HRNG
DARWIN, 16 April, 7 August 1996 (hearing), 24 October 1996 (decision)
#DATE 24:10:1996
#ADD 18:2:1997
Counsel for Crown: Mr M Fox
Solicitors for Crown: DPP
Counsel for accused: Mr M Robinson
Solicitors for accused: NAALAS
ORDER
Publication of reasons for judgment.
JUDGE1
MARTIN CJ
- Jane Miyatatawuy was convicted upon
her plea of guilty for
that on 6 October 1994 at Palmerston she unlawfully caused
bodily harm to Ronnie Barramala. That offence
carries a
maximum penalty of 5 years in gaol. Ronnie was and remains
her husband. It is not an element of the offence that she
intended to cause that harm.
- I ordered that she be released upon giving security in her
own recognizance in the sum of $1000 that
she will appear
before the Court if called upon to do so during a period of 18
months from the date of sentence, 7�August 1996, conditioned
upon her being of good behaviour during that period. Upon
committing the offence she breached a bond to be of good
behaviour arising
from an earlier assault upon her husband. I
ordered that no action be taken in respect of that breach. I
had no doubts as to the
proper course to take in relation to
the accused, but due to the then prevailing circumstances said
reasons would be given later.
These are those reasons.
- The circumstances of the offence are straightforward
enough. The offender, her husband and some other
friends had
come into Darwin from Milingimbi to attend the Umpires
football carnival. During the journey the group stopped at
Corroboree
Park Hotel, South Alligator Hotel and Coolalinga
and beer was purchased and consumed. They all ultimately went
to an address in
Palmerston, and it was decided to have a
party there involving singing, dancing and more drinking. The
offender was observed to
be arguing with her husband, the two
of them intoxicated. A witness saw her with a blue or green
handled knife in her right hand,
a knife which her husband had
seen in her bag earlier that day, and she was seen to raise
her hand and stab her husband in the chest.
He ran away, but
collapsed, and when taken to the Royal Darwin Hospital by
ambulance was found to have a stab wound to his chest
and a
laceration of the biceps area on the right arm. The stab
wound to the chest had punctured his lung and he had to remain
in
hospital for several days. The police spoke to the
offender at Palmerston, the knife was found in her bag, and
when analysed, was
found to have her husband's blood on it.
She was arrested and taken to Berrimah Police Centre, and when
questioned indicated she
did not wish to answer any questions.
That, of course, was her right.
- Before the Court, she expressed remorse through her counsel
as well as having pleaded guilty. She was unable to give any
particular reason as to why she stabbed her husband on this
occasion.
She did not think it was because of any ongoing
anger arising from his having gone with another woman, which
was the cause of her
first assault upon him. Her husband
thought it may have been because he was humbugging her family
for money.
- She first came before
this Court in relation to a charge of
causing grievous harm in early February 1995, and at that time
indicated that she was seeking
to have a trial, but due to
difficulties in obtaining trial dates, it could not be set
down for hearing until 2 April 1996. There
were variations as
to date, and on 16 April she pleaded guilty to the present
charge on an indictment of that date, and a pre-sentence
report was then ordered. It took some weeks for that report
to be prepared and it was published on 18 June. A date to
continue
the plea was then fixed for 7�August. The offender
had been on bail since the offence.
- The offender was born on 2 May 1959 at
Milingimbi and spent
most of her life there. She went to school in Nhulunbuy, and
although her mother and father both died when
she was an
infant, she said she had a happy childhood growing up with
other members of the family. Milingimbi is an alcohol free
community with a strong Christian fellowship and she was part
of that community's life and lifestyle. In 1977, or
thereabouts, she
fell pregnant to the man who later became her
husband. She was unable to marry in the Aboriginal way until
many years later. There
was delay in that because of
traditional rules which meant that the two of them could not
marry as wished. In the meantime the two
of them lived apart,
although she left Milingimbi at various times to go and be
with Ronnie, but her family brought her back to Milingimbi
time and again.
- In 1981 the two of them came to Darwin and obtained
employment whilst taking up a relationship as husband and
wife. Unfortunately, it was during this period that she took
to drinking alcohol, on occasions to the stage when she was at
risk
of alcohol abuse. Her husband was also affected and both
underwent an alcohol recovery programme in 1985. It seems
that it was
the heavy drinking which placed the greater strain
on the partnership. Over time, as a result of traditional
aboriginal business,
her husband became accepted by her
family, and is said to be now a recognised and respected
person for both their respective clans.
- Notwithstanding that that possible element of difficulty
between the offender and her husband had been overcome, she
was convicted
of assaulting him and causing him bodily harm in
May 1994 and sentenced to a period of imprisonment of 15
months suspended upon her
entering into a recognizance to be
of good behaviour for a period of 18 months. It was whilst
under that undertaking that she committed
the offence on 6
October 1994, that is, after approximately 5 months.
- The prosecutor tendered a written statement by the
offender's
husband. He was called to give oral evidence under
oath by counsel for the offender. He confirmed that the
statement was his and
that the contents were correct. Without
going into all the detail the statement sought to have the
Court refrain from sentencing
the offender to prison for this
offence or committing her to prison for breach of the bond.
If she was imprisoned he feared that
the marriage would be
destroyed in the eyes of the aboriginal community. Further,
he asserted that she had already been dealt with
under
aboriginal customary law. He claimed that there had been
several meetings between the Milingimbi, Ramingining and Gatji
community
clan groups to discuss the circumstances of the
offence and possible resolutions. A range of resolutions were
discussed including
"Makarrata or payback" (as he described
it) involving death or spearing through the thigh, but the
final outcome was that that would
not take place. He said
that during the meetings the offender had to face all the
clans and families concerned under distressing
conditions.
While the meetings were taking place (I gather they were
spread over a period of time), the two of them decided to go
to the Gatji outstation, which is a dry community. They lived
there for some time and successfully overcame the problems of
alcohol.
He went on:
"As far as traditional law is concerned everything has
been settled and finished .... If traditional law has
resolved this issue, why can't balanda law respect this?
After all, it is under the customary law that my wife Jane
and
I live, and will continue to live. This system has
already decided that the issue is finished .... If the
prosecution proceeds,
not only does it discredit our
decision to deal with our own problems according to our
cultural law, but Jane would be tried
twice for the same
alleged offence. To me, this does not seem fair. Any
person not living under customary law would not be
subjected to two trials for the same offence".
- (In the context, the references to two trials must be
taken to mean two penalties).
He also pointed out (more than
once) that as an elder of the two clans he would be subjected
to punishment if he did not uphold
and protect the decision
already made by the interested families and elders regarding
their cultural values and law. The general
effect of the
discussions and resolution was that the offender has been, as
the prosecutor put it, "under a form of cultural good
behaviour bond during those two years ... under the observance
of the whole community".
- In his oral evidence Mr Barramala said
that the settlement
had been accepted by members of his family at meetings
organised by his two mothers and attended by other women.
He
confirmed that he and the offender were now living happily
together and both had stopped drinking alcohol. When cross-
examined
by the prosecutor he said that those taking part in
the discussions were aware that this was the second time the
offender had stabbed
him, and that he had suffered serious
injury.
- I was favourably impressed by Mr Barramala as a man
prepared to stand by his wife,
and continue to love and
support her. Further, he was very much genuinely, if not
passionately, concerned that this Court should
take notice of
the resolution of the problem, not only as between the
offender and himself, but also as between the members of the
relevant community or communities of people, their respective
families and clans.
- The Court also received in the offender's case,
without
objection, a written statement from the victim's two mothers.
A satisfactory explanation was given for their absence from
the hearing. They also referred to the settlement, noting
that the offender had cared for her husband for a long time
and that they
were still living happily together. They
asserted that she had already been dealt with through their
law. They said that as the
victim's family they "Respect her
now because we now see her she has earned her Respect back
through Wisdom, Adaptability, TRUSTWORTHINESS,
INTEGRITY".
There was appended to the statement documents containing the
names of about 140 people who, according to the two mothers,
were members of the victim's families "supporting Jane
Miyatatawuy".
- The pre-sentence report refers to a family meeting held
at
Milingimbi for the purposes of preparing the report, and says
those present were anxious to point out the importance of the
matter
having been settled in the traditional way. The report
confirms that notwithstanding some difficulties in the past
with alcohol and
other problems, things have settled down
between the offender and her husband. They were taking a
leading role in religious and
other worthwhile activities at
Milingimbi, which remains a dry area.
- It may well be that this offence would not have taken
place
had not the offender and her husband had far too much to
drink. So far as her drinking was concerned, it seems that
she was not
a regular heavy drinker, but a binge drinker, that
is, someone who rarely drinks, but when they do they drink to
excess. Drinking
alcohol has now ceased. There had been a
variety of tensions between the offender and her husband over
the years, but both successfully
tried to sort out the
problems, together and with aid of their respective
communities. They were reconciled to each other. There
had
been the customary law process in which the repercussions of
the assault had been dealt with to the satisfaction of the
communities,
and as between the offender and victim. They
were well settled into the Milingimbi community in which the
temptations of liquor
are removed, and playing a worthwhile
part in the life of the people who live there.
- The offender had a very good employment
record in respect
of periods when she was not devoted to home or domestic
duties. She had worked as a social security agent performing
general administrative tasks, similarly, with the Milingimbi
Outstation Resource Progress Association, as a trainee
secretary with
the Uniting Church and was employed for about
three years at the Gordon Symons Centre. At the time of the
plea she was involved
in computer technology with the
Traditional Credit Union at Milingimbi, a position which she
had held for about a year. Her employer
spoke highly of her.
- Although this offence took place in October 1994, the
offender is to be dealt with under the regime established
by
the Sentencing Act 1995 (NT) which came into operation on 1
July 1996 (s130(1)). Apart from the significance to be given
to a
plea of guilty (s5(2)(j)), the Sentencing Guidelines in
s5 appear to be a codification of the general principles of
sentencing developed
in the courts. As to the significance of
the guilty plea, it had been the position in this jurisdiction
prior to 1 July 1996 that
it was only relevant if indicative
of remorse (David Dixon Jabaltjari (1989) 46 A Crim R 47). It
is clear from the Attorney-General's second reading speech
however, that where a person enters a plea of guilty it may
not only
be regarded as an indication of remorse, but may also
to be taken into account because it may result in significant
benefits to the
criminal justice system, and lengthy trials
may not be necessary. The weight, if any, to be given to a
plea of guilty remains a
matter within the discretion of the
Court in all the circumstances of the case.
- The matters referred to in s5(2) provide a helpful
check
list of the matters to which the Court is to have regard.
Given that obligation, it is encumbent on the parties to
provide
all the required information. Adopting what was said
by the Court of Criminal Appeal of New South Wales in Blanco
Bello Ferrer -
Esis (1991) 55 A Crim R 231 in relation to the
equivalent provisions of the Crimes Act 1914 (Cth), it does
not seem to me to be necessary for the Judge to specifically
refer to each of the enumerated matters when explaining
the
proposed sentence in any case. However, where there is a
particular feature of the case arising from the facts or law
to be
applied in the sentencing process, then it should be
particularly dealt with, just as it would have been at common
law. In that
way it is made clear that the sentencing
tribunal has not overlooked the issue.
- This Court has said time and again that the use
of any
form of weapon during the course of an assault is regarded as
being an aggravating feature. Here it is not alleged that the
offender intended to cause grievous harm to her husband, but
there must always be a high probability of it occurring when a
weapon,
particularly a knife, is used on a person. There was
no explanation as to why the knife was being carried, but in
the experience
of the Court it is not at all unusual for
aboriginal people to be in possession of a knife. It is not
suggested that the weapon
was carried for the purpose of a
premeditated assault. The circumstances were further
aggravated by the fact that the offender was
under a bond to
be of good behaviour which had been imposed just five months
before for a similar attack on her husband. She was
shown to
have a dangerous propensity and the question therefore arose
as to whether it was appropriate to impose condign punishment
to deter. (See generally Veen v The Queen [No. 2] [1988] HCA 14; (1987-88)
164 CLR 465).
- A most significant circumstance bearing upon the sentence
was that concerning the resolution or settlement of matters
within
the relevant aboriginal community and the integral
rehabilitation of the offender. In Walker v The State of New
South Wales [1994] HCA 64; (1994) 182 CLR 45 at 50 Mason CJ. said that the
customary criminal law of Aboriginal people was extinguished
by the passage of criminal statutes of
general application.
However that may be, it seems to me that facts and
circumstances arising from this offender's aboriginality
remain relevant. (Brennan J., Percy Neal [1982] HCA 55; (1982) 7 A Crim R
129 at 145). They arise from the operation within aboriginal
communities of practices affecting her. The Courts are
entitled to pay
regard to those matters as relevant
circumstances in the sentencing process. For the most part
the cases have had to do with physical
injury, inflicted or
anticipated to be inflicted upon the offender, for example
Mamarika v The Queen [1982] FCA 94; (1982) 63 FLR 202; Atkinson & Another v
Walkely (1984) 27 NTR 34, R v Minor (1992) 79 NTR.1. However,
as shown in Munungurr v The Queen (1994) 4 NTLR 63, that is
not always the case. An obligation
undertaken or to be
undertaken to others which may assist in the restoring of
peace between the affected communities may also be
significant. As the facts in this case show, the offender has
accepted obligations, has been subjected to discipline, and by
so
doing has assisted in restoring the peace. She has
suffered a penalty analogous to that undertaken by entering
into a supervised
bond to be of good behaviour, and has not
failed in her obligation.
- I am not satisfied that the wishes of a victim of an
offence
in relation to the sentencing of the offender can
usually be relevant. The criminal law is related to public
wrongs, not issues
which can be settled privately. But here,
it was not so much the wishes of the victim that were placed
before the Court, but the
wishes of the relevant community of
which the victim also happened to be a leading member and on
behalf of which he spoke. Those
wishes may not be permitted
to override the discharge of the Judge's duty, but have been
taken into account as a mitigatory factory.
Similarly,
hardship to the victim, or other member of the offender's
family, which may arise from the penalty imposed, although
generally an irrelevant consideration, may be taken into
account. (See for example Nadeen Brenda Boyle (1987) 34 A
Crim R 202 and Ann Marie Tilley (1991) 53 A Crim R 1). Here
the potential hardship extends beyond the husband in his
domestic circumstances, it extends to many people, who in
aboriginal
terms may be regarded as an extended family, and
who may be adversely affected should the Courts not recognise
the significance of
what they have together resolved. It is a
matter to which I had regard as a mitigating factor.
- Rehabilitation of the offender
remains an important aspect
of sentencing going not only to changing the offender's
behaviour, but as well protecting society from
him or her as a
consequence. Here there is exceptional evidence of changed
behaviour. Alcohol has been abandoned, reconciliation
with
the victim has been achieved, and the offender has resumed her
place as a productive member of the community. To send her to
goal would serve no compelling social purpose (per Kirby P.
in Madonna Margaret Fabian (1992) 64 A Crim R 365 at 372) and
in the light of the evidence could well undo the good thus far
achieved. (See also s5(1)(b) of the Sentencing Act). Other
purposes of sentencing are adequately met, in the
circumstances of the case, by the disposition imposed.