R v Joe, Rodger, Ned, Conrad, Koonutta & Norman

[1996] QCA 550

[1996] QCA 550

COURT OF APPEAL
FITZGERALD P
DAVIES JA

HELMAN J

CA Nos 463-468 of 1996
THE QUEEN
v.
DONALD REX JOE
and
LESLIE WILLIAM RODGER
and
IVAN JAMES NED
and
FREDDY SIEMON CONRAD
and
ELLIOTT RUEBEN KOONUTTA
and

CREEDMAN DICK NORMAN	Applicants
BRISBANE ..DATE 02/12/96
JUDGMENT

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THE PRESIDENT: The applicants have applied for leave to appeal against a sentence imposed on each of them in the Magistrates Court at Mareeba on 27 September this year. Each pleaded guilty, that day, to one offence of escaping lawful custody and were sentenced to imprisonment for four months cumulative on the sentence he was already serving.

Although there is some doubt as to the provision alleged to having been contravened, the appeal before this Court has proceeded on the basis that there has been a contravention by each of section 142 of the Criminal Code and also that although there is some vagueness and ambiguity in the description of the events that each of the pleas of guilty was properly made and accepted by the Magistrate.

The offences had occurred a fortnight earlier on 13 September. Each of the applicants is an aborigine who had been in custody for another offence, or offences, at the Barrs Yard Correctional prison camp which is used for prisoners from local aboriginal communities who have served, at least, half of their designed sentences.

The camp is situated approximately 40 kilometres south of one of the communities at Pormpuraaw. On the date in question, the applicants were taken by two supervisors, both of whom appear to be aborigines, to Pormpuraaw to attend the funeral of an elder, Rosie Norman. One of the supervisors, Thomas Rodger, is the brother of the applicant Rodger, and the other supervisor was one Royce Wright.

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The funeral was to take place at 10.00 a.m., but was delayed
until 2.30 p.m. The facts are not entirely clear but it seems
that Wright left the applicants in Rodger's care and it is
possible that Wright gave some other indication about the
arrangements which would be made for the applicants to be
reassembled or retaken into the direct custody of the
supervisors.

Only the applicants Norman and Koonutta attended the funeral and all applicants seem to have mixed freely with the resident community including family members. It seems it is customary for alcohol to be consumed following a funeral and all applicants drank heavily. The supervisor, Rodger, is also said to have been drinking on the day of the funeral.

The applicant Joe was found the next day drinking with his family and intoxicated.

The applicant Rodger was also found the next morning at his brother's house also intoxicated. It seems that he had visited his sick father.

The applicant, Ned, wandered off and drank with his family but voluntarily went to the prison camp at about 8.00 p.m. on the evening of the funeral.

The applicants, Conrad and Koonutta were located at the community canteen at about 8.30 p.m. on the day of the funeral and conveyed to the police station. Conrad decamped and could

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not be found until he returned to the prison camp voluntarily
the following Sunday, 15 September. Koonutta also decamped
after being taken to the police station on the evening of the
funeral and was found drunk the following morning.

The applicant, Norman, attended the funeral, then drank with his family and was located on the following morning at his brother's home still in a state of intoxication.

The respondent, in the written outline, submitted that the sentence imposed on each applicant was appropriate to act as a deterrent and was not manifestly excessive, but that view was not strongly pressed in oral submissions.

It is plain that the applicants were not properly supervised and that none left the Pormpuraaw community or sought escape in any permanent sense. Their misbehaviour was more of a foolish disciplinary infraction than criminal in its essential nature. When the funeral was delayed they mixed with their community and regrettably drank to excess leading to some delay in their return to the prison camp.

In my opinion while a cumulative sentence was called for, no more was appropriate, or necessary, than an additional one week's imprisonment. I would grant the application, allow the appeal, set aside the sentences imposed below in relation to each applicant and in lieu sentence each applicant to a period of imprisonment for one week cumulative upon the sentence which he was serving at the time of the offence in question.

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DAVIES JA: I agree.

HELMAN J: I agree.

THE PRESIDENT: The orders will be as I have indicated.

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