Behrendt, Jason; Cronin, Margie --- "Regina v Stanley Edward Fernando" [1992] AboriginalLawB 23; (1992) 1(55) Aboriginal Law Bulletin 19

• Regina V Stanley Edward Fernando

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Regina v Stanley Edward Fernando

Supreme Court of New South Wales Criminal Division, Wood J

Bathurst, 13 March 1992.

Casenote by Jason Behrendt and Margie Cronin

The defendant, an Aboriginal man from Walgett (NSW), pleaded guilty to one count of malicious wounding after attacking his de facto partner with a knife. The attack took place on 13 February, 1991, while the defendant was heavily intoxicated. When interviewed by police the following morning he had no recollection of the incident.

In sentencing Stanley Fernando, Wood J noted three aggravating factors:

(a) the victim had been subject to prior assaults by the defendant;
(b) the offence involved the use of a knife; and
(c) the offence occurred while the defendant was subject to a good behaviour recognizance which required that he not drink intoxicating liquor to excess. (p3)

Wood J, after considering: extracts from Justice Toohey's paper The Sentencing of Aboriginal Offenders; the Report of J H Wootten QC of the Royal Commission into Aboriginal Deaths in Custody; and a line of cases including, Regina v Neal [1982] HCA 55; (1982) 149 CLR 305, Regina v Friday (1984) 14 ACR 471, Regina v Yougi (1987) 33 ACR 301, Regina v Rogers and Murray (1989) 44 ACR 301 and Regina v Juli (1990) 50 ACR 31, outlined the following sentencing principles:

"(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.

(B) The relevance of the aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the
particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subject circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."

(pp8-10) Wood J then considered a number of factors including Fernando's deprived background and involuntary removal from his family as a child, his upbringing in an environment in which alcoholism was common, his desire for meaningful employment, his remorse, and the fact that the victim had forgiven him and did not want him to go to gaol.

Wood J concluded that:

"a custodial sentence is called for because of the objective seriousness of the offence and the aggravating circumstances earlier noted but also because of the need for sentence which will demonstrate to the aboriginal community in the interests of their protection that violent and drunken assaults are regarded very seriously by the law." (p.12)

Stanley Fernando was sentenced to 4 years imprisonment to date from the time of sentencing, with the earliest date for which he would be eligible for parole being 13 December 1992.