedication to the ATE and your work as an advocate and activist for First Nations peoples more broadly. He identified the extenuating circumstances as the circumstances of provocation, pressure and stress you found yourself in on 5 January 2023.

9․The prosecutor recognised your “tireless” commitment and dedication to the ATE and to working to achieve justice for First Nations peoples as well as your positive prospects of rehabilitation. However, she submitted that a conviction was necessary because of the seriousness of the offences. She drew attention to the degree of violence, the injuries inflicted, the need to denounce your conduct, deter you and others from such offending and protect the community.

10․The prosecutor was right to draw attention to these features of your offending and to these sentencing purposes. Your offending was violent. The assault caused significant harm. The victim will live with the memory of that day.

11․After hearing submissions, the Court was adjourned so I could speak with the Elders and receive their recommendation. They were unanimous in their view that the Court should proceed without recording a conviction.

12․In making this recommendation, the Elders do not to condone your actions or justify the violence you engaged in. Rather, they recognise the background context and circumstances of provocation, pressure and stress you faced at the time of the assault, personally and in your role as caretaker of the ATE. They also recognise all that you have done as an advocate and activist for First Nations peoples at the ATE and more broadly. Importantly, they recognise your insight that it is necessary to find a way to resolve disputes that does not involve violence.  

13․Balancing these circumstances with the seriousness of the offence, it was their view that it is appropriate that you be required to enter into a good behaviour order for a significant period. In the context of the Galambany Court, this can be understood as both an undertaking to be of good behaviour with the usual consequence that flow from any breach, and a promise direct to the Elders, respecting their authority. Given your clear commitment to Elder authority, arising from Country, this is no small matter. It is also an encouragement for you and those responsible for maintaining the ATE to work to find a better way to resolve conflict.

14․I agree with the Elders’ recommendation. For the reasons that follow, I will sentence you without recording a conviction. You will be required to enter into an undertaking to be of good behaviour for a period of 18 months.

The facts

15․To protect their privacy, the victims of your offending will be identified by the pseudonyms Ms Francis and Ms Knibb.

16․Not long after 1 pm on 5 January 2023, Ms Francis, accompanied by Ms Knibb, entered land declared as the Aboriginal Tent Embassy. You disputed her right to enter. You made clear to her that she should leave the grounds of the ATE. She refused to leave, claiming that she had permission.

17․You approached Ms Francis. At the time Ms Knibb was filming you on her phone. You punched Ms Francis multiple times in the face. The face and head are vulnerable areas of the body. The degree of force you used was significant. This is clear from the audio-visual recording. As a result of these punches, Ms Francis suffered a cut to the left side of her nose and bruising to her right cheek. This was the offence of assault occasioning actual bodily harm. It has a maximum penalty of imprisonment for 5 years.

18․Immediately after assaulting Ms Francis, you took Ms Knibb’s phone from her. You removed its protective case and threw it on the ground, causing the screen to break. This was the offence of damaging property, not exceeding $5000, with a maximum penalty of 2 years imprisonment.

19․Police were called. They briefly spoke with you. They then spoke to Ms Francis and Ms Knibb on the boundary of the land declared as the ATE. After this conversation, Ms Francis was taken to the hospital for assessment and treatment.

20․Your offending was the culmination of a long-running dispute in which Ms Francis had sought to evict you and all current custodians of the ATE, claiming the authority of the “United Sovereign Nations of Terra Australis”. This purported eviction was ostensibly supported by an “Eviction Notice” signed by Ms Francis on 19 January 2022 as a representative of that United Sovereign Nations of Terra Australis and Wiradjuri Member. No other signatures are on this document.

21․The Elders and I read the “Eviction Notice”. It is addressed to “All the current occupiers of the Aboriginal Tent Embassy” and is stated to be “effective immediately”. The document further states that “Support for the Eviction was given on the fifth day of January in the year Two Thousand and Twenty-two, by the National Sovereign Women’s Council and the Bora Courts, Aboriginal Embassy, International & National Jurisdiction SCA 32/2014”.

22․Amongst other things, the “Eviction Notice” alleges that the “current occupiers” have been engaged in “identity fraud” and “misappropriation of funds”. The document concludes by noting that “[t]his change in leadership will signify a change for all Aboriginal and Torres Strait Islander Original Sovereign Nations”. And that, “[c]hange can only be made based on our Sovereignty, to come together to establish the United Sovereign Nations of Terra Australis’ governance with all 400+ Nations involved”.

Impact on the victim

23․Ms Francis wrote a Victim Impact Statement which she read to the Circle. She made clear that she is a proud Wiradjuri woman from Wellington, NSW, and a recognised member of the Stolen Generations. She says that on 5 January 2023, she was at the ATE, with others, to establish a camp as the convenor of the Sovereign Women’s Land, Lore and Culture Council, with the authority of that Council. Her statement records the physical and emotional impact of your assault upon her, including her sense of violation and sadness. It records the distress and grief with which she continues to live.

24․Ms Francis’ statement is important. It enables the harm caused to her as the victim of your violence to be recognised, understood and taken into account in your sentence.

Pre-sentence report

25․A pre-sentence report prepared by ACT Corrective Services was provided to the Court. The information in this report provided a foundation for the sentencing conversation.

26․That report establishes that you are a proud Wiradjuri and Gomeroi woman with strong connections to culture and Country. You grew up in Sydney, spending time on Country in Cowra and Moree as well as in Canberra at the ATE. Your parents Billie Craigie and Isabelle Coe were both committed activists and key custodians of the ATE from its beginning in 1972. Sadly, they have both passed: your father in 1998 and your mother in 2012. Their passing at such young ages was traumatic for you. You had a positive relationship with them throughout your childhood and describe yourself as a “second-generation activist and custodian”. You are walking in their footsteps.

27․You have lived at the ATE “on and off” for the past 30 years. For the past three years you have lived primarily at the ATE as a caretaker, returning to Country in Cowra when you need time for respite. You explained to the author of the pre-sentence report that the role of caretaker is a voluntary position. No payment is associated with the work you do at the ATE, though it consumes most of your time.

28․You have previously been employed as the CEO of the Aboriginal Land Council in Cowra and by TAFE NSW where you were an Aboriginal Student Support Officer. You remain involved in supporting the work of the Aboriginal Land Council in Cowra.

29․You spoke with the author of the pre-sentence report about the cultural protocols for requesting entry to the ATE site. You also spoke of the challenges you and other custodians have faced due to post-COVID protest activity engaged in by people trying to use the ATE as an accommodation site or to gain access for their own agenda.

30․You told the author of the report that you had had negative interactions with Ms Francis since 2021 and that you had repeatedly asked her to leave the ATE, but that she kept returning. You explained that the Australian Federal Police do not generally enter the site of the ATE. This leaves a gap with respect to the power to remove those who enter the ATE in breach of cultural protocol. You told the author that you had unsuccessfully made attempts to contact Wiradjuri Elders from Ms Francis’ community to address the issue. You also acknowledged that you could have handled the situation differently.

The sentencing conversation

31․As part of the sentencing conversation that took place in the Circle, William Tompkins, a respected Ngunnawal Elder, asked you to explain your involvement with the ATE. In response, you said:

I'm second generation at the Aboriginal Tent Embassy. My father was Billy Craigie, he was one of the first men that set up the embassy in the 1972 and then re-erected it again in '92 where we hold the space permanently with a declaration of sovereignty from First Nations people … I was raised on the site, also with my mother Isobel Coe. So, I've spent most of my childhood - most of my time on site, around the Elders, with the community. I also have connections to people here as well in this Country from my grandmother.

Culturally, a lot of knowledge has been handed down from my grandmother and my mother who are considered prominent activists and Elders and spokespeople for our people in this Country as well … both my parents have passed on now. So me and my brothers have taken on that responsibility of stepping up to carry on the fight for sovereignty and justice and issues that are affecting our people, not just here in the ACT, right across Australia …

I feel like this is my cultural space and place that I inherited. And I feel like it is a legacy because my father was pretty much a part of creating this cultural safe space for our people to be able to come together and have discussions. And he had … involvement with the local mob here with Uncle Harold ‘Crow’ [Williams] and they had a pretty strong connection as well [with] my mother. So I feel like this - the Embassy is my home, how I would describe it, our gunyah as we would say.

32․Later, Emily Roberts, a Gomeroi Elder, asked about your connection and involvement with your Country and community in and around Cowra and Moree. You said:

I've been involved in both communities all my life. Involvement with my families, being on Country, learning my father's people and their ways as well as learning my mother's ways and, you know, a lot of the traumas that have come with that as well … I'm proud of who I am and where I come from and I'm very passionate about fighting for the rights of my people as well and a lot of the issues that are happening in these communities ... There is no justice for our people in our communities. We're kind of living - we're still living in war zones. And I've been raised on the mission in Cowra. I've spent a lot of time with the old people in Moree, Toomelah and travelled a lot of that Country with my father from as long as I can remember.

Culturally, my father was a very spiritual, cultural person and he was raised by the old people so I think that - that's a part of who I am as well. And, I mean, the saddest part is that, you know, we only really go home for funerals now ... But yes, I think I pretty much have a strong connection with both my mother and my father's people. My father's words to me when I was younger, he said 'You can go anywhere in this country and you'll be right'. So I think that, you know - to be who I am, I wouldn't change it for the world and to come from the people that I come from and the culture, I feel very privileged and honoured.

33․You explained that the ATE is self-sufficient and self-determining. It does not depend on the government for funds. Nor does it depend on the government for the resolution of any dispute or wrongdoing on the site. This is a matter for protocol. From the conversation, I understand that this protocol ultimately comes back to Country and Elders who have the authority to speak for Country. Of governance and protocol, you said:

The decision doesn't just come back on me, there's a whole group of people that are involved, nations, communities, and I think a lot of them actually come back and tell us what's going on as well. So, generally, if they know what's happened and if it's their mob that are on the site doing the wrong thing, they will send word to tell them that, no, they need to come back and talk to their mob which is our protocols.

34․As you explained, First Nations people who come to the ATE for Embassy business must do so with the authority of their own Elders from the Country to which they belong. They must come and sit with “Elders around the fire”. Putting it plainly, you said “If you go into someone’s community, you pay respects. And if you go into someone else’s camp, you pay respect. You don’t come in and try and take over somebody else’s camp”.

35․Most importantly, as I understand it, where a First Nations person does not identify the Elders whose authority they come with, the potential for respectful resolution of a dispute is severely compromised. As William Tomkins explained by reference to the message stick in the middle of the Circle, communication to and from Elders from different communities is core to respect and welcoming of peoples from one part of the continent to another.

36․In response to a question from Williams Tompkins, you spoke about the assault you committed as a “reaction” to the situation you found yourself in on 5 January 2023 – as caretaker of the ATE and daughter of one of its founders – with that situation being the culmination of repeated incursions on the land of the ATE and breaches of protocols that were your responsibility to uphold.

37․You said that on 5 January 2023, Ms Francis and those she was with “drove into the camp and let themselves in by cutting the ropes”. You said, “she came with three carloads of people and entered the site without permission” and without “going through the right protocols”. You said you felt like you were “caught off guard”.

38․You told the Circle that it had “been a constant thing … happening on-site” since at least 30 December 2021 when the doors of Old Parliament House were burnt during a protest that was not aligned with or supported by the ATE. It was shortly after the burning of the doors of Old Parliament House, in the lead up to the 50^th anniversary celebration of the ATE on 26 January 2022, that Ms Francis issued the “Eviction Notice”. You also stated your understanding that it was around this time that Serena Williams, a respected Ngunnawal Traditional Custodian, directed Ms Francis to leave the site.

39․Ms Francis issued the “Eviction Notice” as a Wiriadjuri person from Wellington, NSW. She did not explain to you, or others, how she was connected back to that community or identify the Elders whose authority she spoke with. You explained that, in an attempt to resolve the dispute, both before and after the assault, you contacted the “Wellington mob”. You were told that they did not know Ms Francis. You said “I’m Wiradjuri myself, so I’ve been asking if they know who she is and they’ve all given me directions that they don’t know who she is and she doesn’t speak on their behalf”.

40․The Circle was provided with a copy of an email exchange between Ms Doolan, the Acting CEO of the Cowra Local Aboriginal Land Council (CLALC), and the Wellington Local Aboriginal Land Council dated 19 May 2023. Although this exchange occurred after the assault, it does highlight the predicament you faced and continue to face as caretaker of the ATE seeking to resolve disputes according to protocol.

41․Ms Doolan’s email identifies the concern: that Ms Francis “is trying to hand eviction notices to the caretaker of the Aboriginal Tent Embassy ... claiming she is Wiradjuri [from] Wellington”. It requests confirmation of whether she is on the “Wellington member roll”. The response from the Wellington Local Aboriginal Land Council confirms that Ms Francis “is not a member of the Wellington LALC”.

42․Plainly, this does not mean that Ms Francis is not a Wiradjuri person from Wellington. This is not a proceeding in which it is necessary or appropriate to question Ms Francis’ connection. Indeed, it must be accepted that colonisation has caused irreparable harm to members of the Stolen Generations, severely compromising and even severing the capacity for many First Nations people to know and be known by their ancestral Country, their kin and community. The point here is that in the absence of this connection, resolution of disputes according to protocol that depends upon connection to Country and the authority of Elders who speak for and from this connection is impossible.

43․What you said about the issuing of “Eviction Notices” further reveals the extent of your predicament, as well as your perception of the gravity of the insult this involved and its emotional impact. You said: “you can't hand an eviction notice saying you represent the Wiradjuri people and the Wiradjuri people don't even know it's happening. And then you handing it to the Wiradjuri people which is one of the biggest insults that you can do culturally.”

44․Towards the end of the conversation in the Circle, you were asked about past trauma, whether you thought it played a role in your reaction, and how you feel about what you did.

45․Of exposure to trauma, you said:

It’s part of our lives, the post-traumatic stress is always there, it’s real … there are a lot of traumas that we’re faced with on a daily basis, and I – I’ve buried both my parents before I was 32. So there’s a big issue around what’s happening with our people in the country and how do we make real change? And the only changes that have ever happened in the country is [when we], as a people, have had to fight for it on the very site that I’m a protector of.

46․Of your anger and your reaction you said, “I also feel like if you grow up in our community, that’s just normal behaviour which really needs to change as well. You know, we need to look at other ways of dealing with things. And that’s the reality of it…” Yet, you were clear that the solution for disputes at and in relation to the ATE lies with First Nations people and must be self-determined. You said:

[M]oving forward … there are going to have to be other ways that we have to deal with things on site. So it’s still sovereign land, we still maintain that, we still assert that. And it should be an issue for our people to deal with anything that happens on site.

47․Although it cannot be said that you are remorseful for what you did, you demonstrated insight into the relationship between the trauma you have experienced as a First Nations woman and activist and your loss of control on 5 January 2023. You also acknowledged the need to find better ways to resolve disputes.

Non-conviction order

48․Section 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) “confers a broad discretion upon a sentencing court” to make a non-conviction order: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 at [28] (Proud). In deciding whether to make a non-conviction order, the court must consider the matters set out in s 17(3)(a)-(c) of the Sentencing Act in so far as they are relevant. In your case, this includes your “character and antecedents”, “the seriousness of the offence” and the “extenuating circumstances in which the offence was committed”. Under s 17(4) “[t]he court may also consider anything else the court considers relevant”.

49․There is no particular restriction on the kinds of offences in relation to which a non-conviction order can be made: DPP v Chen [2023] ACTSC 154 at [67] (Chen). There is no requirement that the offence be “trivial”: R v Fi [2017] ACTSC 190 at [28]; QU v Cattanach [2018] ACTSC 163 at [4]; Chen at [65]-[66].

50․However, because the imposition of a conviction is the “ordinary consequence of proof of criminal offending”, there must be good reason for imposing a non-conviction order. This requires the demonstration of “cogent or compelling circumstances”: Bennett v Daley [2021] ACTSC 159 at [49] (Bennett).

Seriousness of Offence and Extenuating Circumstances

51․The assault you committed involved multiple forceful blows to the face and head area of Ms Francis. As a consequence, she suffered the injuries and harm I have already described. You then went on to damage Ms Knibb’s phone. The harm you caused to both victims must be expressly recognised.

52․The assessment of the seriousness of an offence is interlinked with the assessment of whether and to what extent the offence was committed in extenuating circumstances. This is because, in assessing the “objective gravity” of an offence “[r]egard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences”. Such factors may include “emotional stress” and “provocation”: Tepania v R [2018] NSWCCA 247 at [112]; Paterson v R [2021] NSWCCA 273 at [29]-[31]; DS v R; DS v M [2022] NSWCCA 156; 109 NSWLR 82 at [63]-[65].

53․Extenuating circumstances are circumstances that “excuse in some appreciable degree the commission of the offences”: RLG v Donnelly [2012] WASC 230 at [39], cited in Proud at [37]. For a circumstance to be extenuating, it “must bear a direct relationship to the offence that was committed”: Proud at [38]. This may include “personal stress arising from the background context”: Norman v Jones [2024] ACTSC 11.

54․Here the background context was your history of involvement with and life-long commitment to the ATE, your responsibility as caretaker and protector of the site, and the actions of Ms Francis in seeking to evict you and repeatedly entering the site in breach of protocol you considered it your responsibility to uphold. The circumstances of personal and emotional stress arising in the moment and from the background context were significant.

55․This brings me to the question of “the degree to which the offence was the result of provocation”: s 33(1)(q) of the Sentencing Act. This too is relevant to the assessment of the seriousness of your offending and the extent to which your offences were committed in extenuating circumstances. Allied to this, in the circumstances of your case is the importance of taking account of your “cultural background”: s 33(1)(m) of the Sentencing Act.

56․In your case, I accept that your offence involved a “reaction” to and loss of self-control in the face of what can be understood as repeated wrongful acts and insults.

57․As explained by the High Court in Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58 at [34], in the context of the partial excuse of provocation that reduces a murder charge to manslaughter, attention must be 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”.

58․Viewed in the full context, which I have set out above, and with the benefit of the insight of the Elders, who share your lived experience, I accept that an “ordinary person” could have lost self-control as you did.

59․This does not excuse your actions. It does, however, weigh significantly in the assessment of the seriousness of your offences and the extenuating circumstances in which they were committed.

Antecedence, Character and Strength of Character

60․I have carefully considered your history of offending. You have been convicted of both assault and assault occasioning actual bodily harm before. The last of these offences was committed in 2013. This is nine years before your current offences. You were also convicted of relatively minor driving offences committed in 2021. Section 17 is not a “first offenders” provision: Bennett at [49]. The question is whether compelling circumstances are demonstrated justifying a non-conviction order, with past criminal offending being weighed as part of this consideration. I pause to note that if an absence of criminal history were to be the determining criteria, this would risk compounding the impact of disproportionate criminal justice system involvement for First Nations people.

61․Properly understood, “character” may incorporate positive and negative aspects: Kinnane v Beattie [2022] ACTSC 265 at [61] (Kinnane). In your case, there is significant evidence of “positive good character” considered in the context of your whole life: Beattie at [59] and [65]. There is also extraordinary strength of character in the face of adversity and the weight of trauma, including intergenerational trauma. It is important to weigh this strength of character in the balance (whether by route of s 17(3) or s 17(4) of the Sentencing Act: see Kinnane at [62]-[64]).

62․You have committed your life to the cause of First Nations peoples, to land rights, self-determination and addressing the systemic and daily injustices your people face on land over which sovereignty was never ceded.

63․The extent of your commitment is apparent from your response to the question of what you saw yourself doing in two to five years’ time. You said: “I’ll probably still be at the embassy, protecting the embassy. I made that choice to be there and to maintain the fire, maintain the camp, and maintain the fight. That’s my life now”.

64․Given that your role is voluntary, the extent of your dedication is remarkable. It is no doubt borne of your parents’ legacy and their commitment. I can only imagine that they, and your ancestors, would be proud.

65․Not only are you “entitled to be an agitator”: see Neal at [316]-[317], the work that you do in standing steadfast and calling for justice for your people, following in the footsteps of your forebears, is essential to a future vision of this nation that has reckoned with its unfinished business. This, however, is no justification for violence.

66․You have explained that you feel “privileged and honoured” to take responsibility as caretaker and commit your life to achieving justice for your people. And yet, it is clear from what you said that this commitment and the lived experience of daily exposure to the trauma of your people has taken its toll. You are burdened by this history, just as you seek to challenge it. In doing so, you are demonstrating the power of intergenerational strength, in the face of intergenerational and ongoing trauma.

67․Whilst much of your work has been focused on maintaining the legacy of the ATE and ensuring its future strength, your contribution reaches well beyond this. In a letter to the Court, the CEO of the CLALC, Ms Doolan, sets out the significant contributions you have made to the work of the CLALC and to the Cowra Wiradjuri community, as past CEO and more generally. She writes of your “strong work ethic” and “passion”; your active involvement in “decision making”, “community events”, “land management”, “job opportunities”, “projects for the community, cultural practices and social issues,” as well as local and representative sporting teams.

68․A proper appreciation of the circumstances of pressure and stress you found yourself in on 5 January 2023, taken together with your history of contribution to the fight for justice for your people, warrants the imposition of a non-conviction order. It warrants the withholding of a conviction, which is a “a formal mark of society’s disapproval of the wrongdoing” you engaged in: Mammoliti v Callagan [2021] ACTSC 259 at [31].

69․The seriousness of your offending, along with the need for denunciation, deterrence and community protection will be met by a lengthy good behaviour order: R v Mauger [2012] NSWCCA 51 at [37]; Chen at [75]. I am satisfied that it is not necessary to formally record a conviction to achieve these purposes. This is, in significant part, because of the insight you have demonstrated into the need to find a better way to resolve disputes.

70․Should you breach you good behaviour order then you should expect that the Court considering your breach will likely resentence you, and that this resentence will involved the imposition of a conviction.

71․Nioka, as you acknowledged, violence is not the way. I trust that, with the guidance and encouragement of your Elders, you will find the way, whilst continuing to lead in the fight for justice for your people.

Orders

72․For those reasons, I order as follows:

1. For the offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (CC23/1271), without convicting you under s 17 of the Crimes (Sentencing) Act 2005 (ACT), you are required sign an undertaking to comply with the good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months to commence on 3 April 2024.

2. For the offence of damaging property not exceeding $5000 contrary to s 116(3) of the Crimes Act 1900 (ACT) (CC23/1271), without convicting you under s 17 of the Crimes (Sentence) Act 2005 (ACT), you are required sign an undertaking to comply with the good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months to commence on 3 April 2024.

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Special Magistrate Hopkins sitting with the Elders of the Galambany Court.

Associate: S Teale

Date: