[27]
The relationship was said to be in "transition" and the parties were at the outstation "to help her become accustomed" to the appellant. Members of her family were there "in case she needed comforting, they would be there for her support."
[28]
Issues of consent do not arise under s 129 of the Criminal Code. If it was to be alleged that Ms A did not consent to the act of sexual intercourse then the appropriate provision under which to proceed would have been s 192 of the Code which deals with sexual intercourse without consent. Whilst the facts placed before the court, including the victim impact statement, may suggest some reluctance on the part of Ms A, the acceptance of a plea to an offence against s 129 of the Code means that the appellant is to be dealt with on the basis that the sexual intercourse was consensual and that the relationship between them was voluntary. The victim impact statement recorded Ms A as stating that she was "sad and upset" as a result of the events and, by virtue of s 106B of the Sentencing Act, that is something which the court is required to consider before determining the sentence to be imposed.
[29]
In sentencing the respondent his Honor acknowledged that the courts may have regard to Aboriginal law in sentencing Aboriginal and he accepted that Aboriginal customary law was relevant to the sentencing process undertaken by him. He expressed surprise that the respondent had been charged at all with the offence against s 129 of the Criminal Code and concluded that this occurred because of the firearms offence.
[30]
The learned sentencing Judge took into account the submissions made on behalf of the respondent that none of the offences involved actual violence, the victim consented to the relationship and that there was no evidence before the court of coercion prior to the act of sexual intercourse taking place. I note that, to the extent that pressure was placed upon Ms A to continue with the relationship, it was not alleged that such pressure came from the respondent. Indeed some pressure had been placed upon the respondent himself in that it was submitted that the grandmother and the uncles of Ms A had requested that he take her. However, the respondent did have a choice. He was not acting under compulsion. According to the unchallenged evidence of Mr Djordila the respondent was able to "marry his promised wife or he can marry the girl that he fell in love with or he can have both." On the other hand the "promised girl" would be in "big trouble" if she did not fulfil the obligations entered into on her behalf.
[31]
It was emphasised before his Honour that this was not a case where the respondent had committed an offence both against the law of the Northern Territory and customary law but, rather, the respondent had not committed any offence according to customary law and was acting in a manner which was regarded by his community "as entirely appropriate and morally correct conduct." It was submitted that, in that sense, the traditional Aboriginal law is in conflict with the law of the Northern Territory. If that be so then the law of the Northern Territory must prevail and the respondent acknowledges this by his plea of guilty. The real issue is how the other pressures on the respondent arising from his membership of a traditional Aboriginal community are to be brought to account. It is not an easy exercise.
[32]
The offence itself was serious, although the circumstances of the matter place it at the lower end of the scale of seriousness for offences of its kind. However, it was an offence made the more serious by virtue of the respondent deliberately choosing to offend. He knew that to proceed as he did constituted an offence and he described that offence as "carnal knowledge". Notwithstanding his level of awareness he chose to proceed. Whilst it may be said that he has done so in part believing he had a right and, possibly, some level of obligation under his culture, it is not suggested in any of the material before the court that there was any reason why he could not wait until Ms A had turned 16 years of age at which time his conduct would have been lawful. He may have been under some cultural pressure to proceed as he did, but it was not suggested that he was under any cultural imperative to proceed as he did, when he did. The respondent was able to comply with the law of the Northern Territory and with obligations imposed upon him under customary law. He deliberately chose not to do so. He acknowledged that he proceeded on the basis that he thought he would not be caught.
[33]
The penalty imposed by the learned sentencing Judge was imprisonment for one day. That was effectively the minimum penalty that could be imposed. It is a penalty which, in my view, fails to recognise the seriousness of the offending. It pays no account to either general or specific deterrence. Whilst proper recognition of claims to mitigation of sentence must be accorded, and such claims will include relevant aspects of customary law, the court must be influenced by the need to protect members of the community, including women and children, from behaviour which the wider community regards as inappropriate.
[34]
In my view his Honour erred in imposing a sentence of imprisonment of one day. Such a sentence is manifestly inadequate. It does not reflect the seriousness of the offending nor does it recognise the community expectation reflected in the legislation that young females ought to be protected. A significantly greater head sentence was called for.
[35]
In my opinion the appeal on this issue should be allowed. In that regard I agree with the orders proposed by the Chief Justice.
[36]
In resentencing the respondent in relation to the firearms offence his Honour imposed a sentence of imprisonment of 14 days to be served concurrently with the other sentence of imprisonment imposed at the same time. The appellant says that this sentence was manifestly inadequate.
[37]
The circumstances in which the offence occurred are set out above. It seems the respondent intended to frighten Ms A and her friends and he achieved that aim. There was no suggestion in the agreed facts that there was any actual danger to Ms A or to any member of the public. His Honour proceeded to sentence on that basis.
[38]
In my opinion it has not been demonstrated that error occurred. Whilst the sentence may be at the lower end of the scale, it cannot be said to be manifestly inadequate. I would dismiss the appeal in this regard.