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By reason of s.5 of the Criminal Law Consolidation Act (now repealed by the Criminal Code Act 1984) the penalty for murder was imprisonment for life with hard labour.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…

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.

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Details

Case: [1984] FCA 89
Decision Date: 11 APRIL 1984

CaseChat Overview and Summary

In the matter of Queen v Sampson, Pamela Nangala, the High Court of Australia was presented with an appeal against the adequacy of sentences imposed on three Aboriginal women convicted of murder. The court was tasked with determining whether the trial judge had correctly exercised his discretion in sentencing under the Criminal Law Consolidation Act. The respondents, Pamela Nangala Sampson, and two other women, were convicted of murder in the South Australian Supreme Court. They were each sentenced to life imprisonment with a minimum non-parole period of eighteen years. The appellants argued that the sentences were manifestly inadequate and sought a reduction in the minimum non-parole periods.

The primary legal issue before the court was whether the trial judge had adequately exercised his discretion in sentencing the respondents under sections 6(1C) and 6A of the Criminal Law Consolidation Act. The appellants contended that the trial judge had failed to give proper weight to certain mitigating factors, including the respondents' backgrounds and the influence of native law and custom. The court was required to consider the interplay between sections 6(1C) and 6A of the Act, particularly whether the absence of evidence of native law or custom precluded the trial judge from exercising his discretion under section 6(1C). Additionally, the court had to determine whether the sentences imposed were just and proper in the circumstances, taking into account all relevant mitigating factors.

The High Court held that the trial judge had properly exercised his discretion in sentencing the respondents. The court found that the absence of evidence of native law or custom did not preclude the trial judge from considering such factors under section 6(1C) of the Act. The court emphasised that the trial judge had broad discretion to consider all relevant mitigating factors, including the respondents' backgrounds and the influence of native law and custom, even in the absence of specific evidence. The court further noted that life imprisonment was available as a sentence for murder and that the sentences imposed were just and proper in the circumstances. The appeals were dismissed, and the sentences imposed by the trial judge were upheld.

The court's decision underscores the importance of considering all relevant mitigating factors in sentencing, including the influence of native law and custom, even in the absence of specific evidence. The court affirmed the trial judge's broad discretion to impose sentences that are just and proper in the circumstances. The court's ruling ensures that the sentencing process remains flexible and responsive to the unique circumstances of each case, while also upholding the principle of proportionality in criminal sentencing.

Orders

Orders of the court

The appeals be dismissed.

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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