Queen v Sampson, Pamela Nangala & Ors [1984] FCA 89

Racial Discrimination Act 1975 (Cth) Criminal Law Consolidation Act (NT) ss. 5, 6A, 6(1C)

TIM QUEEN v. PAMELA NANGALA SAMPSON, RHODA WURRAWILYA, NGAIRE HERBERT

iN THE TEDERAL COURT OF AUSTRALIA NORTHERN TERRITOFRY Or AUSTRALIA DISTRICT REGISTRY SENEPAL DIVISION

ON APPLAL Crom the Supreme Courl of the Northern Terrilory of Australia

PAMELA NANGALA SAMPSON, RHODA WURRAWILYA, NGAIRE HERBERT

CUDGES FAKING ORDER 3 Torster, Toohey & Fitzgerald JJ. DATE OF ORDER : 2 April 168" WITERE MADE : Darwin

Pd THE FEVSRAL COURT OF AUSTRALIA ) NORTHERN "ERRITORY OP AUSTRALTA ) DISTRICT REGTSTRY ) SENCRAI, DIVISION )

ON APPEAL from the Supreme Court of the Hoy Lherp Territory of Australia

THE COURT At the conclusion of the anpeliant's argument the Court dismissed Ehesc apeals and stated thal at would give reasons for its decision at a later date. 'These are our The reaponderts am: young Aboriginal women. Cn Ll Mareh 1983 each was convieled 3.2 Lhe Supreme Court of

the herthern Territery of the murder of dan Drasxoveic on

Crininal C Aci the penally Sar mare wis imprisonment fer Life with havi labour. Yowever, a.5 nas subject fo the oller preevisions of "he Criminal Law Cansolivzer ort Ach. sub-ureetion 6CIC) pad

tlat provision, the learned trial audge ser tenced each of the reepondents Foo impriteuaent with hard labour [or a tern

of 12 years and in eech case fixed a non-carole pariod of & years and 6 monlhs. The Crown contended that, in the circumcetarers, thase sentences were inadequate,

Before turniig Lo Fhe cipeumstances of Lhe murder Zt should be noteu that the respondents were convicted on a re-trial. On 30 Xerober 1981 they were convicled of murder and sentences of |i fe imorisonment were imposed on 10 Novenber 19812. Gn appeal fo this Courr, the convictions were set aside and a new trial ordered. Herbert, Sampson anc Wurrevilva v. R. (1922) 4? ALR 631. The respondents were arrested in carly Tune 1931 and have necn in custody sinee. Counsel for the recpondent*s invaled the learned trial Judge to make the sentences oorrative fvoam the dates of arrests: his Honcur decsined on the ground thar it wac not open to him to do so. Nevertheless he took into eccount that at the time he was Sunbencing tie respondents they nad been an custody for almoes|

imprssenmont Fou a term af more than TW voar., and e:eh none sarod orient ao bon of vearly & {04S

"ollLowing Lhe eonvietton of Lhe mespondenls, his Nonour heard evidenes and cubmissie ns from counsel over 3 days amt tet Ts apoureat from the quite lengthy reasens for sentences thal his Ihonwur gave careful corisideration to what was clearly a difficult matter.

he ecipeun tances surrounding the murder of Jan Draskoveio wero stark ant brulat. Mueh ot the ture spent before [he learned Irial juage on the matter of suntences was aimed at »roviding some explanation for what had happcned. Before turning to thal aspect of the matter, 1¢ is recessary la sar oul tle obieelive facks surrounding Lhe death.

Shorlly afler 3 pm on the eveniig of 29 May 1921 the responacenls were tu a aisuscd beer parden of the Para> Hotel. Tach was substantially affected sy atcohol, having been drinking Lhroughoul most of Lhe day. The deceased was

a o/ year old man who had lose his right lep and who wore a

Drace with an artificial leg attached to it. He was well

Faown Lo 'he pespondents. He had drunk with *them on other reeactors aud Fhe pe po ident . Ngai Herbert and Pamela Sampso. were @rin visu and brutality".

The Crown case was thal the melive For che attach yao rohnery and, in his Honour's words, "there was certainly more than a Little cvidence to suggest that that was sa". The respondents. asserted that the attack was brought about by the dee ased's reLerence Lo Wurrawilya as a "slut" and a "black bileh™. "is Yoneur vas unable to conelude thet there was any elear motive for the kil!ing on the parz of any one

of the respondents. Ile said: "Rather, Lor Lhe purnose of ante ther, I prefer to take the view more Favourable to them that the attack was preeipitared by some offensive words such a6 3 hive mentioned spoken by the deceased Lo Rhoda, aided perhaps by the refusal by the deeeased of a request for money by them. 'Therc is no doubl, however, Chat Vhatever paiyssons of ange" or pesintmenl were aroused in the prisoners, [hey were inflamed Ly ire amount of alechol that each of them had had to drini".

Before the learned trial judge and before this Courl a submission wes mtde on behalf cf tn> Crown that the apparently broad diserelion conferred by sub-s.4(1C) of the

Criminal Law Consolidation Act was conerolled by the provisions

"Top The purpose af determining the nalvupe and extent of the penalty to be imposed whete an aberigine 1s convicted of murder, tre cour shall receive and consider «ny evidence which may ve Londered as lu any reljevarl native law or cuslom and 1ts application !9 the Pach, ol Lhe ease and any evidence which may he tendered in miljgation of penatly".

The submis.ion was that s.6A controlled and _inited

sub-s."(1C) by rejuirine evidence of some relevant native Jer Ww

oe aublorn be Fane the diserecbion arose Fo impose a senienese loos

a corellery of thal submissien tnat in lhe absence of some relevanl native lay er custom a scentenee of Life imrriconmen wae omateabory., Th was durtheor argued thal the power vested - the eourl by tA fo reeeive and consider cvidehee in aitigation of penalry onty arow where there vac evidence 2 some "relevent nalive jaw or custom end ivs application to he facts ob the aaa.

The learned crial yudse rajyecled those submissions

betwecn 3.608 and sub-s.8010) but nol ri the cense that the Forrer contrors the latler. Sub-section 6(1C), ir its terms, conterred acdeseme don oan Flee qugpe ce wmimese sien srenaltyv ag appeared ta him Jacl ami prepoer "having pega lo all tee

ecireumotances AF The cane" P'ore havd bo amagine a diseretiran

conferred an widss repms. Seefion bA renoved any doubt there nich

NIVG@ seer AP * 2 yew pat ths court bo os zecave and consider eviderr

of nal ve Taw or custom where relevant end applicable *o the

Paets at oath eag . Thowig a power voglerd in the ceurk far the purnese of determin ag tie mature and ealert of the penally to be imvoucd.

But where there wat no evidence cencered of relevant nalive Jaw oer eustom, Lhe pover to imooue a sontence which ir all the cireunetanees 38 juol and proper remaricd.

"any evidence which may be lengercd in mitigation oF penali

apt we ainteiicd, we think, Eo ensure ihar the opening werds of "«.GA

vero nol baie a bo fim2i the evedinee which might have been »leced

befors the court. Ue loubl, any such evidence ha. li be

~olevanl to the tasl of the juree lo immoese a just and syoper

hr was a tuplher ground oF appeal that the Learned? triad judee erred a1 Jaw in holeing that it was Lhe antention of "he lecisiatuve (hal, in the cease of Fr Aboriginal convictie

of muvder, Ihe penalty of life amperisonmen! Cid net apply.

| Dp 3

reasons fur sentences are vead in their cntivety *t 19, we

lhink, clear thal ne eid not take "he view atrribuied to him. It is true chat he 72d wave

"On Lhe coutrary, il seems to ne tkel the clear Cnientoon of Fhe tegistature 1s

thal whilst, in the case or nor-aborigina's, Qo eenally for murder, of whalever

penaliy of Tife rrorisemmeat did not omsly in the eae of an Aboriginal couvicted af murder. Tle shoul? be teken fo have meant po more thnaa that, im conlrast witr s.6 of

Fhe Criminal Law Conselidatiai Aet, a jedte senleneing at

Aboriginal vor nideroclid) not start wilh any pyeconsentison thar lule ampyeroonment was appropriale in Lhe case 3f an Abcrigiaal convicted of murder. LF wes Sor the Judge ta consider what was juctoand proper in Fhe eiveumstaneess, not

cone bratteed te Cte fate conlemes which was mandators, where a ven-Aberrits edi wile gaivulved

Wis Honey had been aonvited by the Crovr te adyroaich the matler of seilenees on Ene besis that, evel 1f sub-s.6(1C) ves nal controlled hy s.6A, the starlLing soint was a sentenec of late iumprisonmeit, as fixed by ob, and that that chould we the senlence in rhe case of an Aboriginal unless, reloveanliv, bhenre vere cireumsturces in miFigat ton His

Nonoar Geedbined to adovtr that oappycach and, in ouv view,

wi. tl nay well heave been that in a pavticular case, vhere an Aboriginal sa senteneed far murder, Fifc impr sonnmner wa

aret ane Ta . os Jie ta hat St ans pen ey hie care laneer. bat that vec b cagae 4

MENT VAG lab Ales A CIg= FA Pe wer pear kh SOMO TTY gee Che Movin.

Another un yniesior wan mage on behalf oF the Crown

which we have datficul'yv tn understanding. Yeferenc2: was rade

Lo che Racial Jisgevimination Act 1975 anc 1l was submicted

that, alvhcash it did rer overrule any of The relevant

seoyvr cede of the Crautnal Gew Coneelidet oom Aceh, "Le should

aspeals OF sentencing enc Falted (oO give Dropcer considaeratior. lo the deberpent avpeer of sentatme ine. s to the circumstances of Ine offence itself, his

Honour concluded? chat the offence was committea "in a state of advanced inloxteation" for cach of |he responuents. He "hough? too thar there wan "a strong clement of impulse" aboul the ol tence ys "prmociprbebed, To thank, by Ube resulblary vords spoven by the dteeacsed lo Phoda, at a lime wher |heir nass7 ons wore inflamed by alaeholt. The Crown contendid that each of Pheoe Findings wat apaspst tin weight of the evide ice.

We discern no ervrer in cthe approach aucented by the -t14]1 judges. Te Lroatecd the prisoners as ceually culn«ble

rao ble Crowne dil wot tusyesge tia ve Should have aoene ao ohowwice,

His comprnksa in pelalion to the issues oF roodery ani ihe "nsulting vord. were cyificised and woe were taken to the evidence in sonsiderab'e dceta1rl. There were conflicling vepolons. To li wet approoriaty for us te arrive at our own Gone busty on the evs lice we vousd nel oo pepouaded of any eenelucion nore unfavourable ta Lhe priseners than that shorlly letore the oftence thev decided in their intox-catec

Sake bo lemand moo. from the doeea1sed and if rnecensiyry to

rob Tim wir withont rhoughe of k21jing him, that in the

brecess of executing that olecision, wnile all the particioant

inetuding the deceased verre in a haghty ritavicated state, the +E 4 4

ecaued insulted one of Line prisuners who became annoyed, and thet events then esealared into the tragie violenee which Jed bo the deerbl of Che decoded.

We hope inal w: do not unlderestinate the ser1ousness

of The tragedy whocn caused three uthappyv human beings

enmeshed in a Jafe of Aiseomforr and derradation to tale the

biFe of anelher spevhape egually unhanpy but miliely innocent human bere. 'turther, we are eonse1our that if as lAapprouriate lo consider whet sentenees the prizoerc should have received movely by pueference Lo Lheir interests.

A oivere penalty wis ecsential bola by way of nunishment ia

Lhe oe 1soners ard by wav of a teterrenl Lor rhe pro.ection OF Ihe public.

ceoproutnes.e of Lhe offence of which each respondent vas eonvicted. He ratiel

"ll. the ex ine committed by the prelbouyerL Vas a very grave one. [loyary comarhte. wiih grea! ealloansness and brutality. Tr was a epime thal Warrants che sey tor bopuni eden ot. eu! T thinl that vunishment should be vaonperad by reason or a number or roaches addused 1m miltgatiron a venalty".

That approach was entirely carrech and was in aoeordane owen Phe eemarts of Street C.d. an the Now South 'alee Count ef Criminal Appeal in R. v. Mus Cunveportes judomenz delivered 7 July 1983). In the course of

evolapitrg the cTow Pourh wales law with presprel To sentencing

for oe mie tele ath lor he ptbreedte bh ren of the Ceoiaes Clomreade )

"ALL who are conversart wiln the admbrrclratian of the criminal Taw aware of the wide ranging bumean siluatrons that car under- dic ct murder, Wa say theb, 2n practical and human terms, there ar pradactions of eriminalicy in murder is no wesaggeralLon. Tu pase the sane Dracoiian puntence ef tile for all murders Bbeeame recooniszed as esaually aneensttive

some preference muot be made lo the history and lite style of cach respondent. we shall deal with them in che arden Mowieh they appear as respontents.

Pum¢ la Samposn io ppubably in her mid-twenlies. he Wao born al Ywenduma aml ww a Walpirt. She had a tradilioni tribe] uobringing, perricinating in treditioral women's core monies and trevelliay imo the cousalpy !'o colleel bush cacher. in aevcoerdances with Aboriginal cunlemary law she ves Promised an marriage and, at aboul the age of 17, she went to her bucband as arrange ?. She found however that he already had anethern wire who wae a Pintubi aud whom she J2d aot know. This mit hay in a eco-wi-e otluarion with a woman "ho was neither e Sistcr nor a classificatury sister. Tn his Gonour's words, "the pesult was thet there were disputalions, there ware jealous furhrs, and aio war un wrihippy, dhichresoing gsvluation for her™, Al the same time the marpiege of her methes and father was alsa

unnad dy ang? vidleul After about ? ycirps of marriage, she left Yuendumu an* Leave lle d clrouwshoul tbe Territory, tfaleing up with a number

of wni'te ac. She moved to Darwin te 1980 end toale ur yegi.Jence

with a whites man. 'This pelatlonsnip continued until the time

OF Phe offenee. Ter Lifvestvle an Darwin was described by his Horour as

fringe camps, cueh as Low Dewn near lire Telford Hotel and Mindil Beweh, as well as ak hotels such as the Koala ant the Parap.

Her companions, im general, were orher Aboriginal and Turopean 1lineranlea™.

Ihe. respondent Sampson has a lorg hislorv of prior convictions song Lack to 197L. They are clechol re_.ated offences - drunkenness, Lighting in a public place, larceny, disorderly Lehaviour, objeclronable words and malicious damape.

Rhela Waeraviaiva was, at the time of her conviction, 7 years of age. Shs vas born at Angurugu on Groote Lylondt. She vas educalecd lo aboul the age of 15. After she left school che began te learn tu leach pre-school childrei but soor abandoned this work.

Arool. Ryland), nes Wonaur was told, hes been preaily alleel) d by mining whieh hag led lo a brealing down of [ne _raditional lifestyle and sevial relarionchips of the Aboriginal neople There. The iplroduetien oF alcohol has accelerated thr proeess. The marriage csvslem ha. al® but oroken down. As 4

vesult il was difficull to get a clear picture of the

responuent's background and upbringing. She 1s not married but ste 1 Phe mether of * Jaughteres who, at the time of her corviction, were are. J3 and 6. The elder girl was born in

Darwin and her fath-p 16 a ehite man. The Father o1 tne you iger

piv! 16 an Aboriginal a! Gove. Sinee shorlly after their

bigths, Vath yids fave been cared Car by the respondent's cldest sisler.

Rhoda Wurpravilya began drsnking at about the age of 16 and from £8 anwards was a regular drinker, obtaining

her money end drink Crom male companions. Tt seems thai

she ame too live aa Darwin nok lone afler January 197

toal, up ween a while man but, as a result of repeated besaiays, che JTeft him and went te live at Bagot Reserve

ard the Arafura Hoete lL. Later whe returned to Live with this Man and continued lo do so until the tame ef the offence. Her existence was deseribed Loa the courl in the pre-sertence peport of a fiacldad of freer an:

Woo ene topeledy pevedved areund obtetiming and drinvaing alveohol.

Yer re atsonships apoear lo have been founded upon the aeeessibilicy of aleohol and the tikelihood of oLlaining maney Por the purpose ef purehasing aleohol".

This rer omlent too hac oe history of offences, gona Maes to 1971. Some pelite lo of fenecs against! property such as Jarceny and beine unlavefully on peemises, many relate to

The roisvondent Ugarre Uerbert was born al Lajamanu anc was, ar the Time of Fow conviekioi, ?1 years of age. Like

Pome ta Samoesen, she i ov val prrei. She lives at haqamenn unkt! Jie owas abeur lf. Ter ubbringing was on traditional Jines. She lived tn a family camp with her brothers and sisters and women

of the Ualamerra aibewection who elood ta the relationsh_v of

mevrep Fo hor. They laughh her io haat and about her country.

She cook parl in women's eeremonses and was present at

inqirialion eacrononies ar which women have certain roles to

When ubout LO or J] the respondent wenl to ai old bP]

maa ay iis scoond wife pursuant bo sume arrangement. This

did not necessarily involve any sexual] relationship at thai

age. The arrangement wis nok a happy ane and the resnondent 8 2

raooeaweay Crom her husband (rom time to Lime. 'Tunis in turu Jed to tension in her own family. Uer mother insisted she return to ber husband. [ler unele told her she dic not have ro Lecause hem husband had already conlractec unm unproner

marriage and she did not have to stay with such a man.

mas about 15, oblaiiming an elucation equrvalent to year ¢ poet upimairy devel. he wag dese wibed as Inviting a mea' ol Capacily well above average, ays haviny a "very high inlbelliccnee™.

hake ain 1978, when she vas about 16, "Isaire Hersorl

run away Lrom Lajyan int dau came fo Papwin. 3ne hed 3 hal*-

sisters living them. She soon vecame a peguiar drinier, eventually irioikins every day ard geting "Cull drurlk" every night. Cho began a lang List of seal eolavionsh'ps whieh

conmbiauea uw o the time of the offenee. She has tates prior

conviclions (ottectionable words, larceny and drinking 17 8 cublic plaee) but |hev were considered by his Horour to be

Io wan tne Crown's submission that the res»yandents had Celiberaitely chosen rhein lifesrvles and, by imp'tivatien, Ihat & eons ideralton at -hese lifestyles should play ne nort du Lhe senlencing vroeees. We reyeet this anproach ag an oversimplification.

Tach of the respondents had, when quite yourg, left Mie Aborigine) communtiy ai whieh one lawl been raised. "he

eeasequcnen Of thio wae teserpaibed by hes floneuy an tre followans

"No Tanger do they have tae cuppert of their famities and tne eclose- vViit, complex network of relation- shing that characterise sboriginal fsociely - polationships that not anly protec. them from urecdue vhysical vioLence but also that consor their moral cotecuct. Trom Tocappertive Femily envirenmer'

Chey nowe inlo an environment of eereulrably tintivicddel redlatton. has In which they are Fheown on their

Wl recuvrees which are quite Theb quabe Lo eap. wetbh such relatlotsuninos. Furthermore, the relulionoships thet they do form dre offen ta bh alher aboriginal opie in a similar situation to (hie msclvces, and with the derelicts Of while foun fy who were described to me os 'deros! and while tra thet

lLowas 'Qe poaptreular ¢tlyualion of the vresponcents

Thal, 1172 many other Aboriginals, they had left the suppor!

'he positive supner: end guidance white sottely hos to offer. As his Honour no1ited

Ther oly ad! Ol an ferlanate , derroevweel members of "he community el ody wea elton see im Lhese rouere, Tor, in Their vac 5, there dnt Feanseau meal dimeracian of Ui ie eum die pen. 3c one on the cullure y the reaulitions., tha bobo bey bam reeste gun tow bP btes ee re Coo re | Bosal) 2 DeOnLe That ety Ure chute 1s | my ine, IN eorpen. The teoesu. fo a6 Lhew som) Fie tas fo othoew Pimbo. bey

nce before the Tcarnes trial Judge. teat) Him tor wh Phese eaatluciens me the ratbers ls wabaehoe beve jack pefergped vere molevent eons tucralions io determining what sentenees rcre ust aud proper.

The Tearned trial judge pointed oul tait "drankerar]e ss as nel normally repcrded as a mitigctine faelor". Rut this

WAL NOC A cage Moapely Of persons committing offences iollowir

an Gplecde Got heave: grinsing. There was cvidence thay Pam-ta Sar son aml Rhoda Wurrewilya wore alcoholics to tne degree tra" they hie e per eased epreedes of delavium tremens. An bhough Weraie Herbert had nec poached 'hal stage, she was nrecubtealy = heavy driaker. It was ir thay context that his Honour cate he didi net om gerd the offence as "coldly preeomeditabed". Agais, that was oe conelusio1 his Honour wis onmbartal go peach and, hawing reasiea! rf, lo give 1t seme wejyoht in the sentenees he Lhought qust and praccr.

hese tia aloe matetial before his Monour estitline bin © cone@lude Fheak Loe eipcunsceness of the respondents had spo2uced "severe emabional cis ress". This vas a nal*er he

tas entill)d te Fare into account. Neal vo F. (1987) 42 ALP

Bis Honour rejected a submission made on bchaif of one of the vrespondenls that there was native law or custom tnat might be scald to have Justified o> in some way cortributed to the offences. As the respondents were not called upon in this appeal, this 's e matter on vhaion vo need express no view.

There is nothing in what his Honour said which persuades us that he did not do as he was commanded by sub-s.6(1C)

of the Criminal Law Consolidation Act and have regard to "all

the circumstances of the case". Nor do we think that he took into account extraneous circumstances or gave undue weight to some matters or insufficient weight to others. His basic task was to balance the gravity of the crime and the need for punishment of the prisoners and the protection of the public

with the spec:tal considerations applicable to the prisoners

both as Aboriginals end as andividuals. That task was faithful.y undertaken ané uxsecuted. The result was a sentence for eacn

~pisoner woich exsused her ce a maximum of something ir. excess

or 14 vedys imprisonpent trom the timc when che was farsi placea up cuscody with a seriod of nearly 8 vears impr2zsonment before she becomes ¢liigibl<e for parole. In our opinion, although the offence was a bvutel mirder, those sentences were not "in all the circurstarees" inadequate.

Accordinglv, we were of opinion that the appeals should be dicmiesca

yagoc ape a true conz of the Reasons fon Judgment herein of Tre Couet.