Indigenous Law Bulletin
By Kyllie Cripps, Megan Davis, Caroline Taylor.
The Indigenous Law Centre, funded by Commonwealth Attorney Generals Department is currently conducting a research project into the experiences of Aboriginal women and children before the courts in sexual assault cases. There is very little evidence of how the justice system has in the past or currently manages Indigenous sexual assault. There are well worn and oft cited narratives of how the judiciary has diminished Aboriginal women in customary law cases. While those sentencing remarks are selectively chosen to make broad generalisations about a discriminatory judiciary, we want to test empirically the extent of that attitude. Moreover we want to build a knowledge base to improve current practices and processes to benefit Indigenous women and children who have been victims and survivors of sexual assault.
This particular article focuses on the Aurukun case that drew the attention of the nation to how the courts are dealing with the issue of sexual violence in Aboriginal communities. While this article is a case note of the sentencing remarks of Justice Bradley and the appeal from the Queensland Court of Appeal, its primary aim is to reveal the importance of the research that is being conducted by the authors under the auspices of the Indigenous Law Centre.
In May 2006, a 10 year old girl attended the Aurukun medical clinic seeking a pregnancy test and condoms. After questioning, and subsequent a diagnosis of gonorrhea, the child revealed that she had been gang raped by three adults and several younger men. The clinic advised the appropriate authorities that intervention was urgently required. Due to some substantial errors by Child Protection officers, the little girl was raped at least six more times over the following six weeks by the same nine men.
Six of the nine perpetrators (AAC, PAG, KZ, BBL, WZ and YC) were charged with one count of rape of a 10 year old girl, the other three perpetrators (WY, KU and KY) were charged with two counts of rape of the same girl. All defendants pleaded guilty to the charges. As they pleaded guilty, a trial was not necessary and the victim was not required to recount her story in a courtroom.
The role of the Crown Prosecutor at a sentencing hearing is to highlight the aggravating offender’s conduct whilst the usual role of the Defence is to attempt to diminish the conduct of an offender and diffuse blame. In this case, sentencing proceedings took place on 24 October 2007 before District Court Judge Sarah Bradley. One of the most disturbing features of this case is that it was the Crown Prosecutor who led in the mitigation of the offenders’ conduct, and in the process, inferred blame on the child victim. Normally such a task is carried out by Defence counsel. The Prosecutor in this case presented to the court an account of the facts focusing on the child victim’s supposed consent, stating that:
when (name withheld) was 13, he and a group of others took part in consensual sex – well, it was – it was not forced sex, upon the complainant child.
Further submissions made by the Public Prosecutor in the sentencing proceedings demonstrated that he did not appreciate the gravity of offences that had been committed upon the young girl. Describing them as ‘naughty’, he said of the perpetrators
in this case, it was a form of childish experimentation, rather than one child being prevailed upon by another … although she was very young, she knew what was going on and she had agreed to meet the children at this place and it was all by arrangement.
Importantly, not all offenders were minors. The Prosecutor’s reference to ‘naughty children’ appears to be a technique to mask the seriousness of the crime, reduce the culpability of the offenders and to locate the child victim as an equal, if not fully blameworthy, party to her own gang rape. In this context, the Prosecutor submitted to the judge that a supervisory order or probation would be appropriate punishment.
Queensland law regarding consent states that a child under 12 does not have the cognitive capacity to give consent to sexual intercourse. Thus the Prosecutor’s focus on the issue of consent was flawed.
It should also be noted that, when determining an appropriate sentence, s 215 of the QLD Criminal Code states that
Any person who has or attempts to have unlawful carnal knowledge of a girl under the age of 16 years is guilty of an indictable offence … if the girl is under the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for life.’
Under s 8(1) of the Juvenile Justice Act, the maximum penalty for a juvenile offender is 10 years’ detention. The submissions for a supervisory order or probation were inconsistent with similar cases.
Consistent with the submissions provided to her as part of the court proceedings, Bradley J imposed six months’ imprisonment suspended for twelve months subject to good behavior to the adults, and twelve months’ probation subject to good behavior without conviction for the juveniles. In passing judgment in the case she stated:
I accept that the girl involved, with respect to all of these matters, was not forced and that she probably agreed to have sex with all of you, but you were taking advantage of a 10 year old girl and she needs to be protected’.
When the above sentencing statement by Justice Bradley came to public attention, it attracted international media coverage. The Queensland Attorney General sought to have the matter heard before the Appellate Court, on the grounds that the sentence imposed on each of the perpetrators was manifestly inadequate.
The appeal sought to have Bradley J’s decision overturned based on five errors of law, namely:
• There was established precedent calling for imprisonment in similar cases;
• Bradley J had failed to explain why a non-custodial sentence was appropriate in the facts of the case;
• Bradley J had treated all perpetrators in the same way notwithstanding significant disparities between their respective criminal histories, admissions of remorse, and ages;
• The principle of general deterrence had not been sufficiently applied; and
• Bradley J had placed too much emphasis on the great disadvantage experienced by the offenders as a consequence of living in a dysfunctional community, but had not given equal consideration to the victim’s commensurate disadvantage.
The Attorney General argued that everyone was entitled to the protection of the law.
Defence counsel submitted that there had not been a miscarriage of sentencing discretion but that, even if there had been a miscarriage, the appeals should be dismissed because it was attributable to the Prosecutor’s conduct. They argued that the Prosecutor’s approach meant that the sentencing hearing was effectively a ‘no contest’, that is, that it was common ground between the parties that non-custodial sentences should be imposed on all of the perpetrators. The sentences imposed by Bradley J reflected her acceptance of the approach urged upon her by the Prosecutor, and reflected an acceptance of the proposition that custodial sentences were not appropriate in these cases. There was also some argument that the guilty pleas had been accepted by the perpetrators on the understanding that a non-custodial sentence would be applied. Defence stressed that, had this not been the case, mitigation evidence would have been presented at the sentencing hearing. Accordingly, Defense counsel submitted that, should the appeal be allowed, the perpetrators should not be imprisoned or detained.
At the Justices’ insistence, Defence counsel presented the following mitigating factors to be considered in any resentencing
• Community dysfunction;
• Family dysfunction, including abuse, neglect, substance abuse, absent male role models;
• Inadequate community services Intellectual impairment and impaired ability to socialize appropriately;
• Expressions of remorse;
• Notwithstanding the legislation, the victim had consented and actively encouraged the offenders to have sex with her; and
• Stress resulting from adverse publicity surrounding the case.
On 13 June 2008, Justices de Jersey, McMurdo and Keane of the Queensland Court of Appeal handed down their Appeal Court decision. They found that there had been a number of errors ‘so serious as to produce a clear miscarriage of justice’ that warranted the Attorney General’s appeal. The Court further explicitly stated that the original sentences did not reflect the gravity of the crime committed.
Remarking on its deterrence function the court said that a custodial sentence is
all the more compelling where a community is demonstrably unequal to the task of providing protection for some of its innocent members. Furthermore, if… the local community is truly a breeding ground for serious offences against innocent members of its community, the usual reluctance of the courts to expose young offenders to custodial sentences is not so compelling a consideration when determining an appropriate sentence.
Commenting on rehabilitation of offenders, the court observed that this is
less likely to be achieved by community based sentences which leave a peer group of co-offenders within the local community. Community based sentences may achieve nothing in terms of rehabilitation of individual offenders, while at the same time leaving innocent members of the community at the mercy of groups of lawless young men’.
Importantly, the court stressed that
Relevant personal disadvantage must be established by evidence relevant to the particular offender even if that disadvantage arises by reason of the offender's membership of a particular ethnic group. To adopt an approach which proceeds on the basis that the courts may take judicial notice of the supposed effects of a community's dysfunction upon all or any of its members, is to engage in the kind of stereotyping which was deprecated by this and other Australian courts in the cases to which we have referred. This approach diminishes the dignity of individual defendants by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of observing the standards of decent behaviour set by law’.
In re-sentencing each of the respondents, the Appellate Court fixed a sentence within the binding statutory framework applicable to adults and juveniles respectively. In each case the sentence was intended to reflect the gravity of the offending of each respondent while giving necessary recognition to each respondent's guilty plea, and the circumstances of disadvantage relevantly suffered by him. The ultimate outcome for the perpetrators as determined by the Justices was as follows:
• The three adult perpetrators were each sentenced to six years’ imprisonment. They will be eligible for parole 13 June 2010;
• Four of the juvenile offenders were sentenced to three years’ probation and rehabilitation. Convictions were recorded;
• One juvenile offender (KZ) was sentenced to three years’ detention. He will be eligible for parole after 18 months;
• The final juvenile offender(AAC) was sentenced to two years’ detention. He will be eligible for parole after 12 months.
It was only widespread public outcry, coupled with concern by the Queensland Attorney General, which led to this case being re-examined. The research being conducted by the Indigenous Law Centre and the authors is to discover whether this is an isolated case, or whether it reflects standard judicial practice in the management of sexual assault cases involving Indigenous women and children victims. To date, research in this important area has been significantly limited. We cannot hope to remedy problems such as those presented in this case without first knowing how far these problems extend.
To do this, we need a comprehensive analysis of cases in which Indigenous women and children present as victims of sexual assault from across the country. Important questions include:
• How do victims progress and exit the justice system?
• What is the good and poor practice?
• What are the outcomes for Indigenous victims of sexual assault?
• What are the judicial conceptions of Indigenous culture in such cases?
This research aims to systematically document the narratives produced in sexual assault cases involving Indigenous women and children as victims; to explore how those narratives are deployed and sustained (and by whom); to critically examine how those narratives are applied through legal processes and decision making as cases proceed through the criminal justice system; and to influence the development and implementation of policy and law and judicial training.
The justice system failed the 10 year old Aboriginal girl from Aurukun. Her story, in the proceedings detailed in this article, was absent. The perspectives of the perpetrators took primacy. What will she think in ten years from now as she reflects on these documents – and how she has been portrayed? When will her voice be heard? More broadly has justice been delivered? And justice for whom?
We fail Indigenous children and we fail Indigenous women when we ask them to have faith in a system that continues to fail them. Importantly, without extensive and evidence-based research needed to redress the injustices that have been, and continue to be experienced in our Indigenous communities across the country, we also fail to remedy the problem.
 Kevin Meade and Sarah Elks, ‘Girl Endured Six weeks of Sex Attacks’ The Australian, 14 December 2007, 4.
 R v KU & Ors; ex parte A-G (Qld)  QCA 154.
 The Queen v KU, AAC, WY, PAG, KY, KZ, BBL, WZ & YC  Qld District Court 146, transcript of proceedings, 4.
 Criminal Code Act 1899 (Qld) s215, 108.
 R v KU & Ors; ex parte A-G (Qld), above n 2, 36.
 The Queen v KU, AAC, WY, PAG, KY, KZ, BBL, WZ & YC, above n 3, 2.
 The Attorney General of Queensland v KU & Ors (Qld)  QCA Appeal no 346 of 2007, transcript of proceedings 13-14 May 2008, p36
 Ibid 20, 36-7.
 Ibid 20, 38.
 Ibid 18, 44.
 Ibid 18, 41-2.
 Ibid 18, 50-51.