Bury, Sarah --- "R v Wunungmurra and the Operation of Section 91 of the Northern Territory National Emergency Response Act 2007 (Cth)" [2010] IndigLawB 42; (2010) 7(21) Indigenous Law Bulletin 17

R v Wunungmurra and the operation of section 91 of the Northern Territory National Emergency Response Act 2007 (Cth)

by Sarah Bury

Judges in the Northern Territory are regularly faced with the complex relationship between Aboriginal customary law and the modern Australian legal system.^[1] The recent

case of R v Wunungmurra^[2] highlights this tension within the sentencing process, as it is the first decision to apply s91 of the Northern Territory National Emergency Response Act (Cth) 2007 (hereinafter the Emergency Response Act). This section ‘amends Northern Territory law to prohibit the relevant authority, when exercising bail or sentencing discretion … from taking into consideration any form of customary law to lessen or aggravate the seriousness of criminal behavior.’^[3]

This paper will examine the development and operation of s91 in light of the recent case R v Wunungmurra. This decision raises issues associated with the fettering of judicial discretion in sentencing Indigenous offenders. While it is argued that s91 is an inappropriate and misdirected response to criminal offending in remote Aboriginal communities, the section plays an important role by ensuring that courts do not reduce sentences of violent offenders on the basis that cultural traditions sanction such violence. However, it is submitted that the operation of s91 should be limited to these cases of violence and sexual abuse of women and children. This would ensure the section is not unjustifiably restricting judicial discretion, and constituting a proportionate response to sexual assault and violence in Indigenous communities.

Firstly, the operation of s91 will be examined through a discussion of R v Wunungmurra and Southwood J’s opinion on the effect of this provision. The purported object of s91 will then be examined in light of the Little Children are Sacred Report,^[4] and the rights of Aboriginal women and children as victims of violence and sexual assault. Furthermore, the important role judicial discretion plays in allowing courts to determine culturally appropriate sentences in the Northern Territory will be discussed. Finally, this paper will examine the problematic use of the ‘cultural defence’ in Indigenous and non-Indigenous criminal proceedings.

The facts of R v Wunungmurra^[5] and the application of s91

Dennis Wunungmurra, an Aboriginal man from Milingimbi, was charged with aggravated assault and causing harm with intent to cause serious harm to his wife, Wendy Manamawuy Garrawarra in August and September 2008. Wunungmurra pleaded guilty to both of the counts against him, but argued that he was acting under Milingimbi customary laws, which entitled him to physically punish his wife for abandoning their family and failing to fulfill important community duties.^[6]

In support of this plea, the defendant wished to read an affidavit from Ms Laymba Laymba, a senior member of the three Aboriginal clan groups at Milingimbi. Ms Laymba Laymba deposed in her affidavit that traditional laws from Wunungmurra’s clan allow a man to inflict corporal punishment on his wife in certain defined circumstances. She stated that Wunungmurra was acting in accordance with the cultural laws of the region. The purpose of the affidavit was, among other things, to provide a contextual explanation for his actions.^[7] However, the prosecution submitted that Ms Laymba Laymba’s affidavit could not be used to provide an explanation for the defendant’s actions or be used to mitigate the sentence on the basis that s91 of the Emergency Response Act applied.^[8]

In his ruling on the admissibility of Ms Laymba Laymba’s evidence, Southwood J held he was bound by the clear words and intent of s91,^[9] and that the practical effect of the provision is to preclude the court from taking into consideration relevant factors relating to the mens rae of the offender, which are necessary to secure a just outcome.^[10]

He stated that:

… despite the fact that legislation might be considered unreasonable or undesirable because it precludes a sentencing court from taking into account information highly relevant to determining the true gravity of an offence, precludes an Aboriginal offender from having his or her case considered individually, distorts well established sentencing principle of proportionality, and may result in the imposition of what may be considered to be disproportionate sentences, this provides no sufficient basis for not interpreting s91 of the Emergency Response Act in accordance with its clear and express terms.

Denis Wunungmurra was sentenced to four and a half years imprisonment.^[11]

The Emergency Response Act and s91

The Emergency Response Act was implemented in response to the Little Children Are Sacred Report^[12] conducted in 2007, which found that sexual abuse of Indigenous children is ‘common, widespread and grossly under-reported.’^[13] The implementation of the Act was also a response to public outrage directed at the reduced sentences given to two Indigenous men charged with sexual offences in R v GJ^[14] and Hales v Jamilmira^[15] (discussed in more detail below). Consequently, the Explanatory Memorandum of the Emergency Response Act justifies the operation of s91 on the basis that no customary law or cultural practice should be allowed to excuse, justify or authorise serious violence or sexual abuse.

However, the Little Children are Sacred Report specifically stated that ‘little will be achieved by … responding after abuse has occurred.’ It stated that ‘there must be a greater investment in prevention of abuse and the structural forces or factors that impact on the health and wellbeing of a community.’^[16] The high level of violence and crime in Indigenous communities is not caused by cultural laws and traditions, but rather is a result of the low socio-economic position Indigenous people occupy in Australia.^[17]

Many Indigenous academics and studies have found that traditional Indigenous customary law does not actually sanction violence against women or the sexual abuse of children.^[18] Cripps and Taylor claim that the high level of violence in Indigenous families is not occurring because of cultural laws and traditions, but is instead due to a ‘breakdown of traditional governance methods’.^[19] They argue that the current debate in Australia has been based on the false assumption that family violence is a result of customary law authorising it.^[20] The result of this false assumption is that defendants are increasingly seeking to justify violence against women or sexual abuse of children on cultural grounds.^[21]

Although the purported aim of s91 is to prevent cultural laws being used by offenders to justify violence against women and children, the section is not qualified in this way.^[22] In fact, the section can apply to any number of criminal offences committed in the Northern Territory and prevents consideration of cultural laws or customs aggravating as well as mitigating sentences. This suggests that the aim of the section is not only to prevent arguments justifying violence or sexual assault mitigating sentences, but in order to prevent any cultural considerations affecting the sentences of Indigenous offenders.^[23] The section would be proportionate to its purported aim if its operation was restricted to violent offences against women and children, and did not apply so broadly.

Sentencing in the Northern Territory

Criminal sentences imposed by a sentencing judge are seen to represent how seriously society regards the offence.^[24] However, a criminal sentence is the product of human judgment and sociological variables, which cannot be determined in a mathematical exercise.^[25] Courts regularly have to balance what they perceive to be proportionate sentences with the rights of victims, and this balancing process is entirely subjective.^[26]

Prior to the Emergency Response Act, sentencing courts in the Northern Territory took into consideration Indigenous customary law in appropriate cases in accordance with the Sentencing Act (NT) 1995 s 5 (2), which allows the court to take into account ‘the presence of any aggravating or mitigating factor and … any other relevant circumstances.’^[27] In applying s 5 (2), Northern Territory courts must consider the proportionality principle, which requires that the weight given to the sentence must be proportionate to the moral culpability of an offender. Applying this principle to Indigenous offenders, customary laws and traditions are an integral consideration in the general law’s sentencing process,^[28] as they provide objective explanations for the offender’s criminal conduct. It was held by the High Court in Neal v R that all factors that impact on an Indigenous offender’s offence play an important role in sentencing discretion, Brennan J stated:

In imposing sentences, courts are bound to take into account … all material facts, including those facts, which exist by reason of the offenders’ membership of an ethnic or other group. So much is essential to the even administration of criminal justice.^[29]

It was also recognised by Wood J in the influential sentencing decision of R v Fernando^[30] that when sentencing Aboriginal offenders, the court must realistically assess the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.^[31]

There are dangers associated with ignoring the influence of customary laws on an Indigenous person charged with an offence.^[32] A failure to consider all material facts relevant to an offender is an arbitrary and inflexible application of the law, and may result in disproportionate sentences.^[33] The following cases demonstrate the impact that consideration of Indigenous customary laws can have on determining appropriate sentences for Indigenous offenders.

In R v William Davey,^[34] an Aboriginal man pleaded guilty to manslaughter. The victim had made provocative remarks about Davey’s wife. Community leaders gave evidence at trial that the comments made by the victim were particularly provocative under local custom. Gallop J held that under customary laws, Davey was expected to take retaliatory action against the victim. On appeal by the Crown against the leniency of the sentence, this factor was deemed an important consideration in order to explain the context of the offence and determine a culturally appropriate sentence.^[35]

In R v Shannon^[36] the defendant had lit a number of fires believing that this would frighten away evil spirits. When he was arrested for arson, he was also charged with assault of a police officer and attempting to resist arrest. On appeal, his sentence was reduced from the maximum sentence on the basis that, given his state of mind and cultural considerations at the time of the offence, it was not one of the worst examples of that conduct likely to be encountered, and should not have got the maximum penalty.^[37]

There are also certain considerations that are relevant in the sentencing process to ensure that offenders are not receiving a punishment disproportionate to their offence. In R v Walker,^[38] R v Jadurin^[39] and R v Minor,^[40] the sentencing judges took into consideration the imposition of customary punishments or ‘payback’ that would be imposed on the offenders on their return to their traditional communities.

The cultural defence and s91

However, cultural arguments made by defendants in the sentencing process have been more problematic in cases involving violence against women and sexual assault. In the cases of R v GJ^[41] and Hales v Jamilmira,^[42] traditional Aboriginal men pleaded guilty to having sexual intercourse with ‘culturally arranged wives’ who were under the age of 15. In the sentencing decisions, the offenders’ moral culpability was reduced based on arguments that the offenders were acting in accordance with traditional culture. The trial judge in R v GJ held that recognizing cultural beliefs and their effect on the respondent’s

culpability is not to condone the behavior, but simply to recognize the effects of culture and state of mind at the time of the offence as a factor relevant to the sentence. The sentences in both these cases were increased on appeal. It was held that too much weight had been given to customary considerations reducing moral culpability.^[43] Despite the outcome of the appeals these cases have set damaging precedents for how cultural and traditional laws are dealt with in the western legal system. Cripps and Taylor argue that the courts should not consider any alleged cultural laws that justify violent sexual conduct, as such behaviour is not part of Australian Aboriginal cultural practice.^[44] Similarly, Atkinson argues that skewed Western stereotypes of Indigenous gender relations meant that the courts allowed the defendants to put these cultural arguments forward.^[45]

However, cultural arguments defending violence against women are not limited to Indigenous cases.^[46] The cultural defence has been invoked in sexual offence trials by non-Indigenous perpetrators seeking to diminish responsibility for their actions. Similar arguments were introduced at the sentencing stage in several cases in NSW in an attempt to mitigate sentences of young Lebanese-Australian men convicted of serious sexual assault and rape.^[47] The offenders claimed they believed that the girls had consented to the offences based on the way girls would behave in their own culture. The court did not accept the argument stating that ‘neither the law nor the culture of Australia recognizes multiculturalism … as providing a convenient justification for rape.’^[48]

The decisions of R v GJ and Hales v Jamilmira have been subject to significant criticism.^[49] They are regularly used to support the claim that courts allow Aboriginal men to rely on customary law to excuse family violence and sexual abuse.^[50] Although courts in the Northern Territory have expressly acknowledged the need to protect Aboriginal women from violence,^[51] it is evident from the result of these cases at first instance that s91 does have a role to play in protecting victims of violence and sexual assault. Women and children deserve the same protection under the law in an Aboriginal community as they do in any other community.

Conclusion

In R v Wunungmurra, Southwood J recognised the victim’s right to protection from violent acts,^[52] however, it is clear that courts are not always capable of ensuring sentences appropriately protect women and children in Indigenous communities.^[53] In this situation, s91 has an important role to play to ensure defendants claiming that cultural laws and traditions sanction their violent behaviour are not used to defend or mitigate sentences for violent offences. However, it is submitted that the restriction imposed by s91 is more problematic in non-violent cases.^[54] Section 91 goes far beyond its purported aim to prevent courts justifying violence and sexual abuse of women and children, by constituting a blanket ban on consideration of any customary law in order to mitigate or aggravate sentences. It is submitted that this blanket ban prevents courts from being able to determine culturally appropriate and proportionate sentences. Therefore, the scope of the section should be reviewed in cases not involving violence or sexual assault of women or children, particularly given recent acknowledgement that empowerment and recognition of self-determination plays a vital role in addressing violence and crime in Indigenous communities.^[55]

Sarah Bury graduated in Arts/Law with First Class Hons in Law at the University of Tasmania in 2009. She completed a voluntary internship in promoting Indigenous justice organised by the Aurora Project in Kalgoorlie this year and has since spent time in remote Indigenous communities in the Great Sandy Desert. She wishes to thank the referees that provided invaluable comments and feedback on this article.

^[1] Heather Douglas, ‘Customary Law, Sentencing and the Limits of the State’ (2005) 20 Canadian Journal of Law and Society 141.

^[2] R v Wunungmurra [2009] NTSC 24.

^[3] Explanatory Memorandum of the Northern Territory National Emergency Response Bill 2007 available at <http://www.austlii.edu.au/au/legis/cth/bill_em/ntnerb2007541/memo_0.html> .

^[4] Pat Anderson and Rex Wild, ‘Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse’ (2007) at 57, <http://www.inquirysaac.nt.gov.au/ .>

^[5] R v Wunungmurra [2009] NTSC 24 (‘Wunungmurra’).

^[6] Transcripts of Proceedings, R v Wunungmurra (Northern Territory Supreme Court, SCC 21004270, Judge Southwood, 29th September 2010) available at <http://www.supremecourt.nt.gov.au> . (accessed 25 August 2009).

^[7] Wunungmurra [2009] NTSC 24, [3].

^[8] Ibid [10].

^[9] Ibid [29].

^[10] Ibid [23].

^[11] Transcript of Proceedings, R v Wunungmurra, above n 6.

^[12] Little Children are Sacred Report, above n 4, 57.

^[13] Ibid.

^[14] R v GJ [2005] NTCCA 20, [38].

^[15] Hales v Jamilmira [2003] NTCCA 9, [24-25, 51].

^[16] Little Children are Sacred Report, above n 4, 57-59.

^[17] Larissa Behrendt, Aboriginal Dispute Resolution: A Step Towards Self-Determination and Community Autonomy (1995), 31; Heather McRae, Garth Nettheim et al Indigenous Legal Issues: Commentary and Materials (Thomson Reuters 4th ed 2009), 512.

^[18] Kyllie Cripps and S Taylor, ‘White Mans Law, Traditional Law, Bullshit Law: Customary Marriage Revisited’ (2009) BALAYI: Culture, Law and Colonialism, 10, 61; Western Australian Law Reform Commission Aboriginal Customary Laws (2006), 19; Little Children are Sacred Report, above n 4,57; Larissa Behrendt, above n 17, 49; Heather McRae, Garth Nettheim et al, above n 17, 115.

^[19] Kyllie Cripps and S Taylor above n 18, 59.

^[20] Ibid, 60.

^[21] Wunungmurra [2009] NTSC 24; R v GJ [2005] NTCCA 20; R v William Davey (Unreported, Federal Court of Australia, Bowen CJ, Muirhead and Evatt JJ, 1980); Ashley v Materna (1997) NSWSC JA1/1997.

^[22] Wunungmurra [2009] NTSC 24 at [15] per Southwood J.

^[23] Greg McIntyre, ‘An Imbalance of Constitutional Power and Human Rights: The 2007 Federal Intervention in the Northern Territory,’ (2007) James Cook University Law Review 82, 104; Heather McRae, Garth Nettheim et al, above n 17, 569.

^[24] Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (Oxford University Press 2nd ed, 2001) at xvii.

^[25] Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213 at [52] per McHugh J.

^[26] Northern Territory Supreme Court Sentencing Principles (Northern Territory) available at <www.supremecourt.nt.gov.au> (accessed 25 August 2009).

^[27] Sentencing Act (NT) 1995 s 5(2).

^[28] R v Minor [1992] NTCCA 1; (1992) 79 NTR 1,12.

^[29] Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 326 per Brennan J; see also R v Iginiwuni (1975) NT CCA 6, 23-25 per Muirhead J.

^[30] R v Stanley Edward Fernando (1992) 76 A Crim R 58.

^[31] Lester Fernandez, ‘Sentencing Aboriginal Offenders: The Principles Distilled in R v Fernando’(2004), Legal Aid Commission of NSW, <http://www.legalaid.nsw.gov.au/data/portal/00000005/public/66999001099981545062.doc> .

^[32] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws Report 31 (1986), 86.

^[33] New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders, Report 96 (2000),2.6; Supreme Court Sentencing Principles, above n 26.

^[34] R v William Davey, above n 21.

^[35] Ibid.

^[36] R v Shannon (1991) 57 SASR 15, [17], per Olsson J.

^[37] Ibid, [16], per Olsson J.

^[38] R v Walker (10 Feb 1994) NTSC 46/1994.

^[39] R v Jadurin [1938] ArgusLawRp 53; (1982) 44 ALR 424.

^[40] R v Minor [1992] NTCCA 1; (1992) 79 NTR 1.

^[41] R v GJ [2005] NTCCA 20.

^[42] Hales v Jamilmira [2003] NTCCA 9.

^[43] Ibid [24, 54] per Martin J.

^[44] Cripps and Taylor above n 18, 57.

^[45] Judy Atkinson, ‘Indigenous Politics: Traditional Violence and Bullshit Law New Matilda (online), 2006, <http://newmatilda.com/2006/09/27/traditional-violence-and-bullsh%2At-law> .

^[46] 46 Cripps and Taylor above n 18, 63.

^[47] R v MSK, MAK, MRK and MMK BC200402022 per Justice Sully at [49].

^[48] Ibid [49].

^[49] Christine Fougere ‘Customary Law and International Human Rights: The Queen v GJ,’ (2006) Law Society Journal 42, 42.

^[50] Western Australia Law Reform Commission, above n 18, 23; R v GJ [2005] NTCCA 20, [40].

^[51] Transcript of Proceedings, R v Wunungmurra, above n 6.

^[52] Ibid.

^[53] Hales v Jamilmira [2003] NTCCA 9; R v GJ [2005] NTCCA 20.

^[54] For example, see, R v Shannon (1991) 57 SASR 15, [17] per Olsson J; R v Jadurin [1938] ArgusLawRp 53; (1982) 44 ALR 424; R v Minor [1992] NTCCA 1; (1992) 79 NTR 1.

^[55] Commonwelath, Royal Commission into Aboriginal Deaths in Custody, National Report (1991), vol 3, Recommendation 104 [85].