R v W & Attorney-General of Queensland

[1995] QCA 349

[1995] QCA 349

COURT OF APPEAL

FITZGERALD P
DAVIES JA
DEMACK J

CA No 161 of 1995

THE QUEEN

v.

W  Respondent

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

BRISBANE

DATE 05/06/95

JUDGMENT

THE PRESIDENT:  The respondent murdered a member of her extended family.  Both the respondent and her victim, whom she stabbed and struck, were members of a group of Aboriginal people who were drinking alcohol and, to a greater or lesser degree, intoxicated.  The respondent, who is only 15 years old, was a member of a traditional Aboriginal family in north Queensland and generally unfamiliar with the culture and behaviour of the dominant white society.

Indeed, as Mr Ridgway for the prosecution, in his typically fair submissions, accepted, although the respondent is sorry that she fought with her aunty, she might not comprehend that she is responsible for her aunty's death.

Initially the respondent was sentenced to indeterminate detention under s 63 of the Children's Services Act and was incarcerated in a juvenile detention centre in Brisbane, where efforts were made to assist her through her separation from her family and her traditional way of life.  After she had been in custody for about 33 months she was re-sentenced by the Judge before whom she had initially been tried.

His Honour, was thoroughly conversant with all aspects of the matter, including the respondent's youth, tribal background and enormous difficulties when distant from her family.  As his Honour pointed out, if she was sentenced to a further period of imprisonment, the respondent would have to be held at the women's prison in Brisbane since there is no medium or low security female detention centre in north Queensland.  Further, the respondent would not be able to receive the special assistance which she had received at the juvenile detention centre if she was incarcerated at the Brisbane women's prison.

In all the circumstances his Honour considered that if the respondent had originally been sentenced under the Juvenile Justice Act, a sentence of eight years imprisonment would have been appropriate, with a recommendation that she be released from detention after serving 50 per cent, not 70 per cent, of that period.  That would have involved the respondent serving a further 15 months imprisonment.

However, in all the circumstances, including those to which reference has been made, his Honour thought it would be better to place the respondent on probation for three years with special residential and other conditions which ensured that she was able to obtain the support of her own people.

Essentially, the points made on behalf of the prosecution emphasised the need for general and personal deterrents and pointed out that Aboriginal life should not be devalued by inadequate sentences.  Other aspects of his Honour's decision were accepted by the prosecution but its submission was that the respondent should be required to serve the further 15 months imprisonment.

While the circumstances to which the prosecution referred are legitimate matters to take into account, there are also a multiplicity of other factors, as demonstrated by the difference in approach between prior cases in this Court and decisions in Western Australia such as Rogers and Murray (1989) 44 A Crim R 301.

I do not think it is necessary, or even desirable, on this occasion to seek to indicate what all the various factors are and how they might be balanced.  They will vary from case to case.  It is sufficient for present purposes to say that I am not satisfied that the very experienced sentencing Judge erred in the exercise of his discretion.  Further, to interfere now would require that the respondent be returned to prison after she has been permitted to go back to her familiar surroundings and lifestyle and to live with members of her extended family.

The Court was informed by affidavit that in the circumstances where she now finds herself, she is doing well.  In these circumstances I would dismiss the appeal.  It remains to note that the sentencing Judge required the respondent to generally reside in a particular locality where it is now inappropriate for her to continue to live in view of the fact that her mother died there shortly after the respondent was placed on probation.

I would make whatever alterations are necessary to the probation conditions to ensure that the respondent is legitimately at the place to which she has been moved, apparently without objection from the Correctional Services Commission.  As I understand it, that would require the conditions to be changed to permit and require the respondent to live at Likkarraparta out station.

They are the orders which I would make.

DAVIES JA:  I agree.

DEMACK J:  I agree.

THE PRESIDENT:  The orders of the Court are, appeal dismissed, conditions of probation varied to permit and require the respondent to reside at Likkarraparta out station.