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Pringle, Karen L. --- "R v an Aboriginal Youth" [1994] AboriginalLawB 45; (1994) 3(69) Aboriginal Law Bulletin 15


R v an Aboriginal Youth

The Supreme Court of Queensland

Criminal Jurisdiction, White J.

18 July 1994

by Karen L Pringle

An Aboriginal youth ("the accused") was tried in the Brisbane Supreme Court between 26 May and 22 June 1994 and convicted by a jury of unlawfully killing Dermot Tiernan ("Tiernan"), a publican, and of stealing an amount of money from him. The accused subsequently pleaded guilty to unlawfully assaulting a policeman in the execution of his duty. (p2, restricted access transcript No. 355 of 1993. All following page numbers are from this transcript.)

Sentencing was adjourned pending the preparation of a pre-sentence report to be obtained in accordance with the requirements of s110 of the Juvenile Justice Act 1992 (Qld) ("the Act"), which provides, in part, that a court, before it sentences a child found guilty of an offence, may order the chief executive of the Department of Family Services and Aboriginal and Islander Affairs (DFSAIA) to give to the court a pre-sentence report concerning the child. (p2)

The accused was bailed pending the preparation of the report under very strict conditions. (p2)

Sentence was handed down on 18 July 1994 after Her Honour Justice Margaret White had heard detailed submissions from counsel on sentence and had regard to the pre-sentence report prepared by an officer of the DFSAIA.

The offences occurred on Saturday, 20 March 1993 in Murgon. According to the evidence, some Aboriginal youths became involved in a fight with police in a street in Murgon outside the local RSL and across the road from the Australian Hotel which was owned by Tiernan. (p2)

It was estimated by witnesses at the trial that anything up to 100 people, whether as participants or onlookers, were involved in the melee which ensued and which involved several fights. About six or seven policemen were involved in attempting to bring the incident under control and one policeman was quite seriously assaulted. (p2)

People known to the accused were involved in the melee and according to the accused's record of interview with the police, he attempted to assist one of his friends escape from custody. (p2)

Tiernan attempted to intervene and calm matters down in the street. However, the accused, having consumed a quantity of alcohol, thought that Tiernan was insulting him in telling him to leave the fight. As a consequence, the accused hit Tiernan in the face resulting in him falling backwards and striking his head on the bitumen. Tiernan sustained a cerebral haemorrhage, never regaining consciousness and dying two days later in Brisbane. The accused stole an amount of money from Tiernan which fell out of his pocket as he fell to the ground. He also assaulted a police officer "when he was bringing in another young chap who had been involved in the fracas." (p2)

The accused was arrested the following day after having made certain admissions to a relative and having been identified by several people at the incident the night before. (p2)

In sentencing the accused, justice White paid due regard to the pre-sentence report and noted that it had assisted her in coming to a conclusion on sentencing. (p3) The report was compiled from interviews conducted with the accused, some relatives and others who knew him, including his kinsmen and people involved in the Cherbourg community. An Aboriginal Family Services officer attended the interviews to ensure that culturally sensitive issues were considered. In the compilation of this report consideration was also given to departmental files relating to the accused and his family. The DFSAIA officer who compiled the report also visited Cherbourg and Murgon so as to note the social, cultural and environmental factors which may have affected the accused and in order to ascertain what the future may hold for him. (p3)

It was reported that the accused found it very difficult to discuss the circumstances of the offence and was most distressed after his arrest at the fate of Tiernan who he referred to as his friend. (p3)

The accused admitted becoming aggressive when under the influence of alcohol. It was noted that he had a history of unlawful conduct and from an early age had behaved in a disorderly fashion. However, Justice White noted that she wasn't taking these matters into account as they "were things that happened when [the accused was] a young boy". (p3)

Justice White was concerned that not long before the commission of the current offences the accused had committed acts of violence including assaulting police and other persons. With respect to these offences it was conceded by the prosecution "that all of these offences in recent times involving aggression on [the accused's] part are influenced by [his] consumption of alcohol which makes [him] behave in a very angry fashion." (p3)

Justice White went on to consider in detail the Cherbourg community. She noted that it was stated by most of the people who were interviewed for the purpose of compiling the pre-sentence report that "there is nothing for the young people to do at Cherbourg". (p3) One interviewee commented that "within the Cherbourg culture, the belief exists that manhood is initiated through the first fight, the first drink, or going to gaol."(p3)

Justice White went on to state as follows:

It is said that there is a great deal of racial tension between the community in Murgon and the community at Cherbourg. Perhaps something, an impediment for you, has been the fact that you have been endowed with an excellent physique and you are apparently very good at sport so that a number of the younger children at Cherbourg have tended to look to you for physical protection and that has lead you into some offending behaviour, it would seem, in the past.(p3-)

Her Honour noted that it had been suggested that the system operating in the Cherbourg-Murgon community shaped the accused's criminal behaviour. She noted that "there are few opportunities for employment at Cherbourg and it appears that there is no transport between the community at Cherbourg and Murgon." (p4) Justice White commented that the accused had been unable to maintain a steady job but had indicated a career preference. (p4)

Her Honour went on to state as follows:

There seems to be no doubt that you, like so many young men and young women, I might say, seem to be trapped in the tragedy of Cherbourg. It is a matter of grave disquiet to me that so much money, according to the reports that one reads in the newspaper, and Government reports, is devoted to assist Aboriginal and Islander people and yet practical efforts at assisting young men to find work by way of apprenticeships, by giving them transport to get into town where they might be able to have work has certainly not occurred. It appears that the community offers no future for its young people and neither... does it offer any links with any traditional past that the Aboriginal people might have. Accordingly, it can not be regarded as a place which encourages lawful conduct and hopefulness for a productive future.(p4)

Justice White went on to note that "the purpose of punishment in our Courts is a mixed one involving rehabilitation of the offender; as a deterrent to the offender and other offenders; and to satisfy community demands for retribution or punishment". (p4) In considering sentence and the approach which should be taken pursuant to the Act, Her Honour made reference to the remarks of His Honour, Mr Justice McPherson in R v Bowden, an unreported decision of the Court of Appeal of 30 March 1994 (No. 472 of 1993), especially with respect to s121 of the Act which deals in part with the sentences which a Judge may impose upon a child found guilty before a court of a serious offence. (p4) Justice McPherson’s remarks were as follows:

That provision [s121(3)(a)] is, in my opinion, to be viewed as designed to place an upper limit on the period of detention. It is not to be considered as requiring what I will call a 'pro-rating' of the maximum life penalty under the Code with a view to arriving at a different maximum proportionate to 10 years as a base from which to calculate the sentence for the juvenile in the particular case before the Court.

The upper limits that are imposed by s 121(3) appear to me to have been chosen quite arbitrarily in order to ensure the children do not serve, or undergo, periods of detention longer than the maxima there specified. When all that has been said it remains, of course, necessary to bear in mind that the plain intention of the legislature in enacting that section is to ensure that children are treated more leniently than adults.(p4-5)

Justice White was also referred to a decision of the Court of Appeal in England, R v Phillips (1985) 7 CA Reports 235, which dealt with a similar factual situation where the offender felled the victim so that he struck his head on the pavement, cracking his skull. The Court of Appeal said that a sentence in the region of 12 months imprisonment and in some cases no term of imprisonment at all is considered to be a proper sentence. (p5)

Her Honour noted that in the case before her, the accused had spent some nine months in custody as a consequence of the offences and a refusal of bail. The accused was subsequently granted bail on conditions. (p5)

Justice White took into account in sentencing the accused that he had not breathed any of the very strict bail conditions which were imposed. She also commended him for having a history of good behaviour while in custody and for assuming the role of leader and guide to other Aboriginal boys in detention. (p5)

Justice White had to determine whether an order for probation or a detention order would be appropriate in the circumstances of this case. She noted that if a probation order was made thee accused would have many opportunities available to him including the possibility of taking part in a number of programs, obtaining assistance with alcohol problems, participating in a Skill Share program offered by Aborigines to link young Aboriginal persons into a learning trade (possibly leading to the accused obtaining an apprenticeship) and ann intensive personal supervision program provided by the DFSAIA in which an Aboriginal worker would provide supervision so as to give the accused individual assistance. (p5)

The alternative to a probation order was. placing the accused in detention at the John Oxley Youth Detention Centre which could also provide assistance through various programs with personal and social development and with manual skills. It was thought by the DFSAIA officer that given the accused's age and his perception of himself as an adult that "it is doubtful whether a further period in custody will effect any real change to [his] behaviour." (p6)

Having considered all of the options available to her, justice White concluded as follows:

Bearing all of those matters in mind and particularly that you have, in effect, had what might be regarded as a nine month custodial sentence, together with the long period on bail culminating with the quite strict bail conditions of the last month, it seems to me that the juvenile justice Act principles require me to pass no further custodial sentence upon you, but that it is appropriate pursuant to section 121 (1) (a) of that Act that I should impose a period of probation upon you.(p7)

Section 121(1)(a) of the Act provides that if a child is found guilty of a serious offence before a court presided over by a Judge, the court may order the child to be placed on probation for a period not longer than 3 years. Her Honour ordered that the accused undergo a period of three years probation pursuant to this section. (p7)

The conditions imposed upon the accused with respect to the probation order, in addition to those.imposed by the ordinary operation of law, related to his place of residence, his full participation in programs proposed by the officers of the DFSAIA for the purpose of addressing his alcohol problems and his.anger and in such other programs as may be proposed for him, for example, dealing with employment. It was also a condition that he carry out generally the reasonable and lawful instructions of the officer who is to be his probation officer. (p7)

Justice White ordered the accused to undergo sixty hours community service for' his conviction for stealing and sixty hours community service for assaulting a police officer, to be served concurrently. (p8)

Her Honour considered the questionof whether a conviction should be recorded against the accused. In accordance with sl24(4) of the Act she recorded a conviction. The prosecution noted that because Her Honour had ordered three years probation which is not something available under s120 of the Act that a conviction is taken to be recorded. (p8)

Comment

After this sentence was handed down there was much public outcry over its alleged leniency. It wasfelt by many members of the community that the punishment did not fit the crime. (See, for example, the comments made in The Courier-Mail, 20 July, p2; The Courier-Mail, 19 July, p1; and The Australian, 19 July, pl.) The case led to much debate amongst members of both the Aboriginal and wider community.

The accused has lodged an appeal against his conviction for manslaughter. It has been reported that the appeal grounds include medical evidence given during his trial which suggests that Tiernan suffered from certain medical conditions which possibly may have caused his death. (The Courier-Mail, 20 July, p2.) According to the accused's legal representatives, "the combination of these conditions raised a reasonable doubt that a punch might not have caused the death, and the benefit of any doubt should havegone to the youth". (The Courier-Mail, 20 July, p2.)

The Minister for Justice and Attorney-General, The Honourable Dean Wells MLA advised on 24 July that he will appeal against the sentence handed down to the accused.. Mr Wells said he had accepted the recommendation of the Director of Prosecutions to appeal against the leniency of the sentence. The grounds of appeal include that the sentence is too lenient and does not reflect the gravity of the crime and further, that it does not act as a sufficient deterrent to others. Mr Wells commented that 'after considering all the facts, the sentence is on the light side ... even though the offender has already completed nine months in prison". (Ministerial Media Release, 24 July 1994.)

The appeals willl be heard beforee the Queensland Court of Appeal in approximately 3 months time. Once determined, it will then be appropriate for further comment to be made on this case.

* Publication of identifying matter is restricted in accordance with s62 of the Juvenile Justice Act 1992 (Qld).


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