Simpson, Tony --- "R v Wise (Sentencing -- manslaughter -- effects of cultural dislocation -- judicial calls for broader evidence to increase sentencing options)" [1988] AboriginalLawB 62; (1988) 1(35) Aboriginal Law Bulletin 14

• R V Wise
• (Sentencing – Manslaughter – Effects Of Cultural Dislocation – Judicial Calls For Broader Evidence To Increase Sentencing Options).

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R v Wise

(Sentencing – manslaughter – effects of cultural dislocation – judicial calls for broader evidence to increase sentencing options).

R v Wise

Supreme Court of New South Wales

Unreported decision

19th October 1988

Casenote by Tony Simpson

Roden J in his decision demonstrated a high order of sensitivity, analysis and courage. The following extracts highlight the essential points:

His Honour: On 21st January 1988 in Brewarrina, a young Aboriginal man, heavily affected by alcohol, stabbed and killed a young white man, who apparently was also affected by alcohol at the time. There was no apparent reason for the killing, except that one was black, the other was white, and the setting was Brewarrina. The young Aboriginal man, the prisoner Wayne John Wise, was charged with murder. His plea of not guilty of murder but guilty of manslaughter was accepted by the Crown in full discharge of the indictment.

...A full understanding of the offence depends, I believe, not merely on a consideration of subjective factors relating to the prisoner, or the circumstance in which the two young men came to meet on the night in question. The cause obviously lies in more basic factors concerning life in communities like Brewarrina, including the plight of Aboriginal people living in such communities, and the impact of their response to their problems, upon certain of the white population.

To achieve that full understanding, it would be necessary, I would have thought, to hear from all affected groups within the community, both black and white, and in particular, Aboriginal leaders, and those most closely affected by the tragedy - the family and friends of the young man who was killed. Unfortunately, traditional attitudes to the sentencing process, and what I see as a failure to appreciate the special needs of this case, combined to deprive me of that opportunity. That is a matter to which I shall shortly return. I did hear from responsible members of the Aboriginal community. What they had to say underlined one of the gravest and most pressing social problems facing us today. People have been isolated from their own culture, and nothing has been put in its place. Resort is had to alcohol, presumably in an effort to shut out the nothingness, and the hopelessness they must feel.

... Mr Horler submitted, that having regard to the subjective factors affecting the prisoner, I should not impose a custodial sentence, and that it was appropriate to defer passing sentence upon his client entering a recognisance which would have the effect of placing him under the supervision of the Probation and Parole Service, with assistance from Aboriginal social workers such as Mrs Coffey, who gave evidence before me.

The view I formed, was that if I were to consider the unusual course being urged on me by Mr Horler - that is, to give a bond for manslaughter in the circumstances of this case - it would be easier, and a more realistic option, if I were able to consider it after hearing "both sides". I was fully conscious of the fact that these proceedings are between the Crown and the prisoner and that those I have been referring to as "the other side" are not parties to them. Nonetheless they are very significant parties to, and very greatly and gravely affected by, the events leading to the prisoner's conviction - not only the events of 21 January 1988, but also the whole unhappy story of the problems of communities like Brewarrina to which I have referred.

... Of course I do not advocate that sentences be passed "on behalf of" victims; nor should revenge be the object of sentencing. But so long as we respect community attitudes as a relevant consideration in the assessment of sentence, we should recognise the fact that one factor operating to mould those attitudes, is respect and regard for the violated rights of the victims of crime. They would better understand sentencing decisions, I believe, if they were given an opportunity of being heard before those decisions were made.

...Although I appreciate the importance of all those matters, which are peculiar to this particular offence and to this particular offender, I am unable to get away from the thought that this offence is really a symptom of the deprivation under which people are living in communities such as that at Brewarrina, and that the necessary imposition of a sentence in accordance with law, will do nothing to meet that basic situation. What a pity it is that proceedings like these are approached in a confrontationist manner, which is itself calculated to exacerbate the differences and antagonisms that we should all be striving to overcome, and that inevitably lead to offences such as this.

It appears that responsible Aboriginal leaders are trying to do something about the alcohol problem, and although that is encouraging, it must be remembered that the alcohol problem is itself a symptom of an underlying and ongoing problem of much greater social significance. That won't just go away. People must have purpose and meaning in their lives. Until purpose and meaning are restored to the lives of Aboriginal communities now alienated from their own culture, it will be very hard to avoid a recurrence of tragedies like the present. The court cannot provide the answer. The greater community must.

... To mark the seriousness of the offence, I sentence the prisoner to be kept to penal servitude for seven years; but to acknowledge the responsibility which the community at large must bear for the circumstances which have led to the commission of the offence, and to provide an opportunity for rehabilitation of this young offender, I specify a non-parole period of two and a half years. Both sentence and non-parole period are to commence from the date on which the prisoner went into custody, 21st January 1988.