Rees, Neil --- "R v Ngaire Herbert, Pamela Nangala Sampson and Rhoda Wurrawilya (Criminal law - murder - sentence - interpretation of Criminal Law Consolidation Act (NT) - evidence in mitigation of penalty)" [1984] AboriginalLawB 4; (1984) 1(10) Aboriginal Law Bulletin 8

• R V Ngaire Herbert, Pamela Nangala Sampson And Rhoda Wurrawilya
• Criminal Law-Murder-Sentence-Interpretation Of Criminal Law Consolidation Act (Nt)-Evidence In Mitigation Of Penalty.

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R v Ngaire Herbert, Pamela Nangala Sampson and Rhoda Wurrawilya

Criminal law - murder - sentence - interpretation of Criminal Law Consolidation Act (NT) - evidence in mitigation of penalty.

R v Ngaire Herbert, Pamela Nangala Sampson and Rhoda Wurrawilya

Supreme Court of the Northern Territory at Darwin (O'Leary J)

24 August, 1984

Casenote by Neil Rees

Ngaire Herbert, Pamela Nangala Sampson and Rhoda Wurrawilya were convicted, by a jury in the Supreme Court of the Northem Territory, of murder. The Crown alleged that the accused women had beaten the deceased around the head with an, iron bar whilst in the beer garden of the Parap Hotel. The deceased and the accused were intoxicated at the time of this incident. There was some dispute about the motive for the attack. The Crown alleged that the motive was robbery whilst the defence claimed that the deceased had called one of the accused "a slut" and "a black bitch".

The accused women were Aborigines who had lived a traditional lifestyle before moving to Darwin.

Section 5 of the Criminal Law Consolidation Act provides that a person convicted of murder shall be sentenced to life imprisonment. However there is an exception in section 6 (1C) which provides - - Where an aboriginal is convicted of murder, the judge may impose such penalty as, having regard to all the circumstances of the case, appears to him to be just and proper.

Section 6A of the same Act states - For the purpose of determining the nature and extent of the penalty to be imposed where an aboriginal is convicted of murder,. the court shall receive and consider any evidence which may be tendered as to any relevant native law or custom and its application to the facts of the case and any evidence which may be tendered in mitigation of penalty."

The Crown Prosecutor argued that section 6 (1C) must be viewed as being subject to section 6A and consequently no evidence in mitigation of penalty should be considered unless there was some evidence of "native law or custom" which had been involved in the case. He submitted that as there was no such "law or native custom" involved in the case the trial judge should not consider any evidence in mitigation of penalty.

O'Leary J. rejected this argument –

I do not think that the sections referred to should be given such a restrictive construction, nor do my researches disclose that the court has ever given such a restrictive operation to them. It seems clear to me that, whilst fixing the sentence for murder in the Territory as mandatory life imprisonment, the intention of the legislature was that, where it was an aboriginal who was convicted of murder, that penalty should not apply, but rather there should be such a penalty 'as "having regard to all the circumstances of the case, appears to (the judge) to be just and proper". The discretion there conferred on the sentencing judge is, I think, a wide and unfettered one. It is not, in my opinion, cut down by the provisions of s. 6A. That section clearly refers back to s. 6(IC), but in my view, is directory only. It requires the court to receive and consider evidence of any relevant native law or custom, if there be any involved, and its application to the facts of the case, as well as any evidence which may be tendered in mitigation of penalty.

The specific requirement to receive and consider evidence of any relevant native law or custom may well have been thought necessary by the legislature in 1939 because of some doubt as to whether, without statutory authority, the court might take them into account. According to Dr. Eggleston in Fear, Favour dt Affection (at 283): "The general policy of Australian law has been to grant no formal recognition to Aboriginal law". Certainly, as Mary Daunton - Fear and Arie Freiberg note in The Australian Criminal Justice System, 2nd ed., at 80: "Early Australian Courts showed a great reluctance to recognise Aboriginal Law and custom and in fact questioned whether such laws did exist." The intention of the legislature therefore, it would seem, was to ensure that the court did take into account any relevant native law or custom.

A considerable body of evidence was presented to the court on behalf of the three women. O'Leary J. commented –

In the present case, I have had the benefit of comprehensive and detailed pre-sentence reports in respect of all the prisoners, and I have heard a considerable body of evidence as to their backgrounds, their histories and the conditions of their lives in Darwin and elsewhere after leaving their tribal society. All of that evidence I found helpful, but, in particular I received valuable assistance from the evidence of Dr Diane Bell, an anthropologist who has carried out considerable research, including field work, on the kinship systems and social organisations of aborigines, specially women, and on the ritual life of aboriginal women, as well as from the evidence of Mr Ian Joblin, a Melbourne clinical psychologist, specialising in the area of the psychology of criminal behaviour, and the trans-cultural psychology of native people, and of Dr Allen Bartholomew, a forensic psychiatrist attached to Pentridge Gaol, Melbourne.

After reviewing the evidence lead on behalf of each of the women O'Leary J stated –

Finally, it was put to me by Mr Cavit, for the Crown, that in fixing appropriate sentences, I should start from the proposition that, irrespective of the degree of seriousness of the murder, the penalty is life imprisonment, that being the penalty fixed by s. 5 of the Act for murder of any degree. The starting point, therefore, he said, is always life imprisonment, and thereafter, looking at any factors to be taken into account in mitigation of penalty, I may reduce that penalty to some lesser term of imprisonment. I do not think the point is of any particular relevance in the present case, since I consider the offence here in question is one that ranks with the higher degrees of murder, but I think I should say something shortly about the submission. In my opinion, the discretion conferred on the judge by s. 6(IC) in sentencing an aboriginal convicted of murder is not restricted in the way suggested, and I do not find anything in the legislation that does so restrict it. On the contrary, it seems to me that the clear intention of the legislature is that whilst, in the case of non-aboriginals, the penalty for murder, of whatever degree, is mandatory life imprisonment, that penalty is not at all appropriate in the case of an aboriginal convicted of murder. In that case, the penalty is such as, having regard to all the circumstances of the base, is just and proper. The use of the expression "all the circumstances of the case" negates, I think, any intention on the part of the legislature to fetter the judge's discretion in the way suggested. Certainly, in my view, those words are wide enough to include a consideration of the degree of seriousness of the offence itself.

As I have said, the crime committed by the prisoners was a very grave one. It was committed with great callousness and brutality. It was a crime that warrants the severest punishment. But I think that punishment should be tempered by reason of a number of factors adduced in mitigation of penalty. There was evidence before me that all of the prisoners feel deep shame, remorse and sorrow at what they have done. As it was expressed by Dr Bell, their attitude to the enormity of what they did and its ramifications is one of "total uncomprehending". I accept that that is so. As well, I take into account the background and upbringing of the prisoners, and the severe emotional distress their circumstances produced in them: seeNeal v. R. [1982] HCA 55; 42 ALR 609, per Murphy J. at 617, and per Brennan J. at 624; Veen v. R. [1979] HCA 7; (1979) 143 CLR 458 per Jacobs J. at 490. Indeed, what happened seems to have been a natural climax to the kind of life they were living. The offence was committed in a state of advanced intoxication for each of them; their victim was one who shared their lifestyle with them. Whilst I appreciate that drunkenness is not normally regarded as a mitigating factor, I think that in the case of aboriginals, and specially the present prisoners, it may be considered as at least giving some additional weight to the other mitigating factors involved: of R. v Lee 5 (ForsterJ.), unreported SOD No. 221 of 1975. I say that particularly having in mind that, according to Dr. Bartholomew, both Pamela and Rhoda were, in his opinion, alcoholics to the degree that they had in fact experienced episodes of delirium tremens. Ngaire, though a heavy drinker, had not advanced to that stage, but then she is younger than the others. I do not regard the offence as a coldly premeditated one. There was a strong element of impulseaboutit, precipitated, I think, by the insulting words spoken by the deceased to Rhoda, at a time when their passions were inflamed by alcohol.

The prisoners have now been in custody for almost 2 years and 3 months. That being so, I was asked by counsel to.back-date their sentences to the date of their arrests. In my opinion, it is not open to me to do so. At common law, there is not and never has been any power in the court to order that a sentence should commence at a time earlier than the date on which it was passed: R. v Gilbert (1975) 60 Cr. App. R. 220. In some jurisdicions, there is statutory provision enabling the court to ante date sentences, but I have not been able to discover any such provision in the law of the Northern Territory. Nevertheless, in fixing penalty, I have taken into account the fact that the prisoners have been in custody for the time I have mentioned.

I formally record a conviction for murder against each of the prisoners, Ngaire Herbert, Pamela Nangala Sampson and Rhoda Wurrawilya. The sentence of the court is that each of them be imprisoned with hard labour for a term of 12 years. In the case of each of them, I fix a non-parole period of 5 years and 6 months.

Mr L. Hartnett instructed by the North Australian Aboriginal Legal Aid Service appeared for Ngaire Herbert; Mr Colin McDonald of the North Australian Legal Aid Service appeared for Pamela Sampson and Mr D. Avery instructed by the Australian Legal Aid Office appeared for Rhoda Wurrawilya.

Mr A. J. Cavil appeared for the Crown.

[Eds. Note: The Crown have lodged an appeal to the Federal Court]