There is widespread concern that none of the nine males who gang raped a 10-year-old girl in Queensland have been sent to prison. The Queensland Government is appealing the sentences.
Six teenagers who pleaded guilty last month were placed on a 12-month probation order and had no conviction recorded against them for the 2005 rape of the 10-year-old girl in Aurukun on Cape York. Three others – aged 17, 18 and 26 – were given suspended jail sentences.
In sentencing, Judge Sarah Bradley (pictured) said the girl had “probably agreed” to have sex with the nine, prompting calls for her sacking this week.
The judge has come under intense criticism and I was going to join the pack.
In researching this article however, I came across the Courier Mail’s edited version of the transcript. It’s been edited to avoid identifying the victim and the juvenile defendants.
The transcript shows the Crown prosecutor sought the sentences which were handed down, making it ironic the Attorney-General is now seeking to appeal them.
In court, the prosecutor Steve Carter said the defendants were “very naughty for doing what they’re doing but it’s really – in this case, it was a form of childish experimentation, rather than one child being prevailed upon by another, although – as I said, although she was very young, she knew what was going on and she had agreed to meet the children at this particular place and it was all by arrangement, so – for that purpose.”
There was no victim impact material. Mr Carter told the judge: “None of the penalties that I’ve been instructed to seek have been, involve custodian penalty, immediate custodial penalty, not even for the adults.”
He acknowledged the victim was not capable of giving consent. Although that “doesn’t excuse them, it does in some way lessen the fact that there was no actual force in the sense.”
Her Honour: “But she was only 10 at the time, wasn’t she?”
Mr Carter: “Yes, that’s right, and there’s no possible way that she could have consented willing (sic) – knowingly, with the full knowledge to these offences, even though – that she’d gone through the motions of having sex with these people and I’d submit that that’s something as well. They didn’t force themselves on her, threaten her, or in any way engage in any of that sort of behaviour.”
For the Crown and the judge it seemed to come down to the fact the accused and the victim were Aboriginal and there was no force involved.
If a white girl had been abused in similar circumstances it’s intolerable to think the rapists would have escaped custodial sentences, even the juveniles.
Who am I to say the judge decided wrongly based on her interpretation of the cultural circumstances?
It’s important to maintain separation between the state and the judiciary.
Queensland Premier Anna Bligh has stepped dangerously close to crossing the line. The prosecutor has been stood down pending an investigation, the judge is under fire and an appeal is planned. The Federal Government has weighed in as well.
Presented with agreed submissions from the defence and the Crown it is hard to imagine the judge having decided any differently.
Sure, in principle the standards of justice should be the same for all Australians, but in reality they aren’t.
Aboriginal incarceration rates are much higher and life expectancy is much shorter. Sending a group of boys to prison may just have entrenched them in the dark side of a bad system.
I certainly don’t condone what happened to the girl and personally I think custodial sentences should have been given to the adults involved, regardless of their intellectual capacity.
I just think the politicians and the media should back off from a witch hunt against the judge and the DPP. They shouldn’t be made scapegoats for systemic failures.
×0
No, I can’t agree Michael. I think it’s appropriate that this case be seen as the benchmark, or perhaps the turning point, in Aboriginal affairs.
It’s attracted worldwide attention and makes us look like we’re actually racist because we treat aborigines so differently. And the perception is the truth in this case.
As respected Aboriginal spokesperson Noel Pearson has said, failing to convict and sentence them on the grounds of ethnic or cultural difference just reinforces the stereotype and the unacceptable practices that need to be broken if there is to be any hope of raising their living standards and self-esteem as a people.
It’s a watershed moment and it’s now or never for aborigines. Sack the judge and the prosecutor, and somehow re-open the case and punish them.
Twitter: mgorey
says:
It’s an interesting discussion which goes deeper than the superficial reports attacking the judge. The prosecutor said he had “instructions” in seeking non-custodial sentences. From whom?
In Western Australia there are provisions for tribal law to be applied in cases from traditional societies excluding murder (I’m not sure about rape) and community courts are being trialled successfully in Kalgoorlie and Norseman.
In those examples the state recognises a need for sentencing and punishment options which don’t necessarily involve incarceration.
If white man’s law was applied equally to all Aborigines there would be a lot more in prison at a greater financial and social cost.
I’m wavering between the “one nation, one law” approach and the reality, which I think is much more complicated.
Twitter: delmerw
says:
I read about this the other day and my first, instant, thought was that some sort of heinous injustice had taken place. Two seconds later I decided I needed more information than the bit I’d gotten in the item I’d read.
I didn’t think everything could have played out exactly as the article made it sound. And, per this entry, it didn’t.
I’m not coming in on either side of an ‘injustice’ in this comment, it isn’t my place, I just wanted to thank you for the clarification.
I didn’t even have the instant where I thought “This is terrible”. I instantly thought “I need to read the facts”. And, as always, there is levels of background that no newspaper can squeeze into an 8-word headline – what 90% of people form their opinion on.
Yeah we do treat aboriginals differently. It follows, then, that we treat white people differently. We treat everybody differently, hopefully according to what’s best for them and their community. Is that bad? Is it ever going to be any different, no matter the wording of legislation? No, and it shouldn’t be.
It’s called discretion, not racism.
Er, in the midst of all the rationalising and social justification going on here isn’t something being overlooked?
Nine males (aged from early to late teens and one x 26 y.o) had gang sex with a 10 y.o. girl – and they’ve basically walked free.
No, I don’t form my opinions from headlines, and no, it doesn’t follow that because we treat aborigines differently we also treat white people differently. Aborigines make up only 1.6% of the population so you can’t claim the racism, sorry discretion, goes two ways and therefore one cancels out the other.
If it’s not racism per se then it’s patronisation, another form of racism. We’re not helping them by condoning their tribal practices where those practices are abhorrent.
As for the Judge, she had the power (and a duty) to make up her own mind regardless of what ‘deal’ the defence & the prosecution may have cooked up.
By the way, discretion means ‘ liberty to decide as one thinks fit’. So if ‘one’ thinks along racist lines and decides accordingly, I guess it could be said ‘one’ used ‘discretion’!
Maybe we should have a computer matrix instead of a judge. Simply type in “Nine men had sex with a ten-year-old girl”, and out pops a prison term. Instant impartial justice!
An apple is different from an orange, therefore an orange is different from an apple. Black men are treated differently from white men, therefore it DOES follow that white men are treated differently from black men – in positive and negative ways.
Every case and every person IS treated differently – it’s inhuman, not to mention impossible, to do it any other way.
The case is terrible, but it was treated on its merits like all cases are and should be.
Umm, would you treat an orange differently to an apple? I think not.
As for computers deciding cases, they clearly ARE using a matrix of some kind up there. It’s program is to give lighter sentences to aborigines who commit crimes against their own if those crimes are regarded as common place, which child abuse is.
Here is the crux of the issue: The Judge used ‘discretion’ to make a decision along pre-determined race lines but she had a higher duty than that , which is not only to make decisions according to law but also to make decisions according to accepted community standards. She probably thought she was doing that in terms of the immediate community but she should have realised the case was so serious that she needed to consider it in a much wider context.. She erred seriously.
Yes Michael, most city lawyers regard them as cowboys up there in the north.
Twitter: mgorey
says:
Those of us who support the judge are in a minority. I have question marks about the role of the DPP, but I don’t blame the prosecutor and I think the judge acted correctly.
I wonder what Queensland lawyers make of the whole debate. Ray, you have some connections there, what are you hearing?
Michael O summed it up well; there needs to be discretion.
For the same reason I oppose mandatory sentencing, which has been the subject of much debate in the Northern Territory and Western Australia.
Twitter: mgorey
says:
I’m more outraged by the cause of the problem and the Queensland Government’s apathy than I am by the judge or the prosecutor.
There’s a good article in The Australian: http://www.theaustralian.news.com.au/story/0,25197,22927612-5013172,00.html
This poor girl was born with fetal alcohol syndrome and was raped before she was five.
About the only time she’s known love and security was when she was fostered for a year with white parents in Cairns.
Her extended family called her back to the remote settlement where she suffered the gang rape.
A so-called child protection worker refused to believe the evidence that she had gonorrhoea and failed to notify police.
No, the judge can’t be blamed for what happened to this kid. Anna Bligh should look at herself in the mirror and ask who is really responsible.
No one blames the Judge for what happened to her, only for failing to punish the offenders. The victim’s background is not really relevant, only the fact that she was 10. It’s about appropriate sentencing and sending the right message. The welfare issues surrounding the child are an issue too, but a separate one.
Twitter: mgorey
says:
The evidence in The Australian is that the community was dysfunctional, ravaged by alcohol abuse and largely lawless.
The boys who participated in the sexual assault (with a willing victim) didn’t know right from wrong. They were not brought up understanding the boundaries and morals that govern a normal society. I think that’s why the prosecution sought a non-custodial sentence and why the judge agreed.
As I said earlier, the adults involved should have been jailed in my opinion, regardless of their intellectual capacity.
The boys however would have been totally confused by the legal process (two years after the event) and incarcerating them would have set them on a road to ruin. They would not have got the message and it’s doubtful others in the same community would have either.
The Labor and Liberal Parties have agreed that intervention is needed in Northern Territory Aboriginal communities to restore law and order.
The Queensland Government either needs to intervene itself or hand responsibility for indigenous affairs to the Commonwealth.
I go back to one of my original points, if we locked up every Aboriginal who committed a serious offence according to white man’s law the prisons would be full and those communities would be depopulated. I don’t think that’s the best answer.
I’ll make this my final comment on this issue:
It’s about sending a message to the wider community and to the nation, not just to the offenders.The message that needed to be sent was simple, “having sex with kids has got to stop.”
I’m real cut up about how incarcerating the offenders might have put them on the “road to ruin”. I think they’re already on it.
So what if the jails get a bit full and half the community goes to jail? It won’t stay that way forever. Not once they “get the message” that there’s a line that cannot be crossed, and that no ten year old is a “willing victim”.