Aboriginal Law Bulletin --- "The Queen v Wally Hagen and Robert Tilmouth (Sentence - aggravated assault of a minor - Aboriginal women's right to be protected by the law)" [1990] AboriginalLawB 46; (1990) 1(46) Aboriginal Law Bulletin 18

• The Queen V Wally Hagen And Robert Tilmouth
• Sentence-Aggravated Assault Of A Minor-Aboriginal Women's Right To Be Protected By The Law

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The Queen v Wally Hagen and Robert Tilmouth

Sentence - aggravated assault of a minor - Aboriginal women's right to be protected by the law

The Supreme Court of the Northern Territory,Kearney J

17 July 1990

Robert Tilmouth and Wally Hagen pleaded guilty to the charge of unlawfully assaulting with intent to have carnal knowledge a 14 year old girl. The victim was placed in 'protective' custody on Friday the 29 March 1989 under the Intoxicated Persons Act. She was released at 1.30 am the following morning and left by the police to walk home on her own. On her way home she was chased, dragged into a shed and attacked by Tilmouth and Hagen. Tilmouth, who was 18 years old at the time was her brother-in-law. Both Tilmouth and Hagen were visiting Alice Springs from the Ti-Tree area were they have lived all their lives. Both were married. Hagen was around 25 at the time of the attack.

Counsel for the Crown and counsel for the defendants made submissions as to sentence. Judge Kearney stated in relation to Tilmouth's sentence:

I accept when sentencing you that because she knew you Robert Tilmouth quite well, she would not have suffered quite the same terror as if the attack had been made upon some complete stranger passing by. I accept the evidence of your father, Fred Tilmouth as to your behaviour since this offence - your good behaviour since this offence ... As to his evidence about your right to have sex with Bessie in Aboriginal law, I treat that as irrelevant on the facts of this case, but in any event I accept Mr Morgan-Payler's submission that this evidence went to no more than this, that you probably had the respective `skins' for a relationship to have existed...

In my experience, drink lies behind most of the cases which come before this court in which Aboriginal - usually Aboriginal men - are charged. These cases in turn are usually cases where Aboriginal men under the influence of drink, have assaulted Aboriginal women. Indeed, this was such a case. In the past, the sentences which this court has imposed have been somewhat lighter, so far as I can judge, than those which it would've imposed on non-Aboriginal people who had committed similar offences. This, no doubt, was due to feelings in the past about the necessity for the law to serve some educative purpose. That sentencing approach to my mind, can no longer be maintained. It has not resulted in any diminution in the number of these types of cases.

No effective steps have been taken by the respective governments of the day to remedy the social disaster of excessive Aboriginal drinking. To my mind, Aboriginal women have a right as all other women do, to be protected by the law; and in practical terms and in the case of this court, that means in practice I think stiffer sentences for Aboriginal men who wreak unprovoked violence on Aboriginal women while under the influence of drink. Rape, or attempted rape, in circumstances such as this case where there are no elements of tradition involved, are crimes of violence in their essence.

Taking this approach, I reject, as resulting in a totally inadequate punishment, the submissions both by Mr Morgan-Payler and Mr Hird that any sentences I impose on both of you should be wholly suspended... .The rehabilitative aspects of sentencing in this case must, I think, be balanced with other legitimate aspects of sentencing. And so I proceed to sentence you both."