Eight days’ jail for sex with girl, 13

A 19-YEAR-OLD man who had inter­course with a 13-year-old girl during a pack sex encounter has spent just eight days in custody.

Northern Territory Supreme Court judge Graham Hiley.

A 19-YEAR-OLD man who had inter­course with a 13-year-old girl during a pack sex encounter has spent just eight days in custody, after a judge gave him a suspended sentence.

The Northern Territory man, Trent Maralunga, is one of three males who pleaded guilty to having sexual intercourse or indecent dealings with the girl in a deserted house at Maningrida, a remote Aboriginal community 500km east of Darwin, on April 8.

The judge, Graham Hiley of the Northern Territory Supreme Court, said Maralunga did not force himself on the child and “did not cause her any physical harm’’ — a statement that sexual assault experts have attacked as “concerning’’, “ignorant’’ and “plain wrong’’.

Justice Hiley said that Maralunga’s sexual penetration of the child, known in court as TH, was a “serious offence’’ but “towards the lower end of offending for this kind of offence’’.

He also described another sexual crime committed on the same night against TH by a 22-year-old as being at “the lower end of seriousness for this kind of offence’’. Maningrida man Ziggy Williams, then 22, exposed his penis and was preparing to have sexual intercourse with the child, but stopped when she told him he was “too old’’.

Williams pleaded guilty to ­indecent dealing with TH.

The third offender, who was 17 at the time of the assaults and cannot be named, had sexual inter­course with the girl on April 8. He was two months shy of 18, and he told a probation officer he thought TH might be “11 or 12’’.

In sentencing this man, Justice Hiley took into account “the fact that this was just a one-off encounter with TH … it just happened. She apparently invited you to have sex with her.’’

Last month, the three men walked free from the Northern Territory Supreme Court in Darwin after Justice Hiley wholly or partially suspended their sentences. (Williams and the youth had spent four months and seven months respectively in custody.)

The judge gave first-time offend­er Maralunga a suspended 16-month sentence (apart from eight days he had spent in custody) because he was young, did not have a criminal history and had co-operated with the police. Justice Hiley acknowledged that the crime carried a maximum penalty of 16 years’ jail and that some previous cases “do suggest that there should be actual jail time’’.

The judge’s decision has been slammed by sexual-assault activists. NSW Rape Crisis executive officer Karen Willis said: “The concerning issues are that this is a 13-year-old child; more than one (abuser) means it is a pack rape.

“The concept that there wasn’t physical assault, and that this makes it less of a crime, is really quite concerning.’’

Ms Willis described this concept as “absolutely outside the law’’. Most sexual assaults led to psychological injury, and did not involve physical injury, she said.

Freeing an adult who admitted to having sex with a child would be “incredibly unusual’’ in other states and territories, Ms Willis contended.

She said that if the victim had been a white, middle-class girl, the outcome would have been “very different”. “Some women in the system are more or less valued than others,’’ she said.

Indigenous lawyer and author Hannah McGlade said that Maralunga’s suspended sentence sent “an entirely wrong message that sex with children is somehow acceptable in Aboriginal society”.

“We know that child sexual abuse is a serious problem in all societies, and particularly so in indig­enous society where rape (rates) are higher, for many reasons,” Ms McGlade said. “The message is that you won’t be punished for it and it’s also a derogatory message, I think, to Aboriginal women and children, that their rights to equality and freedom from abuse are not being respected by non-Aboriginal society.’’

Two of the three convicted men claimed the underage victim consented to having sex with them (under the law, a 13-year-old cannot give consent to such an act).

Ms McGlade said that when child sexual-assault victims behaved in an overtly sexualised way, this usually meant they had been abused themselves.

“It’s well known and so we shouldn’t be affording a lesser protection to those children,’’ she said.

In his sentencing remarks, Justice Hiley warned that sex with children could result in pregnancy, disease or victims developing emotional problem.

He gave Williams a six-month prison term but shortened his jail time to the 4½ months he had already served on remand.

He imposed an 18-month sentence on the youngest offender, but freed him on November 10. This offender had spent seven months in custody, partly because he breached bail conditions from a previous offence the night he sexually assaulted TH.

Ms Willis said it was “pretty clear’’ from anecdotal evidence that the courts treated sexual assaults of indigenous women and girls less seriously than those committed against their non-indigenous counterparts.

“It’s not good enough. Things have to change. Big time,’’ she said.

However, she praised the Northern Territory police. She said “massive changes’’ within that force in recent years meant that officers now responded proactively to reports of indigenous sexual assault and violence. “Police in the Northern Territory are now being very proactive; that is excellent news,’’ Ms Willis said.

This case is not the only sentencing controversy to have arisen at the Northern Territory Supreme Court. In 2005, there was a national outcry when the court gave an Aboriginal elder who forced his 14-year-old “promised’’ wife to have anal sex, a one-month jail sentence. That sentence, imposed by former chief justice Brian Martin — who later admitted he got it wrong — was appealed against, and the elder was given substantially longer jail time.

Last year, it was revealed that Dean Mildren, who has since retired from the court, had in 1994 given non-indigenous child rapist Brett Peter Cowan “the benefit of the doubt’’ that he would not re­offend. In 1993, Cowan abducted and raped a six-year-old Darwin boy and left him for dead. Justice Mildren sentenced him to 3½ years of a seven-year jail term.

After release, Cowan murdered Queensland schoolboy Daniel Morcombe, one of the nation’s most notorious child murders.

Courts outside the Northern Territory have also been accused of not taking violence against indig­enous women and girls seriously. In a case that made world headlines, a Queensland District Court decided in 2007 not to jail nine young men who raped a 10-year-old girl in the Aurukun Aboriginal community.

Convictions were not recorded against six of the attackers, and three older men were given suspended sentences. That decision was appealed against, and most of the men were eventually jailed.

In 2010, the West Australian Supreme Court sentenced indig­enous man Ernest Munda to five years and three months’ jail, with a non-parole period of three years and three months, for the manslaughter of his wife.

Munda killed the mother of four two months after the expiry of his previous, suspended sentence for bashing her with his fists, a rock and a spade.

The West Australian government appealed against the “manifestly inadequate” manslaughter sentence, and Munda was given a longer jail term. Last year, Munda took his appeal against the longer sentence to the High Court, but the court dismissed it.

In a potentially groundbreaking study, the University of NSW’s Indigenous Law Centre is conducting research into the justice system experiences of indigenous victims of sexual violence. The project is examining more than 120 cases, many of them drawn from the Northern Territory.

Referring to these cases, a preliminary briefing note revealed that “an unexpected proportion (62 per cent) of sexual offences were committed against children’’.

It concluded: “Given the special vulnerability of indigenous females between 11 and 15 years of age, special attention must be paid to the kind of support that is provided to this category of victim. Both judicial and medical support services need to be tailored to specifically address their needs.’’