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Editors --- "Pascoe v Hales - Case Summary" [2002] AUIndigLawRpr 62; (2002) 7(4) Australian Indigenous Law Reporter 40

Court and Tribunal Decisions - Australia

Pascoe v Hales

Northern Territory Supreme Court (Gallop A/J)

8 October 2002

JA 49 of 2002 (20112873)

Criminal law — carnal knowledge — discharge firearm — onus of proof tribal law — anthropological evidence of customary law — sentencing

Facts:

This was an appeal against a sentence imposed by a stipendiary magistrate in a court of summary jurisdiction at Maningrida. Jackie Pascoe pleaded guilty and was sentenced on 30 April 2002 in respect of two offences; 13 months imprisonment to be suspended after four months for the offence of ‘sexual intercourse with a female under the age of 16 years’, and a concurrent sentence of imprisonment for two months for the offence of ‘discharge firearm’. The victim was the ‘promised wife’ of Pascoe, and was 15 years old at the time of the offence. The victim was directed by Pascoe to come to his house. He had sexual intercourse with her and she stayed the night. The following day Pascoe became upset when she proposed to leave the Outstation for Maningrida with friends. Pascoe discharged a shotgun into the air, and the victim decided to stay as she feared for the safety of herself and others.

Held, appeal allowed. The sentence of the Magistrate was set aside and substitute sentences imposed:

1. The Prosecution must prove beyond a reasonable doubt the facts upon which the plea of guilty relies: [2].

2. The Court must not introduce facts into the sentencing process that aggravate the circumstances of an offence that are not relied upon by the Prosecution. The sentencing Magistrate went outside the facts in finding some element of compulsion which prompted the victim to complain. It was accepted that Pascoe brought the charges upon himself by discharging the firearm: [6], [7].

3. In this case it is surprising that, on the established facts, Pascoe was charged, as the incident occurred within the context of tribal law. The evidence from Mr Djordila showed that the victim was the ‘promised wife’ of Pascoe, and that even though she was 15 years old, Aboriginal custom meant that he could have sexual intercourse with her. The unchallenged evidence before the Magistrate was that traditionally a mother would promise her daughter to a cousin, and that when the girl grew up she would ‘start to know him’ and ‘when she reaches puberty, when she’s about 14 to 15 years old ... that’s when [she] can get married’: [5], [6].

4. Leave was given to the appellant to adduce further evidence. The appellate court relied on an anthropologist report by Mr Bagshaw about the significance of traditional marriages, quoting the report:

The enjoying of sexual relations between a significantly older man and his promised wife (often under the age of 16) or indeed between such a man and any socially legitimate post-menarche (that is, after first menstruation) female spouse is not considered aberrant in Burarra society. Rather it is the cultural ideal, sanctioned and underpinned by a complex system of customary law and practice. That such behaviour may be at variance with contemporary, western sensibilities, morays and laws, (and may be subject to increasing pressure to conform with such standards from elements and influences situated both within and externally to the local society) in no way diminishes the fact that it is regarded as entirely appropriate, indeed, morally correct conduct, within the traditional parameters of the Burarra life world(?). In this connection, the following comment from Annette Hamilton bears careful consideration. The events of adolescence which European society considers a part of childhood are seen by the Anbarra, a regional subgroup of the Burarra, as the beginnings of adulthood: [7], [8].

5. The Crown conceded on appeal that the sentence of the Magistrate was excessive. In some States of Australia, although not in the Northern Territory, Pascoe would have had a defence to the charge on the basis of consent by the victim: [5], [6], [7]. Kenny’s Outlines of Criminal Law, 19th edition, at page 202, Sexual Offences Act 1956 (UK), Halsbury’s Laws of Australia, volume 9, at page 247653 considered.

6. It is well established that Aboriginal law is relevant to the sentencing process. Anthropological evidence is ‘helpful because it is well accepted these days that courts have regard to Aboriginal law in the sentencing of Aboriginals’: [8].

7. In the circumstances the penalty imposed by the Magistrate was excessive. Pascoe was sentenced to 24 hours imprisonment for carnal knowledge and 14 days imprisonment concurrent for the discharge of firearm offence. In sentencing Pascoe more weight should have been given to the fact that he was exercising conjugal rights in accordance with traditional Aboriginal notions of marriage and customary law. Further, the sentence for discharging the firearm was excessive as the Magistrate went beyond the scope of the agreed facts: [9], [10]. ?

Editors Note: This case is examined in more detail in the Indigenous Law Bulletin v 5 i 23 2003.