Pringle, Karen L. --- "R v Harold Arthur Gordon Bell" [1994] AboriginalLawB 62; (1994) 3(71) Aboriginal Law Bulletin 15

• R V Harold Arthur Gordon Bell
• Comment

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R v Harold Arthur Gordon Bell

Court of Appeal, Queensland, Fitzgerald P., Davies J.A. and Demack J.

20th June 1994

by Karen L. Pringle

Harold Bell, an Aboriginal labourer, pleaded guilty before Skoien J of the District Court of Queensland to having unlawfully wounded his Aboriginal defacto wife in January 1994 at Cherbourg. (State Reporting Bureau, Transcript of Proceedings, in the District Court, Criminal Jurisdiction, Kingaroy, Skoien J hearing submissions on sentence, on 10 March, 1994, p2.) On the day of the incident, Bell and the complainant had been drinking at several houses in Cherbourg and both "were getting pretty drunk" (p3). At one stage, a verbal argument took place between them over a former boyfriend of the complainant. Later that night the complainant hid from Bell, not wanting to go home with him, as he was drunk and would start flogging her.

Eventually Bell found the complainant and she left with him, walking back towards their home by going through the backyard of other people's houses. In the backyard of one of these houses, Bell told the complainant that he wanted her to go into his room with him and she replied no. The complainant stated that as they were about to jump over the fence into the yard of the house where they were living, Bell pulled out a knife and stabbed her once with it in the middle of her right upper thigh. Bell then punched the complainant in the mouth twice with a clenched fist. A medical examination revealed that the complainant had a one centimetre wound on her. right thigh which had penetrated all the layers of the skin. She was said to be in discomfort but not danger.

Evidence given by Robert Bond, the owner of the house where Bell and the complainant were residing, revealed that they had arguments in the house and Bell had threatened the complainant on several occasions but the threats 'never came to anything'. Bell was said to be very possessive of the complainant and did not like her talking with other men. On the day of the offence, Bond arrived on the scene shortly after the stabbing. According to him, Bell was standing over the complainant shouting, "I will kill you, you cunt" (p4). Bell and the complainant were reconciled within days of the incident and at the time of sentence they were living together once again.

After hearing submissions from counsel on sentence, including details of Bell's criminal history, employment, education and other matters, Skoien J proceeded to pass sentence. (State Reporting Bureau, Transcript of Proceedings, In the District Court, Criminal Jurisdiction, Kingaroy. Judgment delivered by Skoien J. on 10 March, 1994, p2. [The Sentencing Transcript].) He refuted suggestions that the courts are very tough on the Aboriginal population, commenting that this was not his experience (p2). According to him, "the Judges understand that Aborigines do have peculiar problems and ... it is fair to say that they are treated almost invariably with a great deal of understanding by the courts" (p2). Regarding the offence in question, His Honour stated:

... it is fair to say that if this event took place in an ordinary Brisbane suburban setting between Anglo-Saxons and the accused had this sort of history, he would be going to gaol, perhaps hoping for some sort of early suspension or early recommendation. But in this case, I do take into account the different lifestyle which is followed in the community of which the prisoner is a member, the fact that, regrettably, there are pressures on them and disadvantages which a lot of the rest of the community does not experience, and I approach this in a different way from the way I would approach the problem if it were a standard member of the white community. (p2)

In considering sentence, His Honour took into account factors including the young age of Bell, his criminal record which was not considered to be very serious, his good references, his attempts to improve himself, especially to overcome his drinking problem, and his reconciliation with the complainant (p2). According to His Honour, this was "a classic case of somebody getting drunk and lashing out in a very dangerous way" (p2). Noting that the complainant did not want Bell gaoled, His Honour stated that he was "going to give [Bell] a chance by offering him two years probation and at this stage ... not recording a conviction" (p2). Bell was also required to undergo such psychiatric and psychological counselling during this period as recommended and was ordered to perform 120 hours community service (p2).

This sentence caused public outrage amongst the community and especially from Aboriginal women. While some members of the Aboriginal community praised the decision as a recognition by the Australian court system that Aboriginal people had been mishandled in the past before the law and as an important decision towards courts taking into account problems Aborigines face especially with alcohol and drugs,[1] others were angered by the decision.[2] This community discord led to the Minister for Justice and AttorneyGeneral of Queensland, the Honourable Dean Wells MLA, lodging an appeal against the sentence.

The Queensland Court of Appeal, comprising Fitzgerald P., Davies J.A., and Demack J., delivered a joint judgment on 20 June 1994 (State Reporting Bureau, Transcript of Proceedings, in the Court of Appeal, Supreme Court of Queensland, Brisbane, C.A. No. 116 of 1994) and stated that while the "appropriate punishment in each case will depend on the circumstances", (p4) they disagreed with certain aspects of Skoien J's judgment (p(i). According to the Court:

It was right for him to have regard to the respondent's disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law's protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which an offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members. (Pp6-7.)

The Court acknowledged "the difficult task faced by the sentencing judge, particularly in the light of the complainant's apparent wish that the respondent not be imprisoned and the understanding attitude of the prosecutor" (p7). Having regard to these circumstances, the Court was "disinclined on an Attorney's appeal to order the belated incarceration of an offender who has been released back into the community by the sentencing judge and apparently resumed his relationship with the complainant and continued with his employment" (p7). However, stating that the course taken by Skoien J could not stand and having regard to all the circumstances, the Court sentenced Bell to imprisonment for one year but suspended the operation of this sentence for a period of two years in accordance with s144 of the Penalties and Sentences Act 1992 (Qld). Accordingly, the Court allowed the appeal and set aside the sentence imposed below.

Comment

The approach of the Court of Appeal was correct in acknowledging that, while a sentencing judge should have regard to the disadvantages which an Aboriginal accused has faced, such disadvantages do not justify or excuse violence against women, which must be seen by both the Aboriginal and non-Aboriginal communities to be a serious matter requiring appropriate punishment. Many Aboriginal women praised this approach as finally recognising their right to be afforded equal protection before the law. Most had tired of judges' decisions which seemed to go all out to find excuses for the perpetrators of violence against them. Whether it was alcohol or other circumstances of disadvantage, judges' sympathy with the problems faced by perpetrators was going too far and being used to such an extent in mitigation of offences against Aboriginal women that it was effectively cheapening their lives.[3]

However, the difficulty for the judiciary in a case such as Bell is balancing the views of the complainant who didn't want Bell gaoled with the expectations of Aboriginal women, the Aboriginal community in general and the wider community together with the increasing pressures upon the judiciary when sentencing to increase their sensitivity to the disadvantages Aboriginal people face. Such pressures are often exerted by Aboriginal women who openly criticise the harshness and injustice they perceive in our criminal justice system towards both themselves and Aboriginal men alike. In recent times this latter factor has indeed led to more understanding by the Courts[4] but often the judges' approach has met with unexpected community backlash.[5] In the case of R v An Aboriginal Youth (see AboriginalLB 69/15), after sentence was handed down, members of both the Aboriginal and non-Aboriginal community alike felt that the punishment did not fit the crime,[6] no doubt leaving many members of each community feeling that they are in a no-win situation. It appears that the only key to resolving this dilemma is appropriate consultation with Aboriginal women and all other interested parties on questions of sentencing. Only in this way can judges hope to strike an acceptable balance between the interests of the offender and the expectations of the complainant, Aboriginal women and the Aboriginal and wider communities. As a matter of urgency, strategies need to be developed to ensure Aboriginal women's expectations and values are incorporated into the criminal justice system when sentencing perpetrators of violence against them. The introduction of a statutory scheme of Aboriginal Court Advisers to the judiciary is a matter well due for consideration by the Queensland criminal justice system and may be one way of achieving this goal. However, such a scheme would go further and ensure cultural sensitivity and the incorporation of Aboriginal peoples' values and expectations in all cases involving Aboriginal people, largely through the establishment of processes of consultation with all relevant parties at the sentencing stage. Most importantly, such a scheme would enable Aboriginal people once again, as in traditional society, to play a role in the decision-making process regarding punishment.

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[1] See, for example, James Woods, "Aborigine Sentence on Attack 'Praised' ", Courier-Mail, 15 March 1994, p5.

[2] See, for example, Trudy Harris, "Wells Orders Appeal in Stabbing Case", Australian, 16 March 1994; Trudy Harris, "Blacks Criticise 'Lenient' Sentence", Australian, 22 June 1994.

[3] See, for example, Audrey Bolger, Aboriginal Women and Violence, A report for the Criminology Research Council and the Northern Territory Commissioner of Police, Darwin, Australian National University, 1991,82).

[4] See, for example, the recent case of R v An Aboriginal Youth, Supreme Court of Queensland (Criminal Jurisdiction), Restricted Access Transcript (Indictment No. 355 of 1993, White J., 18 July 1994 - Publication of identifying matter is restricted in accordance with s62 of the Juvenile Justice Act 1992 (Qld)). Also see Karen L. Pringle,'R v An Aboriginal Youth: Case Note, (1994) 69 Aboriginal Law Bulletin 15).

[5] See Karen L. Pringle, 'R v An Aboriginal Youth: Case Note', (1994) 69 Aboriginal Law Bulletin 15).

[6] See, for example, Courier-Mail, 20 July 1994, p2; Courier-Mail, 19 July 1994, p1; Australian, 19 July 1994, p1.