History yes, culture no

IN 2010, Ernest Munda of Fitzroy Crossing in Western Australia killed his common law wife of 16 years, with whom he had four children. He was sentenced to prison for seven years and nine months, with a non-parole period of three years and three months.

The taxpayer funded an appeal to the High Court that his sentence was too harsh. He claimed that the Court of Appeal of Western Australia failed to have “proper regard” to his personal circumstances as a “traditional” Aboriginal man. In particular, “an environment in which the abuse of alcohol is endemic in indigenous communities”, was not taken into account.

The High Court knocked him back. The court reiterated that while a person’s background could play a part in mitigation, it needed to be “weighed by the sentencing judge”. At present, judges have discretion, but in future, if Aboriginal culture is recognised in the Constitution, do not be surprised if the likes of Ernest Munda get lighter sentences.

The desire among many for Aboriginal recognition in the Constitution is genuine and there is a very real possibility of a “yes” case succeeding. The task ahead for sensible people is to draft a yes case that eliminates the risk that bad behaviour will be excused.

The “experts” who advised the Gillard government, recommended, among other things, “respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples”. This inclusion will increase the likelihood of a “Munda appeal” succeeding.

Just so the foolishness of the cultural recognition proposition is understood, here are the facts of the Munda case.

Munda and his common law wife were drunk and Munda had used cannabis. The pair argued. Munda punched his wife, threw her about the bedroom and repeatedly rammed her head into the walls. Munda “caused the deceased to fall on to a bed mattress”. He then stood over her and repeatedly punched her in the face. The next morning, Munda had sexual intercourse with his wife. He then left the house to get some tea. When Munda returned, his wife was dead.

She had died from traumatic brain injury. She also had a fracture to her left jaw and broken ribs. In 2009, Munda had been sentenced to 12 months’ jail, suspended for 12 months, for “unlawfully causing grievous bodily harm” to his wife. The injuries included a fractured femur, tibia and right radius as well as deep lacerations to her forehead inflicted by a metal shovel. Earlier in 2009, Munda was also sentenced to six months’ jail, suspended for 12 months, for common assault upon his 13-year-old niece and the ex-partner of Munda’s sister.

This is a sick culture. And it is a weak society that pays for this person to go to the High Court of Australia to attempt to get less than three years and three months in jail for his horrific crime. Politicians and Aboriginal leaders who want you to vote to change the Constitution to make it possible for the likes of Munda to spend less time in jail should be ashamed.

These cases are not rare. In 2005, a “traditional” man who anally raped his 14-year-old promised bride was convicted to 24 months for “assault and unlawful sexual intercourse”, which in effect had him released after one month. The Court of Criminal Appeal of the Northern Territory heard the appeal and marginally increased the sentence.

Sitting in the old man’s settlement of Yarralin for sentencing, Brian Martin, then chief justice of the NT Supreme Court, made the following sentencing remarks to the convicted man. “I accept that these offences occurred because the young child had been promised to you. This is not a case where you simply sought out a young child for sexual gratification … I have a great deal of sympathy for you and the difficulties attached to transition from traditional Aboriginal culture and laws as you understand them to be, to obeying the Northern Territory law.”

An alternative yes case is to recognise the historical truth in a preamble to the Constitution: that an Aboriginal people lived on the continent before its settlement by the British.

The experts also recommended “recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples”. This is sensible, as long as it sits in a preamble. The Constitution is not a storybook, it is a rule book, and every Australian should play by the same rules.

Presently, judges have discretion in sentencing. If you want to look after the Ernest Mundas of the world, go ahead and vote yes for “cultural” recognition. If you are for human rights, then vote yes for “historic” recognition.

 

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