Subheadings:
Sentencing
Aboriginal and Torres Strait Islander Offenders under the Crimes Act 1914
(Cth)
- Cultural Background, Customary Law and Cultural
Practice
Scope
of s 16A
- Application of Amendments
Related links:
Options Without Proceeding to Conviction
There are no provisions in the Crimes Act 1914 (Cth) which legislate specifically to regulate or guide the sentencing of federal indigenous offenders.
Race and aboriginality, in themselves, may not be used as mitigating or aggravating factors in sentencing. To do so would be contrary to s 9 of the Racial Discrimination Act 1975 (Cth): Rogers v The Queen (1989) 44 A Crim R 301, [307].
In his judgment in the Court of Criminal Appeal of Western Australia in the case of Rogers v The Queen, Malcolm 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. [1]
Issues such as social or economic disadvantage may be considered as they relate to the offender's personal circumstances, rather than as they relate to ethnicity or race. Brennan J in Neal v The Queen [1982] HCA 55, [326] stated that:
The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender 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.
Note: for a discussion of sentencing principles under the Crimes Act 1914 (Cth) see General Sentencing Principles.
However these considerations are not automatically mitigatory:
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. [2]
In R v Fernando (1992) 76 A Crim R 58, [62]-[63], Wood J comprehensively summarised the authorities as they relate to the sentencing of Aboriginal offenders under NSW law. Whilst the facts in Fernando involved particularly violent offences, the principles identified by Wood J have been referred to as a useful general guide in sentencing indigenous offenders in other jurisdictions: see R v Tjami [2000] SASC 311, [9], Police v Abdulla (1999) 74 SASR 337, [342]; R v Daniel [1997] QCA 139.
Cultural Background, Customary Law and CULTURAL PRACTICE
Recently enacted Commonwealth legislation has had an impact on the principles governing the sentencing of Aboriginal and Torres Strait Islanders under the Crimes Act 1914 (Cth).
In 2006, ss 15AB, 16A and 19B of the Crimes Act 1914 (Cth) were amended by the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth), No 171 of 2006. [3]
The amendment deleted the phrase 'cultural background' from s 16A(2)(m). As a result the court is no longer expressly required to consider an offender's cultural background in determining an appropriate sentence. Note, however, the court may consider antecedents of the federal offender: see below).
The term 'cultural background' was also deleted from s 19B(1)(b)(i), removing cultural background as a factor to which the court may have specific regard in deciding to dismiss a charge or discharge a person without proceeding to conviction. (See further below).
Additionally, the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) inserts sub-s 2A into s 16A.
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However, the court must not take into account under subsection (1) or (2) any form of customary law or cultural practice as a reason for: (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates. |
Criminal behaviour is defined to include:
The terms 'customary law' and 'cultural practice' are not defined in the legislation.
An identical provision has been inserted into s 19B. Section 19B(1B) limits the extent to which customary law or cultural practice can be taken into account as a sentencing factor in ordering the dismissal of a charge or discharge of a person without proceeding to conviction. See Options Without Proceeding to Conviction.
An identical provision (s 15AB(1)(b)) has also been inserted into s 15AB, which deals with bail applications for federal offenders.
Sections 16A(2A) and 19B(1B) only apply to the sentencing of federal offenders. However, the amendments are intended to provide leadership and encouragement to the States and Territories in incorporating similar provisions into their sentencing schemes. [4]
In introducing the Crimes Amendment (Bail and Sentencing) Bill 2006 into Parliament, the Government stated that:
all Australians are equally subject to the law and that Australians can expect the same protection under the law. [5]
The Second Reading Speech highlighted that the amendment does not apply uniquely to indigenous Australians:
At the outset I want to make it very clear that the amendments relate to criminal behaviour across the board. They are not specifically designed to target Indigenous offenders. As these amendments are couched, they apply to all Australians, and I think that that must be remembered ... By taking out cultural background and leaving in antecedents … we are treating everyone in the same fashion. That is any person who comes before the Court will have their antecedents considered, and those antecedents, by the very definition of them will include the person's cultural background. But what we are saying is that you should not place too much emphasis on cultural background to the exclusion of other factors and, in fact, to the extent that justice may be distorted. Of course there will be a variety of cultural backgrounds of the people coming before the Courts of Australia. That can well be considered in the antecedents of the individual concerned – and not just an indigenous cultural background but others, whether from the variety of overseas countries or not. That needs to be remembered. The question of antecedents has been left there deliberately for that reason, that there will be an overall consideration of the person and that person's background when they come before the Court. [6]
The amendments only apply to offences committed after the Crimes Amendment (Bail and Sentencing) Act 2006 entered into force (13 December 2006). [7]
Judge Mary Ann Yeats, Aboriginal Customary Law and Sentencing, Paper presented at The Judicial Conference of Australia Colloquium 2007, Sydney 5-7 October 2007, available at http://www.jca.asn.au/content/attachments/2007-MaryAnnYeats.doc.
K Warner, 'Sentencing Review 2005-2006', 30 Criminal Law Journal 373.
Last Updated: 8 February 2008
[1] (1989) 44 A Crim R 301, [307].
[2] E (A Child) (1993) 66 A Crim R 14, [19] (Franklyn J).
[3] In force from 13 December 2006.
[4]
Crimes
Amendment (Bail and Sentencing) Bill 2006: Second Reading Speech, Philip
Ruddock
(Berowra, Attorney-General, LP, Government), 28 November 2006.
[5]
Crimes
Amendment (Bail and Sentencing) Bill 2006: Second Reading Speech, Philip
Ruddock
(Berowra, Attorney-General, LP, Government), 28 November 2006.
[6] Crimes Amendment (Bail and Sentencing) Bill 2006: Second Reading Speech, Senator Chris Ellison, (Western Australia, Minister for Justice and Customs, LP, Government), 8 November 2006.
[7] Explanatory Memorandum, Crimes Amendment (Bail and Sentencing) Bill 2006 (Cth), Item 6.