Incorporating Aboriginal Customary Laws in Sentencing

512. The Distinction between ‘Recognition’ and ‘Incorporation’. As was pointed out in para 499-501, the range of ‘traditional punishments’ or ‘responses’ to violations of Aboriginal customary laws is extensive. Some such punishments would be illegal under the general law (whether or not the person at whom they were directed consented to them); others would be illegal in the absence of consent; some involve no illegality at all.[169] Where a punishment would be illegal irrespective of the defendant’s consent or any special power of the court to impose it, the punishment cannot be included in a sentencing order. Where the form of ‘punishment’ or settlement involved would not be illegal (eg community discussion and conciliation, supervision by parents or persons in loco parentis, exclusion from land to which a person has, in the circumstances no right of access), a court may incorporate such a proposal into its sentencing order (eg as a condition for conditional release or attached to a bond), provided that this is possible under the principles of the general law governing sentencing and (probably) that the defendant does not object. This was, in effect, what the Full Federal Court did in Moses Mamarika,[170] subjecting Mamarika to 4 years probation, with the intention that Mamarika spend at least 3 years away from his community, as requested.[171] This is only one of many such cases. A major problem is to ensure that the sentence does in fact reflect settled community opinion. The Commission has been told of cases where members of the particular community concerned were not consulted at all before an order of this kind was made, as well as of cases where the community changed its mind shortly after sentence. A court is likely to have little or no control over, and limited information about, the dynamics of any Aboriginal community to which such sentences are directed. This illustrates the need for care in making such orders and flexibility in their formulation. In particular it is important that any persons in whose care the offender is to be entrusted:

  • are appropriate persons having regard to any applicable customary laws (eg are in a position of authority over him, and not subject to avoidance relationships);

  • have been consulted and are prepared to undertake the responsibility.

513. Incorporating Traditional Punishments in Sentencing. Where the suggested or proposed punishment would be unlawful under the general law greater difficulties arise. A court cannot order or sanction such punishments, although it can take them into account as a fact. Courts have properly been concerned not to appear to ‘condone’ or tacitly encourage such punishments, both because of their illegality and because to do so might well distort the Aboriginal community processes involved, leading to the imposition of punishment under the mistaken impression that this is what the court required or expected to happen.[172] What constitutes ‘condoning’ is a difficult question, as the following judicial statements indicate:

The precise origin of the inter-tribal hostility which erupted and the precise details of what occurred during the day in question are uncertain. All that is certain is that the hostilities still exist and that whatever the outcome of these proceedings may be, the matter will not be settled and the hostilities will continue and will periodically lead to violence. This is, of course, not to say that the court approves of such things, but nevertheless it should be realistic and take notice of the position as it exists and will continue to exist for some time … Whereas I am certain that crimes, if committed, should be punished, it would be unjust to take no account of social or other pressures which exist ‘in aboriginal society. Whatever the outcome here it is virtually certain that if any of you return to Wattie Creek, at least for some time, you will be subjected to some form of payback.[173]

It is clear that your father was always the aggressor and said or, rather, shouted grossly indecent and provocative things to you just prior to the fight. You were urged to fight by your mother, who was also very drunk. Her involvement was such that the local community will see to it that retribution is exacted against her as well as against you. Her punishment will probably be a ritual facing of spears, and yours will probably be banishment for a period. The court neither approves nor disapproves these punishments, provided that they do not lead to any serious harm, but simply accepts that they will probably occur and takes them into account.[174]

I am told that you wish to be released and to be dealt with by your tribal elders and that whatever penalty I impose they will also punish you by spearing you for what you have done. I do not want to be understood as saying that I support any such action which is unlawful but I cannot overlook its probability and I must take it into account.[175]

A judge who takes into account the likelihood or inevitability of future traditional punishment as a matter of fact does not thereby condone it, especially so when taking such punishment into account occurs at the defendant’s request. As the Federal Court said in Jacky Anzac Jadurin v R:

It is sometimes said that a court should not be seen to be giving its sanction to forms of punishment, particularly the infliction of physical harm, which it does not recognize itself. But to acknowledge that some form of retribution may be exacted by an offender’s own community is not to sanction that retribution: it is to recognize certain facts which exist only by reason of that offender’s membership of a particular group.[176]

An accused’s willingness to undergo such a process may indicate his contrition, or provide an avenue for his rehabilitation within his own community.[177] But in the Commission’s view, judges neither can nor should order or direct traditional punishments to take place. This is so quite apart from their illegality, in some cases, under the existing law. Judges simply do not have insight into or access to the dispute-resolving processes in Aboriginal communities in a way that would allow direct delegation or authorisation of traditional punishment. Such punishments are not ‘rule-governed’ in anything like the way that sentencing under the general law should be, but are the result of a community process of dispute, discussion and reconciliation. Attempts to join or merge the two are likely to end in confusion and cross-purposes.[178] This view is supported by the (limited) Australian experience of attempt, to ‘delegate’ punishment in this way. With few exceptions, these attempts have been unsuccessful and, in some cases at least, counter-productive.[179]

514. Relevance of Aboriginal Ceremonies. Similar issues arise with respect to the relevance of Aboriginal ceremonies in sentencing. Here again a distinction needs to be drawn between taking Aboriginal ceremonial life and obligations into account in sentencing, and incorporating such obligations in sentencing orders. Ceremonial life is obviously an integral part of Aboriginal customary laws.[180] In taking Aboriginal customary laws into account when sentencing an Aboriginal offender, the importance of forthcoming ceremonies may be a relevant consideration. Difficulties can however arise. The court needs to determine the importance of the ceremonies concerned, the role that the Aboriginal defendant is to play, and the defendant’s attitude to the ceremonies, as the following cases illustrate:

  • In R v Peter Daniel Jagamara and others[181] 7 young Aborigines pleaded guilty to breaking and entering a supermarket. In determining sentence, Justice Gallop heard evidence from Mr Harry Nelson a community leader at Yuendumu, that the persons before the court were expected by the elders to attend ceremonies commencing the following month as part of the next stage of their initiation. Justice Gallop sentenced 6 of the 7 offenders to 6 months imprisonment but suspended its execution until after the ceremonies had been completed, a period of 6 months. The seventh person was sentenced to immediate imprisonment because of his particularly bad record. Sentencing the 6 offenders, Justice Gallop said:

Mr Nelson has urged upon me that if you go back to your tribe, back to Yuendumu, you will be participating in tribal ceremonies and you will be thereby increasing your status in the tribe and showing a degree of responsibility … I am going to give you a chance to do that. I am going to sentence you to a term of imprisonment, but I am going to order that you not go to prison provided you behave yourself for a period of six months … I have to have regard to what the community thinks, and if the people at Yuendumu are prepared to have you back, I am prepared to give you a chance to prove that you are worth being back there.[182]

Justice Gallop’s view in relation to the 6 he released appears to have been that imprisonment, despite the defendants’ previous records, was likely to achieve little, and that depriving each of them of the opportunity of participating in the initiation ceremonies could have a detrimental effect. The evidence suggested that giving the accused the opportunity of attending the ceremonies might have some rehabilitative effect, might instil in them a greater sense of personal and community responsibility, and thus have important effects on their status within their community in the longer term.

  • In R v Jacob Ah Won,[183] Justice Forster in sentencing a 13 year old Aboriginal boy after he pleaded guilty to unlawful wounding commented:

It is argued, and I think I accept this, that you are unlikely to offend in this or any other manner again. It is hoped that if you are free to participate steps will be taken shortly to lead to your initiation and this may well be the best thing for you.[184]

  • On the other hand in R v Wesley Nganjmirra[185] Justice Muirhead stated when sentencing the offender to a total of 2 years and 6 months imprisonment on charges of break, enter and steal and wounding with intent:

Since your arrest there has been much talk of you taking part in tribal ceremonies and in the pre-sentence report I have obtained fears have been expressed that your failure to do so in the near future may result in grave retribution to some other person. I am afraid there is little I can do about this. The law must take its course.[186]

The importance of some ceremonies and the effect that a period of imprisonment may have on an Aboriginal offender are relevant factors, as these cases demonstrate. In some situations, imprisonment can have serious consequences:

While frequent imprisonment for drunkenness or dishonesty may lead an Aboriginal to lose status and the approval of his people, prison may also be seen as an unwarranted interference with tribal life. Young men may miss important tribal initiation ceremonies through being in prison. Since an uninitiated man is considered immature and therefore irresponsible, tribal elders are thus frustrated in their own endeavour to ‘make a man of him’. Lengthy postponement of the initiation process may lead to sexual problems and social ostracism since uninitiated men are not permitted to take a wife or engage in sexual activity.[187]

On the other hand, young Aborigines may be reluctant to be ‘put through the law’, and there are suggestions that offences may sometimes be committed specifically to avoid this. However relevant they may sometimes be for other reasons, tribal ceremonies are not designed, nor do they operate, as a form of punishment for an offence. Mr Harry Nelson, giving evidence in R v Peter Daniel Jagamara and Others[188] suggested that participation in ceremonies could be regarded as an indirect form of punishment. He put it in these terms:

It is not only a matter of them participating in the ceremony; there will be a lot of rubbishing going on by the elders. Those kids will be rubbished just about every day during the period of time when the ceremony is on, so it will not be sort of a holiday for them.[189]

He added that these offenders would be subjected to more of this treatment than usual because they had created such a nuisance of themselves and upset so many people in the community. In one sense this may be a form of punishment but it is not directed at isolated instances of wrongdoing, so much as at the role the individual is expected to play in the life of his people.

515. Incorporating Aboriginal Ceremonies in Sentencing. It is sometimes suggested that participation in initiation or other aspects of ceremonial life can usefully be incorporated in sentences, whether as a condition to a bond, or indirectly by subjecting a convicted defendant to the supervision of ‘elders’, in the expectation that initiation will follow and will have a rehabilitative effect. One reason for such suggestions is the evident failure of the criminal justice system to deter young offenders, as well as the intractable problems of providing the normal range of sentencing options for such offenders in remote communities.[190] The difficulty is that these are pre-eminently the areas of Aboriginal culture and tradition which are the special concern of Aboriginal people, and which function in ways which are essentially unrelated to punishment or sentencing. A Report of the South Australia Aboriginal Customary Law Committee, Children and Authority in the North West, concludes that tribal ceremonies such as initiations should not be regarded as a form of punishment for offences against the general law:

The connection between initiation and a consequent return to socially acceptable behaviour, has given rise to a school of thought which would have child delinquents dealt with by the ‘elders’. Yet initiation as an artifice of rehabilitation has not proved to be any answer since it cannot be arranged without extensive preliminaries, and in any case, it is riot guaranteed, nor was it ever designed as a ‘cure’. Moreover, the evidence would suggest initiation to be counterproductive when conceived as a device for trans-cultural punishment … [There] is a growing alarm at the medium-term consequences of forcing troublesome adolescents into early initiation to ‘cure them’. It is a strategy which does not work.[191]

An offender’s opportunity to attend a ceremony which is important both to him and his community may be a relevant factor taken into account on sentencing, especially where there is evidence that the ceremony and its associated incorporation within the life of the community may have a rehabilitative effect.[192] However, the Australian experience strongly supports the view of the South Australian Committee that initiation or other ceremonial matters cannot and should not be incorporated in sentencing orders under the general law.