The Queen v Toby[1998] QCA 452

COURT OF APPEAL

McMURDO P

PINCUS JA

CHESTERMAN J

CA No 374 of 1998

THE QUEEN

v.

DOUGLAS TOBY Applicant

BRISBANE

DATE 02/12/98

JUDGMENT

CHESTERMAN J:  On 9 October 1998 the applicant pleaded guilty to a charge that on 11 April 1998 at Camooweal he and other persons assembled together in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled would tumultuously disturb the peace.  He was sentenced to three months imprisonment to be wholly suspended.  The sentence was given an operational period of nine months.  The applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive.

The applicant is a 40-year-old Aboriginal man who contracted polio as a child and has been crippled ever since.  He developed a feud with another Aboriginal man, Billy Watson, a resident of Camooweal.  On an occasion some few weeks before 11 April 1998 the applicant claimed that Watson took him to a secluded area outside the town, assaulted him and left him there.  It was with difficulty that he returned to the town.

On the day of the offence, a large number of the applicant's relations had journeyed to Camooweal in the Northern Territory to attend a festival.  To obtain revenge the applicant incited his relations to attack Watson, who appealed to his own family for succour.

Thus, at about 10 p.m. on 11 April 1998, a group of about 70 people assembled outside the Post Office Hotel.  This was the applicant's group.  Watson and his followers were inside the hotel, reluctant to come out.  The police sought to relieve the tension by brokering a reconciliation between the applicant and Watson.  Having spoken to Watson, the police officers told the applicant that Watson did not want to fight and that he, the applicant, should "call off" his family.  The applicant replied, "It's too late.  All these young blokes, they want to fight.  It's with the families now."  He went on, "I tell them all that I've been wronged and they're going to fight for me.  It's the Aboriginal way."

As the applicant predicted, it was too late for negotiation and fighting broke out.  As many as 200 people became involved in the tumult which appeared to consist of brawling throughout the streets of Camooweal.  Luckily no-one was seriously hurt and no property was damaged.  The two police officers were quite unable to impose order and had to send for reinforcements.  Two other officers came from the Northern Territory and a large contingent from Mount Isa.  It was only when the latter arrived at about 2.30 a.m. that the riot was quelled.

Only three persons were charged as a result of the affray.  One, Aplin, has not yet been dealt with.  Another, Christie, a white man who involved himself gratuitously in the affair, pleaded guilty to the more serious offence of riot.  He was placed on a good behaviour bond.  He had no previous convictions.

The submission that the sentence is manifestly excessive has two bases:  (i) the personal circumstances of the applicant; and (ii) the penalty imposed was significantly greater than that imposed for similar offences. The personal circumstances are that the applicant is severely disabled.  He was taken from his parents when he was an infant but this, it seems, was to ensure that he had appropriate medical treatment in Adelaide.  He has led a disadvantaged life but has, nevertheless, for the most part, been law-abiding.   He has a criminal history, three entries in which are for minor offences.  The only other one, assault occasioning bodily harm, appears to be more than 15 years old.

The occasion for the unlawful assembly was the cowardly beating given to the applicant by Watson.  The applicant saw his family's presence in Camooweal as an opportunity to obtain redress.  Despite initially refusing to cooperate with police who attempted to diffuse the situation, the applicant did, later, endeavour to dissuade his clan from fighting but was unsuccessful.

The other point concerns sentences imposed on Christie arising out of the particular riot and sentences for other offences of taking part in an unlawful assembly given to other Aboriginal people.  Christie, as I have said, pleaded guilty to the more serious offence of taking part in a riot and was given a good behaviour bond.  A similar penalty was imposed upon a man called Yanner on 5 June 1996 by the District Court in Mount Isa.  That offence concerned an unlawful assembly outside the Burketown police station where a number of Aboriginals, led by Yanner and one other, gathered to secure the release of a family member who was detained in the police station.  The impetus for the assembly was a sense of grievance that the detained man had been vindictively treated by a sergeant of police.  The Judge thought there was a little substance in that sense of grievance.  The sentence of the court was that Yanner be released upon entering into a recognisance in the sum of $500 conditioned upon keeping the peace and being of good behaviour for two years.

While on bail awaiting trial Yanner committed an identical offence.  Again the object of the assembly was the release of a family member arrested by the police.  The sentencing Judge said:

"When you committed this offence you were on bail for that offence but you had not been convicted and I do accept what you say that you have taken into account what Judge McGuire said to you on the last occasion."

His Honour went on:

"[B]earing in mind that this offence occurred prior to your conviction in this Court on 5 June 1996, it is appropriate in all the circumstances to impose a similar penalty to that imposed by ... Judge McGuire and I order that you be released upon entering into a recognisance in the sum of $1,000 to be of good behaviour and keep the peace for a period of three years..."

In October 1997, again at Mount Isa, another Judge of the District Court dealt with a number of Aboriginal persons who had been charged with and pleaded guilty to rioting at Doomadgee.  The occasion was a result of a simmering feud between two families who lived in the area.  All but one of the accused were released upon entering a recognisance in the sum of $100 to keep the peace and be of good behaviour for 12 months.

In this case, the learned sentencing Judge when passing sentence said to the applicant:

"The assembly that formed eventually developed into a riot...  The police were unable to control those people and were unable to exercise any authority.  It must have been very frightening to those two police officers and other citizens of Camooweal who were not involved...

I take into account that you are crippled and were previously assaulted by Billy Watson.  I can understand you wishing to retaliate...  However, we cannot allow people to take the law into their own hands, and we certainly cannot allow a situation where in taking the law into their own hands, police authority is blatantly ignored.  Such conduct leads to a total break down of law and order and causes ordinary citizens to fear for their safety... 

Although there is no evidence that you were personally engaged in any violence on this night, it was you who initiated this unlawful assembly and you must bear responsibility for what subsequently happened."

In the course of argument the learned Judge had commented that he did not generally impose suspended prison terms, instead favouring an order for the performance of substantial community service.  Such an order was inappropriate because the applicant lives in a remote part of the Northern Territory where no arrangements could be made for the performance of such service. 

His Honour then imposed the sentence of three months imprisonment, wholly suspended.

I can see nothing wrong with the approach taken by the sentencing Judge. If it were not for the penalties imposed in the other cases of unlawful assembly and the penalty imposed upon Christie for rioting the applicant would have no argument.  Although, as a general rule, the so-called parity principle requires similar sentences to be imposed upon co-offenders and those who commit similar offences, it is not inevitably the case that the principle will be rigorously applied so as to impose a sentence which is, in all the circumstances, inadequate.

The learned Judge clearly thought that Christie was dealt with far too leniently and in that I agree.  I would respectfully adopt the remarks of Mr Justice Thomas, with whom Mr Justice Byrne agreed, in Cox (1991) 55 Australian Criminal Reports 396:

"It by no means follows that an appeal court will interfere, especially when the consequence of reducing the higher sentence will be two inappropriately low sentences instead of one.  As the authorities show, it may sometimes be necessary for an appeal court to take that undesirable course in order to avoid a greater evil..."

The case involving the disturbance at Doomadgee may have been thought to be a special category.  That is not to say that Aboriginal settlements are a modern day Alsatia but their remoteness and their lack of facilities and opportunities probably mean that disturbances there have been looked at a little differently to those which occur in urban areas.

The two cases involving Mr Yanner also have a special feature being the order in which the offences were dealt with.  Had the second offence been dealt with after Yanner had been punished for the first, it is inconceivable that he would have been let off on a good behaviour bond.  This means that only  the first conviction and sentence is appropriate for comparisons. This case is clearly more serious.  It involved a riot which persisted for four hours and involved 200 people brawling throughout most of Camooweal.  Two police from the Northern Territory and 10 from Mount Isa had to be sent to restore order.  The disturbance was deliberately instigated by the applicant for the express purpose of directing violence towards Billy Watson and anyone who might support his cause. The applicant refused requests from the police to pacify his group until it was too late. 

While the offence might not be prevalent, it is clearly not uncommon in the north-west and the court should discourage others from similar conduct.

In my opinion it cannot be said that the sentence imposed was manifestly excessive.  I would refuse the application.

THE PRESIDENT:  I agree with Justice Chesterman that the application should be refused and generally with his reasons.  I would only add the following brief comments.  The police handled the matter with tolerance and good sense. Without their calming influence this incident could have become even more serious.

People living in country towns and isolated places including Aboriginal communities are entitled to the protection of the rule of law. Sentences must be imposed for offences of this type that will deter others who might consider engaging in riotous behaviour. I must nevertheless disagree with His Honour's comments in his sentencing remarks that "the only appropriate sentence for this type of offence is one of imprisonment."  In this case whilst other non custodial sentences may have been open the sentence imposed of three months imprisonment totally suspended for nine months was certainly within the appropriate range, despite the lenient sentence imposed on his co-accused, Christie.

PINCUS JA:  I agree.

THE PRESIDENT:  The order is application for leave to appeal against sentence is refused.