Queen v Sampson, Pamela Nangala

[1984] FCA 89

Re: THE QUEEN
And: PAMELA NANGALA SAMPSON; RHODA WURRAWILYA; NGAIRE HERBERT
Nos. NTG 22, 23, 24 of 1983
53 ALR 542 / 68 FLR 331
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Forster J.
Toohey J.
Fitzgerald J.

CATCHWORDS

Criminal law - appeal against inadequacy of sentences - convictions of murder against 3 Aboriginal women - relationship between ss. 6(1C) and 6A of Criminal Law Consolidation Act - absence of evidence of native law or custom for purposes of s.6A of Act no bar to discretion of Court under s.6(1C) - life imprisonment available - sentences for murder to be just and proper in the circumstances - relevant considerations in mitigation

Racial Discrimination Act 1975 (Cth)

Criminal Law Consolidation Act (NT) ss. 5, 6A, 6(1C)

HEARING

DARWIN

#DATE 11:4:1984

ORDER

The appeals be dismissed.

JUDGE1

At the conclusion of the appellant's argument the Court dismissed these appeals and stated that it would give reasons for its decision at a later date. These are our reasons.

The respondents are young Aboriginal women. On 11 March 1983 each was convicted in the Supreme Court of the Northern Territory of the murder of Jan Draskoveic on 29 May 1981.

By reason of s.5 of the Criminal Law Consolidation Act (now repealed by the Criminal Code Act 1984) the penalty for murder was imprisonment for life with hard labour. However, s.5 was subject to the other provisions of the Criminal Law Consolidation Act. Sub-section 6(1C) read:

"Where an aboriginal is convicted of murder, the judge may impose such penalty as, having regard to all the circumstances of the case, appears to him to be just and proper".

In exercise of the discretion conferred on him by that provision, the learned trial judge sentenced each of the respondents to imprisonment with hard labour for a term of 12 years and in each case fixed a non-parole period of 5 years and 6 months. The Crown contended that, in the circumstances, those sentences were inadequate.

Before turning to the circumstances of the murder it should be noted that the respondents were convicted on a re-trial. On 30 October 1981 they were convicted of murder and sentences of life imprisonment were imposed on 10 November 1981. On appeal to this Court, the convictions were set aside and a new trial ordered. Herbert, Sampson and Wurrawilya v. R. (1982) 42 ALR 631. The respondents were arrested in early June 1981 and have been in custody since. Counsel for the respondents invited the learned trial judge to make the sentences operative from the dates of arrests; his Honour declined on the ground that it was not open to him to do so. Nevertheless he took into account that at the time he was sentencing the respondents they had been in custody for almost 2 years and 3 months. In reality then each head sentence involved imprisonment for a term of more than 14 years and each nonparole period a term of nearly 8 years.

Following the conviction of the respondents, his Honour heard evidence and submissions from counsel over 3 days and it is apparent from the quite lengthy reasons for sentences that his Honour gave careful consideration to what was clearly a difficult matter.

The circumstances surrounding the murder of Jan Draskoveic were stark and brutal. Much of the time spent before the learned trial judge on the matter of sentences was aimed at providing some explanation for what had happened. Before turning to that aspect of the matter, it is necessary to set out the objective facts surrounding the death.

Shortly after 9 pm on the evening of 29 May 1981 the respondents were in a disused beer garden of the Parap Hotel. Each was substantially affected by alcohol, having been drinking throughout most of the day. The deceased was a 57 year old man who had lost his right leg and who wore a brace with an artificial leg attached to it. He was well known to the respondents. He had drunk with them on other occasions and the respondents Ngaire Herbert and Pamela Sampson were drinking with him in the beer garden shortly before his death.

The Crown case was that the respondents, in furtherance of a common design, or with an individual intention to kill or inflict grievous bodily harm, struck Mr. Draskoveic about the head with a heavy iron pipe. He was struck at least 8 blows comprising not less than 5 blows to the back of the head, one major blow to the right of the head, one to the right eyebrow and one to the top of the head. Four of those blows were struck by Rhoda Wurrawilya, two by Pamela Sampson and two by Ngaire Herbert. In the words of the learned trial judge, "it was a heinous crime, committed with great callousness and brutality".

The Crown case was that the motive for the attack was robbery and, in his Honour's words, "there was certainly more than a little evidence to suggest that that was so". The respondents asserted that the attack was brought about by the deceased's reference to Wurrawilya as a "slut" and a "black bitch". His Honour was unable to conclude that there was any clear motive for the killing on the part of any one of the respondents. He said:

"Rather, for the purpose of sentencing them, I prefer to take the view more favourable to them that the attack was precipitated by some offensive words such as I have mentioned spoken by the deceased to Rhoda, aided perhaps by the refusal by the deceased of a request for money by them. There is no doubt, however, that whatever passions of anger or resentment were aroused in the prisoners, they were inflamed by the amount of alcohol that each of them had had to drink".

Before the learned trial judge and before this Court a submission was made on behalf of the Crown that the apparently broad discretion conferred by sub-s.6(1C) of the Criminal Law Consolidation Act was controlled by the provisions of s.6A of that Act. That section read:

"For the purpose of determining the nature and extent of the penalty to be imposed where an aboriginal is convicted of murder, the court shall receive and consider any evidence which may be tendered as to any relevant native law or custom and its application to the facts of the case and any evidence which may be tendered in mitigation of penalty".

The submission was that s.6A controlled and limited sub-s. 6(1C) by requiring evidence of some relevant native law or custom before the discretion arose to impose a sentence less than that of imprisonment with hard labour. It is a corollary of that submission that in the absence of some relevant native law or custom a sentence of life imprisonment was mandatory. It was further argued that the power vested in the court by s.6A to receive and consider evidence in mitigation of penalty only arose where there was evidence of some "relevant native law or custom and its application to the facts of the case".

The learned trial judge rejected those submissions and, in our view, rightly so. There was a clear relationship between s.6A and sub-s.6(1C) but not in the sense that the former controls the latter. Sub-section 6(1C), in its terms, conferred a discretion on the judge to impose such penalty as appeared to him just and proper "having regard to all the circumstances of the case". It is hard to imagine a discretion conferred in wider terms. Section 6A removed any doubt there might have been of the power of the court to receive and consider evidence of native law or custom where relevant and applicable to the facts of the case. It was a power vested in the court for the purpose of determining the nature and extent of the penalty to be imposed.

But where there was no evidence tendered of relevant native law or custom, the power to impose a sentence which in all the circumstances is just and proper remained.

Likewise, the power vested in the court to receive "any evidence which may be tendered in mitigation of penalty" was intended, we think, to ensure that the opening words of s.6A were not taken to limit the evidence which might have been placed before the court. No doubt, any such evidence had to be relevant to the task of the judge to impose a just and proper sentence in the circumstances.

It was a further ground of appeal that the learned trial judge erred in law in holding that it was the intention of the legislature that, in the case of an Aboriginal convicted of murder, the penalty of life imprisonment did not apply.

In our view his Honour did not so hold. When his reasons for sentences are read in their entirety it is, we think, clear that he did not take the view attributed to him. It is true that he did say:

"On the contrary, it seems to me that the clear intention of the legislature is that whilst, in the case of non-aboriginals, the penalty for murder, of whatever degree, is mandatory life imprisonment, that penalty is not at all appropriate in the case of an aboriginal convicted of murder".

His Honour did not intend to imply that the penalty of life imprisonment did not apply in the case of an Aboriginal convicted of murder. He should be taken to have meant no more than that, in contrast with s.5 of the Criminal Law Consolidation Act, a judge sentencing an Aboriginal for murder did not start with any preconception that life imprisonment was appropriate in the case of an Aboriginal convicted of murder. It was for the judge to consider what was just and proper in the circumstances, not constrained by the life sentence which was mandatory where a non-Aboriginal was involved.

His Honour had been invited by the Crown to approach the matter of sentences on the basis that, even if sub-s.6(1C) was not controlled by s.6A, the starting point was a sentence of life imprisonment, as fixed by s.5, and that that should be the sentence in the case of an Aboriginal unless, relevantly, there were circumstances in mitigation. His Honour declined to adopt that approach and, in our view, correctly so. It may well have been that in a particular case, where an Aboriginal was sentenced for murder, life imprisonment was just and proper in the circumstances. But that was because the circumstances dictated such a sentence, not because life imprisonment was in such a case to be regarded in some way as the norm.

Another submission was made on behalf of the Crown which we have difficulty in understanding. Reference was made to the Racial Discrimination Act 1975 and it was submitted that, although it did not overrule any of the relevant provisions of the Criminal Law Consolidation Act, "it should be borne in mind in the interpretation to be placed upon these provisions" and an interpretation should be avoided which had "the effect of breaching the spirit of the Racial Discrimination Act", especially "Section 10 . . . and article 5(a) of the Schedule - the right to equal treatment before the Tribunals and all other organs administering justice". It is unnecessary to consider whether, because of ss. 6(1C) and 6A, there was conflict between s.5 of the Criminal Law Consolidation Act and the Racial Discrimination Act. That issue does not fall for determination. There is no attack upon the validity of ss.6(1C) and 6A. There is no doubt that, on any view, the legislature by those two sections made special provision with respect to the sentencing of Aboriginals convicted of murder. The only question is as to the nature and extent of the special provision which they made. The Racial Discrimination Act provides no useful guidance whatever as to that question upon which we have already expressed our opinion.

What then were the circumstances that prompted his Honour to conclude that sentences of 12 years imprisonment were just and proper in the circumstances? Some of those circumstances related to the commission of the offence itself including, the extent of intoxication; some related to the impact of the murder upon the respondents; and some related to their background and upbringing. The Crown challenged a number of findings made by his Honour in these respects and further contended that undue weight was given to them to the extent that the sentences were manifestly inadequate, failed to give proper consideration to the retributive aspects of sentencing and failed to give proper consideration to the deterrent aspect of sentencing.

As to the circumstances of the offence itself, his Honour concluded that the offence was committed "in a state of advanced intoxication" for each of the respondents. He thought too that there was "a strong element of impulse" about the offence, "precipitated, I think, by the insulting words spoken by the deceased to Rhoda, at a time when their passions were inflamed by alcohol". The Crown contended that each of these findings was against the weight of the evidence.

We discern no error in the approach adopted by the trial judge. He treated the prisoners as equally culpable and the Crown did not suggest that he should have done otherwise. His comments in relation to the issues of robbery and the insulting words were criticised and we were taken to the evidence in considerable detail. There were conflicting versions. If it were appropriate for us to arrive at our own conclusion on the evidence, we would not be persuaded of any conclusion more unfavourable to the prisoners than that shortly before the offence they decided in their intoxicated state to demand money from the deceased and if necessary to rob him but without thought of killing him; that in the process of executing that decision, while all the participants including the deceased were in a highly intoxicated state, the deceased insulted one of the prisoners who became annoyed; and that events then escalated into the tragic violence which led to the death of the deceased.

We hope that we do not underestimate the seriousness of the tragedy which caused three unhappy human beings enmeshed in a life of discomfort and degradation to take the life of another perhaps equally unhappy but entirely innocent human being. Further, we are conscious that it is inappropriate to consider what sentences the prisoners should have received merely by reference to their interests. A severe penalty was essential both by way of punishment to the prisoners and by way of a deterrent for the protection of the public.

It is apparent that his Honour kept in mind the seriousness of the offence of which each respondent was convicted. He said:

" . . . the crime committed by the prisoners was a very grave one. It was committed with great callousness and brutality. It was a crime that warrants the severest punishment. But I think that punishment should be tempered by reason of a number of factors adduced in mitigation of penalty".

That approach was entirely correct and was in accordance with the remarks of Street C.J. in the New South Wales Court of Criminal Appeal in R. v. Burke (unreported judgment delivered 7 July 1983). In the course of explaining the New South Wales law with respect to sentencing for homicide after the introduction of the Crimes (Homicide) Amendment Act of 1982, his Honour said at p.3:

"All who are conversant with the administration of the criminal law are aware of the wide ranging human situations that can underlie a murder. To say that, in practical and human terms, there are gradations of criminality in murder is no exaggeration. To pass the same Draconian sentence of life for all murders became recognized as equally insensitive as the old sentence of death for all murders".

Some reference must be made to the history and life style of each respondent. We shall deal with them in the order in which they appear as respondents.

Pamela Sampson is probably in her mid-twenties. She was born at Yuendumu and is a Walpiri. She had a traditional tribal upbringing, participating in traditional women's ceremonies and travelling into the country to collect bush tucker. In accordance with Aboriginal customary law she was promised in marriage and, at about the age of 17, she went to her husband as arranged. She found however that he already had another wife who was a Pintubi and whom she did not know. This put her in a co-wife situation with a woman who was neither a sister nor a classificatory sister. In his Honour's words, "the result was that there were disputations, there were jealous fights, and it was an unhappy, distressing situation for her". At the same time the marriage of her mother and father was also unhappy and violent.

After about 2 years of marriage, she left Yuendumu and travelled throughout the Territory, taking up with a number of white men. She moved to Darwin in 1980 and took up residence with a white man. This relationship continued until the time of the offence. Her lifestyle in Darwin was described by his Honour as:

" . . . one of drinking at various fringe camps, such as Low Down near the Telford Hotel and Mindil Beach, as well as at hotels such as the Koala and the Parap. Her companions, in general, were other Aboriginal and European itinerants".

The respondent Sampson has a long history of prior convictions going back to 1971. They are alcohol related offences - drunkenness, fighting in a public place, larceny, disorderly behaviour, objectionable words and malicious damage.

Rhoda Wurrawilya was, at the time of her conviction, 27 years of age. She was born at Angurugu on Groote Eylandt. She was educated to about the age of 15. After she left school she began to learn to teach pre-school children but soon abandoned this work.

Groote Eylandt, his Honour was told, has been greatly affected by mining which has led to a breaking down of the traditional lifestyle and social relationships of the Aboriginal people there. The introduction of alcohol has accelerated this process. The marriage system has all but broken down. As a result it was difficult to get a clear picture of the respondent's background and upbringing. She is not married but she is the mother of 2 daughters who, at the time of her conviction, were aged 13 and 6. The elder girl was born in Darwin and her father is a white man. The father of the younger girl is an Aboriginal at Gove. Since shortly after their births, both girls have been cared for by the respondent's eldest sister.

Rhoda Wurrawilya began drinking at about the age of 16 and from 18 onwards was a regular drinker, obtaining her money and drink from male companions. It seems that she came to live in Darwin not long after January 1977. She took up with a white man but, as a result of repeated bashings, she left him and went to live at Bagot Reserve and the Arafura Hostel. Later she returned to live with this man and continued to do so until the time of the offence. Her existence was described to the court in the pre-sentence report of a field officer as:

" . . . almost solely revolved around obtaining and drinking alcohol. Her relationships appear to have been founded upon the accessibility of alcohol and the likelihood of obtaining money for the purpose of purchasing alcohol".

This respondent too has a history of offences, going back to 1971. Some relate to offences against property such as larceny and being unlawfully on premises; many relate to alcohol related offences such as drunkeness, indecent language and disorderly behaviour.

The respondent Ngaire Herbert was born at Lajamanu and was, at the time of her conviction, 21 years of age. Like Pamela Sampson, she is a Walpini. She lived at Lajamanu until she was about 16. Her upbringing was on traditional lines. She lived in a family camp with her brothers and sisters and women of the Nakamarra sub-section who stood in the relationship of mother to her. They taught her to hunt and about her country. She took part in women's ceremonies and was present at initiation ceremonies at which women have certain roles to play.

When about 10 or 11, the respondent went to an old man as his second wife pursuant to some arrangement. This did not necessarily involve any sexual relationship at that age. The arrangement was not a happy one and the respondent ran away from her husband from time to time. This in turn led to tension in her own family. Her mother insisted she return to her husband. Her uncle told her she did not have to because her husband had already contracted an improper marriage and she did not have to stay with such a man.

While at Lajamanu she attended school until she was about 15, obtaining an education equivalent to year 9 post primary level. She was described as having a mental capacity well above average, as having a "very high intelligence".

Late in 1978, when she was about 16, Ngaire Herbert ran away from Lajamanu and came to Darwin. She had 3 halfsisters living there. She soon became a regular drinker, eventually drinking every day and getting "full drunk" every night. She began a long list of sexual relationships which continued up to the time of the offence. She has three prior convictions (objectionable words, larceny and drinking in a public place) but they were considered by his Honour to be "of no significance for present purposes".

It was the Crown's submission that the respondents had deliberately chosen their lifestyles and, by implication, that a consideration of those lifestyles should play no part in the sentencing process. We reject this approach as an oversimplification.

Each of the respondents had, when quite young, left the Aboriginal community in which she had been raised. The consequence of this was described by his Honour in the following words:

"No longer do they have the support of their families and the closeknit, complex network of relationships that characterise aboriginal society - relationships that not only protect them from undue physical violence but also that censor their moral conduct. From a supportive family environment they move into an environment of essentially individual relationships in which they are thrown on their own resources which are quite inadequate to cope with such relationships. Furthermore, the relationships that they do form are often with other aboriginal people in a similar situation to themselves, and with the derelicts of white society who were described to me as 'deros' and 'white trash'."

It was the particular situation of the respondents that, like many other Aboriginals, they had left the support of their own society but obtained none of the positive support and guidance white society has to offer. As his Honour pointed out, their condition was not:

"merely that of unfortunate, deprived members of the community such as we so often see in these courts, for, in their cases, there is a trans-cultural dimension of their condition. Between the culture, the traditions, the beliefs, the ideas and the lifestyle that they left behind and those of the white people that they seek to take up, there is little, if anything, in common. The result is they find themselves in a limbo: they belong nowhere".

There was evidence before the learned trial judge to enable him to reach these conclusions and the matters to which we have just referred were relevant considerations in determining what sentences were just and proper.

The learned trial judge pointed out that "drunkenness is not normally regarded as a mitigating factor". But this was not a case merely of persons committing offences following an episode of heavy drinking. There was evidence that Pamela Sampson and Rhoda Wurrawilya were alcoholics to the degree that they had experienced episodes of delirium tremens. And though Ngaire Herbert had not reached that stage, she was undoubtedly a heavy drinker. It was in that context that his Honour said he did not regard the offence as "coldly premeditated". Again, that was a conclusion his Honour was entitled to reach and, having reached it, to give it some weight in the sentences he thought just and proper.

There was also material before his Honour entitling him to conclude that the circumstances of the respondents had produced "severe emotional distress". This was a matter he was entitled to take into account. Neal v. R. (1982) 42 ALR at 624.

His Honour rejected a submission made on behalf of one of the respondents that there was native law or custom that might be said to have justified or in some way contributed to the offence. As the respondents were not called upon in this appeal, this is a matter on which we need express no view.

There is nothing in what his Honour said which persuades us that he did not do as he was commanded by sub-s.6(1C) of the Criminal Law Consolidation Act and have regard to "all the circumstances of the case". Nor do we think that he took into account extraneous circumstances or gave undue weight to some matters or insufficient weight to others. His basic task was to balance the gravity of the crime and the need for punishment of the prisoners and the protection of the public with the special considerations applicable to the prisoners both as Aboriginals and as individuals. That task was faithfully undertaken and executed. The result was a sentence for each prisoner which exposed her to a maximum of something in excess of 14 years imprisonment from the time when she was first placed in custody with a period of nearly 8 years imprisonment before she becomes eligible for parole. In our opinion, although the offence was a brutal murder, those sentences were not "in all the circumstances" inadequate.

Accordingly, we were of opinion that the appeals should be dismissed.