Source: The Conversation (Au and NZ) – By Thalia Anthony, Professor of Law, University of Technology Sydney
Aboriginal and Torres Strait Islander readers are advised this article contains names and images of deceased people.
The brutal homicide of 15-year-old Noongar Yamatji boy, Cassius Turvey, by a group of white men revealed the racial schisms in Western Australian society. Turvey was walking home from school in October 2022 when he was abruptly beaten to death.
On Friday, the Western Australian Supreme Court sentenced the three perpetrators. Twenty-nine-year-old Brodie Palmer and 24-year-old Jack Brearley were found guilty of murder and sentenced to life imprisonment.
A third man, 27-year-old Mitchell Forth, was convicted of manslaughter and sentenced to 12 years behind bars.
This was an opportunity for the Supreme Court to send a strong message against racial violence. While the punishment of the men involved is clear, the role of race, and what legally qualifies as racially motivated crime, is muddier.
Wrong place, wrong time?
Racism has been front and centre of the public discussion of this tragedy from the outset.
Shortly after the 2022 attack, Western Australian Police Commissioner Col Blanch said of the homicide:
it may be a case of mistaken identity, it may be a case of being in the wrong place at the wrong time.
This was met with strong condemnation from the First Nations community.
Rallies in solidarity with Turvey’s family were held across the country, with Gumbaynggirr, Bundjalung, and Dunghutti activist Lizzie Jarrett declaring:
no black child is ever, ever, ever in the wrong place at the wrong time on their own land.
Racism at trial
Over the course of the trial, the court heard Turvey and his peers, a group of Aboriginal high school students, were approached by an angry group.
This comprised the three men convicted and a woman, 23-year-old Aleesha Gilmore, who was acquitted of homicide, and 21-year-old Ethan McKenzie, who with Gilmore, was convicted of other offences relating to the attack.
Turvey was chased and Brearly fatally beat him with a metal pole.
Earlier this year, the trial of the three perpetrators heard arguments by the defendants that the actions were not racially motivated.
Rather, the defence argued they were acting out of self-defence on the basis that Brearly had his car window smashed a few days prior.
In contrast, the prosecution brought evidence of a phone call that revealed Brearley was bragging about beating Turvey, stating that “he learnt his lesson”.
The prosecution argued the homicide was not a personal gripe, but a collective response.
The prosecution didn’t allege the attack was racially motivated, but it was open to the judge to consider this basis for the homicide.
At trial, 91 witnesses came forward. Witnesses gave evidence that the accused were using racial slurs.
This direct racism raises the issue of race as a motive in the attack, and is consistent with evidence of systemic racism in Western Australia.
The killing of Turvey comes after 14-year-old Elijah Doughty was targeted and killed in Kalgoorlie in 2016.
Both cases show white male motorists seeking to avenge Aboriginal children for alleged vehicle offences.
This is reinforced by a penal system in which Aboriginal children are 53 times more likely to be detained than non-Aboriginal children.
What did the judge say?
On the morning of the sentence hearings, Cassius Turvey’s mother, who described her son as respected, bright, loving and compassionate, said the killing was a “racially motivated” and based on “discriminatory targeting”.
This sentiment has been echoed across the country, including by June Oscar, the Aboriginal and Torres Strait Islander social justice commissioner at the Australian Human Rights Commission, in 2022.
Chief Justice Peter Quinlan strongly condemned the attacks.
However, he stated the attack was not racially motivated, despite recognising that the perpetrators were “calling them n-words and black c—ts — you in particular Mr Brearley used language like that”.
He noted that it creates a “fear” of racial vilification:
it’s no surprise […] that the kids would think they were being targeted because they were Aboriginal, and the attack would create justifiable fear for them and for the broader community that this was a racially motivated attack.
This amounts to a message of general deterrence about violence and vigilante behaviour.
But messages to deter racial targeting and racial violence specifically were omitted from the public safety concerns expressed by the court.
Making racial violence invisible
Munanjahli and South Sea Islander professor Chelsea Watego, and colleagues, have remarked that the Australian psyche is more comfortable with an “abstract concern with racism; racism without actors, or rather perpetrators”.
This, they argue, sanitises racial violence and holds no one responsible.
The court demonstrated this abstract concern for racism.
This Supreme Court’s reasoning has set an impossibly high bar for racial vilification, and specifically racial violence, to be identified, denounced and redressed.
The judgement seems to relegate racism to being an unfortunate and unintended incident of co-existence, rather than willed harm.
The failure to regard the racial slurs, the targeting of a group of Aboriginal children, and the killing of one of these children, as “racially motivated”, upholds the idea that white people’s racist treatment and crimes against Aboriginal people exist in a vacuum free of a long history of colonial violence, massacres and occupation.
Thalia Anthony receives funding from the Australian Research Council.
Matthew Walsh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
– ref. The sentencing of Cassius Turvey’s killers shows courts still struggle to deal with racism – https://theconversation.com/the-sentencing-of-cassius-turveys-killers-shows-courts-still-struggle-to-deal-with-racism-259541