Neate, Graeme --- "Jackie Anzac Jadurin v the Queen (Criminal law appeal against severity of sentence - sentencing principles - tribal Aboriginal - traditional punishment - whether taken into account in determining proper sentence)" [1982] AboriginalLawB 68; (1982) 1(6) Aboriginal Law Bulletin 11

• Jackie Anzac Jadurin V The Queen
• Criminal Law Appeal Against Severity Of Sentence-Sentencing Principles-Tribal Aboriginal-Traditional Punishment-Whether Taken Into Account In Determining Proper Sentence

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Jackie Anzac Jadurin v the Queen

Criminal law appeal against severity of sentence - sentencing principles - tribal Aboriginal - traditional punishment - whether taken into account in determining proper sentence

Federal Court of Australia, NT District Registry

(on appeal from the NT Supreme Court) at Darwin (St John, Toohey and Fisher JJ)

27 October 1982

Casenote by Graeme Neate

The appellant, convicted of the manslaughter of his wife, appealed against the sentence of four years' imprisonment with a minimum non-parole period of twelve months imposed by the N.T. Supreme Court.

An Aboriginal of the Ngaringman group, he was married to the deceased for fourteen years. They had two children. He was head stockman on Victoria River Downs station and had no previous convictions.

On the day prior to the offence, the appellant purchased alcohol and with his wife and others, was drinking it at the camp where they lived. That evening the group decided to visit a man in hospital some two miles away. During the walk there was an argument. The appellant assaulted his wife with a piece of wood, breaking her left arm and inflicting a number of other injuries.

He later drove her back to their camp where they went to bed. After a time she got up and began to walk around. The appellant struck her a number of times on the back with a piece of polythene piping. One blow caused a rupture of the liver and severe internal bleeding from which she died shortly after. External examination of the deceased revealed fourteen obvious injuries.

It was suggested on the appellant's behalf, by way of explanation not justification, that in Aboriginal society it is not unusual for women to be beaten if they do not obey their husbands. In the opinion of the court evidence of this:

goes no distance towards establishing that such conduct is an accepted facet of Aboriginal society. The suggestion overlooks the fact that, at least in the experience of the courts, when such beatings take place it is usually after a great deal of alcohol has been consumed. It also ignores the very complex web of relationships between men and women in Aboriginal society. In the present case we are of the opinion that the Court should approach the matter on the basis that the appellant beat his wife in anger when they were drunk, and that this brought about her death.

The Court found that there was nothing to suggest that the sentencing judge had failed to take into account matters raised by counsel in favour of the appellant.

Counsel's principal submission was based on factors relating to the consequences of the appellant's conduct within his Aboriginal community, in particular that he had undergone and is likely to undergo further traditional punishment. There was evidence of payback in satisfaction of the offence, though the Court found this ambiguous:

It may mean that some minor injury was inflicted or that there was no injury at all. No mention was made in the Supreme Court or in this Court of any particular injury. The use of boomerangs and nulla nullas may have been largely symbolic.

As to future punishment there was evidence that the deceased's tribal relatives would come from various places other than Victoria River Downs, after any sentence imposed by the Court had been served, and punish the appellant. He would possibly be crippled permanently and be banished for some years. Other evidence suggested that after `fairly hard punishment' in a men's ceremony the appellant `would have to be careful' for a number of years.

It is reasonable to conclude that if the appellant is not dealt with at the ceremony proposed, there will be repercussions for members of his immediate family and that those repercussions will be unpleasant. We are not prepared to conclude, on the evidence available, that any member of the family will be subjected to "the physical punishment described by Mr Campbell It is clear that whatever happens to the appellant at the hands of the community, he and his family will carry the very considerable shame of what he did. The emotion of shame has been described by the late Professor Stanner as `perhaps the most powerful in Aboriginal life' (W.E.H. Stanner: White Man Got No Dreaming, 95).

The Court found that the sentencing judge was aware of and referred to the consequences for the appellant and his family and that he `clearly gave earnest consideration to all matters relating to the appellant both assn individual and as a member of the Aboriginal community'. This was shown by the sentence.

A sentence of imprisonment for four years, suspended at the end of one year, would ordinarily be regarded as a very lenient penalty in the case of someone who brought about the death of his wife as a result of a violent beating, even though not intending to kill or do grievous bodily harm.

Once this was accepted the argument that the offender was being punished twice `loses some of its force. It does not disappear completely; the notion still remains but its extent must be measured by the circumstances of the particular case.'

The Court discussed its decision in Mamarika v R, delivered 4 June 1982, a case with similar facts. It then quoted the comments of Brennan J in Neal v R, a decision of the High Court delivered 24 September 1982:

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.

The Federal Court continued:

It is sometimes said that a court should not be seen to be giving its sanction to forms of punishment, particularly the infliction of physical harm, which it does not recognise itself. But to acknowledge that some form of retribution may be exacted by an offender's own community is not to sanction that retribution; it is to recognise certain facts which exist only by reason of that offender's membership of a particular group. That is not to say that in a particular case questions will not arise as to the extent to which the court should have regard to such facts or as to the evidence that should be presented if it is to be asked to take those facts into account.

In our view it is unnecessary in the present case to explore those questions. The learned sentencing judge had a wide discretion in arriving at a sentence to give effect to the various matters urged before him. One of those considerations was the likelihood of further punishment by the community to which the appellant belonged. It was a consideration which clearly was taken into account. We do not think it is possible to point to any identifiable error in the learned judge's reasons, nor is the sentence itself one from which error may be inferred.

In our view the appeal should be dismissed.

Mr C. McDonald of NAALAS appeared for the Appellant.

Mr P. Tiffin, Crown Prosecutor, appeared for the Crown.