Taking Aboriginal Customary Laws into Account

505. Imprisonment as a Protection Against Customary Law Punishments. In taking Aboriginal customary laws into account the courts have, first of all, rejected arguments that they should use their powers (whether to grant bail or in sentencing) to exclude the operation of customary laws altogether. Thus it is a basic principle of sentencing that a defendant is imprisoned only where this is necessary in all the circumstances as a punishment (taking into account the accepted justifications for imprisonment). Imprisonment is not to be used as a device for a paternalistic form of preventive detention.[135] In Jackie Jamieson v R in 1965, Jamieson pleaded guilty to the manslaughter of his wife and was sentenced to 12 years imprisonment, with a 6 year non-parole period. The Full Court of the Western Australian Supreme Court, on appeal, substituted a 5 year sentence with a 3 year non-parole period. Delivering the judgment of the Full Court, Chief Justice Wolff said:

In his report the [trial] Judge mentions that he had in mind that [the victim’s] relatives would exact tribal vengeance and that the appellant would be protected for a time. These are kindly motives but are inappropriate in considering sentence.[136]

In later cases this proposition has been generally accepted, As Justice Muirhead remarked in Harry Gilmiri’s case:

It is, upon [the] evidence, too early for you to return to Daly River and [counsel] has not had the opportunity of obtaining the views of [the victim’s] relatives in the Port Keats area. When you are released, the feelings of your people will have to be considered before you return home. You are not of course being imprisoned merely to shield you from payback.[137]

A defendant should not be sentenced to a longer term of imprisonment than would otherwise apply, merely to ‘protect’ the defendant from the application of customary laws including ‘traditional punishment’ (even if that punishment would or may be unlawful under the general law).

506. Refusing Bail to Prevent Customary Punishments. Somewhat similar principles apply in the context of discretions with respect to bail. A court should not prevent a defendant from returning to his or her own community (with the possibility or even likelihood that the defendant will face some form of traditional punishment) if the defendant applies for bail, and if the other conditions for release on bail are met. In fact it is not unusual for bail to be granted by police or magistrates to enable a defendant to return to his or her community to resolve through traditional processes the dispute the offence has caused. A rare reported decision to this effect is that of Chief Justice Forster in Joe Murphy Jungarai.[138] Of course, the other conditions for the grant of bail must be met: the defendant should not be a risk to the community and there must be sufficient assurance that he or she will not abscond to avoid trial.[139] But, subject to these requirements, the courts will not necessarily decline bail in these kinds Of cases. To do so would be a form of paternalism and might, as Chief Justice Forster pointed out, exacerbate the situation in the defendant’s community.[140]

507. Taking Account of Customary Punishments. The courts have gone further. Not only have they rejected arguments that they should exercise discretionary powers to prevent customary law processes from operating, but they have taken customary laws affirmatively into account in the exercise of sentencing discretions. That some ‘traditional punishment’ or response has occurred, or is likely to occur, is an indication of the local community’s attitude to the defendant and the offence, and of the seriousness with which they regard them. Thus the fact that the defendant has been subjected to some traditional punishment under Aboriginal customary laws is relevant in sentencing, especially where the local community is thereby reconciled. This proposition has been frequently affirmed by the courts. Indeed, the Commission is not aware of any recent case where it has been denied.[141] In most of the cases its relevance has been conceded by the Crown. The exception is Colley’s case, described in para 493, where the court nonetheless took the possibility of future punishment into account. In the same way that the courts have regard to ‘traditional punishments’, or customary law processes more generally, where these have already been applied, they will also have regard to their possibility or likelihood in the future.[142] One practical difficulty ‘here is that it may not be clear what the community reaction, if any, will be to an offender’, return. The courts, while aware of the uncertainty, do nonetheless take the likelihood of traditional punishment into account.

508. The Issue of Double Jeopardy. One reason for this attitude derives from an important principle of the common law, that a person should not be punished twice for the same offence. This is a real issue for an Aborigine who commits an offence against the criminal law which is also contrary to Aboriginal customary laws. The defendant may be expected to pay compensation or undergo some punishment so that the matter is resolved within his community, but he or she may also be fined, ordered to pay compensation, given a good behaviour bond or sent to gaol. From the Aboriginal perspective two points need to be made. First, it may be inappropriate to regard an Aboriginal offender as being ‘punished’ in accordance with customary law. It may be more accurate to describe it as a ‘resolution of a dispute’ or a ‘return of peace’ than punishment in the strict sense.[143] Secondly, there is an inevitability about Aboriginal customary processes taking their course regardless of what the courts might do. Thus a physical ‘punishment’ may be imposed on an of fender without any account being given to what the courts have done or might do. Although in practice it appears that some balancing of punishments is done within both systems. Within Aboriginal communities account will usually be taken of the fact that the courts have imposed, or are likely to impose, a penalty.[144] In some cases a gaol sentence can resolve local problems, because it removes the offender from the community (in a way analogous to banishment) and allows tempers to cool. In Desmond Gorey’s case, evidence was given by the superintendent at Hermannsburg of the interaction between imprisonment and local reaction to the offence.

It does make a difference if a person receives a substantial gaol sentence. That satisfies most of the traditional people and at the end of this period, when they are calm and rational, the second part of the system can come into effect where a person like that is expected, or required by tradition to present himself for punishment to certain people of that relationship and when he does that he is wounded in various ways. He might be speared, but never seriously and once that has been accomplished, then nobody can bring the matter up again. The whole case is settled … [I]f there isn’t a gaol sentence, for argument’s sake, then [there is a risk] … of some of the rougher element within the wider relationship taking some drastic measures immediately.[145]

On the other hand, a judge required to pass sentence should take account of Aboriginal customary laws and processes. In Gorey’s case, Justice Gallop sentenced Gorey, who had pleaded guilty to manslaughter, to 3 years imprisonment with hard labour, with a non-parole period of 14 months. He said, in part:

I take account of the fact that you … have brought great shame upon your family and that you feel that shame. I try to take account of the fact that probably you will have to present yourself for punishment after you have served the gaol sentence which I propose to impose upon you.[146]

509. Aboriginal Customary Laws as a Factor of Aggravation. The judges have generally taken the view that the existence of Aboriginal customary laws as an element in an offence should not be a factor leading to an increased penalty. It has been implied that Aboriginal customary law processes, including the possibility or likelihood of traditional punishment of some kind, should be taken into account only as a factor of mitigation in determining an appropriate sentence for an Aboriginal offender. Justice Gallop when sentencing three Aborigines convicted of rape commented that:

Some sections of the community may think that it is my duty to impose an exemplary sentence which will serve as a strong deterrent because these three Aboriginal people raped an Aboriginal woman and subsequently she died … My function, as I see it … is not only to punish the prisoners but to encourage acceptance of the criminal law by them and by the Aboriginal community as a step towards a more orderly and unified society. It would be inimical to this end if I imposed a harsher sentence because the prisoners are blacks … The punishment which I impose must be seen to be a well-deserved punishment according to white man’s community standard and also according to Aboriginal standards.[147]

Throughout the 1950s Justice Kriewaldt in the Northern Territory Supreme Court consistently adopted the view that an Aborigine should never receive a more severe sentence than would be given to a non-Aborigine convicted of a similar crime.[148] Given that only Aborigines (with very few exceptions) are subject to Aboriginal customary laws, only Aborigines will face the likelihood of a harsher sentence if customary law is an element in the offence. A court should not take the view that, because certain traditional punishments are undesirable or not approved of, a harsher penalty should be imposed in an attempt to eradicate such practices.[149] But this does not mean that Aboriginal customary laws are relevant only in mitigation of sentence, even though this is the more usual case. They may sometimes be relevant in leading to the conclusion that a more severe penalty is appropriate. For example that a particular act was a breach both of the general law and of Aboriginal customary laws may be relevant in showing that the accused’s conduct was blameworthy according to the values of his own community as much as those of the wider community. It may help to negate a plea in mitigation based on the accused’s subjective blamelessness or on the argument that he did not realize that what he was doing was wrong.[150] But these are essentially indirect ways in which customary laws may be relevant in aggravation of penalty. It remains basic that the sentence is imposed not for breach of Aboriginal customary laws but for breach of the general law. For this reason Aboriginal customary laws can only be relevant in fixing sentence within the general range (or ‘tariff’) of sentences applicable to the offence in question.[151]

510. Relevance of Aboriginal Community Opinions in Sentencing. It is often said that a sentencing judge or magistrate acts on behalf of the community. A sentence may to a degree reflect community views about the nature and seriousness of the offence committed. The courts consistently justify their sentencing functions as an expression of community views and values, while acknowledging the difficulties with these notions, and with ascertaining their content in any case. For example the Victorian Full Court commented that:

it is not sufficient for a sentence to avoid subsequent review that it can be said of it that it is the product of what is admittedly a wide discretion conferred upon a judge who can be shown to have given some consideration to all relevant elements. There must be some recognition of and accord with ‘the moral sense of the community’ in the selection of the appropriate penalty. No matter how ephemeral that phrase may be or how elusive the task of evaluation of such a concept may prove in a given case, the task must nevertheless be essayed.[152]

Similarly in R v Dixon, Justice Fox stated:

The views of the general public are important in a number of ways. Public confidence in the administration of justice is important, indeed vital, and if sentences do not have a general acceptance, that confidence will flag. From the court’s point of view it is not easy to determine how the ordinary member of the public thinks on such matters. And, of course it is not possible to put him in possession of all relevant facts about a particular case or all relevant knowledge as it bears on the subject in hand. The court not infrequently learns of the view of particular people, and of the more vocal sections of the community, but these may not be representative, and may be ill-informed.[153]

The difficulties are to some extent avoided by the rule that it is a matter for the judges themselves to express the ‘community view’ or ‘expectation’ in sentencing. Evidence as to the prevalence of a particular offence in a particular area or generally has been accepted and relied on,[154] but evidence of actual community opinions or responses to a particular offence or class of offences has been held to be inadmissible. In R v H, a Crown appeal on the grounds of the inadequacy of a sentence for incest, the Crown was prevented from tendering ‘a number of letters from various persons to the Attorney-General expressing opposing views and indeed outrage at the decision’ of the trial judge. The President of the Court of Appeal, Justice Moffitt, commented that:

the evaluation of the criminality of the offence and whether imprisonment is called for is for the judge to determine upon the relevant evidence in relation to the crime. It is not a matter to be determined by reference to the views of others given directly in evidence or as hearsay, which views in any event may be based on wrong facts or facts not in evidence .. [T]he extent of community abhorrence of a crime or type of crime is not a matter of evidence.[155]

Justice Begg agreed:

It is the judges’ duty to reflect, in sentences passed by them, their beliefs as to the attitude of members of the public to the particular type of crime. They do this from their own experience and knowledge of human life. It is not a matter calling for inquiry on evidence.[156]

But these views are based on the assumptions that the courts have the background knowledge to take judicial notice of community views or expectations, and that community values will be reflected through the legislative process. These assumptions are doubtful enough in relation to the general community, an issue which will be explored in more detail in this Commission’s Final Report on Sentencing.[157] But these assumptions are much less likely to be correct when a non-Aboriginal magistrate or judge has to pass sentence on a traditionally oriented Aborigine from a remote community, the members of which may regard a particular offence more or less seriously than members of the general community would be likely to do. Persons living within the Aboriginal community concerned can best inform the court about the relevance of Aboriginal customary laws in the particular case. There are more general reasons for taking local community opinion into account in passing sentence. It provides Aboriginal people with the opportunity to see how the criminal justice system functions and may lead to a greater readiness by members of a community to play a role in an offender’s rehabilitation. Some judges place great weight on the views of members of Aboriginal communities concerned when deciding on an appropriate sentence for an offender from their community. A judge will often be influenced to impose a sentence towards the lower end of the scale of sentences that would be available for the offence. In Gilmiri’s case, Justice Muirhead pointed out that:

The crime of manslaughter is seen in many forms and degrees of seriousness. The courts of this territory, in finding an appropriate penalty when Aborigines and Aboriginal customs and emotions become involved, endeavour to pay regard to these factors and to the views of the Aboriginal communities. But of course, the law of the land must be applied, and in this case properly so, because your own people become most disturbed by such happenings …[158]

Justice Gallop made clear his views on the role of community opinion in R v Andy Mamarika,[159] where he said:

I take account of the impact on the accused himself, of his trial by ordeal that his clan was subjected to … A very significant matter for a sentencing power is the attitude of the community, particularly the community in which the accused lives and works. I have abundant evidence here before me of the attitude of the community, and it is that, having considered the non-violent nature of this man and his good standing generally in that community and the fact that the trial by dispute has already been carried out, imprisonment is not expected by the community in relation to this offence and this accused.[160]

But it should not be assumed that local opinions will generally, or even usually, favour reduced sentences.[161] In R v Diamond Turner (otherwise Tjana), Justice Gallop commented:

I have to inflict the sort of penalty which will be seen by the community to accord with the general moral sense of the community and which will reflect what the community will see as well-deserved punishment. The community in this sense includes other fringe-dwelling Aborigines in and around the Alice Springs district.[162]

A number of local justice schemes which have been set up in Aboriginal communities may be said to reflect the aim of taking into account local community views in determining appropriate sentences. The Aboriginal courts in trust areas (formerly reserves) in Queensland, the Aboriginal justice of the peace scheme operating in the Kimberley region of Western Australia, and the Justice (Courts) Project at Galiwin’ku in the Northern Territory are examples, which are discussed further in Chapter 29.[163]

511. Sentencing and the Wider Australian Community. The attitude of the local community to the defendant and to the offence is relevant in sentencing (within the general range of sentences applicable), especially where the offence was committed within that community and the victim was from that community. But the courts cannot disregard the values and views of the wider Australian community. There may be general community concerns over the prevalence of certain offences. The gravity of the particular offence may be such that other considerations are secondary.[164] In some cases courts may be, for these kinds of reasons, unable to accede to the wishes of the local Aboriginal communities or to take full account of local customary laws. This is a reflection of the established rule that Australian law applies to all persons within Australia, including traditionally oriented Aborigines in their dealings with each other.[165] The general law may impose further punishments upon offenders even though their local community may be satisfied or reconciled through traditional processes. For example, in R v Bobby Iginiwuni, Iginiwuni pleaded guilty to the rape of a two and a half year old girl who suffered significant injuries as a result. Justice Muirhead sentenced him to 5 years and 8 months imprisonment with a non-parole period of 2 years, but ordered that he be released after 5 months on a 3 year good behaviour bond. He said:

[Y]our community is involved with you as aggressor and the child as a victim. Having heard the sworn evidence of … a member of the Council, I am influenced by the fact that you will eventually be accepted back amongst your people, who will no doubt give consideration to the order of this Court and the punishment you will already have suffered, and who will I hope, exercise some influence over you in the future. This is not the first time, and it will not be the last, [that] this Court gains some guidance from the views of the Aboriginal community, although there will be cases, especially where the crime goes beyond the particular community, that it is not possible to give full, or even partial effect to the views expressed … [But] it would be a great mistake also for anyone to assume that the Court will regard violence or crime, be it in accordance with custom or otherwise, committed within an Aboriginal community as something less serious than, or different to what may occur elsewhere. That is not the case as to do so would tend to deprive that community of the law’s protection.[166]

In Joe Murphy Jungarai’s case, which was described in para 495, the defendant was subjected to a form of traditional punishment, but was later sentenced to 6 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months.[167] Many similar examples could be given. In R v Banto Banto, Chief Justice Forster said:

I take into account with respect to each of you, that you were caught up in a situation not of your own making, in which violence was inevitable, and as I have said, loyalties and tribal custom made your involvement inevitable … These were, however, serious crimes, and without wishing to destroy your essential Aboriginality, with its social and cultural background, the court must do what it can to discourage the resort to dangerous violence to settle differences.[168]

Obviously the courts are having to balance the expression of concern and deterrence on the part of the general law with respect for the offender’s (and victim’s) backgrounds and traditions, and the expectations of the community or communities from which they come. The relative weight attached to these considerations varies, as the cases show. But the fact that the dispute within the local community is resolved, by the infliction of ‘traditional punishments’ or otherwise through customary law processes, although relevant, does not preclude further punishment by the court. The Australian community has an interest in the maintenance of law and order in Aboriginal communities.