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Editors --- "The Queen V Jane Miyatatawuy - Case Summary" [1997] AUIndigLawRpr 17; (1997) 2(1) Australian Indigenous Law Reporter 85

The Queen V Jane Miyatatawuy

24 October 1996, Darwin

Unlawfully causing bodily harm -- Role of customary Aboriginal law in sentencing process -- Wishes of, and hardship to, Aboriginal community as mitigating factors

Held:

(1) In passing sentence under the Sentencing Act 1995 (NT), Martin CJ accepted that a prison sentence was not appropriate in the present case. His Honour took into account the evidence of the resolution or settlement of issues arising out of the offence within JM's Aboriginal community as well as the steps she had taken towards rehabilitation, including her giving up of alcohol, her happy relationship with RB, and her employment record.

(2) Martin CJ noted that while it has been held that customary Aboriginal criminal law was extinguished by the passing of criminal statutes by Australian legislatures (Walker v The State of NSW [1994] HCA 64; (1984) 182 CLR 45 at 50 per Mason CJ), the Courts are entitled to take relevant circumstances of aboriginality into account on sentence, including evidence of physical injury to be inflicted or anticipated to be inflicted on an offender (see, for example, Mamarika v The Queen [1982] FCA 94; (1982) 63 FLR 202; Atkinson v Walkely (1984) 27 NTR 34; R v Minor (1992) 79 NTR 1) or evidence, as in the present case, of an obligation undertaken to others which may assist in the restoring of the peace between the affected communities. In his Honour's view, JM had already suffered a penalty analogous to that undertaken by entering a supervised bond to be of good behaviour and she had not failed on that obligation.

(3) The wishes of a victim of an offence are not usually relevant to the sentencing process. However, in the present case, it was the wishes of the Aboriginal community as expressed by the victim which were put forward and which his Honour was prepared to take into account as a mitigating factor. Hardship to a victim or members of the offender's family arising from the sentence imposed may be, but is not usually, taken into account when considering the appropriate sentence. In the present case, however, the hardship extended beyond the victim to include many people who are, in Aboriginal terms, regarded as an extended family. His Honour regarded such hardship as a mitigating factor.

Sentence: Recognisance (self) in sum of $1000 to be of good behaviour for 18 months.

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 recognisance 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 recognisance 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 his 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 (s.130(l)). Apart from the significance to be given to a plea of guilty (s. 5(2)(j)), the Sentencing Guidelines in s. 5 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 s. 5(2) provide a helpful check list of the matters to which the Court is to have regard. Given that obligation, it is incumbent 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] NTSC 14; (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 factor. 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 s. 5(l)(b) of the Sentencing Act). Other purposes of sentencing are adequately met, in the circumstances of the case, by the disposition imposed.

* This decision is reported in (1996) 87 ACrim R574