R v Brumby
[2014] SADC 93
•30 May 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRUMBY
[2014] SADC 93
Reasons for Decision of His Honour Judge Tilmouth
30 May 2014
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - ELIGIBILITY AND RELEASE
Consideration as to whether new parole period should be set and discussion of the principles guiding the exercise of the discretion to do so.
Correctional Services Act 1982 (SA) s 32(4), s 74; Criminal Law (Sentencing Act) 1988 (SA) s 32(3), s 32(5)(c), s 32(9); R v James (1990) 158 LSJS 7; R v Beauregard-Smith (2001) 79 SASR 408; R v Wilson (1999) 203 LSJS 459; R v Glynn [2000] SASC 323; Summary Offences Act 1921 (SA) s 99; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10(1), s 11(1); R v Stewart (1984) 34 SASR 477; R v Greenwood [2000] SASC 204, referred to.
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
Consideration of the principles in forming the appropriate sentence of Aboriginaol persons having a background of deprivation and social and economic disadvantage.
R v Scobie (2003) 85 SASR 77; R v Wanganeen (2010) 108 SASR 463; R v Grose [2014] SASCFC 42; Wongawol v Western Australia (2011) 212 A Crim R 284, referred to.
Neal v The Queen (1982) 149 CLR 305; Bugmy v The Queen citation needed; Munda v Western Australia (2013) 87 ALJR 1035, applied.
R v Fernando (1992) 76 A Crim R 58, discussed.
R v BRUMBY
[2014] SADC 93The application
Irban Brumby, is before the court on his application to fix a non-parole period with respect to a sentence imposed upon him for rape, committed at Coober Pedy in April 2006.
Underlying facts
The application arises in this way. On 24 September 2009 a Judge of this Court sentenced Mr Brumby to eight years imprisonment with a non-parole period of five years, effective from 23 June 2008 for the rape of a stranger. His head sentence thus expires on 25 June 2016. The rape was committed when he was heavily intoxicated. A jaundiced sense of domestic revenge appears to have provided the motivation and alcohol the catalyst.
By order of the Parole Board of 24 June 2013, he was released on parole having served five years of the sentence. He resided on the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands), centred around the community of Indulkana. He was caught driving without a licence between Indulkana and Ernabella on the APY Lands to attend a football match on 10 August 2013, which is just over two months after his release. He was eventually sentenced with respect to that charge on 25 February 2014 by the Magistrates Court, when he was convicted and discharged without further penalty, it appears because of time spent in custody.
In the meantime an intervention order was made with respect to his partner on 21 August 2013. He breached this order by assaulting her, on 30 August 2013. This consisted of throwing rocks at her. He was sentenced on those matters by another Magistrate on 15 November 2013, on a factual basis that is not entirely clear. Whatever the precise details, it was a serious assault. He was convicted and discharged without further penalty, given that he had spent about two and a half months in custody.
A Parole Board warrant was issued for his arrest on 3 September 2013 and his parole was cancelled by the Parole Board on 17 December 2013, effective from 3 September. The balance of the sentence he remains liable to serve, is two years, nine months and 23 days, which brings it to 22 June 2016, aforementioned.
The application to fix a non-parole period
By application of 14 February 2014 he applies to the Court to fix a non-parole period with respect to this outstanding sentence, pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act). This section furnishes the power to fix a non-parole period in the following terms:
32—Duty of court to fix or extend non-parole periods
(3) Where a prisoner is serving a sentence of imprisonment but is not subject to an existing non-parole period, the sentencing court may, subject to subsection (5), fix a non-parole period, on application by the prisoner or the presiding member of the Parole Board.
However the powers so conferred are subject to the provisions of s 32(5)(c) of the Sentencing Act:
32—Duty of court to fix or extend non-parole periods
…
(5) The above provisions are subject to the following qualifications:
…
(c) a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—
(i)the gravity of the offence or the circumstances surrounding the offence; or
(ii) the criminal record of the person; or
(iii)the behaviour of the person during any previous period of release on parole or conditional release; or
(iv) any other circumstance.
In a report submitted by the Parole Board at the request of the Court made pursuant to s 32(9) of the Sentencing Act, the Board indicated that it was not opposed to fixing a non-parole period. However the Director of Public Prosecutions is opposed because of the behaviour of Mr Brumby during the period of release on parole, and for the protection of the community, particularly his partner.
The underlying facts
The circumstances of this case present special problems. Mr Brumby is of Aboriginal descent. He was grown up in a traditional indigenous way on the APY homelands.[1] He spends time in the bush learning survival and life skills and is an initiate. He is 23 years of age and the father of a child. His father and other relatives are respected Elders of the Community. There is accommodation and some work in a community garden and cattle mustering available to him on the lands. As he grows older he will become increasingly responsible to his Community, his family and to his Elders for the maintenance of Aboriginal traditions and culture. The concern of the Director stems from the need for the protection of the Community given the recent history of violence that erupts, invariably it appears, when he drinks alcohol to excess. He was convicted of an assault committed in December 2004, and imprisoned for four months for an aggravated assault committed in December 2006 (when another domestic violence restraining order was in place).
[1] See ‘Growing Up the Country: The Pitjanjatjara struggle for this land', Toyne and Vachon, McPhee Gribble, 1984 p 5.
His proposal is to return to the Community so that he can attend to traditional responsibilities and obligations, and care for his family, a proposal encouraged by the wider Elder group. He has some basic schooling but is unable to read or write and was apparently a good footballer playing for Indulkana.
There is a particular factor identified in a psychiatric report before the court, inasmuch as the imprisonment of a person with a background like his, inevitably brings forward feelings of social and temporal dislocation from family and country, which consequently prones him to depression.
Fixing a non-parole period – the principles
A number of propositions of a procedural nature can emerge from the authorities as to the operation of s 32 of the Sentencing Act. The first is that s 32(3) thereof facilitates the fixation of a non-parole period even though parole had been cancelled and the prisoner thereby became liable under s 73(1) of the Correctional Services Act 1982 (SA) to serve the unexpired term of the sentence, and even though the prisoner had ‘completed a non-parole period previously fixed in respect of the same sentence of imprisonment’ pursuant to s 32(4) of the Sentencing Act: R v James,[2] R v Beauregard-Smith.[3] Second, the primary intention of s 32(1) is to require the court to fix a non-parole period, subject to the provisions of s 32(5)(c): R v Glynn,[4] R v Beauregard-Smith.[5] Third, when a non-parole period is fixed, it commences from the day the prisoner was returned to prison upon revocation of parole: R v Wilson,[6] R v James,[7] R v Glynn.[8] Fourth, when fixing a non-parole period, the court must, if the person is in prison serving a sentence of imprisonment, take into account the period already served, as required by s 32(7)(a) of the Sentencing Act: R v Wilson,[9] R v Greenwood.[10]
[2] (1990) 158 LSJS 7, 8.
[3] (2001) 79 SASR 408, [16].
[4] [2000] SASC 323, [14]-[15].
[5] Above, [17], [43].
[6] (1999) 203 LSJS 459, [25].
[7] Above, 9.
[8] Above, [42].
[9] Above, [16].
[10] [2000] SASC 204, [23].
When it comes to fixing the appropriate length of the non-parole period, the period set should continue to reflect the degree of criminality involved in the crime for which the sentence of imprisonment was handed down in the first place, a process that involves a judicial assessment of the minimum term of imprisonment ‘what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventive purposes of punishment’: R v Stewart,[11] R v Beauregard-Smith.[12]Other considerations taken into account in this process have included:
·the gravity of the original offence: R v Beauregard-Smith;[13]
·the nature, circumstances and seriousness of the breach or breaches of parole: R v Wilson,[14] R v Beauregard-Smith.[15]
·the protection of the community from violence at the hands of the prisoner: R v James,[16] R v Wilson;[17]
·the likely future response to supervision and whether the applicant is a good candidate for parole: R v Wilson,[18] R v Beauregard-Smith;[19]
·the desirability of the prisoner taking treatment if released: R v James;[20]
·whether the prisoner is likely to modify behaviour during incarceration: R v Glynn;[21]
·the applicant's previous record but not so as to amount to double counting if taken into account in fixing the original sentence and non-parole period: R v Wilson;[22]
·pay regard to sentencing standards applicable at the time of commission of the offence resulting in the cancellation of parole: R v Beauregard-Smith.[23]
[11] (1984) 35 SASR 477, 477.
[12] Above, [24].
[13] Above, [44].
[14] Above, [18]–[20].
[15] Above, [44].
[16] Above, [9].
[17] Above, [18].
[18] Above, [18], [20].
[19] Above, [32], [56].
[20] Above, [9].
[21] Above, [30].
[22] Above, [17].
[23] Above, [49], [91].
Sentencing principles - Aboriginality
There is an additional feature of this case arising from the fact that Mr Brumby belongs to a traditional indigenous Community. The starting point is the oft quoted and oft approved statement of Brennan J in Neal v The Queen:[24]
The same sentencing principles are to be applied … in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.
[24] (1982) 149 CLR 305, 326.
Gray J has documented in considerable detail and later repeated, what the 1991 report of the Royal Commission into Aboriginal Deaths in Custody described as the ‘historic structural inequality’ of Aboriginal people, a disadvantage considered to be the primary cause of the high indigenous imprisonment rates in all Australian jurisdictions, as a consequence of ‘systemic socio-economic marginalisation’, and ‘post-colonial dispossession, cultural fragmentation and disempowerment’: R v Scobie,[25] R v Wanganeen.[26] As his Honour has stated recently in R v Grose:[27]
… factors of social and economic disadvantage ... cultural factors or the unique history and treatment of a particular ethnic group ... may be relevant to the court’s assessment of the gravity of the offending and the defendant’s blameworthiness.
[25] (2003) 85 SASR 77, [33].
[26] (2010) 108 SASR 463, [9].
[27] [2014] SASCFC 42, [40].
The High Court of Australia determined in Bugmy v The Queen,[28] that it was ‘antithetical to individualised justice’ that sentencing courts should take judicial notice of the systemic background of deprivation and social and economic disadvantage of Aboriginal offenders, however the majority added that this says ‘nothing about a particular Aboriginal offender’.[29] The Court further explained in Munda v Western Australia,[30] that it would be contrary to the principle stated by Brennan J in Neal, to ‘accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities’. The Court also acknowledged in Munda that general deterrence has:
little rational claim upon the sentencing discretion … where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational of the consequences of misconduct.[31]
[28] (2013) 87 ALJR 1022.
[29] Above, [41].
[30] (2013) 87 ALJR 1035, [53].
[31] Above, [54].
However, the Court proceeded to acknowledge there are other counter-ruling considerations in the sentencing process, such as vindicating the dignity of the victims of violence, expressing the Community’s disapproval of offending, to afford protection to the vulnerable against repeated violence, and by discouraging victims from resorting to self-help. In the particular context of this case it might be added that the protection of others in the Community experiencing a high incidence of alcohol fuelled violence is a weighty consideration: Wongawol v Western Australia.[32]
[32] (2011) 212 A Crim R 284, [39].
In R v Fernando,[33] Wood J distilled a number of propositions from the literature and the case law related to sentencing Aboriginal offenders, including the following:
(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
…
(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into accounts as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
...
(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
[33] (1992) 76 A Crim R 58, 62-63.
The plurality in Bugmy v The Queen considered these statements to ‘conform with the statement of sentencing principle by Brennan J in Neal’.[34] They were quoted again with approval in R v Grose.[35]
[34] Above, [39].
[35] Above, [37].
Principles applied to the facts
It is well documented that substance abuse of one kind or another is a long standing problem in the Communities of the APY Lands and that it constantly threatens ‘the peace, order and security of communities, cultural and family structures, education, health and community development’: R v Scobie.[36] There remains on the APY Lands pervading ‘socio-economic factors such as poverty, hunger, illness, lack of education, unemployment, boredom, and general feelings of hopelessness’: R v Scobie.[37] These are the very type of circumstances countenanced by the High Court in Bugmy v The Queen,[38] as amounting to ‘profound depravation [which] do not diminish over time and ... are to be given full weight in the determination of the appropriate sentence in every case’.
[36] Above, [70].
[37] Above, [70].
[38] Above, [42].
Mr Bugmy’s offence of rape was a very serious one. The sentencing judge described it as ‘a serious example of a serious offence’, brought on by a bout of binge drinking. The assault of his partner at Indulkana was serious on any view of the facts. He fractured her ankle, and caused cuts to her face, arms and legs. Nevertheless although the circumstances by which Mr Brumby has been affected by an environment in which the abuse of alcohol is common must be taken into account, that consideration must be balanced against the seriousness of his offending: Mundu v WA.[39]There is then an acute tension between the protection of the local Community, as against his proper rehabilitation. His father has referred to a Community expressed desire for him to return to the Community and the support it would provide to keep him alcohol free. It was because of this tension that the Court sought to ascertain the wider community’s attitude to Mr Brumby’s return to the lands, before his head sentence expires. Gray J explained the importance of this kind of inquiry when considering a balanced and just sentence: R v Scobie.[40]
[39] Above, [57].
[40] Above, [42], [68], [85].
After canvassing the views of a number of elders from the Indulkana and nearby Communities a recent pre-sentence report came to this conclusion:
Based on all the information gathered for this Report it is considered that the general consensus is; Anangu men should be given every opportunity to return to their Country so as to be involved in all cultural and family commitments, and every effort made to provide them with achievable goals and manageable conditions to assist them to successfully complete any period of release.
All the people spoken to for the purpose of this report posed no objection to the release of Irban Brumby to the APY lands.
The body of this report confirms the availability of accommodation and work, and of the cultural imperatives of attending to cultural obligations, the obtaining of culturally appropriate counselling and to restore the family unit.
Two other issues emerge from the Corrections report. The first is that there is some considered debate as to whether Mr Brumby should return immediately to Indulkana where his partner and child reside, but where there might be easier access to alcohol than on the other APY Communities. However that affords no reason in itself to decline to fix a non-parole period. It is one best left to the discretion of the Parole Board as to the better place of residence. The second is that his partner has brought an application to have the intervention order varied so as to permit contact between them. He was served with an order made on 21 August 2008, originally under s 99 of the Summary Offences Act 1921 (SA) which because of the traditional provisions in Schedule I of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) continues in force as if it was an order made thereunder. Pursuant to s 11(1) thereof, such orders continue in force, until revoked. When an application is made to vary or revoke an intervention order, by virtue of s 26(5)(b) the Court is to have regard to the principles stated in s 10(1) of the Intervention Orders (Prevention of Abuse) Act, which casts the net of considerations far wider than the wishes or interests of the immediate persons involved. Accordingly the Court is in no position to assume the order will be either varied or revoked. Once again this is a matter for the Parole Board to take account of when framing the appropriate conditions of parole.
Resolution and orders
Mr Brumby has been returned to custody for all but nine months now. His continued incarceration has only served to worsen the evident social and cultural dislocation he experiences. There are intricate plans to insulate him from negative influences and temptations and to gradually integrate him into the Community and to counsel him in the process on the path to rehabilitation. With these processes in place, he is unlikely to reoffend, the protection of the Community will be served, he will be amenable and likely to respond to supervision and he can be given culturally appropriate counselling.
In all the circumstances a non-parole period of 12 months is fixed pursuant to s 32(3) of the Sentencing Act, to date from 3 September 2013.
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