Specific considerations - Aboriginal and Torres Strait Islander people

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.

  • Munda v Western Australia [2013] HCA 38 (2 October 2013) – High Court of Australia

    The majority at [53]: ‘Mitigating factors must be given appropriate weight, but they must not be allowed "to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence." It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide’.

    At [55]: ‘A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law’.
  • Reid v Smith [2014] ACTSC 349 (21 October 2014) – Australian Capital Territory Supreme Court

    Penfold ACJ at [24]: In Bugmy v The Queen, the High Court said at [37],[41],[44],[44]: ‘An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence… the appellant’s submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background… An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender’.

    At [27]: ‘[W]hile the decision in Bugmy is certainly relevant to the sentencing of aboriginal offenders, it is also relevant in clarifying that a claim of failure to give adequate weight to particular considerations arising in such a sentencing is not a useful appeal ground. While it might have been an error on the Magistrate’s part if she had entirely disregarded Mr Reid’s somewhat troubled background, her Honour instead made specific mention of it. The fact that she did not as a result grant as much leniency to Mr Reid as he apparently hoped for does not establish a specific error of the kind alleged’.
  • Drew v R [2016] NSWCCA 310 (16 December 2016) – New South Wales Court of Criminal Appeal

    At [84], N Adams J held –

    ‘…A Court may not aggravate an offence by taking judicial notice of the fact that some Aboriginal women might be less likely to complain of domestic violence because of a culture of silence and ostracism in their communities. Whether or not the victim in each case is in such a class of vulnerable victims will always be a matter that must be proved beyond reasonable doubt based on the evidence in that case.’

    At [88], her Honour states –

    ‘It is notorious that offences committed within the context of domestic violence are under-reported and that such under-reporting is not confined to Indigenous communities.’

    At [89], her Honour states –

    ‘High rates of non-disclosure by Indigenous victims of domestic violence have been attributed, among other things, to the potential for stigma and ostracism from family and community members. Indigenous victims may also, for historical and pragmatic reasons, fear contact with police and the courts or regard the authorities as unable to help them’
  • Emitja v The Queen [2016] NTCCA 4 (21 October 2016) – Northern Territory Court of Criminal Appeal

    Grant CJ and Kelly J quoted from Amagula v White (unreported, Northern Territory Supreme Court, 7 January 1998): ‘The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced. There is a fairly widespread belief that it is acceptable for men to bash their wives in some circumstances; this belief must be erased’.

    Their Honours continued at [32]-[34]: ‘As this Court has repeatedly observed before and since that statement was made, such conduct must be dealt with in a manner which reflects the serious nature of the offending and its corrosive effect on well-being in Aboriginal communities’.

    While ‘some Aboriginal communities have an unusually high incidence of serious crimes of violence and that the courts are powerless to alleviate the dysfunction and deprivation which underlies that violence. Aboriginal women and children living in those communities ‘are entitled to equality of treatment in the law’s responses to offences against them’. The protection which the law affords includes the imposition of sentences which include a component designed to deter other members of the community from committing crimes of that nature’.

    There are also practical societal reasons to consider personal and general deterrence. As in The Queen v Haji-Noor: ‘The offender’s crime against Mr Ellis was committed in a domestic context. Domestic violence is a leading contributor to death, disability and illness in the community. Such violence affects the whole community. Medical and hospital treatment for the victims of domestic violence is extremely costly and imposes a considerable strain on the health system and those who work in it’.
  • R v Stevenson [2015] NTSC – Sentencing Remarks 21353266 (Kelly J) (14 September 2015) – Northern Territory Supreme Court
    Kelly J: ‘Taking away somebody’s life is one of the most serious crimes anyone can commit. I have to give you a sentence that says just how much the court and the whole community disapproves of violent crimes like this and that will discourage other men from doing the same thing. Drunken violence is far too common in our community. It is particularly common, unfortunately, in Aboriginal communities and vulnerable Aboriginal women, vulnerable people of all kinds, deserve the fullest protection that the law can give them’.
  • R v MBY [2014] QCA 17 (18 February 2014) – Queensland Court of Appeal

    Morrison JA at [67] and [69] discussing High Court authority: ‘Properly understood, the High Court [in Bugmy v the Queen] was going no further than to say that the deprived background of an offender, be they Aboriginal or otherwise, and whether or not derived from a situation of endemic alcohol abuse and alcohol fuelled violence, may mitigate the sentence imposed on the offender because of its impact on the assessment of moral culpability. However, the proper weight to be given to that factor will depend upon the particular case. Further, the weight that is given to such a factor, in terms of mitigation, will depend upon the interplay of considerations relevant to sentencing, including punishment, protection of society, personal deterrence and general deterrence’.

    ‘The High Court [in Munda v Western Australia]…said: ‘Mitigating factors must be given appropriate weight, but they must not be allowed “to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”’.
  • R v Bell & Anor; ex parte Attorney-General (Qld) [1994] QCA 220 (20 June 1994) – Queensland Court of Appeal
    The appellant was an Aboriginal man. Fitzgerald P: ‘It was right for [the sentencing judge] to have regard to the respondent's disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law's protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which an offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members’.
  • R v Kina [1993] QCA 480 (29 November 1993) – Queensland Court of Appeal
    Fitzgerald P and Davis JA: ‘In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of: (i) her aboriginality; (ii) the battered woman syndrome; and (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice’.
  • Wongawol v The State of Western Australia [2011] WASCA 222 (17 October 2011) – Supreme Court of Western Australia (Court of Appeal)
    McLure P at [39]: ‘This is a case where the protection of the community in which the appellant lives and both personal and general deterrence are very weighty sentencing considerations. The incidence of alcohol and drug fuelled violence within Aboriginal communities is distressingly high. A new generation of children are scarred. The cycle continues’.
  • R v Nelson [2017] SASCFC (8 May 2017) – Supreme Court of South Australia (Full Court)
    “It was necessary for the sentencing judge to take into account, as his Honour did, the defendant’s background of disadvantage and social deprivation arising from his upbringing in a traditional and remote Aboriginal community. However, the fact that … the defendant had very recently been released after a period of imprisonment imposed for two assaults on a different female drinking companion operated to reduce the leniency that his personal circumstances might otherwise have attracted. Moreover, the attack by the defendant upon his domestic partner was particularly brutal and has had grave consequences for her … The sentence did not give appropriate effect to the views consistently expressed by this Court concerning the need to give significant weight to considerations of specific and general deterrence when sentencing defendants who have engaged in serious domestic violence.” Parker J stated at [45]-[47].