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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 26 July 2011

Commentary on Sentencing Indigenous Offenders under the Crimes Act 1914 (Cth)

4.1.1 There are no provisions in the Crimes Act 1914 (Cth) which legislate specifically to regulate or guide the sentencing of federal indigenous offenders.

4.1.2 Race and aboriginality, in themselves, must not be used as mitigating or aggravating factors in sentencing. To do so would be contrary to s9 of the Racial Discrimination Act 1975 (Cth) see Rogers v The Queen (1989) 44 A Crim R 301, 307.

4.1.2.1 However, in Rogers v The Queen (1989) 44 A Crim R 301, 307, Malcom CJ explained that while race is not a permissible ground of discrimination in the sentencing process:

there may well be particular matters which the court must take into account, in applying those principles, which are mitigating factors applicable to the particular offender. These include social, economic and other disadvantages which may be associated with or related to a particular offender's membership of the Aboriginal race.

4.1.3 In 2006, S 16A of the Crimes Act 1914 (Cth) was amended to include S 16A(2A) and (2B).  The amendments prohibit ‘any form of customary law or cultural practice’ to be considered when sentencing for a Commonwealth offence. 

See commentary on cultural background, customary law and cultural practice.

4.1.4 The same sentencing process should apply to all offenders. A sentencing court should consider all material factors including social and economic disadvantage which exist because of an offender’s particular cultural or ethnic background. In Neal v The Queen [1982] HCA 55, [13] Brennan J stated:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or or his membership of an ethnic or other group. But in imposing sentences, courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group.

4.1.5 Courts have recognised some general propositions in relation to the sentencing of indigenous offenders. These may be of assistance in the sentencing of indigenous offenders for federal offences. In R v Fernando (1992) 76 A Crim R 58, [62]-[63] Justice Wood stated:

In the course of his careful and helpful submissions on sentence, Mr Nicholson QC made reference to a number of authorities and reports or papers, concerning the sentencing of aborigines including extracts from a paper 'The sentencing of aboriginal offenders" by Justice Toohey; the recent report of J H Wooten QC concerning the Royal Commission into aboriginal deaths in custody; Regina v Neal (1982) 149 CLR 305; Regina v Davey (1980) 50 FLR 57; Regina v Friday (1984) 14 ACR 471; Regina v Yougi (1987) 33 ACR 301; Regina v Rogers and Murray (1989) 44 ACR 301 and Regina v Juli (1990) 50 ACR 31. As I read those papers and decisions they support the following propositions:

(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.

(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine (sic) who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.

4.1.5.1 The NSW judgment in Fernando involved particularly violent offences. A number of jurisdictions have applied these general propositions in sentencing indigenous offenders: see R v Tjami [2000] SASC 311, [9], Police v Abdulla (1999) 74 SASR 337, [34]; R v Daniel [1997] QCA 139.

4.1.5.2 Later decisions have clarified the principles in Fernando. In R v Ceissman (2001) 119 A Crim R 535, the court cautioned that care should be taken to avoid creating a separate special class of offenders who are entitled to leniency, regardless of the circumstances of the case. As Wood CJ noted at 539-40:

As I endeavoured to explain in Fernando, the eight propositions there enunciated were not intended to mitigate the punishment of persons of Aboriginal descent, but rather to highlight those circumstances that may explain or throw light upon the particular offence, or upon the circumstances of the particular offender which are, referable to their aboriginality, particularly in the context of offences arising from the abuse of alcohol.
...
The principles stated should not be elevated so as to create a special class of persons for whom leniency is inevitably to be extended, irrespective of the objective and special circumstances of the case. To do so would itself be discriminatory of others.

The propositions listed by Wood J do not, nor do they purport to, alter the sentencing process which is to be applied to Aboriginal offenders. Rather, the propositions reaffirm that the same sentencing process should apply to all offenders. This does not, however, mean that sentences are simply applied rigidly. Sentencing is a flexible process and there are, therefore, many considerations of aggravation and mitigation which the court may and should take into account when reaching a decision as to an appropriate sentence. In carrying out this exercise, a sentencing judge needs to be sensitive to the fact that there are particular mitigating factors which might apply more readily to Aboriginal offenders. The matters set out by Wood J are therefore a useful guide to be borne in mind in such cases.

4.1.6 The Court should be careful to consider whether relevant sentencing factors are mitigating or aggravating. In the Western Australian case of E (A Child) (1993) 66 A Crim R 14, [19] Franklyn J stated:

whilst the factors of Aboriginality, ethnic oppression, socioeconomic deprivation, family environment and similar matters or any of them may have relevance in a particular case to the appropriate sentence to be imposed on an offender, none of them is self-executing in the sense that its mere existence necessarily requires a reduction of the penalty otherwise appropriate to the offence. Such matters may explain, at least to some extent, motive or a lack of it, identify influences which have contributed to the commission of the offence which may or may not be mitigatory and reveal circumstances which might be relevant to the appropriateness or otherwise of a custodial term and of probation and/or parole eligibility in a particular case.