R v Davey

[1980] FCA 158

Re: THE QUEEN
And: WILLIAM DAVEY
No. NTG14 of 1980 (1980) 50 FLR 57
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Muirhead(2) and Evatt(1) JJ.

CATCHWORDS

Criminal law - Sentence - Whether too lenient - Whether suspended sentence appropriate - Interference with discretion of trial judge.

The Criminal Law Consolidation Act and Ordinance, s.16;

Criminal Law (Conditional Release of Offenders) Ordinance, s.6.

Criminal Law - Sentence - Crown appeal - Whether sentence too lenient - Aboriginal - Taking aboriginal custom into account - Matters to be considered by appeal court - Appropriateness of suspended sentence - Criminal Law (Conditional Release of Offenders) Ordinance 1971 (N.T.), s. 6.

HEADNOTE

The respondent, an aboriginal, was convicted of manslaughter and sentenced to three years' imprisonment, which sentence was suspended pursuant to the Criminal Law (Conditional Release of Offenders) Ordinance, s. 6. Prior to the respondent being sentenced by the trial judge, evidence was called demonstrating that the deceased victim had provoked the respondent and that aboriginal custom had demanded retribution by the respondent.

Held: (1) An appeal court should not interfere because the trial judge attached weight to matters of aboriginal custom when sentencing.
(2) In the absence of well-demonstrated mistake, only in compelling cases should appellate courts interfere where sentences were imposed in the exercise of judicial discretion.

R. v. Tait (1979), 46 FLR 386; R. v. Valentini (1980), 48 FLR 416, considered.
(3) When sentencing, a court's first and foremost consideration is the protection of the community, but it should also take into account the prisoner's prospect of rehabilitation, the likelihood of his re-offending, his probable reactions to probation orders and the like. Further, there should be judicial assessment of the prisoner, the prisoner's family and background, his demeanour, his remorse and the precipitating factors causing the offence.

R. v. Cuthbert (1967), 86 WN (Pt 1) (NSW) 272; R. v. Kear (1977) LSJS 311, referred to.
(4) It was erroneous to equate a suspended sentence with a bond because, before the sentence of imprisonment was imposed, the trial judge first determined that a term of imprisonment was the appropriate sentence. The Criminal Law (Conditional Release of Offenders) Ordinance gave the court complete discretion to apply its provisions. In this case the sentence imposed was within the proper bounds of the discretion of the primary judge.

HEARING

Sydney, 1980, August 26; November 13. #DATE 13:11:1980

APPEAL.

Appeal by the Crown against sentence by the Supreme Court of the Northern Territory (Gallop J.).

F. Gaffey, for the appellant.

G. M. Eames, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: G. R. Nicholson, Crown Solicitor for the Northern Territory.

Solicitors for the respondent: Northern Australian Aboriginal Legal Aid Service.

R. W. DAVIS

ORDER

THE COURT ORDERS THAT the appeal be dismissed.

JUDGE1

This is an appeal by the Crown against leniency of sentence. The facts are sufficiently stated in the reasons for judgment of Muirhead J. which we have had the opportunity of reading. The principles observed by this Court in deciding whether or not it will interfere with the discretion exercised by a trial judge in imposing sentence are set forth in the reasons for judgment of the Court delivered today in The Queen v. Antony Valentini and Gordon James Garvie (Nos. NTG 15-16 of 1980). It will suffice to say that in our opinion no error of fact or law on the part of the sentencing Judge has been shown. The sentence, although it appears to us to be lenient, was not to our mind so disproportionate as to afford evidence that in some way the exercise of the sentencing Judge's discretion was unsound.

We would dismiss the appeal.

JUDGE2

On 25 June 1980 William Davey, an aboriginal man from Borroloola in the Northern Territory, appeared before Mr Justice Gallop in the Supreme Court at Darwin when he pleaded guilty to one count of manslaughter, an offence punishable by a maximum sentence of life imprisonment.

Particulars of the offence set out in the indictment were that he unlawfully killed another aboriginal man, Oliver Roberts, at Borroloola on 18 December 1979. The prisoner was represented by counsel who made submissions in mitigation and called evidence relevant to sentence.

His Honour recorded a conviction and sentenced the respondent to 3 years imprisonment with hard labour. He directed that the execution of sentence be suspended conditionally upon the respondent entering into a recognizance in the sum of $1,000 to be of good behaviour for 3 years. He further ordered, as a condition of the bond, that for that period the respondent be under the supervision of an officer appointed by the Director of Correctional Services. It is in respect of this sentence that the Crown appeals on the basis that the sentence was "manifestly inadequate". The trial judge, it is said, failed to give proper consideration to the retributive and deterrent aspect of sentencing.

A precis of the facts outlined to the trial judge by the Crown Prosecutor will suffice. The respondent was one of several aboriginals drinking at a camp. His wife and a woman, Mazie Anderson, were present. Those women argued and fought, the respondent's wife alleging that Mazie had made some type of advance to her husband. The respondent and his wife later argued. The respondent chased his wife who sheltered with a baby in a nearby car. The respondent smashed the windscreen and his wife fled to a humpy where she was pursued by the respondent who was carrying the bar or stick he had used to smash the glass. At the humpy she managed to disarm her husband and she then struck him or knocked him to the ground. On the evidence they were both under the influence of intoxicating liquor.

The man who was killed, Roberts, had been "sitting in a chair . . . to the side of the humpy". The respondent had struck him about the head with a jerrycan, but failed to dislodge him from his seat, nor did he apparently then injure him. Some conversation took place between the deceased and the respondent. The Crown stated the deceased uttered words such as "that's my niece". Immediately afterwards the respondent picked up a 6 ft. length of 4" x 2" dressed timber and struck the seated man. He fell from his chair unconscious. This caused no alarm and he was not immediately attended to. He was assumed to be drunk or merely stunned. Later his breathing attracted attention, the deceased was found to be unconscious and he died despite efforts to save him. Death was caused by a subdural haemorrhage to the left side of the brain, although there was no actual skull fracture. Clearly he died as a result of the blow struck by the respondent.

The Crown, having outlined the circumstances of the offence, gave a summary of the respondent's previous history. It was, and is, common ground that apart from one minor conviction he had no criminal history. It was also clear the prisoner had been interrogated by the police after the killing and a record of interview had been taken. Contrary to the usual practice in the Territory, the Crown Prosecutor for reasons best known to him, declined to tender a copy of this record for the information of the court.

In the court below, counsel for the defence emphasised at an early stage that some of the Crown's allegations as to the facts were disputed. He submitted that the deceased had interfered with the prisoner earlier in "a way which would be regarded within that community as - certainly not placing him in a position of innocence, so far as that fight was concerned". He also submitted that the deceased had made remarks shortly before the fatal blow which "had an effect upon the prisoner". The Crown Prosecutor at this early stage was asked by his Honour whether these factual matters were disputed and it is clear from the transcript that the Crown accepted that fact that some provocative comments had preceded the blow. The Prosecutor observed the facts were not as "bald" as he had put them. He stressed he was attempting to reconstruct a fairly confused incident involving drunken persons. The respondent's counsel then informed the court he would be calling a witness, Leo Findlay, to demonstrate that the remarks made by the deceased "were comments which any aboriginal person would regard as being loaded with innuendo . . .". Leo Findlay was called. He gave evidence of the respondent's good character and he gave evidence critical of the deceased's earlier interference in an altercation between the respondent and his wife. He said the words uttered by the deceased to the respondent before the fatal blow were "really tormenting . . . asking for trouble". He said, as community adviser to the aboriginal community to which the deceased and the respondent belonged, that the community considered the trouble was "the dead person's fault." He also gave evidence that should the respondent return home, there would be no trouble, i.e. no payback.

The defence submissions were to the effect that the respondent carried a stick, not an iron bar in the earlier incidents, that the deceased had interfered in the altercation between the respondent and his wife and that the jerrycan was used in the struggle between the deceased and his wife and was not used to assault the seated man as suggested by the Crown. The depositions loaned some support to these contentions and to the fact that the deceased's intervention between husband and wife and some words he had uttered before he was struck appear to have enraged the respondent. The material showed that the respondent's wife had at one stage been tribally "promised" to the deceased and it appeared that the deceased's remark was taken to refer to this fact, which, upon Findlay's evidence, was "tormenting . . . and shouldn't be talked about in these sort of matters."

At the conclusion of Findlay's examination in chief the trial judge invited the Crown to cross examine. Only two questions, neither of which went to important issues, were asked. There was no attempt by the Crown at the trial to test or challenge Findlay's evidence nor to object to the hearsay nature of much of it. Nor indeed, did the Crown comment upon the weight which should be attached to it. I do not say this critically, but rather by way of history, as the grounds for appeal complain that the trial judge erred in "taking into account . . . that the respondent seemed to have acted in accordance with tribal customs and tradition", and that he erred "in adopting the procedure he did in resolving the dispute as to the facts." I deal with that matter at this stage. In the exercise of its criminal jurisdiction the Supreme Court of the Northern Territory concerns itself with many aboriginal people. Of these, a number live under tribal culture and tradition and come from areas remote from the court. The court has for many years now considered it should, if practicable, inform itself of the attitude of the aboriginal communities involved, not only on questions of payback and community attitudes to the crime, but at times to better inform itself as to the significance of words, gestures or situations which may give rise to sudden violence or which may explain situations which are otherwise incomprehensible. The information may be made available to the court in a somewhat informal and hearsay style. This is unavoidable as it will often depend on consultation with aboriginal communities in remote areas. In this case the Crown Prosecutor did not object to the presentation of the submissions, the evidence in mitigation of sentence, nor the manner in which the evidence was submitted.

The trial judge commented in the course of his reasons for sentence -
"That means, that by killing that man the way you did, you could have ended up in gaol for the rest of your life, and that would be a dreadful thing. But fortunately, it seems to have been the sort of accident where you were forced to take some sort of an action according to your tribal customs and traditions, and that other man, that Oliver Roberts should not have intervened in what was essentially an argument between you and your wife."

The evidence which led his Honour to conclude there was some type of traditional provocation which resulted in the fatal blow was meagre, but it was not then challenged by the Crown and was in my view, a hypothesis reasonably open to him upon the evidence. It was proper to take it into account in considering why the respondent had suddenly acted in such a manner. This evidence also weighed with his Honour as he commented that he paid "close regard" to what the community thought and he regarded the view that the respondent "should come back into that community" as important. These must be relevant considerations especially when dealing with offences which take place within aboriginal communities, and involving only those people. Mr Gaffy, for the Crown, emphasised that the respondent had much past contact with the European community having spent some years in a leprosarium, and later having worked consistently as a stockman. But association with white people does not necessarily erase deep-rooted customary fears or beliefs, nor does it eradicate the sense of what is, or what is not, acceptable or appropriate. I do not consider this court should interfere on the basis that the trial judge erred in attaching weight to these matters.

When melees between drunken persons are concerned, it may be difficult for a judge to make confident findings of fact. If there is ambiguity a prisoner should be sentenced on a factual basis that will not do injustice to him. Here the trial judge found that the deceased's action "forced" the respondent to take some action. He was speaking colloquially. I do not consider that the manner in which the evidence and the submissions were put to the trial judge permit this court to interfere with the factual basis he applied in the sentencing process.

The Crown's principal argument was that in any event the head sentence of 3 years imprisonment for the offence of manslaughter was quite inadequate and the circumstances did not justify the respondent's immediate conditional release pursuant to the provisions of the Criminal Law (Conditional Release of Offenders) Ordinance.

Street C.J. observed when considering the penalty for this offence in R. v. Withers (1925) S.R. (N.S.W.) 382 at 394 -
"There is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty."

This remains true today in the Northern Territory and offences embraced under the umbrella of manslaughter may range from events involving culpable negligence to situations where one may consider the margin between murder and manslaughter is a fine one. The facts in this case were not in my view at the lower end of the ladder of gravity. The respondent had displayed violence to his wife and had pursued her with a weapon. He slew the deceased by a deliberate blow to the head with a solid piece of wood. The trial judge found that the deceased had in some way angered the respondent, but there could be no suggestion of provocation in the legal sense, no apprehension of violence. The deceased was sitting inoffensively when felled. He had no opportunity of avoiding the blow. Upon the evidence he was probably very, very drunk.

It is, I suppose, appropriate that sitting as a member of this appellate court (as a judge of the Supreme Court of the Northern Territory pursuant to s.25(3) of the Federal Court of Australia Act) I should observe that this type of killing is depressingly prevalent in the Northern Territory. The devastating effects of liquor, especially upon aboriginal society, are daily demonstrated in our courts. I am afraid in this area sentencing policies are unlikely to prove an effective deterrent. A man crazed with alcohol seldom takes stock. The concept that imprisonment must be regarded as an effective deterrent is now enshrined in our law despite the fact that modern research throws some doubts upon its validity. It is perhaps accurate to say that it is because of awareness of the difficulties of the aboriginal and with knowledge that the source of practically all aboriginal crime is alcohol, that lenient penalties are frequently imposed. The courts in pursuing such policies must be careful to ensure that they do not thereby deprive aboriginals of the protection which it is assumed punishment provides. It would be serious if the belief grew up in aboriginal society that killings by drunken persons were treated by the law as occurrences of little consequence. Those who kill unlawfully, especially with the use of weapons, must expect to suffer significant sentences of imprisonment. In the present case there can be no doubt that the trial judge's head sentence of 3 years imprisonment was very lenient. But that observation does not mean the sentence should be increased on appeal. I will return later to the question of suspension of that sentence.

At this stage I make some observations as to the principles and practices of Crown appeals to this court on the ground that sentences are inadequate.

Since the inception of the Federal Court of Australia Act 1976 an appeal against sentence lies without leave pursuant to s.24 of that Act direct to this court. This includes the right of the Crown to appeal against leniency of sentence. Section 28(5) empowers this court "to increase or decrease the sentence or substitute a different sentence." In R. v. Tait & Bartley (1979) 24 A.L.R. 473 this court commented -
"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v. R. (1913) 16 C.L.R. 336 at 339-40; R. v. Withers (1925) 25 S.R. (N.S.W.) 382 at 394; Whittaker v. R. (1928) 41 C.L.R. 230 at 249; Griffiths v. R. (1977) 15 A.L.R. 1 at 15-17). Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' (per Barwick CJ., Peel v. R. (1971) 125 C.L.R. 447 at 452; (1972) A.L.R. 231 at 233). A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J., Whittaker v. R., supra at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."

In R. v. Prindable (1978-79) 23 A.L.R. at 665 the suspension of concurrent sentences of 4 years imprisonment imposed by the judge at first instance was set aside. The court there stated (at p.669) -
"The review by an appellate court of a sentencing judge's discretion to suspend sentence involves the same principles as a review of the judicial discretion to impose the head sentence itself; see R. v. Shueard (1972) 4 S.A.S.R. 36 at 43. If the sentence as a whole is seen to be so disproportionate to the sentence which the circumstances require as to indicate an error of principle the appellate court should intervene. The result of his Honour's decision to suspend the sentences was, in our view, to produce a sentence so lenient that it did not accord with the general moral sense of the community and so lenient that it was unlikely to be a sufficient deterrent to others; see per Jordan CJ. in R. v. Geddes (1936) 36 S.R. (N.S.W.) 554; Channon v. R. 20 A.L.R. 1 at 5. There was therefore an error of principle in his Honour's sentence and it thus becomes our duty to fix the sentence which we think appropriate."

And then in R. v. Hall (1980) 28 A.L.R. 107 this court again set aside an order suspending the major portion of substantial sentences of imprisonment imposed by the trial judge. Gallop J. a member of the court in these cases stated _
"In my view the sentencing discretion has miscarried and this court should intervene. As this court said in R. v. Prindable (1979) 23 A.L.R. 665, the review by an appellate court of a sentencing judge's discretion to suspend sentences involves the same principles as a review of the judicial discretion to impose the head sentence itself (R. v. Shueard (1972) 4 S.A.S.R. 36 at 43) and if the sentence as a whole is seen to be so disproportionate to the sentence which the circumstances require as to indicate an error of principle, the appellate court should intervene."
His Honour was thus well aware of the principles previously enunciated in this court.

In considering such appeals it must not be overlooked that the judge at first instance has generally had very adequate opportunity of considering the facts, the submissions and the reports before him, not in vacuo as it were, but in a situation which enables him to measure the reports against the man he sees in his court. The prospects of rehabilitation, the likelihood of re-offending, the probable reactions of the prisoner to probation orders and the like are important issues. The judge at first instance has a peculiar advantage in deciding them, an advantage which in the past the law has recognised. It is vital, in my view, that the factors of "double jeopardy", and the advantages and responsibilities of the sentencing judge should be carefully heeded by this court in determination of appeals against leniency.

In the absence of well demonstrated mistake, only in compelling cases (e.g. R. v. Cuthbert (1967) 86 W.N. (N.S.W.) 272) should appellate courts increase sentences imposed in the exercise of the judicial discretion.

I say this for the following reasons. One finds in the cases referred to, references to the "moral sense of the community", to "condign punishment" and references which appear to draw a contrast between "rehabilitation" of an offender and "deterrence". There are references derived from R. v. Radich (1954) N.Z.L.R. 86 to sentences which are "weakly merciful". There has, of course, been much debate academic and judicial as to the purposes of punishment, the effectiveness or otherwise of deterrence, the necessity for punishment, the concept of retribution. One would glean from some sources that there are two conflicing responsibilities vested in a sentencing judge - one owed to the prisoner, to rehabilitate him, to treat him gently as it were - the other owed to society, to punish, to levy retribution, to deter. And the cases I have referred to suggest that error was demonstrated because of the emphasis on rehabilitation rather than punishment or deterrence. It is important that the law does not become confused in its objectives. The purpose of the Criminal Law is to bring wrongdoers to justice for the protection of the community. First and foremost, it is the protection of the community a sentencing judge must bear in mind, (R. v. Cuthbert (1967) 86 W.N. (Pt. 1) N.S.W. 272 per Herron C.J. at 274). There are occasions when a judge determines he can only extend that protection by severe punishment; there are other situations when he will reach the view that probation, suspension of sentence or community work orders are appropriate, not because they will be less unpleasant for the prisoner, but because they may be productive of reformation which offers the greatest protection to society. I am afraid, and I speak for myself, that the concept of the penitent prisoner emerging from the penitentiary has rare validity. A sentencing judge has to bear in mind the realities of prisons, of what is learned there, of the associations there formed, of the effect on many people. Nor should he lose sight of the fact that the main problem of the police and the community is the recidivist. If in the proper exercise of his discretion he can devise a sentence which will minimise the risk that an individual will re-offend then to that extent society is protected. And I would add that there is no person so likely to become, not only bewildered, but embittered, as a person who has been sent back to his work and his family under probation by the judge he has seen considering his case, only to find himself rearrested to serve a custodial sentence imposed elsewhere, a sentence he will not regard as just. Respect for the law is very much at risk under such circumstances.

Where the issues are not only the protection of the community but the liberty of the subject it seems to me that the assessment of the trial judge who has seen and so often heard the prisoner, who has had the opportunity of determining his probable responses in the future should be set aside only when manifest error is well demonstrated. It must not be forgotten that in this area judicial views on the appropriate sentence are almost bound to be at variance in any event.

In The Queen v. Kear L.S.J.S. 12/9/1977, Wells J., a judge of considerable experience in criminal matters, dealt in detail with the principles of sentencing and his remarks were then obviously addressed to an anxious public. But he referred in so doing to the remarks of Napier C.J. in Webb v. O'Sullivan (1952) S.A.S.R. 65 at p.66 which he stated represented the true position in law.
"The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest."

A judge's remarks on sentence will seldom reveal all the matters he takes into consideration. Foremost should be his anxiety to protect the public, but judicial assessment of the prisoner, the prisoner's family and background, his opportunities, his demeanour, his remorse and the precipitating factors causing the offence, all play their part. Remarks on sentence should not be reviewed on appeal as though they are a reserved judgment. They are frequently made extempore and in conversational manner, but generally only after anxious thought.

I have commented that I consider the trial judge's head sentence was lenient but, nevertheless, I am not persuaded that the order of imprisonment for 3 years was other than within the proper exercise of his discretion.

The Crown also contends that his Honour erred in suspending the operation of the sentence of imprisonment with the result that having entered into the recognizance the respondent was entitled immediately to be at large. The Crown's argument at times seems to have equated release under suspended sentence of imprisonment to simple release under a good behaviour bond where punishment is deemed inappropriate. But before a court reaches the stage of suspending a sentence it must first determine that imprisonment for the offence in question is the appropriate penalty - that other forms of conditional release, fines and the like are not appropriate. But sentence of imprisonment is passed and the person in question may be required to serve such a sentence upon breach of the conditions of release. Section 6(3)(e) of the Criminal Law (Conditional Release of Offenders) Ordinance, which governs the suspension of sentences in the Northern Territory, provides that upon breach of a condition the court "may . . . in a case where the person having been sentenced was released forthwith . . . commit the person to prison to undergo imprisonment" for a term not exceeding the sentence, the operation of which was suspended. And a person who has re-offended and been imprisoned for that subsequent offence may well be required to serve the terms cumulatively.

In my view it is erroneous to treat the suspension of a sentence of imprisonment as merely an exercise in leniency. Such an order is made in the community interest and is generally designed to prevent re-offending - which a prison sentence, standing alone, seldom does. In the present case it is to be noted that the trial judge placed the respondent under a bond which required him to submit to supervision for the entire period of three years. A person so released has an obvious incentive not to re-offend and should have no misconception as to what will occur if he does.

The Ordinance gives the courts a complete discretion to apply its provisions to those convicted against Territory laws. The power may be exercised, be the offence great or small. It is not reserved for first offenders or for non serious offences. The Ordinance does not set out criteria relating to the exercise of the discretion. From time to time persons charged with most serious offences may be dealt with in this manner by reason of good character, the court's view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that the particular individual will be positively damaged by immediate incarceration.

In this case the respondent had a good work record. The evidence suggested he was a man of previous good character who would be welcomed back to his community. He had no history of violence. Despite the fact that the deceased died from a serious and drunken assault committed by the respondent, there was, in my view, material which justified the trial judge's decision to take the course he did. In my view the sentence he imposed was within the proper exercise of his very wide sentencing discretion.

In conclusion I respectfully agree with the remarks of Murphy J. in Griffiths v. The Queen (1976-77) 137 C.L.R. 293 at 330 -
"Emphasis on and adherence more or less to a scale of penalties for various offences (the tariff system) exerts pressure on the primary judges to impose more severe sentences than they would sometimes wish and in practice inhibits desirable experimentation and exploration of alternative courses contemplated by the legislature."
In that case, Barwick C.J., expressed agreement with the well known dissenting judgment of Isaacs J. in Whittaker v. The King (1928) 41 C.L.R. and stated (at p.310) -
"I would call attention to what his Honour says and add, that, in my opinion, the views of those whose daily, or almost daily, task is the sentencing of prisoners must command respect. They are in reality in a better position to assess the proper sentence than, in my opinion, is a court of appeal, error or breach of principle being absent."

For the above reasons I would dismiss this appeal.