R v BESANT - [2013] SADC 104

District Court of South Australia
(Criminal)
R v BESANT
[2013] SADC 104
Ruling of His Honour Judge Slattery (ex tempore)
7 August 2013
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY
Defendant applies for sentencing conference to be convened under s9C Criminal Law (Sentencing) Act - discussion of discretionary considerations under s9C(1) of the Act.
Application granted.
Criminal Law (Sentencing) Act 1988 s6, s9C; Native Title Act 1993 (Cth) Parts 1, 2, 3 and 4 , referred to.
R v Wanganeen [2010] SASC 237, applied.

R v BESANT
[2013] SADC 104

HIS HONOUR: I make the following ruling.
The defendant, a Yalata Aboriginal man, has been committed to this Court from the Port Pirie Magistrates Court for sentence in respect of the following two admitted offences:
1.Commit theft using force (aggravated offence) contrary to s.137(1) of the Criminal Law Consolidation Act 1935;
2.Drive dangerously to cause police pursuit (aggravated offence) contrary to s.19AC(1)(b) of the Criminal Law Consolidation Act 1935.
The defendant was on 15 day of December 2012 employed at Roxby Downs on a fly-in fly-out basis. It was highly paid employment. On that day and for reasons that are unstated, he anticipated and thought that he could not face domestic difficulties when he went home. He met a friend and they went to a local Hotel. They drank some alcohol. Later he injected three times with “crystal meth”. He has no memory from that time.
The defendant then drove a stolen car on the highway. It ran out of fuel and it stopped on the verge of the highway.
Mr Henry Morton, a man above 60 years of age, also travelling along the highway, stopped to render assistance to the defendant. Mr Morton was forced by the defendant to give up his car. The defendant left Mr Morton on the side of the road and then travelled on in that car to Crystal Brook where he was apprehended after a police chase. Mr Morton’s car was severely damaged in the process and the defendant was injured in the events at the end of the car chase.
The defendant says that he still has no recall of events after the third injection of “crystal meth” because of the effect of those drugs; he injected a very large amount of the drug.
The defendant is 24 years of age. He is married with three children and a fourth child is due. As a result of these events, he has lost the very good job that he had at Roxby Downs.
The defendant informs me through his counsel that he is deeply ashamed of his actions that have had such a catastrophic effect on his life; he is deeply apologetic and he wishes to communicate that remorse to Mr Henry Morton.
In that background, the defendant has asked that in respect of his plea and sentencing, the Court considers the operation of s.9C of the Criminal Law (Sentencing) Act 1988 (the Act).). That provision reads as follows:-
“9C - Sentencing of Aboriginal defendants
(1)Before sentencing an Aboriginal defendant, the court may, with the defendant’s consent, and with the assistance of an Aboriginal Justice Officer
(a)     convene a sentencing conference; and
(b)     take into consideration views expressed at the conference.
(2)     A sentencing conference must comprise
(a)     the defendant and, if the defendant is a child, the defendant’s parent or guardian; and
(b)     the defendant’s legal representative (if any); and
(c)     the prosecutor; and
(d)     if the victim chooses to be present at the conference the victim, and, if the victim so desires, a person of the victim’s choice to provide assistance and support; and
(e)     if the victim is a child the victim’s parent or guardian.
(3)A sentencing conference may also include (if the court thinks the person may contribute usefully to the sentencing process) one or more of the following:
(a)     a person regarded by the defendant, and accepted within the defendant’s Aboriginal community, as an Aboriginal elder;
(b)     a person accepted by the defendant’s Aboriginal community as a person qualified to provide cultural advice relevant to sentencing of the defendant;
(c)     a member of the defendant’s family;
(d)     a person who has provided support or counselling to the defendant;
(e)     any other person.
(4)     A person will be taken to be an Aboriginal person for the purposes of this section if
(a)     the person is descended from an Aboriginal or Torres Strait Islander; and
(b)     the person regards himself or herself as an Aboriginal or Torres Strait Islander or, if the person is a young child, at least one of the parents regards the child as an Aboriginal or Torres Strait Islander; and
(c)     the person is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Islander community.
(5)In this section Aboriginal Justice Officer means a person employed by the South Australian Courts Administration Authority whose duties include
(a)     assisting the court in sentencing of Aboriginal persons by providing advice on Aboriginal society and culture; and
(b)     assisting the court to convene sentencing conferences under this section; and
(c)     assisting Aboriginal persons to understand court procedures and sentencing options and to comply with court orders; close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include
(a)    the relationship between a legally married couple; or
(b)a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind; domestic partner a person is the domestic partner of another if he or she lives with the other in a close personal relationship; family includes
(a)    the defendant’s spouse or domestic partner; and
(b)     any person to whom the defendant is related by blood; and
(c)any person who is, or has been, a member of the defendant’s household; and
(d)any person held to be related to the defendant according to Aboriginal or Torres Strait Islander kinship rules and observances; spouse a person is the spouse of another if they are legally married.”
The structure and background of that section has been thoroughly considered by Gray J in his Honour’s decision in R v Wanganeen [2010] SASC 237. In that decision, Gray J has canvassed in detail the historical developments in dealing with indigenous persons in the criminal justice system. I have the matters raised and discussed by Gray J at the forefront of my mind in making my decision in this matter.
The issue that I asked counsel to address in submissions before me in this matter was whether it was possible to describe (without attempting to codify) the considerations that a Judge may have regard to when exercising the discretion in s.9C(1) of the Act. I informed counsel that I find this a somewhat vexing question because of the absence of any specifically stated matters that the Court may take into account in making its decision and, separately, the general structure of the section.
As an example of this structural issue, s.9C(3) of the Act contains a list of persons from whom the Court may hear, if the Court thinks that such persons (or any of them) may contribute usefully to the sentencing process. The somewhat vexing aspect of the matter is that it will be largely (but not completely) impossible to assess and decide upon these matters and weigh them in the balance without having heard from those persons in evidence or in some form of conference. And what may be the guide points that the Judge may use in assessing any submission on the comparative importance of what may (or may not) be said by such people? These questions demonstrate a potential difficulty with the process of the application of the section. In my position, I am left to deal with the matter in the way that has been stipulated by Parliament and in the end, over analysis of the words used in subsections that operate after a favourable exercise of a discretion may well be a fruitless exercise.
Mr Petraccaro for the DPP informed me that the apparent benefit in the use of this process is to more easily ascertain what may assist me in fashioning an appropriate sentence in this matter. A process envisaged under s9C of the Act may assist me in gleaning and then understanding more of the matters that are important about mitigation and issues of rehabilitation for a particular defendant. This was in the context that although the defendant had some antecedents, he was potentially “on the cusp”, as Mr Petraccaro put it, and as I would put it, on the cusp of descending into the maelstrom of criminal activity and the very regrettable recidivist cycle that is so well known in respect of Indigenous people.
At the outset, Mr Ngugi informed me that the defendant is haunted by his acts. He comes from an extremely strong familial support structure. He has struggled with a dependency on cannabis. He is completely contrite and wants to communicate with the victim to tell the victim that he is sorry for what he has done and that he did not intend doing what he did. For the sake of this discussion, I accept all of those matters although, in the absence of any memory, statements about the defendant’s intention ‘ring a little hollow’.
I turn to the exercise of my discretion given under the Act.
From the perspective of a Judge hearing the matter, I think that the Court would be very assisted by the defendant himself expanding upon his contrition for what has occurred and to hear firsthand from him about what he has done to put his life back on track. I was informed by his counsel that he is willing to enter the witness box to deal with those matters. The Court would not insist upon that happening and readily appreciates the risk of that step. The Court would receive much assistance in the sentencing process in having a clear understanding of the level of the defendant’s contrition and the steps that he has taken to take responsibility for himself and his drug dependence, his wife and his children, as well as the greater familial structure of his own indigenous group. I am able to accept the submissions already made about the defendant’s familial support structure, and this was very apparent to me by the presence of his family in the Court hearing both yesterday and today. But these matters do not fully or finally inform the Court’s decision and, to some extent, they are features to be addressed after the exercise of the discretion has occurred.
The question for my consideration is: what informs the exercise of my discretion? In my view, there is no closed list of matters. Each case will largely, if not invariably, turn on its own peculiar facts. I consider that there are at least two matters that may inform my judgment in this case. No doubt there are more. And I emphasise that the matters that I discuss hereunder are only two of the matters that I consider to be relevant in this case. These matters may well not be relevant in other cases.
The first may be described in a way that is very well known and understood within the area of Native Title claims under Parts 1, 2, 3 and 4 of the Native Title Act 1993 (Cth). This first matter falls within the rubric of what may perhaps with some licence be described as “anthropological issues”. Counsel for the defendant referred to an aspect that he describes as ‘aboriginality’ of the defendant as being relevant. On the contrary, I think the existence of ‘aboriginality’ of the defendant is the requisite quality to reach a starting point of these considerations.
I think that properly construed, the first consideration is what may be described as “Aboriginal ethnicity” and this expression needs to be explained. This consideration would require a Court to take account of whether there is some aspect of the status, position or circumstances of this particular offender in the background of his aboriginality that militates towards the use of a sentencing conference under s.9C of the Act.
In my view, a decision based on this consideration is also informed by other sections within Part 2 Division 1 of the Act, (in which is found s.9C), which sets out what may be described as part of the “philosophy” of the Act. The important provision is s.6 of the Act, which reads as follows:-
“6 - Determination of sentence.
For the purpose of determining sentence, a court
(a) is not bound by the rules of evidence; and
(b) may inform itself on matters relevant to the determination as it thinks fit; and
(c)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms”.
When addressing this consideration of what I call “Aboriginal ethnicity” for s.9C, I think it is necessary to address the question whether the matters in s.6(b) and (c) of the Act inform any part of my decision on s9C of the Act.
In my opinion, they do. As was submitted by Mr Petraccaro, one question to be assessed is what in the circumstances of this offender are his prospects, as he put it, ‘coming back the other way’ when it is known that (to prolong the analogy) “going the one way” is a form of custodial sentence as the sanction required by Parliament for the offending. That question in the circumstances will be assessed in light of the defendant’s “Aboriginal ethnicity” – i.e. his status, position or circumstances as a Yalata Aboriginal man.
There is not enough information currently before the Court about the defendant’s Aboriginal ethnicity and about his community for a final informed decision to be made. The position is that, from the little that has been put to the Court on his behalf, the Court knows sufficient of the status, position and circumstances of the defendant to also know that there are likely to be other matters that, if disclosed, will assist its determination of sentence: the Court will then be able to take those matters into consideration in an informed way.
Those matters of which the Court is aware may be shortly stated. The defendant is an apparently capable Aboriginal man who is married with three children and is expecting a fourth child. He was employed in a very well remunerated job. He supported his family. He was dealing with the “demons” of an addiction to cannabis. Unfortunately, he has made a decision which has led to catastrophic consequences and he finds himself before this Court. He is deeply ashamed of his conduct which is utterly inconsistent with his status as an Aboriginal man in his community and in his family.
In the assessment of those matters, and in light of s.9C of the Act, there needs to be an explanation of these events both inside and outside of his community and family as referred to in s.9C(3) of the Act.
The second consideration here is slightly tangential and it is connected to the first consideration. By its nature, it must be expressed in a slightly vernacular way. It is this: that it is in the “telling of his story” by the defendant that a full appreciation of the defendant’s position may be obtained and a proper impression may be formed of the whole of the circumstances of this offending. This is not in any sense a one-sided consideration. Part of the telling of his story is that the defendant may, and in my view should, hear the version of the victim and the impact of these events upon the victim of his offending. In my view, those matters are almost mutually interdependent.
It is also necessary to state for the purposes of completeness that Mr Petraccaro has informed me of another declaration obtained in respect of an earlier event concerning the theft of the car which was in the possession of the defendant at the time he stopped on the highway. That may be another matter to be taken into account, but the present focus here is upon the defendant and his position.
At least part of the function of the operation of s.9C is involved in obtaining an understanding of what, at a minimum, was operating on the mind of the defendant before he embarked upon these events given that he can remember nothing after injecting the “crystal meth”. These matters are self-evidently the same as, or very similar to, those matters to be ascertained for the application of general sentencing principles. There are subjective and objective elements of those matters that are well known and do not need elucidation here. However here the concept of process is one of the key issues because persons who may be included in the sentencing conference for s.9C(3) of the Act are persons who the Court considers may contribute usefully to the sentencing process. In that respect, those persons may also contribute to the information to be brought forward by and about the defendant concerning his status, position and circumstances. It is in the telling of the defendant’s story that these things are revealed.
In my view, in the background of the Court informing itself about relevant matters and acting according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms, a consideration of the effect of the telling of his story by the defendant (and other persons: viz s.9C(3)) is a significant matter to be weighed in the balance in the exercise of my discretion.
In his judgment in R v Wanganeen [2010] SASC 237, Gray J assesses broadly and historically the literature and decisions surrounding and concerning his Honour’s decision. The very disproportionate representation of Australian indigenous people in custody is so well known it needs no rehearsal here. Parliament has (in the context of those very well known historical facts) decided that in the process of sentencing, different approaches to that process are apt, (even if it does not envisage any change in the result of the sentence).
S.9C is specifically directed at Aboriginal defendant persons. It is for the Court, if it sees fit, to implement the intention of Parliament as disclosed in s.9C of the Act. In so doing, it is appropriate for the Court to bring to its decision on the exercise of its discretion some appreciation of why, as a matter of discretion, an opportunity has been created to implement a different process. No “anthropological” evidence has been put before me in this application and that appears to be as a result of a deliberate drafting method used by Parliament. It would not necessarily be the case that any information of that nature may be received until a decision is made under s.9C(3), but only after the favourable exercise of the discretion for s.9C(1) of the Act. This may be seen as something of an imponderable because it may be that on one view or in particular circumstances none of that information will be received. And another important feature is that s.6(b) and (c) of the Act do not foreclose any particular approach or method.
I am satisfied that having regard to the matters that I have set out here, that this is an appropriate matter for the favourable exercise of my discretion. I am satisfied that I have received sufficient information about the defendant’s Aboriginal ethnicity, i.e. his status, position and circumstances, to satisfy me that a favourable exercise of my discretion is warranted.
Similarly, I am satisfied that in the background here of an emphasis upon process, as stipulated by Parliament, assistance will be obtained in a sentencing perspective from a telling of the defendant’s story in a subjective, objective as well as the interconnected “anthropological” sense, (as I have previously advisedly used that expression: see s.9C(3) of the Act).

In those circumstances, I am prepared to accede to the application of the defendant.
I make the following orders:-
1.That pursuant to s.9C(1) of the Criminal Law (Sentencing) Act, I order the convening of a sentencing conference in respect of the defendant.
2.I order that the following persons are to attend the sentencing conference:
2.1The defendant;
2.2the defendant’s legal representative;
2.3the prosecutor; and
2.4if the victim chooses to be present at the conference, the victim, and if the victim so desires, a person of the victim’s choice to provide assistance and support to the victim.
3.I order that the following persons may attend the conference as I am satisfied that those persons may contribute usefully to the sentencing process, namely: Paul Tanner, David Branson, Talitha Weetra, and Clinton Dadleh.
I make the following directions.
4.I reserve to Judge Cuthbertson, the circuit Judge for the criminal list for the Port Augusta circuit for September 2013, the question of the date, time and place of the sentencing conference;
5.I direct that prior to the call-over by Judge Cuthbertson in the District Court in Adelaide of the September 2013 Port Augusta circuit cases (the list) on 30 August 2013, the defendant’s legal representative and the prosecutor obtain all necessary information in relation to the availability of the following persons: the victim or victims, Paul Tanner, David Branson, Talitha Weetra and Clinton Dadleh; and
6.that the defendant’s legal representative and the prosecutor be in a position to inform Judge Cuthbertson at the call-over of the list in Adelaide of the time or times at which the relevant persons, whom I have ordered to attend this conference, may be available, (subject to any choice by the victim or victims as to whether he or they wish to attend the conference).
I have not made an order for the victim to attend the conference but have left to the victim or victims the choice to attend such conference.
RULING COMPLETED 11.17 A.M.