Jones, Graham; Rees, Neil --- "Neal v the Queen (Criminal law - assault - sentencing - mitigating factors - reserve conditions and race relations - political views of defendant irrelevant - emotional stress a proper consideration)" [1982] AboriginalLawB 67; (1982) 1(6) Aboriginal Law Bulletin 10

• Neal V The Queen
• Criminal Law-Assault-Sentencing-Mitigating Factors-Reserve Conditions And Race Relations-Political Views Of Defendant Irrelevant-Emotional Stress A Proper Consideration

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Neal v the Queen

Criminal law - assault - sentencing - mitigating factors - reserve conditions and race relations - political views of defendant irrelevant - emotional stress a proper consideration

High Court of Australia (Gibbs CJ, Murphy, Wilson and Brennan JJ)

24 September 1982

Casenote by Neil Rees and Graham Jones

Percy Neal, Chairman of the Yarrabah Council, was convicted by a stipendiary magistrate at Cairns of assault and unlawful entry onto property. He was fined $75 (in default three weeks' imprisonment) on the count of unlawful entry and he was sentenced to two months' imprisonment for the assault.

The charges arose out of an incident which occurred at Yarrabah on 28 June 1981. Mr Neal, in company with a number of people, went to a house on the reserve occupied by Mr Collins, an officer of the Queensland Department of Aboriginal and Islanders Advancement. Mr Neal swore at Mr Collins and then spat at him. The spitting constituted the assault.

Mr Neal applied for leave to appeal to the Court of Criminal Appeal of the Supreme Court of Queensland, against the sentence imposed by the stipendiary magistrate for the assault, on the ground that it was manifestly excessive. The Court of Criminal Appeal granted leave on the basis that the sentence was inadequate and dealt with the appeal forthwith. The sentence was increased to six months' imprisonment which was the maximum sentence which could be imposed on summary conviction for this offence. Even though the Attorney-General possessed the power to do so, he did not appeal against the sentence. The Crown had not argued in the Court of Criminal Appeal that the sentence should be increased. The Court of Criminal Appeal on its own motion decided to increase the sentence. Mr Neal was not present in the Court of Criminal Appeal during the hearing of his leave application or during the appeal, which followed immediately leave was granted, and thus was not in a position to exercise his right to abandon the appeal.

Mr Neal sought special leave to appeal to the High Court against the decision of the Court of Criminal Appeal. The High Court granted special leave, allowed the appeal, set aside the order made by the Court of Criminal Appeal and ordered that the application for leave to appeal to the Court of Criminal Appeal should be refused. This order meant the sentence of two months' imprisonment imposed by the stipendiary magistrate at Cairns remained the effective sentence. Murphy and Brennan JJ dissented on the issue of the manner, in which to dispose of the appeal. Murphy J proposed that Mr Neal should be fined $130; Brennan J was of the opinion that the matter should be remitted to the Court of Criminal Appeal for reconsideration in the light of the appropriate sentencing principles. Murphy and Brennan JJ made a number of significant statements concerning proper sentencing principles.

After discussing the facts and the appellant's three prior summary convictions, Murphy J. stated:

The mitigating factors which should be taken-into account are:

Desisting from Violence. The accused desisted from actual violence, The combination of voluntarily desisting and doing little harm to the victim is a mitigating factor (Cutting v The Queen, Supreme Court of Western Australia (unreported) 1970).

Impulsive Acts. Premeditated and deliberate acts will be treated more severely by the courts than those committed in moments of passion where the offender has acted impulsively (Reynolds v Wilkinson [1948] WALawRp 1; (1948) 51 WALR 17; Regina v Spiller (1969) 4 CCC 211. There is no suggestion that the spitting was premeditated.

Employment. Steady employment has traditionally been regarded as a mitigating factor (Halsbury's Laws of England, 3rd edition Vol. 10, p. 489). Mr Neal was in permanent employment as a baker in the Yarrabah Community, and held a respected position as Chairman of the Yarrabah Council.

Personal Circumstances. Difficult personal circumstances such as emotional and medical problems are accepted as mitigating. Mr Neal suffered from a pronounced stutter and he was nervous and uncertain during the incident (Regina v Bates (1977) 32 CCC (2d) 493).

Apology. Through his counsel, Mr Neal tendered his apology to Mr and Mrs Collins in the Magistrate's Court but this was not referred to by the Magistrate nor by the Court of Criminal Appeal. Contrition, repentance and remorse after - the offence are mitigating facts, leading in a proper case to some, perhaps considerable, reduction of the normal sentence: (Harris v The Queen (1967) SASR 575; Darwin v Samuels (1971) 1 SASR 411 at 423; Datson v The Queen, Supreme Court of Western Australia 1972 (unreported) ).This factor of contrition is generally given insufficient weight in sentencing in Australia.

Reserve Conditions and Race Relations. In Australian conditions these present a special mitigating factor. (see R v Alwyn William Peter, unreported, Supreme Court . of Queensland, 18 September 1981; also, Wilson, Black Death, White Hands (1982); Daunton -Fear and Freiberg, ' "Gum-tree" justice: Aborigines and the courts' in The Australian Criminal Justice System, Chappell and Wilson, editors, 1977, Sydney, 45-99; Misner, `Administration of Criminal Justice on Aboriginal Settlements' [1974] Sydney Law Review 275). The appellant is an Aborigine, as was the person with him. The complainant is a white officer of the Department of Aboriginal and Torres Strait Islanders Affairs. All other officers employed by the Department at the Reserve are white, with the exception of a `liaison officer'. The Magistrate said the population of the Communities, of which Yarrabah is one, `is usually made up of hundreds of Aboriginals compared with forty to fifty white staff including families'. The Magistrate told Mr Neal:

"Your actions in taking unto yourself the task of removing all whites from Yarrabah cannot be condoned from any angle from which you may view community affairs."

And further:

"Violence is something in recent times which has crept into Aboriginal Communities. I blame your type for this growing hatred of black against white. You are not giving true representation as a leader to the people who voted you their leader. As a Magistrate I visit four to five communities, and I can say unequivocally that the majority of genuine Aboriginals do not condone this behaviour and are not .desirous in any shape or form of having changes made. They live a happy life, and it is only the likes of yourself who push this attitude of the hatred of white authority, that upset the harmonious running of these Communities."

These remarks disclosed, if it were not already apparent, that this was a race relations case, -intimately related to the politics of Aboriginal communities and the system under which Aboriginals live in the communities. The remarks assume more importance because they were advanced in this Court as a justification for sentences by the Magistrate and by the Court of Criminal Appeal. The Crown claimed that they showed. that the Magistrate had properly taken into account the special circumstances of the Aborigines. Rather the Magistrate's remarks show that he had put himself in opposition to the political stance of the defendant that conditions need changing on the reserves. Although Mr Collins had told Mr Neal he should "go through the channels" if he desired change, the Magistrate told him it was wrong to seek to change anything. The Court of Criminal Appeal did not disapprove or comment on these remarks. The Magistrate took into account political views and actions against the appellant. This is rarely, if ever, justified, whether it be on trial or sentence. (See Cooper v The Queen [1961] HCA 16; (1961) 105 CLR 177.) Those remarks were not only patronising and insulting, they also made clear that anyone who agitated for change, "in any shape or form", in the Aboriginal communities, would be under a disadvantage in that Magistrate's Court. In its supervision of the criminal justice system of the State, the Court of Criminal Appeal has a duty to see that racism is not allowed to operate within the judicial system. It should have disapproved of the unjudicial manner in which the Magistrate dealt with sentence.

That Mr Neal was an "agitator" or stirrer in the Magistrate's view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. As Wilde aptly pointed out in The Soul of Man Under Socialism, "Agitators are a set of interfering, meddling people, who come down to some perfectly contented class of the community and sow the seeds of discontent amongst them. That is the reason why agitators are so absolutely necessary. Without them, in our incomplete state, there would be no advance towards civilization". Mr Neal is entitled to be an agitator.

The evidence showed that Mr Neal and his fellow Aborigines at. the Yarrabah Community have a deep sense of grievance at their paternalistic treatment by the white authorities in charge of the Reserve, including Mr Collins. The Council and Aboriginal members of the Community had no. control over what was sold at the store under management of Mr Collins. The evidence at the hearing was that although Mr Neal complained that Mr Collins sold rotten meat, Mr Neal and the Aboriginal Council were powerless to do anything about it, apart from making representations to Departmental Officers. Mr Collins gave evidence before the Magistrate that the Management would consider Council representations and make a determination independent of the. Yarrabah Council and the Aboriginal Community. Affidavit evidence before the Court of Criminal Appeal showed Mr Neal had been elected to the Aboriginal Council on a platform of self-management; he had made continuing representations to the Federal and State Governments in an endeavour to obtain self-management; he had made continuing representations to the Federal and State Governments in an endeavour to obtain self-management for his community, without success; and the Yarrabah Council, chaired by Mr Neal, had made application to the Federal Government to have the Yarrabah Community declared a self-managing community under the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act 1978.

Murphy J concluded by stating:

Spitting is humiliating and degrading. It is a typical response of children and others without power, attempting to humiliate and degrade those who are seen as oppressors. (See Seligman, Helplessness - On Depression, Development and Death, San Francisco, 1975.) The sentence of imprisonment imposed upon Mr Neal will not improve race relations but will tend to embitter them. Taking into account the racial relations aspect of this case, the fact that Mr Neal was placed in a position of inferiority to the whites managing the Reserve should have been a special mitigating factor in determining sentence.

In sentencing the Court should consider the offence, the character and record of the defendant and all mitigating and aggravating circumstances. Where there is no specific justification for withholding credit for mitigating factors the sentences will be expected to make an appropriate reduction. Not to do so is an exceptional course limited to those cases where a particular emphasis on deterrence is justified, or where there are other considerations such as the prevention of further offences, which are compelling. A sentence which fails to reflect the presence of recognised mitigating factors will, in the general run of cases, be reduced on appeal. (Thomas, Principles of Sentencing, 1979, London, p. 47.)

Brennan J delivered the following remarks about sentencing principles:

The facts of the case raised two important factors for consideration. The first factor, the gravity of the conduct in which, upon the Magistrate's findings, Mr Neal had engaged, was rightly considered by the Court of Criminal Appeal and is central to the opinion which that Court formed. Andrews SPJ thought the facts portrayed "a most frightening situation, as well as being offensive and grossly humiliating", and that view of the facts was open upon the evidence. The second principal factor which required consideration was the reason why Mr Neal engaged in that conduct. Specifically, the question was whether the explanation of Mr Neal's conduct was some emotional stress arising from what he called in his evidence "the paternalistic system" of life on the Reserve. Neither the reasons of the Court of Criminal Appeal nor the reasons of the Magistrate refer to the emotional stress affecting Mr Neal though the facts of the case are eloquent to suggest it. Emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a counter-vailing factor (see DA. Thomas, Principles of Sentencing (2nd ed., London 1979), pp. 194, 207). The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender for the offence (Rex v Bright (1916) 2 KB 4411 at p. 444 per Darling J).

Consideration of emotional stress is commonplace in the exercise of a sentencing discretion: see, for example, the observations of Jacobs J. in Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at p.490. A particular example of emotional stress arising from problems existing in Aboriginal communities in North Queensland was furnished to us in the transcript of remarks made by Dunn J in the Supreme Court of Queensland (18 September 1981, unreported) in passing sentence upon Alwyn William Peter who had been convicted of manslaughter of a woman on another Aboriginal Reserve in North Queensland. His Honour said:

"The inclination of my brother Judges and myself to recommend such offenders as you for consideration for parole results I think from the fact that with. the assistance of expert evidence we have perceived and made allowance for the fact that special problems exist in Aboriginal communities."

The facts of the present case likewise point to some "special problems" which may explain - though they cannot, justify or excuse - Mr Neal's conduct. The assault was not caused by any ill-feeling between Messrs Collins and Neal personally. Yet a dramatic and emotional confrontation on Mr Collins' steps had occurred, apparently produced by a deeply-felt objection to Departmental control of the Reserve. The fact that the incident was to be accounted for by the problems (whatever they are) of life on the Reserve was a material factor for consideration. It is erroneous to neglect consideration of emotional stress which explains criminal conduct; that factor is material to the assessment of proper retribution and it may be material to deterrence - at all events if those to be deterred are likely to be subjected to similar emotional stress. From the sentence which their Honours decided to impose, and from the absence in what their Honours said of any reference to any emotional stress affecting Mr Neal - even if a reference for the purpose of discounting its weight - I would infer that they omitted to consider emotional stress as a mitigating factor in assessing the gravity of his conduct.

Brennan J. went on to say:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion at first instance or for the Court of Criminal Appeal.

Mr C.W. Pincus Q.C. and Mr R. O'Regan appeared for the appellant instructed by Paul Richards and Associates, solicitors, as agents for the Aboriginal and Torres Strait Islanders Corporation (Q.E.A.) for Legal Services.

Mr A. Vasta Q.C. appeared for the Crown.