R v TJAMI No. SCCRM-99-270 [2000] SASC 311

1 PRIOR J: I agree with the reasons given by Justice Nyland. The appeal should be allowed, the sentence imposed set aside and that proposed by Her Honour substituted.

2 DUGGAN J: I agree that this appeal should be allowed for the reasons given by Justice Nyland and that the sentence proposed by her should be substituted for that imposed by the learned sentencing judge.

3 NYLAND J: This is an appeal against sentence. The appellant was charged on information with the murder of his wife, Carol Yaltjanki. Upon his arraignment, he pleaded not guilty to the crime of murder but guilty to manslaughter. That plea was accepted by the Crown. On 16 November 1999 he was sentenced in the Supreme Court to imprisonment for a period of 12 years with a non-parole period of ten years. The appellant now appeals against that sentence on the ground that, in all of the circumstances, it was manifestly excessive.

4 The appellant and most of the witnesses were intoxicated at the time of the commission of this offence, as a result of which the circumstances relating thereto are not entirely clear. The learned sentencing judge, however, described these events in the following way:

"You were in prison for three weeks in December and early January, and so was Carol. She was released before you and a bus ticket was arranged for her to go back to Blue Hills. The idea was that you would follow as soon as you were released. Indeed, you were waiting for the bus to go home when you found out that Carol was still here in Port Augusta. She was drinking and, you suspected, had taken up with another man. You found her and spent a week trying to make her go home. She refused and hid from you. You found her at Davenport or in the fringe dwellers camp there. She was drunk. You were drunk. It was night. You had a row. You hit her. She defied you. You kept hitting her."

5 The judge went on to describe the injuries inflicted upon the victim which included 18 lacerations to the scalp inflicted by a piece of metal chair leg, cut and bruised limbs and the loss of three teeth. The metal chair leg had been jammed against her body at least nine times, causing bruising. There were 14 slash marks to various parts of her body caused by a piece of broken glass and the appellant had violated her in the anus with a stick.

6 The judge, understandably, therefore described this as a "most horrible cruel crime ... committed out of rage at her defiance and out of your jealousy". In the course of sentencing submissions, the Crown prosecutor submitted that this was a crime of manslaughter at the upper end of the range of seriousness, and counsel appearing for the appellant did not dispute that was the case. In the course of his sentencing remarks, the judge referred to the plea of guilty and indicated that he would give the appellant credit for it. In the course of submissions, the judge was referred to the decision of Wood J in the case of R v Fernando (1992) 76 A Crim R 58, wherein are set out a number of principles pertinent to the sentencing of Aboriginal offenders. The learned sentencing judge said he agreed with those principles and would try to apply them in fixing sentence but then said "[y]et no-one, whatever his race or background, should do what you did, and a person, whatever his race, should be punished severely for what you did". He then imposed the sentence to which I have referred.

7 On the hearing of this appeal, Mr Mead, who appeared for the appellant, did not resile from the seriousness of the offence. He submitted, however, that the learned sentencing judge had failed to give adequate weight to the personal circumstances of the appellant and the effect that those circumstances had upon the determination of the appropriate sentence. Mr Mead described the appellant as a tribal Aborigine who comes from a settlement called Blue Hills which lies on the Aboriginal Lands to the far north of South Australia (almost 1,000 kilometres from Port Augusta). The appellant is now approximately 33 years of age and has had an underprivileged upbringing. He has received little education and has undertaken little employment. For the most part he is unable to speak or understand English. Intoxication was a significant factor in the commission of this crime. Both the deceased and the appellant were under the influence of alcohol during the hours leading up to the death of the deceased. Abuse of alcohol was part of the lives of both the appellant, the deceased and the community in which these events took place. The basis upon which the plea was entered and accepted by the Crown was that the appellant's level of intoxication was such that he did not intend to kill the deceased or inflict grievous bodily harm.

8 Mr Mead referred to the decision in Fernando (supra). In that case, Wood J, of the Supreme Court of New South Wales, had the task of sentencing an Aboriginal man who had pleaded guilty to one count of malicious wounding with a knife. During submissions, counsel referred his Honour to numerous authorities, reports and papers which discussed the sentencing of Aboriginal offenders. Wood J gave a summary of the propositions emerging therefrom which I respectfully adopt (at 62):

"(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.

(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."

9 The propositions listed by Wood J do not, nor do they purport to, alter the sentencing process which is to be applied to Aboriginal offenders. Rather, the propositions reaffirm that the same sentencing process should apply to all offenders. This does not, however, mean that sentences are simply applied rigidly. Sentencing is a flexible process and there are, therefore, many considerations of aggravation and mitigation which the court may and should take into account when reaching a decision as to an appropriate sentence. In carrying out this exercise, a sentencing judge needs to be sensitive to the fact that there are particular mitigating factors which might apply more readily to Aboriginal offenders. The matters set out by Wood J are therefore a useful guide to be borne in mind in such cases.

10 As Perry J said in Police v Abdulla [1999] SASC 239; (1999) 74 SASR 337 when considering an appeal with respect to a sentence imposed upon an Aboriginal woman, who pleaded guilty to charges of breaking and entering, offensive language and resisting a police officer (at 342):

"In R v Fernando, Wood J identified a number of propositions which should be taken into account in such cases. I do not think that they have so far been given appropriate recognition. His judgment is a most helpful reminder of many considerations which are often overlooked. Some of his comments are as to crimes of violence, but the general thrust of his observations is applicable to the sentencing of Aborigines generally." (footnotes omitted)

"That incarceration is a form of punishment which is foreign to Aboriginal customary law does not mean that imprisonment should be dismissed as an option for Aboriginal offenders. But a recognition of the debilitating affect on Aborigines of this form of punishment must be given sensitive consideration, even although it must be weighed against the need to provide protection for the community and the necessity for specific and general deterrence."

12 Although in this case the learned sentencing judge indicated that he proposed to apply the principles enunciated in Fernando, Mr Mead submitted that the statement made by him immediately thereafter, disclosed an error in the exercise of the sentencing discretion which warranted intervention by this court. Mr Mead conceded, however, that it was difficult to identify a specific error in the balancing exercise carried out by the judge, particularly bearing in mind the brevity of the sentencing remarks.

13 It may be that all the sentencing judge intended was to highlight the objective seriousness of this crime, which thereby called for the imposition of a significant sentence. That was clearly correct. Nevertheless, the manner of expression used by the judge suggests that he did fall into error by sentencing on the basis of the objective seriousness of the offence to the exclusion of significant mitigating factors, such as those enunciated in Fernando, and thereby imposed a sentence which was manifestly excessive. This is supported by the length of the sentence which was imposed, namely, imprisonment for a period of 12 years with a non-parole period of ten years, after giving the appellant a discount for the plea of guilty. The sentencing judge did not, however, indicate the amount of the discount. This court has, on many occasions, referred to the need for sentencing judges to specify the discount given for a guilty plea: R v Harris & Simmonds [1992] SASC 3624; (1992) 59 SASR 300; R v Smith (CCA, 10 December 1991, SASC S3178, unreported). The failure to do so is not, of itself, an appealable error, but as King CJ said in Seagrim v R (CCA, 9 December 1994, SASC S4888, unreported):

"If the judge does not say how much discount has been given, it is difficult for this court to judge whether an adequate discount has been given. In the present case the sentence imposed by the learned judge is a severe sentence. The severity of the sentence is such that it gives rise, in my mind, to some doubt as to whether the learned sentencing judge could have made a discount, or at least an appropriate discount, for the plea of guilty. In those circumstances, I think that this court must act upon the basis that the sentencing discretion has miscarried and must therefore look at the appropriate sentence afresh."

14 On the assumption that in this case the sentencing judge gave the appellant a discount of about 25% for his guilty plea (this being the approximate discount suggested by this court as appropriate: Nixon v R (1993) 66 A Crim R 83; R v Kendall (CCA, 16 May 1997, SASC S6084, unreported)), the starting point for this sentence was in the range of 15-16 years, with a non-parole period of 12-13 years.

15 Ms Barnett, who appeared as counsel for the DPP on the hearing of the appeal, conceded that the present sentence was high. She submitted, however, that the circumstances of this case which involved a brutal beating, leading to the death of a young woman for reasons only of jealousy and because she chose to defy the appellant, required the focus of the sentence to be upon general and personal deterrence as well as the protection of the community. In the course of argument, both counsel referred the court to a number of sentences imposed for the crime of manslaughter. In reliance upon the statistics prepared by the office of crime statistics, Mr Mead argued that sentences of the magnitude of that imposed in this case were uncommon. Of 58 cases of manslaughter recorded between 1991 and 1998, only two showed a head sentence of more than 15 years, and only six cases show a sentence of between ten and 15 years.

16 However, as it is so often said, there is no established tariff for the crime of manslaughter, due to the fact that such cases cover a wide spectrum of criminality. It is, therefore, difficult accurately to compare the sentence handed down in this case with the totality of manslaughter sentences. A case in which the facts do appear to compare with the facts of this case, is that of R v Shinner (1993) 173 LSJS 384, which is included in the respondent's list of authorities. In that case, King CJ described the facts in the following way (at 387):

"The crime involved kicking a helpless drunken man to death. It must therefore be viewed seriously. It is saved from being the crime of murder only by the absence of a proved specific intent to kill or do grievous bodily harm. There was nevertheless an intention, formed in a state of self-induced intoxication, to punish the deceased by multiple kicks to the body."

17 King CJ (with whom Millhouse and Debelle JJ agreed) then indicated that in his opinion the appropriate sentence was imprisonment for 12 years with a non-parole period of ten years. Curiously, this is the identical sentence imposed upon the appellant. Shinner, however, was found guilty after trial and was therefore not entitled to any discount. In addition, that sentence was imposed at a time when a scheme of remissions applied. The sentence in Shinner was therefore comparatively less severe than that imposed on the appellant. In any event, each case must be assessed according to its own factual circumstances and the circumstances of this case required the court to impose a severe sentence. In the absence of any mitigating factors, the objective seriousness of this crime may well have justified the starting point for the head sentence of up to 15 years. There were, however, substantial mitigating factors which the judge was obliged to take into account in determining an appropriate sentence.

18 In the course of identifying those matters on appeal, Mr Mead referred to the issue of life expectancy and tendered some statistical information to support the assertion that Aboriginal people have a significantly lower life expectancy than non-Aboriginal people. For the purposes of the present appeal, this court is able to accept that as an established fact. Mr Mead submitted that the lower life expectancy of Aborigines may be taken into account when sentencing an Aboriginal offender. He argued that such an approach was consistent with the cases of R v Smith (1987) 44 SASR 587 and R v Spinotti (1996) 67 SASR 244. I do not think that R v Smith necessarily supports this proposition. In Smith the court was presented with fresh evidence relating to the prisoner's medical condition, namely a diagnosis that he suffered from AIDS. King CJ said (at 589):

"The conclusion which I would draw from the evidence in the present case is that there is a substantial risk that the stress associated with a further period of imprisonment will cause some deterioration in the condition which afflicts him."

19 It was upon the basis of the impact of prison upon the appellant's health, rather than the reduced life span that the court reduced the appellant's non-parole period. The remarks made in the case of Spinotti are perhaps more relevant. In that matter there was fresh evidence relating to the appellant's advanced AIDS condition. The court applied Smith in fixing a new parole period, but the court noted that the fresh evidence relating to the appellant and his wife's significantly reduced life expectancy was one of the factors which required the court to take a compassionate approach on appeal. This court must, however, be wary of reducing sentences on the basis of broad generalisations alone. In any event, in this case, the submissions as to life expectancy were not put to the sentencing judge, although Mr Mead submitted that it was a matter which arose indirectly out of the Fernando principles. Mr Mead also referred to some medical evidence concerning the appellant's mental health which was contained in a psychiatric report from Dr O'Brien, a psychological report from Dr White, and a neurological report from Dr Kneebone. Those reports are in the form of preliminary assessments and all comment on the need for further testing if any accurate conclusions were to be made. Those reports overall are inconclusive. They also were not before the sentencing judge and are therefore of limited assistance in resolving the issues for determination on this appeal.

20 In my view, the significant matters for consideration are those raised by Fernando, as well as a number of other decisions which deal with issues such as alcohol abuse and the effect of imprisonment upon Aborigines. As Perry J said in Ingomar v Police [1998] SASC 6875 when reviewing the relevant authorities, including Fernando:

"So that there is a considerable body of authority borne out of the experience of the courts, pursuant to which the courts are prepared to recognise as a mitigating circumstance, the disadvantageous position of Aboriginal persons with respect to the criminal justice system. In particular the allowance which must be made with respect to offences of violence which are a product of abuse of alcohol which so often accompanies their existence, living as they are in economically deprived circumstances.

It is equally clear from the authorities that the effect of imprisonment upon an Aboriginal person is a matter to be taken into account whenever imprisonment is being considered as a sentencing option."

21 As I have already mentioned, the issue of intoxication is one which looms large in this case. This topic was referred to in R v Daniel [1997] QCA 139; (1997) 94 A Crim R 96. In that case, Fitzgerald P although in dissent, helpfully reviewed the cases in each jurisdiction which have looked at the cultural considerations in sentencing Aboriginal offenders, particularly the prevalence and tolerance of alcohol and violent crime in Aboriginal communities. It is unnecessary to re-examine all of the cases considered by Fitzgerald P but the most relevant in terms of alcohol abuse in Aboriginal communities would appear to be R v Rogers (1989) 44 A Crim R 301 and R v Juli (1990) 50 A Crim R 31. I think, however, it is sufficient for present purposes to comment that those cases support and re-affirm the proposition contained in para (E) of the propositions set out by Wood J in Fernando.

22 It is obvious nevertheless that not all Aboriginal persons or communities have problems with alcohol abuse, and it would be offensive to suggest otherwise. Hence it is important to emphasise the need to consider the subjective circumstances of the offender in question. This point was recognised by Kirby ACJ in R v Russell (1995) 84 A Crim R 386 who, after recognising the concerns raised by Fernando in relation to sentencing Aboriginal offenders, said (at 392):

"It is important not to romanticise or generalise the issues and problems faced by someone of that ethnicity. Aboriginal Australians, like any other group within the Australian community, are not homogenous. Every person is a product of different circumstances. Although there are certain matters of more pressing concern to one group over another, it is dangerous to suggest that these problems extend to all members of that community."

23 In this case, however, alcohol abuse played a significant part in the commission of this crime. Notwithstanding that matter, a close examination of the appellant's antecedent report suggests that overall while remaining on the Lands, the appellant had stayed out of trouble. It was only on occasions when he left his traditional home and travelled to places such as Indulkana or Coober Pedy that he would drink to excess and associate with other people who abused alcohol and get into trouble. That seems to have occurred only about once per year after 1991.

24 The other significant issue which the court was obliged to take into account in this case was the effect that imprisonment would have upon the appellant as a tribal Aborigine. It is well established that imprisonment is generally a very negative experience for Aboriginal persons, far more so than for non-Aboriginals (see the report of the Royal Commission into Aboriginal Deaths in Custody Vol 3, Chapter 25 at 304). This is also clearly stated by Wood J in Fernando at para (G).

25 In this case, the appellant speaks and understands little English. He has received little education. He has spent most of his life on the Aboriginal Lands in a traditional Aboriginal setting. He is clearly someone who has had limited experience of European ways. Prison for the appellant will be a completely foreign environment populated by inmates and prison officers with whom he will not be able to communicate effectively, and who have "little understanding of his culture and society or his own personality." The Port Augusta prison is nearly 1,000 kilometres from his home lands, which will contribute to feelings of detachment and make it extremely difficult for the appellant's family or friends to visit. Inevitably, prison will impact more harshly on the appellant than it would on an offender from a non-Aboriginal community.

26 Having had regard to all of these matters, I am of the opinion that the learned sentencing judge, in his desire to impose a penalty appropriate for the commission of such a serious crime, failed to give sufficient weight to the personal circumstances of the appellant and therefore imposed a sentence which in all the circumstances was manifestly excessive. As a result, this court is obliged to intervene. This was, however, a brutal crime carried out in a domestic setting. It does require a substantial sentence to reflect elements of both personal and general deterrence. The sentence must also, in so far as it is possible to do so, reflect the fact that violent crimes in Aboriginal communities are not considered as incidents of little moment, and that members of those communities are entitled to the protection provided by the criminal law.

27 In my opinion, the appeal should be allowed. I would give a discount of approximately 25 % to reflect the plea of guilty. I would impose a head sentence of 10 years with a non-parole period of six years, both of which should commence from 15 November 1999.