Neal v The Queen

High Court of Australia|1982-07-01|Before: Brennan JJ, Sheahan J, Connolly J

The applicant was convicted by a stipendiary magistrate at Cairns on a charge of unlawful assault, and sentenced to imprisonment for two months with hard labour. He made application for leave to appeal to the Court of Criminal Appeal against the sentence on the ground that it was manifestly excessive. When the application for leave came on before the Court of Criminal Appeal the applicant was represented by counsel and was not present in person. During the course of argument, counsel were asked by the Court whether it had power to increase the sentence and counsel for the applicant replied that he was unsure that it did. After further discussion the Court referred to s. 668E(3) of the Criminal Code Q., saying that it did have such power and intended to consider using it. The Crown had not appealed against the sentence and counsel for the Crown did not, during the course of argument before the Court of Criminal Appeal, submit that the sentence was inadequate. At the conclusion of the hearing the Court of Criminal Appeal proceeded to give judgment. Andrews S.P.J., who presided, after referring to the power given by s. 668E(3), and to the facts of the case, said that the sentence was shown to be manifestly inadequate, and that he would quash it and order the imposition of a term of imprisonment with hard labour for six months. Sheahan J. agreed. Connolly J., who also agreed, said that assuming that it was proper for the offence to be dealt with summarily, it called for the upper limit of sentence which might properly be imposed on summary trial for the offence. The order of the Court was then pronounced as follows:

Before pronouncing this order, the Court did not formally call on the applicant, who as I have said was not present in person, to show cause why the sentence should not be increased. Of course the remarks made by the Court should have indicated clearly enough to the applicant's counsel that the Court might well exercise its power to increase the sentence. What is more important, the order of the Court did not distinctly separate the grant of leave to appeal from the act of disposing of the appeal.

Section 668E(3) of the Criminal Code provides as follows:

On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

It is apparent from the words of the sub-section that the power which s. 668E(3) confers is exercisable only on an appeal. In other words, the power is only exercisable when leave to appeal, which is necessary under s. 668D before an appeal may be brought against sentence, has been granted. The authorities have recognized what the section itself makes clear: R. v. Gibbon [1] ; Reg. v. Myers [2] . From this there follows a curious consequence. By r. 22 of the Criminal Practice Rules of 1900 an appellant at any time after he has duly served notice of appeal or of application for leave to appeal may abandon his appeal by giving notice of abandonment in the prescribed form to the Registrar, and upon giving such notice the appeal shall be deemed to have been dismissed. By r. 21, once the Court of Criminal Appeal has given leave to appeal, no notice of appeal is necessary, but the notice of application for leave to appeal is deemed to be a notice of appeal. The effect of r. 22 is that an applicant for special leave to appeal who fears, as a result of observations made by the Court, that his sentence may be increased on an appeal, may abandon his appeal, at least before it has commenced, and may thus escape from the possibility of an increased sentence. In R. v. Gibbon the Court treated the appeal as abandoned even though no notice of abandonment in the prescribed form had been given, since the court regarded it "as too severe and too technical" to insist that the notice be put in writing. The rules considered in that case were the same in substance as those of the Criminal Practice Rules Q.. In Reg. v. Myers there was some difference of opinion as to whether the appeal had commenced but the applicant was nevertheless allowed to abandon his appeal.

(1946) 31 Cr.App.R. 143. 2. [1971] Q.W.N. 11.

It may seem surprising that it is possible to frustrate the power of the Court in this way, but the continued existence of the power is itself surprising, now that the Attorney-General has a right of appeal against sentence: see s. 669A of the Criminal Code. The provisions of s. 668E(3) may now be regarded as redundant, except perhaps in very special cases, and it appears that in practice those provisions are little used. In these circumstances, it is right to insist on a strict compliance with formality if it is intended to use the power conferred by s. 668E(3). There are two reasons why the Court of Criminal Appeal should distinctly and formally grant leave to appeal, before proceeding, on an appeal, to increase a sentence. The first is that the law recognizes the right of an appellant to abandon his appeal, and an appellant should not be deprived, by neglect of formality, of the power to exercise that right. In the second place, an applicant is not entitled to be present on the hearing of an application for leave to appeal, but is entitled to be present, if he desires it, on the hearing of his appeal except where it is on some ground involving a question of law alone: see s. 671D. An appellant may very well desire to be present on the hearing of an appeal which may possibly result in an increase of his sentence, and his counsel should have the opportunity to claim that right. For all these reasons, it seems right to insist on a strict compliance with the proper procedure in those cases, which I expect will be rare, in which the court proposes to avail itself of the power given by s. 668E(3). In such cases there should be a formal grant of leave to appeal so that the applicant has a real opportunity to exercise his rights before the appeal commences.

Since the applicant was denied this opportunity in the present case the application for special leave to appeal should be granted and the appeal should be allowed. Normally if an error of law or principle, such as might justify the grant of special leave to appeal against sentence, has occurred, this Court will not impose a sentence for itself, but will remit the matter to the Court of Criminal Appeal, which would have the advantage of knowing local conditions and local sentencing practices. However a remitter would in the present case be unlikely to serve any useful purpose. On the one hand, the Court of Criminal Appeal could not be expected to reduce the sentence of two months, which has already been decided to be manifestly inadequate. On the other hand the court would be unlikely to be able to increase that sentence, for it is virtually certain that the applicant, faced with the possibility of an increase, would abandon his appeal. We should therefore do what the Court of Criminal Appeal would have done if it had not acted under s. 668E(3), viz. refuse the application for leave to appeal to that Court.

In support of the application for special leave to appeal Mr. Pincus, for the applicant, submitted that the Court in imposing sentence in the present case should have taken into account the special problems experienced by Aboriginals living in reserves, and that the Court of Criminal Appeal appears not to have taken this factor into account, since it imposed the maximum sentence. By that must have been meant the maximum sentence that might be imposed on summary conviction, for the maximum sentence for unlawful assault is twelve months' imprisonment (s. 335 of the Code) but where the conviction is by a stipendiary magistrate the maximum sentence is six months (s. 343). This argument was advanced in support of the contention that the sentence should not have been increased, and having regard to the conclusion that I have already expressed it need not be considered. I should however add that it would not be appropriate for this Court to review the facts for the purpose of determining whether the sentence of two months imprisonment should be reduced. It is the settled practice of this Court that we do not interfere with a sentence unless the case involves some point of law of general application, or there has been some gross violation of the principles which ought to govern discretion in imposing sentence. In the present case it has not been shown that the Court of Criminal Appeal fell into any error of law or principle apart from that relating to the exercise of power under s. 668E(3). If the applicant acted because of frustration and discontent born of the conditions in which he was living (and whether he did so was a question of fact) that would have been one of the circumstances of the case to which a court in imposing sentence should have had regard, although it would have provided no justification for an assault. There is, however, no reason to suppose that the Court of Criminal Appeal (or for that matter the magistrate) failed to give proper consideration to that or to any other relevant matter.

Grant special leave to appeal, allow the appeal, set aside the order made by the Court of Criminal Appeal and in lieu thereof order that the application for leave to appeal to that court be refused. Murphy J.

The applicant, Mr. Neal, was convicted by a Stipendiary Magistrate of assaulting the complainant, Mr. Collins, and of unlawful entry onto his property. For the unlawful entry he was fined $75, with imprisonment in default. For the assault (spitting at Mr. Collins), he was sentenced to two months' imprisonment with hard labour. Mr. Neal did not appeal the convictions but applied to the Supreme Court of Queensland (Court of Criminal Appeal) for leave to appeal against the severity of the sentence for the assault. The Court of Criminal Appeal (Andrews S.P.J., Sheahan and Connolly JJ.) gave leave to appeal, and on the appeal increased the sentence to six months' imprisonment. Mr. Neal now applies for special leave to appeal against that sentence.

Although Mr. Neal applied to the Court of Criminal Appeal for leave to appeal on grounds of excessiveness, the Court granted leave on the basis of apparent inadequacy, and forthwith dealt with the appeal. Mr. Neal's counsel was given no opportunity to consider, or obtain instructions on, whether to proceed with the appeal after leave was granted on this adverse basis. Natural justice required that he be given that opportunity. The procedural rules envisage a space between granting of leave to appeal and dealing with the appeal. (See the provisions for attendance of the person in custody at an appeal in certain circumstances: Criminal Practice Rules 1900 Q. r. 27; also R. v. Gibbon [3] ; Reg. v. Myers [4] .) Where leave to appeal is sought it is generally convenient to hear the appeal forthwith or treat the application as if it were an appeal, but this is not proper where leave is granted in order to consider an increase rather than a reduction in sentence. This serious procedural error warrants the grant of special leave.

(1946) 31 Cr. App. R. 143. 2. [1971] Q.W.N. 11.

The Court of Criminal Appeal also erred in increasing the sentence under s. 668E of the Criminal Code Q.. The power to do so should be regarded as virtually obsolete since the Act was amended to give the Attorney-General the power to appeal against sentence (s. 669A Criminal Code). The Attorney-General did not appeal against sentence and consistently with that the Crown did not argue in the Court of Criminal Appeal that the sentence should be increased. It is incongruous that where the prosecution does not consider a sentence inadequate the Court should take it upon itself to increase the sentence, thus assuming the role of adversary. We were informed that the last time the Court of Criminal Appeal contemplated giving leave to appeal in order to increase sentence was in 1969. It is remarkable that in 1982 it was given for that purpose in a "spitting" case.

Special leave to appeal should be granted. The appeal should be allowed and the six months' sentence set aside, for the reasons which justified the special leave. In order to determine what consequential order should be made, it is appropriate to consider whether leave to appeal from the Magistrate's sentence should be granted.

It is extraordinary that a case of this nature should reach this Court. The sentence of six months for spitting attracted national attention; it was widely reported in the press and electronic media as a bizarre departure from normal sentencing standards. It is common knowledge that serious offences are often visited with much less punishment; we were given a list of recent sentences which, although it did not go into details, suggested that the sentence in this case was discordant with the sentencing pattern in Queensland in that it was as harsh or more harsh than sentences for much more serious offences. However, because apparently similar offences which have been visited with markedly differing sentences often prove on closer examination to have other features which justify the difference in sentencing, it is necessary to examine the case in some detail.

Mr. Neal resides at the Yarrabah Aboriginal Community reserve in Northern Queensland. He is chairman of the Yarrabah Council, an office to which he was elected by fellow Aboriginal members of the community. On the evening of 28 June 1981 at about 7.15 p.m. Mr. Neal, together with another member of the community, went to the house of Mr. Collins, the manager of the local store and knocked on the door. Mr. Collins, opened the front door and conversed with Mr. Neal. Mr. Neal abused Mr. Collins, swore at him, told him to get off the reserve and that all the whites should get off the reserve. He argued with Mr. Collins about the management of the reserve and departmental policy. At some stage Mr. Neal opened the fly-screen door in order to speak directly to Mr. Collins. Mrs. Collins also participated in the conversation, and the Collins' young daughter was present. A remark was made to the daughter to the effect that her father "should get off the Reserve". When the discussion reached an impasse, Mr. Neal swore at Mr. Collins and spat at him. Then the screen door was closed and Mr. Neal again spat at Mr. Collins, this time through the wire. He invited his companion to do the same and called out to some youths who were on the roadway (most of them on the back of a truck) outside the boundaries of the property to "come up". None did, nor did they come onto the property. Following the altercation, Mr. Neal and his companion left, together with the youths. Mr. Neal disputed the swearing and spitting, but, as there is no appeal against conviction the magistrate's findings so far as they are supported by the evidence must be accepted for the purpose of these proceedings.

The offence should not be underestimated but neither should it be overstated. Mr. Collins and his family were subjected to a very unpleasant, nasty, and perhaps frightening incident which should not be condoned. But it should be kept in perspective. There was no violence, as the magistrate and the Court of Criminal Appeal accepted. The magistrate stated that spitting amounted to an assault which could be compared with no other as "so degrading, humiliating, insulting or sickening ". Although spitting is degrading, humiliating, and insulting for the victim (and also degrades the offender), such an assault is not worse than every other type of assault that could be dealt with summarily under the Criminal Code.

The magistrate in his findings overstated, misunderstood, or overlooked some of the other evidence. Mrs. Collins swore that she did not see the spitting, nor did she see any spit on Mr. Collins, but said she heard the spitting. There was no evidence that the child saw it. Nonetheless the magistrate in sentencing Mr. Neal took into account "The fact that you (Mr. Neal) did this in the eyes of the complainant's wife and his four year old daughter adds to the degradation and undoubtedly leaves an ugly scar on their minds". The magistrate found that Mr. Collins "had done nothing at all, no words, no actions, no gestures, which would give (Mr. Neal) any reason to even approach him". Mr. Neal gave evidence that he had attempted to reach both the chief officer on the reserve and his deputy in order to warn them that the young Aboriginals wanted all the whites off the reserve, but both were absent. He then went to other departmental employees on the reserve. Both Mr. and Mrs. Collins said that during the conversations they told Mr. Neal he should make his representations (about removal of all whites) in accordance with departmental procedure, through the manager, head or "the Department". Mr. Neal also gave evidence that Mr. Collins had sold "rotten meat" at the store and he had made complaints to the reserve management about the sale.

Both Mr. and Mrs. Collins swore that a discussion about departmental policy had taken place between them and Mr. Neal, and Mrs. Collins insisted in cross-examination that she had taken part in the discussion. Mr. Collins also swore that Mr. Neal was stuttering throughout. Mr. Collins attributed the stuttering to Mr. Neal's uncertainty and nervousness. Yet the magistrate (and the Court of Criminal Appeal) found that Mr. Collins "spoke only a few words ". The magistrate stated that Mr. Neal was "an aggressive agitator" on the night in question. Whilst acknowledging there was no actual violence, the magistrate found there was a "very grave possibility of violence", with Mr. Neal "in an ugly mood with a back up" at his side and a "stirred up group of youths close at hand"; however, evidence about the youths was that most remained throughout in the truck parked on the road away from the house; one or two stood on the road, but did not come onto the property. One of them shouted an abusive remark.

The magistrate also alluded to "previous court appearances, one for bodily harm and other incidents", not stipulating the exact nature of the appearances, whether or not they amounted to convictions, nor how they were relevant to sentence. In sentencing Mr. Neal to imprisonment for two months with hard labour, the magistrate took into account the maximum penalty of $500 or six months' imprisonment. The Court of Criminal Appeal accepted the magistrate's findings. In particular, the Court stated that Mr. Neal had "invaded the premises of the complainant, backed by a mob ". However, any "invasion of the premises" or "intrusion" into Mr. Collins' residence was so only in the most technical sense of coming onto the property and opening the fly-screen door. Mr. Neal at no time attempted to enter the home. The unlawful entry onto the premises was punished directly by the conviction and fine of $75; it should not be also punished indirectly as an aggravating factor in the assault. In finding that the sentence imposed by the magistrate was inadequate, and increasing it to six months' imprisonment with hard labour, the Court did not refer to the magistrate's failure to have regard to mitigating circumstances, nor to his remarks about Aborigines.

The magistrate took into account "previous court appearances, one for bodily harm and other incidents". Not all convictions justify increased severity of sentence. If the offence does not indicate a deliberate return to crime and the circumstances do not show the offence was planned beforehand, less weight is to be given to previous offences (R. v. Nuttall [5] ). Although criminal courts generally punish persistent offenders more severely than those not previously convicted, a severe sentence for a lesser offence cannot be justified merely on the ground that the offender has many previous convictions (R. v. Betteridge [6] ). In any event, Mr. Neal did not have many previous convictions. According to affidavits before the Court of Criminal Appeal, he had only three. On 8 April 1977 he was convicted of assault occasioning actual bodily harm, and fined 200 dollars. The circumstances were that police officers unlawfully entered Mr. Neal's home to search for alcohol. When Mr. Neal insisted that they leave, a fight ensued between Mr. Neal, other persons and the police officers. Mr. Neal was convicted for using more force than necessary to eject the trespassing police. The other two convictions arose out of a melee in 1980 at Yarrabah where several people were arrested. Acting on a complaint to him as chairman that a member of the Yarrabah Community had been seriously assaulted by a police officer, Mr. Neal was arrested when intervening where police were transporting prisoners. He was fined $50 for obstructing police and $75 for resisting police. Taking these offences into account, the present incident does not show a deliberate return to crime. Nor was there any evidence of the offence being planned beforehand.

(1908) 1 Cr. App. R. 180. 2. (1942) 28 Cr. App. R. 171, at p. 172.

The mitigating factors which should be taken into account are:

Desisting from Violence. The accused desisted from actual violence. The combination of voluntarily desisting and doing little harm to the victim is a mitigating factor (Cutting v. The Queen [7] ).

(Supreme Court of Western Australia; Unreported; 1970).

Impulsive Acts. Premeditated and deliberate acts will be treated more severely by the courts than those committed in moments of passion where the offender has acted impulsively (Reynolds v. Wilkinson [8] ; Reg. v. Spiller [9] ). There is no suggestion that the spitting was premeditated.

(1948) 51 W.A.L.R. 17. 2. (1969) 4 C.C.C. 211.

Employment. Steady employment has traditionally been regarded as a mitigating factor (Halsbury's Laws of England (3rd ed.), vol. 10, p. 489). Mr. Neal was in permanent employment as a baker in the Yarrabah Community, and held a respected position as chairman of the Yarrabah Council.

Personal Circumstances. Difficult personal circumstances such as emotional and medical problems are accepted as mitigating. Mr. Neal suffered from a pronounced stutter and he was nervous and uncertain during the incident (Reg. v. Bates [10] ).

Apology. Through his counsel, Mr. Neal tendered his apology to Mr. and Mrs. Collins in the Magistrate's Court but this was not referred to by the magistrate nor by the Court of Criminal Appeal. Contrition, repentance and remorse after the offence are mitigating factors, leading in a proper case to some, perhaps considerable, reduction of the normal sentence: (Harris v. The Queen [11] ; also Reg. v. Tiddy [12] ; Darwin v. Samuels [13] ; Datson v. The Queen [14] ). This factor of contrition is generally given insufficient weight in sentencing in Australia.

[1967] S.A.S.R. 316. 2. [1969] S.A.S.R. 575. 3. (1971) 1 S.A.S.R. 411, at p. 423. 4. (Supreme Court of Western Australia; Unreported; 1972).

Reserve Conditions and Race Relations. In Australian conditions these present a special mitigating factor. (See Reg. v. Peter [15] ; also Wilson, Black Death White Hands (1982); Daunton-Fear and Freiberg, Gum Tree Justice: Aborigines and the Courts in The Australian Criminal Justice System, Chappell and Wilson, ed. (1977), pp. 45-99; Misner, "Administration of Criminal Justice on Aboriginal Settlements" Sydney Law Review vol. 7 (1974), p. 275.) The appellant is an Aborigine, as was the person with him. The complainant is a white officer of the Department of Aboriginal and Torres Strait Islanders Affairs. All other officers employed by the Department at the reserve are white, with the exception of a "liaison officer". The magistrate said the population on the communities, of which Yarrabah is one, "is usually made up of hundreds of Aboriginals compared with forty to fifty white staff including families". The magistrate told Mr. Neal:

Your actions in taking unto yourself the task of removing all whites from Yarrabah cannot be condoned from any angle from which you may view community affairs. And further: Violence is something in recent times which has crept into Aboriginal communities. I blame your type for this growing hatred of black against white. You are not giving true representation as a leader to the people who voted you their leader. As a magistrate I visit four to five communities, and I can say unequivocally that the majority of genuine Aboriginals do not condone this behaviour and are not desirous in any shape or form of having changes made. They live a happy life, and it is only the likes of yourself who push this attitude of the hatred of white authority, that upset the harmonious running of these communities. 1. (Supreme Court of Queensland; Unreported; 18 September 1981).

These remarks disclosed, if it were not already apparent, that this was a race relations case, intimately related to the politics of Aboriginal communities and the system under which Aboriginals live in the communities. The remarks assume more importance because they were advanced in this Court as a justification for sentences by the magistrate and by the Court of Criminal Appeal. The Crown claimed that they showed that the magistrate had properly taken into account the special circumstances of the Aborigines. Rather the magistrate's remarks show that he had put himself in opposition to the political stance of the defendant that conditions need changing on the reserves. Although Mr. Collins had told Mr. Neal he should "go through the channels" if he desired change, the magistrate told him it was wrong to seek to change anything. The Court of Criminal Appeal did not disapprove or comment on these remarks. The magistrate took into account political views and actions against the appellant. This is rarely, if ever, justified, whether it be on trial or sentence. (See Cooper v. The Queen [16] .) Those remarks were not only patronising and insulting; they also made clear that anyone who agitated for change, "in any shape or form", in the Aboriginal communities, would be under a disadvantage in that Magistrate's Court. In its supervision of the criminal justice system of the State, the Court of Criminal Appeal has a duty to see that racism is not allowed to operate within the judicial system. It should have disapproved of the unjudicial manner in which the magistrate dealt with sentence.

That Mr. Neal was an "agitator" or stirrer in the magistrate's view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. As Wilde aptly pointed out in The Soul of Man under Socialism, "Agitators are a set of interfering, meddling people, who come down to some perfectly contented class of the community and sow the seeds of discontent amongst them. That is the reason why agitators are so absolutely necessary. Without them, in our incomplete state, there would be no advance towards civilisation." Mr. Neal is entitled to be an agitator.

The evidence showed that Mr. Neal and his fellow Aborigines at the Yarrabah Community have a deep sense of grievance at their paternalistic treatment by the white authorities in charge of the Reserve, including Mr. Collins. The Council and Aboriginal members of the Community had no control over what was sold at the store under management of Mr. Collins. The evidence at the hearing was that although Mr. Neal complained that Mr. Collins sold rotten meat, Mr. Neal and the Aboriginal Council were powerless to do anything about it, apart from making representations to departmental officers. Mr. Collins gave evidence before the magistrate that the management would consider Council representations and make a determination independent of the Yarrabah Council and the Aboriginal Community. Affidavit evidence before the Court of Criminal Appeal showed Mr. Neal had been elected to the Aboriginal Council on a platform of self-management; he had made continuing representations to the Federal and State Governments in an endeavour to obtain self-mangement for his community, without success; and the Yarrabah Council, chaired by Mr. Neal, had made application to the Federal Government to have the Yarrabah Community declared a self-managing community under the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act 1978.

Aboriginal sense of grievance has developed over the two hundred years of white settlement in Australia. Early in the nineteenth century Aborigines were "being treated with arrogant superiority, often accompanied by considerable brutality" (Teasdale and Whitelaw, The Early Childhood Education of Aboriginal Australians (1981)). The plight of the Aborigines was compounded by the introduction of European diseases and alcohol which, in addition to white colonisation, "contributed to the fragmentation of Aboriginal society and helped to promote the apathetic attitudes erroneously attributed by the Europeans to inferior intellectual capacity" (M. King-Boyes, Patterns of Aboriginal Culture: Then and Now (1977)). Aborigines have complained bitterly about white paternalism robbing them of their dignity and right to direct their own lives. In 1938 the New South Wales' Aborigines' Progress Association protested:

" you took our land by force you have almost exterminated our people, but there (are) enough of us remaining to expose the humbug of your claim We do not wish to be regarded with sentimental sympathy like koala bears as exhibits (nor) studied as scientific or anthropological curiosities Why do you deliberately keep us backward? Is it merely to give yourselves the pleasure of feeling superior? that we are naturally a backward and low race is a scientific lie At worst we are no more dirty, lazy, stupid, criminal or immoral, than white people. Also your slanders against our race are moral lies, told to throw all the blame for our troubles on to us." (See Lilla Watson, The Aboriginal and Islander Child and the Welfare System (An Approach to a Study) Continuum, vol. 1 (1982), 13, at p. 14 .)

That Aborigines have a right to participate in and direct their own policies has been reiterated by Aboriginal representatives speaking for themselves and for their people. (See S. S. Dunn and C. M. Tatz, Aborigines and Education (1969).) The United States' experience has shown that persons frustrated by powerlessness through the exercise of racist policies and practices, and the expression of racist ideals, feel their grievances deeply and sometimes express them in the only way possible - by protest or violence (see Report of the National Advisory Commission on Civil Disorders, 1968). The complaints enumerated in that report are well replicated in Australian society in every State of the Commonwealth. (See for example Commissioner for Community Relations, Annual Reports 1-6, 1976-1981.)

The Director of the Australian Institute of Criminology has said:

At the cutting edge of the contact between black and white communities in this country is the law and particularly the manner of its enforcement. Its gross injustice to the Aboriginal, in its present form (is an issue) paraded by scholars, agencies and departments again and again Whether the criminal justice system is a discriminating instrument of power or a social scapegoat for problems which society cannot solve, we might regard it as a useful barometer of the state of balance between law and order on the one hand and human rights on the other . (W. Clifford, An Approach to Aboriginal Criminology, A.N.Z. Journal of Criminology vol. 15, (1982) 3, at pp. 4-6 .)

Although Aborigines comprise only 1 per cent of the total population they make up nearly 30 per cent of the prison population, and at times exceed that level. Comparing the disproportionate numbers of arrests of Indians in Canada, Maoris and Islanders in New Zealand, and Malays in Sri Lanka, Australia's rate according to the 1976 Census of 726.5 Aborigines in prison per 100,000 (there are about 140,000 Aborigines in this country) can reasonably be speculated to be "the highest rate of imprisonment in the world". (See Clifford, pp. 7-8.) Elizabeth Eggleston in her pioneering work on Aborigines and the criminal justice system concluded that there is "discrimination against Aborigines in sentencing and this discrimination chiefly occurs in the choice of imprisonment as a suitable sentence in a higher proportion of Aboriginal cases, instead of the imposition of a lighter penalty". (Eggleston, Fear, Favour or Affection: Aborigines and the Criminal Law in Victoria, South Australia and Western Australia (1976), p. 176.) A disproportionate number of Aborigines in South Australia are charged with minor offences, and they are also more likely than other persons appearing on minor offences to receive gaol sentences. (See Statistics from Criminal Courts of Summary Jurisdiction, S.A., 1 January to 30 June 1981.) This disparity also occurs in N.S.W. and in other States. (See N.S.W. Anti-Discrimination Board, Study of Street Offences by Aborigines, June 1982; Australian Law Reform Commission, Report No. 15, Sentencing of Federal Offenders, 1980.)

Spitting is humiliating and degrading. It is a typical response of children and others without power, attempting to humiliate and degrade those who are seen as oppressors. (See Seligman, Helplessness - On Depression, Development and Death (1975).) The sentence of imprisonment imposed upon Mr. Neal will not improve race relations but will tend to embitter them. Taking into account the racial relations aspect of this case, the fact that Mr. Neal was placed in a position of inferiority to the whites managing the Reserve should have been a special mitigating factor in determining sentence.

In sentencing the court should consider the offence, the character and record of the defendant and all mitigating and aggravating circumstances. Where there is no specific justification for withholding credit for mitigating factors the sentencer will be expected to make an appropriate reduction. Not to do so is an exceptional course limited to those cases where a particular emphasis on deterrence is justified, or where there are other considerations such as the prevention of further offences, which are compelling. A sentence which fails to reflect the presence of recognized mitigating factors will, in the general run of cases, be reduced on appeal. (Thomas, Principles of Sentencing (1979), p. 47.)

Because of these considerations leave to appeal against the magistrate's sentence should be granted and the appeal allowed. Taking into account the fact that Mr. Neal has already served over a week's imprisonment, and that his movements during his time on bail were severely curtailed, an appropriate sentence for the assault is a fine of $130, that is, one week's wages.

I have had the advantage of reading the reasons of the Chief Justice in support of the order that the Court has made in this case. I agree with those reasons. I wish to say something for myself only in relation to the order that the application for leave to appeal to the Court of Criminal Appeal be refused.

The Court of Criminal Appeal expressly ordered that the application for leave to appeal from the sentence of two months' imprisonment imposed by the learned magistrate be refused, except in so far as the Court acted under s. 668E of the Criminal Code Q. to increase it. In my opinion there is no reason to suggest that the Court did not consider and reject the arguments of Mr. Neal's counsel in support of the application. No error of principle has been shown to infect that part of the Court's handling of the application.

The application to this Court for special leave was directed to establishing error on the part of the Court of Criminal Appeal in the manner in which it increased the sentence imposed on the applicant to imprisonment for six months in lieu of the two months' imprisonment imposed by the magistrate. It was only in the concluding stages of the argument that the question of a review of the original sentence was raised. I am left with the conviction that the real purpose of the application to this Court was achieved with the setting aside of the order increasing the sentence to six months.

In any event, in my opinion, the magistrate was not shown to have erred in any matter of law or general principle. He imposed the sentence shortly after hearing the submission of counsel for the applicant attributing his client's conduct to the frustration and emotional concern engendered in him by the manner in which the reserves were administered and his endeavour to obtain self-management. Those matters must have been present to his mind and I am unable to assume that he failed to give them due consideration, notwithstanding that he did not expressly refer to the submission when imposing the sentence.

In my view, the only basis upon which this Court could either remit the matter for fresh consideration to the Court of Criminal Appeal or take unto itself a review of the sentence would be that it was prepared to find that, without it being shown that there has been error of law, or gross violation of sentencing principles, the sentence of two months' imprisonment was manifestly excessive in the circumstances. But that is precisely what this Court has said many times the Court should not do. In Colefax v. The King [17] , Dixon C.J., Kitto, Taylor, Menzies and Windeyer JJ. in a joint judgment, speaking about the jurisdiction to grant special leave to appeal in criminal matters, said:

We have never thought that excessiveness of sentence is a ground entitling us to exercise that jurisdiction, nor one which in wisdom we ought to allow to enter into that category. Cf., also, White v. The Queen [18] . 1. [1962] A.L.R. 399. 2. (1962) 107 C.L.R. 174, at p. 176.

It was for these reasons that I thought it proper to substitute, for the order of the Court of Criminal Appeal imposing a sentence of six months' imprisonment, an order that the application for leave to appeal to that Court be refused.

This case arose out of an ugly incident at Yarrabah Aboriginal Reserve in North Queensland on the evening of 28 June 1981. At about 7.15 p.m. Mr. Neal, the applicant, who was the chairman of the Yarrabah Council, accompanied by a group of Aborigines about twelve in number, came to a house on the reserve occupied by Mr. Collins, an officer of the Department of Aboriginal and Islanders Advancement. Mr. Collins managed the store on the reserve. He is not a robust man. He lived in the house with his wife, twenty two, and his children, a boy aged two and a girl aged four. Most of the group accompanying Mr. Neal stayed outside the yard in a truck, but one of them came up the stairs of the house with Mr. Neal. They stood on the top step, but did not enter the house. Mr. Neal knocked on the door. It was opened by Mr. Collins. Mr. Neal then opened the fly-screen door, and abused Mr. Collins using foul language to him in front of his wife and daughter, telling him that he was a racist and that Mr. Collins, his wife and children were to get out of Yarrabah. Mr. Neal put his fist under Mr. Collins' chin, stepped back and, after further abuse, spat in Mr. Collins' face and on the floor of his dining room. He said to the person with him: "You have your turn", and he called to the people in the truck to come up and to do the same thing. The invitations were not accepted. Mr. Collins told him that he would have to take up any grievances he had with the head of the Department, and that Mr. Neal's approach was wrong. The fly-screen door closed and Mr. Neal again spat - through the screen - at Mr. Collins. Mr. Collins had done nothing personally to provoke Mr. Neal.

The stipendiary magistrate, before whom Mr. Neal was summoned to appear, after hearing evidence convicted him on two counts: unlawful assault and being found in Mr. Collins' yard without lawful excuse. He was sentenced to two months' imprisonment on the count of assault and fined $75 in default three weeks' imprisonment on the count of being found in the yard without lawful excuse. He applied for leave to appeal against his sentence on the former count to the Court of Criminal Appeal pursuant to ss. 668D(c) and 673 of the Criminal Code Q.. The Court of its own motion increased his sentence to six months.

The course of the hearing which resulted in that order and the statutory provisions affecting the exercise by the Court of Criminal Appeal of the power to increase a sentence of its own motion are stated by the Chief Justice. I agree that the power conferred by s. 668E(3) of the Code upon the Court of Criminal Appeal of its own motion to pass a more severe sentence should be regarded as redundant except perhaps in very special cases, and then only after the Court has given an appellant full opportunity to protect what Isaacs J. called "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (Whittaker v. The King [19] ). For the reasons stated by the Chief Justice, I agree that the Court of Criminal Appeal of its own motion ought not to have passed a more severe sentence upon the applicant, and that this Court should grant special leave to appeal against the order made by the Court of Criminal Appeal and set that order aside. The setting aside of that order leaves for determination Mr. Neal's application to the Court of Criminal Appeal for leave to appeal against the sentence imposed by the magistrate.

This Court, placing itself in the position of the Court of Criminal Appeal, may grant or refuse leave to appeal against the sentence imposed by the magistrate and, if in its opinion leave should be granted, this Court may order that the sentence which the magistrate imposed be confirmed varied or quashed. Or this Court may remit the matter to the Court of Criminal Appeal. In my opinion, the latter course is preferable where the factors relevant to the imposition of a sentence must be weighed. Ordinarily the evaluation of relevant factors is a matter for the sentencing judge or for the court to which an appeal is brought against the sentence first imposed. As special leave to appeal is not usually granted "unless there appears to have been a gross violation of the principles which ought to guide discretion in imposing sentences" (White v. The Queen [20] ), this Court is not regularly engaged in reviewing the merits of sentences in particular cases. The weighing of relevant factors in the exercise of a sentencing discretion is best left to the State Courts of Criminal Appeal or to the Full Court of the Federal Court in cases which come on appeal from the Territories of the Commonwealth. Those courts have contemporary knowledge of sentences imposed in comparable cases and of local factors affecting the level of sentences, and that advantage makes remitter preferable to a decision by this Court as to the appropriate sentence to be imposed. This approach accords with the preference expressed by Mason and Aickin JJ. in Veen v. The Queen [21] , though it is not a rule of universal application. I would therefore remit the matter for hearing and determination de novo by the Court of Criminal Appeal unless a remitter would be unlikely to serve any useful purpose.

(1962) 107 C.L.R. 174, at p. 176. 2. (1979) 143 C.L.R. 458, at pp. 472, 498.

In the present case, if it were possible to be satisfied that the judgment of the Court of Criminal Appeal was not affected by any material error save in respect of the exercise on its own motion of the power to pass a more severe sentence under s. 668E(3), it would be right for this Court so far to adopt the opinion of the Court of Criminal Appeal as to hold that the sentence should be no less severe than the sentence imposed by the magistrate. Giving full effect both to the reasons stated by the Chief Justice for setting aside the order of the Court of Criminal Appeal and to the opinion of that Court on the merits, this Court might then refuse Mr. Neal's application to the Court of Criminal Appeal for leave to appeal against the sentence imposed by the magistrate. And that is the order which, commending itself to a majority of this Court at the end of the argument, was then made.

But for my part, I am unable to be satisfied that the Court of Criminal Appeal was not affected by material error in arriving at its opinion on the merits of the case, and if the matter were remitted for hearing de novo, it cannot be said that the Court of Criminal Appeal would be bound to refuse the application for leave to appeal against the sentence imposed by the magistrate or to confirm that sentence. It cannot be said that, in the circumstances of the case, the sound exercise of a sentencing discretion demanded the imposition of a sentence of two months' imprisonment.

The facts of the case raised two important factors for consideration. The first factor, the gravity of the conduct in which, upon the magistrate's findings, Mr. Neal had engaged, was rightly considered by the Court of Criminal Appeal and is central to the opinion which that Court formed. Andrews S.P.J. thought the facts portrayed "a most frightening situation, as well as being offensive and grossly humiliating", and that view of the facts was open upon the evidence. The second principal factor which required consideration was the reason why Mr. Neal engaged in that conduct. Specifically, the question was whether the explanation for Mr. Neal's conduct was some emotional stress arising from what he called in his evidence "the paternalistic system" of life on the reserve. Neither the reasons of the Court of Criminal Appeal nor the reasons of the magistrate refer to the emotional stress affecting Mr. Neal though the facts of the case are eloquent to suggest it. Emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a countervailing factor (see D. A. Thomas Principles of Sentencing 2nd ed. (1979), pp. 194, 207). The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender just as it is entitled to have regard to the motive for the offence (R. v. Bright [22] , per Darling J.).

Consideration of emotional stress is commonplace in the exercise of a sentencing discretion: see, for example, the observations of Jacobs J. in Veen v. The Queen [23] . A particular example of emotional stress arising from problems existing in Aboriginal communities in North Queensland was furnished to us in the transcript of remarks made by Dunn J. in the Supreme Court of Queensland [24] in passing sentence upon Alwyn William Peter who had been convicted of manslaughter of a woman on another Aboriginal Reserve in North Queensland. His Honour said:

The inclination of my brother Judges and myself to recommend such offenders as you for consideration for parole results I think from the fact that without the assistance of expert evidence we have perceived and made allowance for the fact that special problems exist in Aboriginal communities. 1. (1979) 143 C.L.R., at p. 490. 2. (18 September 1981; Unreported).

The facts of the present case likewise point to some "special problems" which may explain - though they cannot justify or excuse - Mr. Neal's conduct. The assault was not caused by any ill-feeling between Messrs. Collins and Neal personally. Yet a dramatic and emotional confrontation on Mr. Collins' steps had occurred, apparently produced by a deeply-felt objection to departmental control of the reserve. The fact that the incident was to be accounted for by the problems (whatever they are) of life on the reserve was a material factor for consideration. It is erroneous to neglect consideration of emotional stress which explains criminal conduct; that factor is material to the assessment of proper retribution and it may be material to deterrence - at all events if those to be deterred are likely to be subjected to similar emotional stress. From the sentence which their Honours decided to impose, and from the absence in what their Honours said of any reference to any emotional stress affecting Mr. Neal - even a reference for the purpose of discounting its weight - I would infer that they omitted to consider emotional stress as a mitigating factor in assessing the gravity of his conduct. I am unable to say, therefore, that a remitter of the matter to the Court of Criminal Appeal would not evoke for the first time a consideration of emotional stress mitigating the assessment of the gravity of his conduct if that Court found it necessary to impose a sentence in the exercise of its own discretion. That discretion would be invoked if that Court should find any ground for interfering with the sentence imposed by the magistrate. The sentence imposed by the magistrate was affected by an error which could warrant interference by the Court of Criminal Appeal and the substitution by that Court of a sentence fixed by it in the place of the sentence imposed by the magistrate.

Violence is something in recent times which has crept into Aboriginal communities. I blame your type for this growing hatred of black against white. You are not giving true representation as a leader to the people who voted you their leader. As a magistrate I visit four to five communities, and I can say unequivocally that the majority of genuine Aboriginals do not condone this behaviour and are not desirous in any shape or form of having changes made. They live a happy life, and it is only the likes of yourself who push this attitude of the hatred of white authority, that upset the harmonious running of these communities.

Making full allowance for the fact that the magistrate was speaking ex tempore, it appears that the magistrate was influenced by his view that Mr. Neal was seeking a change in the control of the reserves and that he ought not to be seeking that change or inducing others to seek it. While conduct of the kind engaged in by Mr. Neal is both an unlawful and an unacceptable means of seeking political or administrative changes, he was entitled lawfully to advocate political or administrative changes without penalty. The magistrate not only condemned the fomenting of hatred - and in that he was right - but he condemned also the legitimate exercise of political rights - and in that he was wrong. Legitimate advocacy of change is no matter of aggravation affecting the exercise of the sentencing discretion.

It was therefore open to the Court of Criminal Appeal to set aside the sentence imposed by the magistrate and to impose a lesser sentence. That Court was not bound to do so. Nor would that Court be bound to do so if the matter were remitted to it. But as I am unable to be satisfied that that Court would not do so if it applied the appropriate sentencing principles, I would have remitted the matter to that Court for reconsideration.

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.

High Court of Australia Gibbs C.J. Murphy, Wilson and Brennan JJ. Neal v The Queen [1982] HCA 55

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