R v GJ

Case [2005] NTCCA 20

The Queen v GJ [2005] NTCCA 20

PARTIES:THE QUEEN

v

GJ

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:No CA 19 of 2005

DELIVERED:  22 December 2005

HEARING DATES:  3 November 2005

JUDGMENT OF:  MILDREN, RILEY & SOUTHWOOD JJ

CATCHWORDS:

CRIMINAL LAW- Crown appeal against sentence – whether sentencing judge erred – whether sentence manifestly inadequate – whether appeal court should interfere

CRIMINAL APPEAL – HREOC seeks leave to intervene – whether court has power to allow intervention in criminal cases – whether intervention assists court of criminal appeal – whether counsel for HREOC able to appear as amicus curiae

Canadian Criminal Code s 181

Crimes Act 1900 (NSW) s 437

Criminal Code Act (NT) s 1, s 127(1)(a), s 139A , s 192 s 192(3), s 298, s 302, s 331, s 407(1), s 410, s 414, s 414(1)(c), Division 2 of Part 10

Director of Public Prosecutions Act (NT) s 12(1), s 14, s 14(b)

Human Rights and Equal Opportunity Act 1986 (Cth) s 3, s 11(1) of Part II Division 2, s 11(1)(o), s 11(1)(g), s 11(1)(h), s 46A, Part IIA of the HREOC Act,

Sentencing Act (NT) Part 5 s 43, s 91

Sex Discrimination Act 1984 (Cth) s 48(1) and s 48(1)(d)

Commentaries on the Laws of England, Vol 1, Book 1, p 269, Claitor’s Publishing Division, 1915 ed, republished 1976

Convention on the Elimination of All Forms of Discrimination against Women

Convention on the Rights of the Child

Crime, D. Ross QC, Law Book Company, 2004

International Convention on the Elimination of Forms of Racial Discrimination

International Covenant on Civil and Political Rights

House v The King (1936) 55 CLR 499, applied

Levy v The State of Victoria and Ors (1997) 189 CLR 579, applied

Markarian v The Queen (2005) 215 ALR 213, applied

R v Osenkowski (1982) 30 SASR 212, applied

R v Wurramara (1999) 105 A Crim R 512, followed

Grzybowicz v Smiljanic [1980] 1 NSWLR 627, referred to

Hales v Jamalmira (2003) 13 NTLR 14, referred to

Kenny (unreported, Supreme Court of Victoria, 2 October 1978) referred to

R vAllpass (1993) 72 A Crim R 561, referred to

R v C [1982] 2 NSWLR 674, referred to

R v Clarke (1996) 2 VR 520, referred to

R v Day (2004) 14 NTLR 218, referred to

R v Morton (2001) 11 NTLR 97, referred to

R v Murphy (1986) 5 NSWLR 18, referred to

R v Raggett & Others (1990) 101 FLR 323, referred to

R v Shrestha (1991) 100 ALR 757, referred to

R v Zundel [1992] 2 SCR 731, referred to

Re Bolton and Others; ex parte State of Victoria and Another (1994) 126 ALR 620, referred to

Regina v VA [2001] 1 WLR 789, referred to

Rushby and Another v Roberts and Another [1983] 1 NSWLR…

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AGLC
R v GJ [2005] NTCCA 20
Case
[2005] NTCCA 20
Decision Date

CaseChat Overview and Summary

The appeal concerned a Crown appeal against the sentence imposed on the respondent, R v GJ, by a sentencing judge. The appeal court was asked to determine whether the sentence was manifestly inadequate and whether it should interfere with the original sentencing decision. Additionally, the court considered an application by the Human Rights and Equal Opportunity Commission (HREOC) for leave to intervene in the criminal appeal, and whether it had the power to permit such intervention in criminal proceedings, and if so, whether HREOC counsel could appear as amicus curiae.

The legal issues before the court were primarily whether the sentencing judge had erred in imposing the sentence, rendering it manifestly inadequate, and consequently, whether the appellate court should intervene. A secondary, but significant, legal issue was the court's power to allow intervention by HREOC in a criminal appeal and the capacity for HREOC's counsel to participate as an amicus curiae.

The court acknowledged established principles regarding appeals against sentence, noting that intervention is warranted where a sentence is demonstrably wrong. The facts revealed the respondent, a 55-year-old Aboriginal man with limited formal education and English as a fourth language, was convicted of striking a child with boomerangs. The respondent's cultural background, including his role in traditional law and community life, was presented as a significant factor. The court considered the respondent's upbringing, his responsibilities within the Yarralin community, and his current living situation. The incident involved the respondent striking the child, who was promised to him in marriage under traditional law, after believing she had engaged in a sexual relationship with a boy. The sentencing judge had taken into account the respondent's age, cultural background, and the fact that the child was not physically injured. The court ultimately found that the sentencing judge had not erred in principle and that the sentence was not manifestly inadequate, thus dismissing the Crown's appeal. The court also granted leave for HREOC to intervene and for its counsel to appear as amicus curiae.

Orders

Orders of the court

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Background

Background to the litigation

These principles have been accepted by this Court on numerous occasions: see R v Raggett & Others (1990) 101 FLR 323 at 325-331 per Kearney J; at 336 per Martin J; R v Day (2004) 14 NTLR 218 at [54] and the authorities cited therein.The facts The respondent was at the time of sentencing a 55-year-old traditional Aboriginal man. He was born in about January 1950 at the old Timber Creek Police Station. He was brought up in the traditional way and grew up at Yarralin, a remote Aboriginal community located 382 km southwest of Katherine and some 16km west of the Victoria River Downs Cattle Station on the banks of the Wickham River. The respondent grew up in Yarralin. He had no schooling. English is his fourth language. When he was only 10 years of age he commenced work as a stockman and he continued in that employment until five or six years ago. He had a strong ceremonial life across a number of communities and is regarded by the Yarralin community as an important person in the ceremonial life of the community. He is responsible for teaching young men traditional ways. He is married. His wife, J, was present in a supportive capacity at the hearing before the learned sentencing judge. The respondent has a good relationship with his wife. The respondent does not now reside at Yarralin. He resides on his father’s country at Fitzroy Station, just off the Victoria Highway, some 200km west of Katherine. On that station, there are four houses which rely for electricity upon a generator. The respondent lives there with his wife, sister, brother-in-law and his eldest brother as well as with six young children. His current employment, which is limited to CDEP work on the station, involves maintenance work for which he receives $400 a fortnight. The child, SS, was born in mid 1990. When she was about four years of age, the child’s family promised her as a wife to the respondent in accordance with traditional Aboriginal law. As the child grew older, she went to college in Darwin. In June 2004 during the school holidays, when the child was in Year 9, she formed a friendship with a young male. She had returned during the school holidays to reside with her grandmother in the Yarralin community. She did not really know the respondent except as “the old man”. On about Friday 18 June 2004, the child stayed in the home of a mutual friend with whom the boy also stayed. Word spread about this and the respondent believed that a sexual relationship had occurred between the young boy and the child. On Saturday 19 June 2004, the respondent and the child’s grandmother went to the house where the child and boy had stayed. The child was having breakfast. The grandmother took the child outside. The respondent had gone to the house armed with two boomerangs. When the child was brought outside by her grandmother the respondent struck the child with one of the boomerangs with some force over her shoulders and back. The respondent and the grandmother then took the child back to the grandmother’s house. At that house, the respondent again struck the child over the area of her shoulder and arms. The grandmother also struck the child with a big stick. Not surprisingly, the child was upset and crying.

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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