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Court of Criminal Appeal of the Northern Territory (Mildren, Riley and Southwood JJ)
23 December 2005
Criminal Law — Crown appeal against sentence — whether sentence manifestly inadequate
Criminal Appeal — HREOC seeks leave to intervene — whether court has power to allow intervention in criminal cases — whether intervention assists Court of Criminal Appeal — whether counsel for HREOC able to appear as amicus curiae
At first instance, the respondent pleaded guilty to two criminal offences. The first count was unlawful assault in the circumstances of aggravation. The second count was sexual intercourse with a child under the age of 16 years, contrary to s 127(1)(a) of the Criminal Code Act (NT).
Martin CJ sentenced the respondent to five months imprisonment on the first count and 19 months imprisonment on the second, to be served cumulatively. His Honour also ordered that the balance of the sentence be suspended after the respondent had served one month, provided that the respondent enter $250 upon his own recognisance to be of good behaviour for a period of two years.
Martin CJ found that despite the objective seriousness of the offences, the respondent’s culpability was reduced because he believed that his actions were permitted under the traditional Aboriginal law of his community, the Ngarinaman Law. Under this law, the victim, a child of 14 or 15 years, was promised to the respondent as a wife.
The appellant contended that the sentence imposed in respect of the second count was manifestly inadequate. It was submitted that Martin CJ had failed to give adequate weight to the objective seriousness of the offence and had given too much weight to factors reducing the respondent’s culpability.
The Human Rights & Equal Opportunity Commission (‘HREOC’) sought leave to appear in the appeal as amicus curiae.
1. Even where no specific error can be identified, a Court of Criminal Appeal may reach the conclusion that the sentencing judge erred, having regard to the manifest inadequacy of the sentence imposed in all of the circumstances: [6], [7]. House v The King [1936] HCA 40; (1936) 55 CLR 499 referred to; R v Osenkowski (1982) 30 SASR 212 referred to.
2. When imposing a sentence, the Court is not entitled to take aggravating circumstances into account unless these are expressly included in the indictment: [22]. The Queen v De Simoni (1980–81) [1981] HCA 31; 147 CLR 383 referred to.
3. There was nothing in the respondent’s traditional law which required him either to strike the child or to have sexual intercourse with her in the circumstances. Therefore, Martin CJ gave too much weight to traditional law in sentencing the respondent: [23], [30]–[31]. Hales v Jamalmira [2003] NTCA 9; (2003) 13 NTLR 14 distinguished.
4. The maximum penalty available for sexual intercourse with a child under the age of 16 has increased from seven years to 16 years. This is of particular importance and should have been given more weight by Martin CJ: [33]. Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213 followed.
5. In this case, having regard to the objective seriousness of the offence, the age difference between the respondent and the victim, and the purpose of s 127(1)(a) to protect young persons from entering into sexual relations before they are mature enough to do so, a head sentence of 19 months is manifestly inadequate, as was the decision to suspend all but one month of the sentences: [35]–[37]. R v Wurramara [1999] NTCCA 45; (1999) 105 A Crim R 512 referred to.
6. The Court should now impose a head sentence of 3 years 6 months, cumulative upon the sentence of 5 months for Count 1, making a total sentence of 3 years, 11 months. Having regard to all of the circumstances, the respondent should serve 18 months imprisonment before he is released with the balance of the sentences suspended after having served 18 months: [40].
7. The Court of Criminal Appeal of the Northern Territory, in the absence of statutory authority, has no jurisdiction or power to permit an intervention in criminal proceedings: [54]. R v Zundel [1992] 2 SCR 731 distinguished. Regina v VA [2001] 1 WLR 789 distinguished.
8. Section 419(1) of the Criminal Code confers only powers, not jurisdiction, and the question is not one of power but of jurisdiction: [62]. Levy v The State of Victoria and Others (1997) 189 CLR 579 followed.
9. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. In this case, the sentencing principles are well known and no new sentencing principle is involved: [64]–[65].
…
22. It is important to bear in mind that the respondent was not charged with an offence against s 192(3) of the Criminal Code, ie sexual intercourse with another person without the consent of that person, viz in this case anal rape. It was not an element of the offence which the Crown had to prove, in order to secure a conviction for the offence of carnal knowledge, that the child did not consent. Indeed s 139A of the Criminal Code provides that it is not a defence to a charge of a crime defined by subdivision 2 of part 5 of the Code (which includes s 127 - the carnal knowledge provision) for the accused to prove that the person in respect of whom the crime was committed consented to the act constituting the crime. Nor, in view of the fact that the Crown had not charged the accused with the offence of sexual intercourse without consent, could the sentencing court take lack of consent into account even if the facts before it proved not only that the victim did not consent but that the respondent either knew that the victim did not consent or foresaw the possibility that the victim may not have been consenting but proceeded regardless. Had the respondent been charged with an offence against s 192 of the Criminal Code he faced a maximum possible sentence of imprisonment for life. It is well established that in sentencing a person, a court is not entitled to take into account aggravating circumstances which could have been made the subject of a charge or a formal circumstance of aggravation but which have not been expressly so made in the indictment: see The Queen v De Simoni [1981] HCA 31; (1980-1981) 147 CLR 383.
23. The learned sentencing judge also accepted that according to traditional law the striking of the child was justified as a means of punishing the child for having a sexual relationship with the young boy when the child was already promised to the respondent. However, as the learned sentencing judge found, there was nothing in the respondent’s traditional law which required him either to strike the child or to have sexual intercourse with her in the circumstances. The learned sentencing judge was unable to find that the respondent was trying to punish the child, but he was satisfied that the respondent was asserting his rights as he believed them to be and that he was doing so forcefully in order to give the child a message that she had to do what the respondent told her to do. On the other hand the learned sentencing judge accepted that this was not a case where the respondent had sought out the child for sexual gratification and his Honour accepted that the respondent’s beliefs meant that the respondent’s moral culpability was less than those who know that this type of thing is wrong. His Honour observed:
Recognising these beliefs and their effect upon your culpability is not to condone what you did, but simply to recognise as a factor relevant to sentence the effects of your culture and your state of mind at the time.
24. His Honour also found that the respondent did not know that he was committing an offence against Northern Territory law. On the other hand, as his Honour pointed out, this was not an act on the spur of the moment. It was, at least to some extent, premeditated. His Honour was satisfied that the respondent took the boomerang into the bedroom for the purposes of intimidating the child.
25. So far as the effects of the offences on the child were concerned, his Honour observed that the child was upset and distressed and that he had no doubt that the offences had a significant effect upon her. Although the child had provided only a very brief victim impact statement in which she did not speak of any emotional or psychological impact upon her, his Honour found that this was not surprising because she had been shamed within a community that obviously had very strong male members and strong traditional beliefs. It was not surprising therefore that the child would not be prepared to publicly state how she was feeling.
26. His Honour accepted that the respondent had indicated that he would obey the law in the future and will not in the future seek that the child be his wife. He took into account the respondent’s plea of guilty and indicated that he had reduced the sentences which he would otherwise have imposed by approximately 20 percent. Although the pleas meant that the child did not have to give evidence (she was not required to give evidence at the committal hearing) there was no evidence of any contrition.
27. On the other hand, as his Honour recognised, he has a duty to protect vulnerable members of the community, particularly women and children in Aboriginal communities, as best as he could through the imposition of appropriate penalties which would act as a deterrent to other men who are minded to commit acts of violence including sexual violence against women and children. His Honour recognised also that the penalties which he must fix should reflect and recognise the seriousness of the offending and reflect and recognise that the respondent’s behaviour was regarded as very serious criminal offending in the eyes of the wider community. His Honour emphasised that where there are differences between Aboriginal law and the law of the Northern Territory, the law of the Northern Territory must prevail.
28. As noted previously, the principal submission of the Crown is that the head sentence imposed was manifestly inadequate and that the decision to suspend all but one month of the sentence was similarly so. Notwithstanding the famous dictum of Young CJ in Kenny (unreported, Supreme Court of Victoria, 2 October 1978) that ‘such a submission is not one which is capable of a great deal of elaboration’, Mr Pauling QC referred (inter alia) to the following:
1. The objective facts were very serious.
2. The respondent could rely on customary law only for the limited purpose of reducing his moral culpability.
3. Although there were other mitigating circumstances present, there was no contrition.
4. The sentences imposed did not give adequate effect to general deterrence and retribution.
5. The sentences imposed gave no weight to recent legislative amendments which increased the maximum penalty available from 7 years to 16 years imprisonment.
29. There can be no doubt that the objective circumstances were serious. The learned sentencing judge described the offending in respect of count 2 as ‘a very serious offence’. I agree with his Honour’s description. The victim, SS, had done all she could have done to impress upon the respondent that she was not consenting to intercourse with him. The intercourse was painful and humiliating and caused her considerable distress. Whilst it must be accepted that the respondent did not intend to have intercourse with SS without her consent, the reason for that lack of intent was to be found in his belief that intercourse was consented to, based on his understanding of traditional law and ignorance of Territory law. Nevertheless, the respondent ought to have realised that he was mistaken and that she was not in fact consenting.
30. The learned sentencing judge observed in his sentencing remarks that the respondent’s traditional beliefs reduced the respondent’s moral culpability. It is not in contention that where Aboriginal customary law conflicts with Territory law the latter must prevail. Similarly, there is no doubt that an Aboriginal person who commits a crime because he is acting in accordance with traditional Aboriginal law is less morally culpable because of that fact: see Hales v Jamalmira [2003] NTCA 9; (2003) 13 NTLR 14. But the question must be asked, less morally culpable than what? Mr Pauling QC submitted that the respondent had already received the benefit of his traditional beliefs because he had not been charged with sexual intercourse without consent contrary to s 192(3) of the Code. Was it right to give him much further leniency? The answer to that question in this case depends on the view which the learned sentencing judge took that the respondent believed that he was entitled to act as he had done because the child had turned 14. There was evidence before the learned sentencing judge which enabled him to take this into account and it is not contended that he was wrong to do so. What is contended is that in this case the respondent, although he was entitled to act as he had done according to traditional law, was not obliged to do so, and was not under any pressure to do so. There is a positive finding by his Honour as to the lack of obligation and no finding that he was under any pressure. In those circumstances, I consider that less weight should be afforded to this factor.
31. In Hales v Jamalmira (supra), this Court considered a similar case where an Aboriginal person was convicted of the offence of carnal knowledge in circumstances where the victim was the promised wife of the defendant. In that case, there was evidence that the offender knew that what he was doing was against Northern Territory law, but there was also a finding that he was under pressure as well as some level of obligation under his culture to act as he did. The members of the Court accepted that these were mitigating factors, although the weight to be attributed to them was not such as to warrant significant leniency. As was pointed out by Riley J at [88]:
1. Whilst proper recognition of claims to mitigation of sentence must be accorded, and such claims will include relevant aspects of customary law, the Court must be influenced by the need to protect women and children, from behaviour which the wider community regards as inappropriate.
32. Since Hales v Jamalmira was decided, the offence of carnal knowledge has been redefined by the legislature. At that time it was an element of the offence, which the Crown had to prove, that the intercourse was ‘unlawful’, ie that the parties to the act were not ‘husband and wife’, which meant that they were not persons living in a husband and wife relationship according to Aboriginal tribal custom: see Hales v Jamalmira at [50]. As a result of amendments to the Code passed in 2004, it is no longer necessary for the prosecution to prove that the intercourse was ‘unlawful’ in this sense. Further, the maximum penalty has been increased from 7 years imprisonment to 16 years imprisonment.
33. Clearly, these changes to the law by the legislature must be seen as a response to the outcome in Hales v Jamalmira. Of particular importance is the increase in the maximum penalty available: see Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213 at [30] per Gleeson CJ, Gummow, Hayne and Callinan JJ. As their Honours said at [31]:
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
34. There were some mitigating factors other than the matter involving customary law. The respondent was in effect a first offender. He had pleaded guilty and thereby saved the child from having to give evidence. The respondent is a respected leader in his community who is responsible for teaching young men traditional ways. He is not a sexual predator. He was ignorant of Territory law. He is of positive good character and, as the learned sentencing judge found, unlikely to re-offend. To that extent, personal deterrence was of less significance.
35. On the other hand, the offending was objectively very serious. The respondent, because he believed he was justified in doing what he did, was not remorseful. There was a significant age difference between SS and the respondent. There was no evidence in this case, as there was in Hales v Jamalmira that the age difference was not a material sentencing matter. Obviously the younger the victim, the more serious the offending is likely to be and in this case, the victim was, on the evidence, about 14 years of age.
36. One purpose of s 127(1)(a) of the Code is to protect young persons from entering into sexual relations before they are mature enough to do so and to have weighed up the possible consequences. Another is to deter older persons, especially men, from taking advantage of the immaturity of the young in order to satisfy their lust or in order to exercise control over their victims. In the context of a case such as this, where a promised marriage is involved, whilst the law has stopped short of making such marriages illegal, such marriages cannot be consummated until the promised wife has turned 16. Plainly the purpose of s 127(1)(a) in that context is to give Aboriginal girls some freedom of choice as to whether or not they want to enter into such a marriage and to thereby empower them to pursue equally with young Aboriginal men employment opportunities or further education rather than be pushed into pregnancy and traditional domesticity prematurely.
37. In all the circumstances, I consider that a head sentence of 19 months is manifestly inadequate, as was the decision to suspend all but one month of the sentences. In R v Wurramara [1999] NTCCA 45; (1999) 105 A Crim R 512 this Court said at [26]:
The courts have been concerned to send what has been described as ‘the correct message’ to all concerned, that is that Aboriginal women, children and the weak will be protected against personal violence insofar as it is within the power of the court to do so.
38. The sentences imposed failed to punish the respondent adequately for the crimes he committed and failed to act as a deterrent to others who might feel inclined to follow their traditional laws.
39. Although there is a residual discretion in the case of a Crown appeal not to interfere with a sentence imposed even though the sentence imposed is inadequate, that discretion must be exercised judicially. The kind of circumstances recognised by the authorities which might justify the exercise of this discretion was discussed in R v Morton [2001] NTCCA 6; (2001) 11 NTLR 97 at [11]- [12], viz, a failure by the prosecutor to assist the sentencing judge or a failure by the Crown to lodge a prompt appeal. Neither of those circumstances is present here and no other reason for exercising the discretion was suggested. In my opinion, the circumstances of this case called for a head sentence of approximately 5 years imprisonment, of which a considerable proportion should have been served before the respondent became eligible for release. However, as is well recognised, the principle of ‘double jeopardy’ usually results in a lesser sentence being imposed where the Court of Criminal Appeal decides to intervene on a successful Crown appeal. In this case, bearing in mind all of the circumstances and the application of that principle, I consider that the Court should now impose a head sentence of 3 years 6 months, cumulative upon the sentence of 5 months for count 1, making a total sentence of 3 years, 11 months.
40. In view of the findings concerning the respondent’s prospects of rehabilitation and the reduced need for special deterrence, this is a case where this Court is able to assess when it is appropriate that the respondent be released rather than leaving that question to the Parole Board: cf R v Shrestha [1991] HCA 26; (1991) 100 ALR 757 at 771. I consider that, having regard to all of the circumstances, the respondent should serve 18 months imprisonment before he is released. I would order that the balance of the sentences be suspended after having served 18 months, upon the condition that the respondent is not to communicate directly or indirectly with SS. I would fix a period of 2 years 5 months, commencing from the date of his release from prison and after having served the balance of the period of 18 months still to be served, as the period during which the respondent is not to commit another offence if he is to avoid the consequences of s 43 of the Sentencing Act and order that the sentence imposed in respect of count 1 be backdated to commence from one month prior to the date he is again taken into custody to serve the balance of the 18 months still to be served in order to take into account time already served …
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