People from culturally and linguistically diverse backgrounds

The cases identified here provide examples of the way judicial officers have dealt with some of the issues raised in the context statement.

Click on the citation to be directed to a summary of the case in the Case Database.

  • Hossen v Hughes [2014] ACTSC 101 (21 May 2014) – Supreme Court of the Australian Capital Territory

    The appellant was from Bangladesh and slapped his wife in the presence of their daughter. Penfold J at [30]: ‘[I]t seems clear that [Mr Hossen] was inexperienced in the ways of Australian courts. Furthermore, English was not his first language, and an interpreter had been provided for him. In fact, Mr Hossen seemed to have a reasonably adequate command of English; this is suggested by the transcript, which identifies what Mr Hossen said in English and what he said through the interpreter (although it is not clear whether, before replying in English to his Honour’s questions, Mr Hossen had the questions translated by the interpreter). On the other hand, even people who are fluent in English can have difficulties dealing with legal English and its jargon’.

    Penfold J quoted from the sentencing magistrate’s remarks at [33]: ‘Now, I note that the cultural differences may be in play here, but I don’t accept them on the base that you’ve been here for two years, you’ve acknowledged in your own statement to me today that you understand what you did was wrong, and the – what you did attracts certainly from – as you’ve heard from the prosecution in this matter, from the Supreme Court of the ACT in the authority referred to me of Elson v Ayton, is that the courts have no tolerance, or very limited tolerance, for people who engage in domestic violence, and certainly in the presence of children’.
  • R v Saedam [2015] ACTSC 85 (1 April 2015) – Supreme Court of the Australian Capital Territory

    Refshauge J at [10]: ‘The note [from workers at a women’s refuge where the complainant stayed] showed that considerable care and assistance was readily provided to the complainant by the workers at the refuge, a vital part of the community's response to the serious problem of domestic violence, especially to vulnerable women, such as the complainant, with difficulties in her immigration status, language and cultural challenges’.

    At [58]-[60]: ‘Submissions were made that matters relating to immigration may be used to put further pressure on the complainant. Those are relevant and important matters. What those pressures are designed to do was not identified. I can speculate about what they could be, but that is not appropriate for me to do. They need to be specified clearly so that the risks suggested to flow from such intimidation or interference are clear.’

    ‘The matters to which my attention was drawn were the sponsorship of the complainant, enabling her to remain in Australia, and the current proposal that Mr Saedam sponsor her family to come to Australia. While I cannot discount that, indirectly, Mr Saedam may refuse to continue with his sponsorship of the complainant, she has, as I understand it, some protection with the immigration system as a result of the allegations of domestic violence by her.’
  • Messiha v Plaucs [2012] WASC 63 (24 February 2012) – Supreme Court of Western Australia

    Hall J at [33]-[35]: ‘The appellant has sought to rely upon an affidavit of the victim filed on the appeal, which was admitted without objection from the respondent. In that affidavit the appellant's wife states that the imprisonment of the appellant has caused her and her children extreme hardship. In particular, she says that the mortgage on the family home is in arrears and that there is some prospect that the mortgagee bank will sell it. She says that if the appellant is released and obtains work, she hopes that the arrears could be paid. There is, of course, no certainty that he would get work. It must also be noted that the appellant had lost his job before being imprisoned and debts had already accrued at that time. The appellant's wife also says that she has visited the appellant and that he has apologised to her and expressed remorse. She also says that she has health issues and finds it difficult to cope with the children without the appellant's assistance. It should be noted that the appellant and his wife are migrants and that she has no wider family of her own in Australia.

    ‘The weight to be given to the impact of sentences on family members of an offender is usually not great. The consequences of imprisonment are the responsibility of the offender. Offenders cannot expect leniency because their just punishment impacts on others. Furthermore, the wishes of victims of domestic violence for reconciliation has to be seen in context. As McLure P said in State of Western Australia v Cheeseman [2011] WASCA 15: ‘The hallmark of domestic or relationship related violence is the readiness of many victims to return to, or remain in, a relationship with the perpetrator of the violence’.

    ‘Thus, whilst I accept that impact on the family may be taken into account in some cases, it is not a matter that should have been given great weight in this case. There is certainly nothing unusual about the impact that would have justified the magistrate lowering the sentence below that which would otherwise be appropriate’.
  • NAS v QPS [2017] QDC 173 (21 June 2017) – District Court of Queensland

    In relation to the appellant’s cultural background, Reid DCJ stated (at [6]):

    ‘The duty lawyer submitted that the appellant’s cultural upbringing perceived acts of domestic violence to be the norm in Papua New Guinea and not something that is unacceptable, as it is in Australia. Indeed, he said that when he was growing up the appellant was often exposed to violence against women as a means to end arguments. He was also often struck by his father. It was submitted that the disagreement between himself and the complainant which ended in him striking her, was not an uncommon response where he was from.

    However, Reid DCJ did not place any weight on this submission in sentencing.