Judgments Library

• Hearing impairment only discovered after expelled from school at early age for destroying a classroom: at [13]
• Hearing impairment, childhood physical abuse and considerations in R v Fernando (1992) 76 A Crim R 58 relevant to reduced capacity to handle stressful situations, heightened susceptibility to reacting inappropriately to behaviour he regarded as provocative. These factors all provide a context in which present offence must be evaluated and in assessing overall culpability: at [29]
• Time in custody more burdensome; serving sentence in protective custody due to “problems he would have in [the] main yard with his hearing problems”: at [31]

• 17 year old female Aboriginal offender sentenced to suspended sentence of imprisonment for threatening nurse in hospital waiting room – intoxicated and angry after being assaulted by de facto partner earlier in evening
• Accepted on appeal offender’s intoxication provided explanation of offence and factor of mitigation: at [10]-[11]
• On appeal sentence replaced with an obligation to be of good behaviour and no conviction recorded. Gray J referred to evidence of Indigenous employment status and accepted the impact of a conviction on the appellant’s future employment prospects as a relevant factor in considering whether to record a conviction: at [24], [25]

• 19 year old Aboriginal offender kicked and broke shop windows while intoxicated and angry – appealed against decision of magistrate to record a conviction
• Crown accepted offender’s youth, good record and undertaking of education and work programs justified no conviction being recorded: at [14]
• Court further accepted as relevant evidence on diminished employment prospects for Aboriginals: at [17]-[20]

[17] By consent, further material was placed before this court concerning indigenous offenders and the situation of indigenous Australians in general. Two reports from the Australian Bureau of Statistics were tendered as well as a research paper from the Centre for Aboriginal Economic Policy Research. The research paper reached conclusions concerning indigenous employment levels:

… the key feature of Indigenous employment status is that it remains firmly below the national average at less than three-quarters of the level recorded for non-Indigenous adults.

[18] It was submitted that the circumstances that relate to Mr Newcombe by reason of his ethnicity, including diminished employment prospects, are matters relevant to sentencing.

[19] Counsel submitted to the court that the rate of unemployment among indigenous Australians was substantially higher than the unemployment rate for non-indigenous Australians. It was pointed out that Mr Newcombe lived in a rural area where opportunities for employment are commonly acknowledged to be less than that of an urban area. The recording of a conviction was likely to diminish Mr Newcombe’s employment prospects. It was said that the court should consider particular difficulties that could arise were a conviction to be imposed.

[20] In this case the effect that a conviction may have on Mr Newcombe’s future employment prospects is a relevant sentencing consideration. In considering the penalty to be imposed on Mr Newcombe, the court should take into account the factors relevant to him through his particular ethnicity. (footnotes removed)

• Recount of subjective mitigating factors considered by sentencing judge include effect of inability to attend mother’s funeral

[11] The family was a large one of three boys and five girls and the mother was greatly valued. When she died both TJH and JMH applied for and were granted leave by the Prison Authorities to attend her funeral. In fact, for reasons of which they were not fully aware they were not permitted to leave Long Bay Gaol. The judge recorded that attendance at the funeral of a mother is particularly important for people in most Aboriginal communities. The judge found that both TJH and JMH had been severely affected by not attending their mother’s funeral.

• Cases Involving Non-Indigenous Defendants

• Hearing impairment basis of finding of special circumstances; contributed to applicant’s mental condition and extra difficulties he will experience in protective custody: at [15]
• Sentencing judge failed to take into account subjective features, in particular, permanent and severe deafness and underlying medical condition: at [21]

• Crown appeal against sentence of periodic detention for offence of armed robbery dismissed
• Case for each respondent included evidence of difficult and deprived childhood – found no error in Sentencing Judge taking into account impact of incarceration in light of this background:

[53] The judge said, amongst other things:

“…if I sentence either of these young men to full time custody the awful problems that they have had in their lives thus far will be compounded and they will be in an absolutely hopeless situation…”

…

[66] I do not think that that observation, in the context, evidences the error suggested. It is a comment consistent with Yardley v Betts (1979) 22 SASR 108 at 112-3 which was referred to by Wood CJ at CL in Blackman and Walters at para 44 with evident approval (para 45). It is not irrelevant to take into account the effect which a sentence is likely to have.

• Deafness is relevant. R v Russell (1995) 84 A Crim R 386 held that hearing loss, disproportionately common amongst Aboriginal people, was deemed to contribute to harshness of a custodial sentence: at [59]
• The offender, when in a group, cannot follow conversations as it becomes blurred due to his hearing: at [59]. Like many members of the Aboriginal community, offender is seriously affected by deafness, which will cause him to be isolated within the prison community, indeed, in any community: at [72]

• Aboriginal offender and his sister removed from parents and made wards of state at early age – natural parents refused access – placed into foster care with non-aboriginal family – strained relationship with foster mother – sexually abused – failed attempt to reunite with natural mother – placed in institutional care: at [94]-[104]
• Appeal against lengthy sentence allowed in view of error made in relation to rule of accumulation
• On re-sentence Batt JA and O’Bryan AJA both acknowledged the offender’s dysfunctional and disadvantaged childhood but found it carried little mitigating weight in view of nature and gravity of offences and offender’s criminal history: at [60]; [154]-[155]
• Dissenting as to the appropriate length of re-sentence Eames JA discussed at length the relevance of the offender’s Aboriginality, experience of childhood separation from his parents and subsequent foster care with his offending : at [74]-[92]

[92] When regard is had to the welfare and other expert reports which were tendered before the learned sentencing judge it emerges very clearly that far from his Aboriginality being an irrelevance to the circumstances in which the offending conduct occurred, it is pivotal. Indeed, the history of the applicant has remarkable similarities to many of the cases reported upon by the Royal Commission into Aboriginal Deaths in Custody. The impact of a person being separated from family, endeavouring to regain contacts with that family, being reb￭ in those efforts, and thereupon suffering anxiety about being denied the opportunity to fully embrace his or her Aboriginality, was often addressed in individual reports and in the findings of the final report of the Royal Commission. The Commissioners recognised the impact of a person, in those circumstances, being socialised not into the family and kin network which would otherwise be the experience of an Aboriginal person living in urban circumstances but being socialised, instead, by the need to survive in institutional communities, including juvenile detention facilities and homes. That is not to say that in all cases of such separation the impact on the child in later years must have been adverse: that possibility, however, needs to be recognised.

• Eames JA further considered findings of the Royal Commission into Aboriginal Deaths in Custody in relation to the offender’s history of out of home care: at [137]-[140]

[137] The Royal Commission into Aboriginal Deaths in Custody, in the National Report of the Commissioners, identified the over-representation of Aboriginal people in prisons and the underlying factors which led to such deaths in custody. The Commissioners identified one factor being the impact on Aboriginal people who had been separated from their natural families at an early age and placed under the control of welfare institutions and/or being adopted out. Of the 99 deaths in custody investigated by the Royal Commission, 43 of those who died experienced childhood separation from their natural families, through intervention by State authorities or by missions or other institutions

[138] The Royal Commissioners acknowledged that many non-Aboriginal people who participated in the removal of children from their parents in such circumstances did so for the best of motives, and that in some cases opportunities were offered to the children concerned which might otherwise not have been obtained. The Commissioners noted, however, that for most the consequences were negative. The Commissioners observed:

“The consequence of this history is the partial destruction of Aboriginal culture and a large part of the Aboriginal population, and also disadvantage and inequality of Aboriginal people in all the areas of social life where comparison is possible between Aboriginal and non-Aboriginal people. The other consequence is the considerable degree of breakdown of many Aboriginal communities and a consequence of that and of many other factors, the losing of their way by many Aboriginal people and with it the resort to excessive drinking, and with that violence and other evidence of the breakdown of society. As this report shows, this legacy of history goes far to explain the over-representation of Aboriginal people in custody, and thereby the death of some of them.”

The Commissioners noted that for Aboriginal people, this history “is burned into their consciousness”.

[139] The significance of the work of the Royal Commission and the potential relevance of its findings to cases involving Aboriginal offenders who had experienced separation from their natural families has been well recognised, and the potential for there to be a connection between that experience and later offending behaviour should not be underestimated.

[140] The report of the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, which was delivered by the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, in April 1997, investigated the separation of Aboriginal children from their families “by compulsion, duress or undue influence”. The report therefore distinguished what it called “forcible removal” from removals “which were truly voluntary, at least on the part of parents who relinquished their children, or where the child was orphaned and there was no alternative indigenous carer to step in.” The report, however, made clear that the term of reference was treated as including not merely children who were “removed” from their parents but also those who experienced “separation from their families”. The authors of the report noted the results of the National Aboriginal and Torres Strait Islander Survey of 1994, conducted by the Australian Bureau of Statistics, which reported that Aboriginal people surveyed who had been taken away from their natural families as children were twice as likely to have been arrested on more than one occasion than were Aboriginal people who did not have that background.

Stolen Generation Case

Several unsuccessful attempts have been made to obtain compensation through the Courts for damage caused by the forced removal of members of the Stolen Generation. The only successful case to this date is State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 (Doyle CJ, Duggan and White JJ) where the plaintiff sded on the basis of negligence and misfeasance in public office. The case contains a detailed picture of the long-term damage caused to Mr Lampard-Trevorrow as a result of being removed from his indigenous family as a child.

Related Social Exclusion Cases

Although not categorised as part of the stolen generation the indigenous offenders in each of the following cases suffered social exclusion in the context of their adoption to a non-indigenous family.

• Aboriginal offender and his sister removed from parents and made wards of state at early age – natural parents refused access – placed into foster care with non-Aboriginal family – strained relationship with foster mother – sexually abused – failed attempt to reunite with natural mother – placed in institutional care: at [94]–[104]
• Appeal against lengthy sentence allowed in view of error made in relation to rule of accumulation
• On re-sentence Batt JA and O’Bryan AJA both acknowledged offender’s dysfunctional and disadvantaged childhood but found it carried little mitigating weight in view of nature and gravity of offences and offender’s criminal history: at [60], [154]–[155]
• Dissenting as to the appropriate length of re-sentence Eames JA discussed at length the relevance of the offender’s Aboriginality, experience of childhood separation from his parents and subsequent foster care with his offending: at [74]–[92]

[92] When regard is had to the welfare and other expert reports which were tendered before the learned sentencing judge it emerges very clearly that far from his Aboriginality being an irrelevance to the circumstances in which the offending conduct occurred, it is pivotal. Indeed, the history of the applicant has remarkable similarities to many of the cases reported upon by the Royal Commission into Aboriginal Deaths in Custody. The impact of a person being separated from family, endeavouring to regain contacts with that family, being reb￭ in those efforts, and thereupon suffering anxiety about being denied the opportunity to fully embrace his or her Aboriginality, was often addressed in individual reports and in the findings of the final report of the Royal Commission. The Commissioners recognised the impact of a person, in those circumstances, being socialised not into the family and kin network which would otherwise be the experience of an Aboriginal person living in urban circumstances but being socialised, instead, by the need to survive in institutional communities, including juvenile detention facilities and homes. 36 That is not to say that in all cases of such separation the impact on the child in later years must have been adverse: that possibility, however, needs to be recognised.37

36 See for example the report by J.H. Wootton Q.C., (formerly Wootton, J. of the Supreme Court of New South Wales): “Report of the Inquiry into the Death of Malcolm Charles Smith”, 11 April 1989, at p.4ff.

37 In Cubillo, supra, at 115, O’Loughlin, J., when discussing the breadth of usage of the term “Stolen Generation”, said that the mere fact that a child of part-Aboriginal ancestry was placed in an institution would not justify identification of that person as a member of the “Stolen Generation”, it being necessary to go further and in each case to examine why the child was institutionalised, and whether it was necessary for that to have occurred in the interests of the child. His Honour’s comments were made in the context of a claim of breach of duty of care by the State. The adverse impact of separation of Aboriginal children, for whatever reason, has been long recognised, the first academic writing on the topic being at least as early as 1951, by Professor R.M.Berndt (see P.Read, “Bibliographical Review of the Literature of the Stolen Generations”, Vol 3, No.73, Aboriginal Law Bulletin (1995), at 22).

• Eames JA further considered findings of the Royal Commission into Aboriginal Deaths in Custody in relation to the offender’s history of out of home care: at [137]–[140]

[137] The Royal Commission into Aboriginal Deaths in Custody, in the National Report of the Commissioners, identified the over-representation of Aboriginal people in prisons and the underlying factors which led to such deaths in custody. The Commissioners identified one factor being the impact on Aboriginal people who had been separated from their natural families at an early age and placed under the control of welfare institutions and/or being adopted out. Of the 99 deaths in custody investigated by the Royal Commission, 43 of those who died experienced childhood separation from their natural families, through intervention by State authorities or by missions or other institutions41

[138] The Royal Commissioners acknowledged that many non-Aboriginal people who participated in the removal of children from their parents in such circumstances did so for the best of motives, and that in some cases opportunities were offered to the children concerned which might otherwise not have been obtained. The Commissioners noted, however, that for most the consequences were negative. The Commissioners observed:

“The consequence of this history is the partial destruction of Aboriginal culture and a large part of the Aboriginal population, and also disadvantage and inequality of Aboriginal people in all the areas of social life where comparison is possible between Aboriginal and non-Aboriginal people. The other consequence is the considerable degree of breakdown of many Aboriginal communities and a consequence of that and of many other factors, the losing of their way by many Aboriginal people and with it the resort to excessive drinking, and with that violence and other evidence of the breakdown of society. As this report shows, this legacy of history goes far to explain the over-representation of Aboriginal people in custody, and thereby the death of some of them.”42

The Commissioners noted that for Aboriginal people, this history “is burned into their consciousness”.43

[139] The significance of the work of the Royal Commission and the potential relevance of its findings to cases involving Aboriginal offenders who had experienced separation from their natural families has been well recognised,44 and the potential for there to be a connection between that experience and later offending behaviour should not be underestimated.45

[140] The report of the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, which was delivered by the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, in April 1997, investigated the separation of Aboriginal children from their families “by compulsion, duress or undue influence”. The report therefore distinguished what it called “forcible removal” from removals “which were truly voluntary, at least on the part of parents who relinquished their children, or where the child was orphaned and there was no alternative indigenous carer to step in.”46 The report, however, made clear that the term of reference was treated as including not merely children who were “removed” from their parents but also those who experienced “separation from their families”.47 The authors of the report noted48 the results of the National Aboriginal and Torres Strait Islander Survey of 1994, conducted by the Australian Bureau of Statistics,49 which reported that Aboriginal people surveyed who had been taken away from their natural families as children were twice as likely to have been arrested on more than one occasion than were Aboriginal people who did not have that background.

41 Royal Commission into Aboriginal Deaths and Custody, National Report, Vol. 1 par. 1.2.17, p.5, April 1991.

42 Paragraph 1.4.19.

43 Paragraph 1.4.2.

44 The report of the Royal Commission was described by criminologist Professor Richard Harding as being “a unique inquiry, unparalleled in any other part of the world” which he said “served to raise public consciousness as to distinctive areas of Aboriginal disadvantage and paved the way for such ground-breaking work as the enquiry into the removal of Aboriginal children from their natural parents”, See “Prisons are the Problem: A Re-Examination of Aboriginal and Non-Aboriginal Deaths in Custody”, R.W. Harding, Aust & N.Z. Journal of Criminology, Vol 32, No 2 (1999) 108, at 119.

45 In the National Aboriginal and Torres Strait Islander Survey, conducted by the Australian Bureau of Statistics in response to a recommendation of the Royal Commission, more than 10% of Aboriginal persons aged 25 years and over reported being taken away from their natural family by a mission, the government or “welfare”: see National Aboriginal and Torres Strait Islander Survey, 1994, Australian Bureau of Statistics, at page 2.

46 “Bringing Them Home”, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Wilson, et al, Human Rights and Equal Opportunity Commission (1997), p.5.

47 Ibid, p. 11.

48 Bringing Them Home Report at p.15.

49 National Aboriginal and Torres Strait Islander Survey 1994, at p.58, Detailed Findings, Australian Bureau of Statistics, 1995a, ABS Catalogue No. 4190.0, Canberra. (Where only a single arrest had occurred there was no significant reported difference by reference to childhood separation experience).

• Crown appeal against suspended sentence for offence of armed robbery dismissed in view of exceptional circumstances
• Case for each respondent included evidence each had achieved substantial rehabilitation including use of delay between offence and arrest to break away from criminal associates: at [42]

[45] This has particular relevance for the present case. His Honour was, in my view, entitled to find that the position of each respondent was wholly exceptional, and that each had achieved a remarkable level of rehabilitation. Additionally, as I have previously noted, it was only by reason of their admissions, that their guilt could ever have been established. Moreover, if they had been sentenced to full time custody, they would have been at considerable personal risk by reason of the assistance given, which would have made their detention arduous and limited their opportunity to participate in the kinds of rehabilitation programs that would have been appropriate for young offenders. There was every reason to suppose that to send them to gaol would have been more likely to turn them towards a criminal way of life, than to maintain the degree of rehabilitation which each had, of his own effort and initiative, achieved. (emphasis added)

• Offender sentenced to short custodial sentence for killing of male partner – abusive and violent relationship
• Psychologist report described deprived childhood – exposed to family violence and alcohol abuse – grew up amongst chaotic and violent people – absence of parental responsibility – committed drinker since aged 16 years – a life “typical of the extreme of the heavy drinking sub-culture, which is characterised by sordid and violent relationships”: at [12]–[17]
• Forced departure of family from pastoral station home occurred when offender too young to recall, but meant she “shared in the dislocation of her people, and she has grown up in the midst of the turmoil which resulted from it and from which they have never recovered”: at [13]
• Crown appeal dismissed – applied principles in sentencing Aboriginal offenders as set out in by Brennan J in Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at 326 and Wood J in R v Fernando (1992) 76 A Crim R 58

• While refugee status may be a relevant consideration, the particular factors of mitigation should be identified (such as disadvantaged background or the substantial contribution to the community, or whatever else may be said in the prisoner’s favour), rather than a simple referral to fact the accused was a refugee i.e. entered the country with a well-founded fear of persecution: per Callaway JA at 59-60.

• Per Kirby ACJ (dissenting) at 392–3:

The other factor to be considered is the particular correlation between hearing loss, aboriginality and the criminal justice system which is increasingly being brought to light by research: see eg D Howard, S Quinn, J Blokland and M Flynn, ‘Aboriginal Hearing Loss and the Criminal Justice System’ (1993) 3 Aboriginal Law Bulletin 65; at p 9. In AT (unreported, Supreme Court, NT, 26 October 1992), Thomas J observed, at 48, in relation to a 16 year old Aboriginal offender who pleaded guilty to seven serious offences, including arson:

“Although a hearing problem was identified early in (the defendant’s) life and identified again during his childhood, it appears he has not had access to a range of services, including the possibility of surgical intervention, amplification, speech therapy, and special education, that could have minimised the communicative, social and psychological impact of these problems and I quote one section of the report prepared by Mr Howard in which he states: ‘these communication difficulties have been a major contributor to the development of serious social and psychological problems’.”

See Howard et al above at p 9. Research, although still limited in this area, suggests that hearing loss amongst Australian Aboriginals is endemic. Between 20 and 40 percent of Aboriginals reportedly have some form of hearing deficiency, generally caused by unattended middle-ear infections. Such losses have been observed to cause not only learning deficits but also anti-social behaviour, low self-esteem, feelings of paranoia in some cases, social isolation, powerlessness and more. The Royal Commission into Aboriginal Deaths in Custody noted the grave effects of hearing disabilities and its prevalence in several cases of Aboriginal deaths in custody. The conclusion is open that this disability, with its attendant frustrations and handicaps, could increase the likelihood of contact between an Australian Aboriginal and with the criminal justice system. If a custodial sentence is passed, the hearing deficiency with its associated problems will also tend to make the offender’s period in prison more difficult and harsh.

• 16-year-old respondent attempted deliberate killings of six police officers during three separate car chases with co-offenders – Crown appeal against sentence of 23 months allowed and new sentence of 6 years imposed
• Aboriginal offender with deprived childhood – chaotic and unstructured living conditions – father had long history of alcohol abuse – out of home care on multiple occasions – family moved frequently – commenced substance abuse at early age – close bonds to family meant exposure to anti-social and criminal attitudes: p.29
• Each judgment acknowledged impact of growing up in Aboriginal community experiencing socio-economic deprivation, ethnic discrimination, abuse, violence and alienation – environment of perceived conflict between community and police resulting in cultural and personal mistrust of authority, feelings of disillusionment, anger and sense of injustice: p.17 per Malcolm CJ; p.19 per Franklyn J and pp.29-30 per Ipp J
• While such circumstances may provide some explanation for offending degree of mitigation depends upon circumstances of case – in this case no mitigation in view of nature and seriousness offences: p.17 per Malcolm CJ; p.19 per Franklyn J and pp.30-32 per Ipp J

His background as an Aboriginal, brought up in an environment of perceived conflict between the urban Aboriginal community to which he belonged and police, and the deprived oppressive socio-economic conditions in which his family and other members of his ethnic group have suffered, assist in explaining to some degree how his attitudes to the police and the rest of the community have developed. The extent to which allowance should be made by way of mitigation on account of these circumstances must depend in any particular case to a very significant degree on the nature of the offence and the circumstances under which it is committed. (per Malcolm CJ at p.17)

• Aboriginal male moved from Aboriginal reserve community to urban environment at 16 years of age – introduced to substance abuse by victim – after suicide of victim’s brother experienced trauma, deteriorating relationship with victim and increased substance use – history of assaults against victim
• Appeal allowed to reduce sentence for assault only and impose new non parole period
• Mullighan J referred to mitigating factors in offender’s background including major challenges faced in moving from Aboriginal community life to urban environment: at 209–10

(The offences) were committed against the background of problems encountered by him in adjusting to city life as an Aboriginal boy from the relative security of Aboriginal community life. True it is that he had been living in the city for five years or so, but it should not be assumed that the problems which he initially encountered had been resolved. It is not easy to fully appreciate the plight of Aboriginal persons, such as the appellant, who find themselves in city life with all of its temptations and distractions at a young age without the discipline previously experienced in mission and family life. Of course the same sentencing principles must apply to all sections of the community: Neal (1982) 149 CLR 305 at 324; 7 A Crim R 129 at 143, per Brennan J. Nevertheless, the courts have acknowledged that special problems experienced by Aborigines living on reserves and of tribal Aborigines must be considered when imposing penalty: see Neal’s case; Friday (1984) 14 A Crim R 471 and Houghagen v Charra (1989) 50 SASR 419, per Bollen J at 422. The courts have done no more than acknowledge the sentencing principle that the circumstances of the offender, whatever they may be, must be brought into consideration. Relevant considerations due to an offender being an Aboriginal living in an urban environment must also be considered. The appellant experienced considerable problems after he moved to the city. His relationship with the victim commenced soon after. He committed the assault and the rapes against the background of his relationship with her and the effects it had upon him. Whilst the severity of the assault cannot be excused by any of these matters, they do provide an explanation for his conduct.

• White J also accepted the impact of transition to city life as a mitigating factor relevant to the setting of the non-parole period on re-sentence: at 205, 208

• Offender sentenced for maliciously wounding his de facto partner with a knife – disadvantaged background included early introduction to alcohol and long-standing abuse of it within communities where such conduct is not only the norm but positively encouraged by peer group pressure

(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.

(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. (pp.62-63)

• Offender sentenced for maliciously wounding his de facto partner with a knife – disadvantaged background included early introduction to alcohol and long-standing abuse of it within communities where such conduct is not only the norm but positively encouraged by peer group pressure

(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.

(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. (pp.62-63)

• Relatively severe hearing problem from age 3 with no access to services or treatment. Linguistic competence limited; trouble communicating and understanding what others say: at [47].
• Expert report: communication difficulties a major contributor to development of serious social and physiological problems; negative self-concept, low tolerance of frustration, high degree impulsiveness and limited social intelligence: at [48]
• Action to be taken to ensure whatever can be done in respect of hearing impairment. Substantial period of supervision proposed: at [50]

• Aboriginal offender from the Kimberley region –family history of instability, alcohol abuse and violence – suffering mental illness exacerbated by alcohol abuse
• Held on appeal by Malcolm CJ sentencing judge failed to take into account offender’s history of alcohol abuse and intoxication at time of offending, his mental illness and the likely effect of imprisonment on a Kimberley Aboriginal: at 36

(Malcolm CJ)

(p.36) … Drunkenness is not normally an excuse or a mitigating factor. In particular circumstances, however, it may be relevant as a mitigating factor. In the particular circumstances of this case the applicant’s abuse of alcohol reflects the socio-economic circumstances and the environment in which he has grown up and should be taken into account as a mitigating factor in the way which I suggested in Rogers v The Queen, unreported; CCA SCt of WA; Library No 7849; 14 September 1989 at 9-13. I do not wish to repeat what I said in Rogers save to say that the substantive point which I sought to make in my judgment at 10 was:

“It is a notorious fact that the increased use of alcohol by aboriginal persons in relatively recent times has caused grave social problems, including problems of violence, in the communities in which they live. The general circumstances which have led to problems associated with the consumption of alcohol may themselves provide circumstances of mitigation …”

…

In addition, account should be taken of the impact of a sentence of imprisonment on an aboriginal person in the light of his social and cultural background. As Muirhead J said in The Queen v Iginiwuni; unreported; SCt of NT; SCC No 6 of 1975; 12 March 1975:

“Both aboriginal and white people are generally speaking subject to the same laws. For years, however, the Judges of this Court in dealing with aborigines have endeavoured to make allowance for ethnic, environmental and cultural matters …”

Relationship between Bugmy Principles and s.21A(5AA) Crimes (Sentencing Procedure) Act

At common law intoxication and substance addition could be relevant as a mitigating factor where the origin or extent of the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, including where it commenced at a very young age. See:

R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; [1999] NSWCCA 111 at [273] (Wood CJ at CL)

SS v R, JC v R [2009] NSWCCA 114 at [101]-[104] (Price J, Tobias JA and James J agreeing).

Any reliance upon self-induced intoxication at the time of the offence as a mitigating factor is now prohibited by s.21A(5AA) Crimes (Sentencing Procedure) Act which commenced on 31 January 2014:

(5AA) Special rule for self-induced intoxication

In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

(5B) Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

In the following cases a distinction is made between using the offender’s intoxication to mitigate the circumstances of the offence, and taking into account generally an offender’s early exposure to substance abuse and subsequent intoxication and addiction according to the Bugmy principles.

• Offender Rogers a 17y Aboriginal growing up in a remote community where alcohol forbidden – heavily intoxicated at time of offence
• Malcolm CJ allowed the appeal in relation to Rogers in view of mitigating factors and similar cases. Brisenden J agreed. In dissent Wallace J referred to the need to balance the context of intoxication in Aboriginal communities with the need to provide protection and deterrence within those communities.
• In his comments Malcolm CJ affirmed the principle that all offenders were subject to the same laws of the state but that within that principle the courts were permitted to take into account the social problems caused by alcohol in Aboriginal communities: at pp.305-308

It may be inferred from that the fact that he was a full-blood tribal aboriginal of limited education, who rarely went to town, that he was relatively inexperienced with the use of alcohol. This is relevant to mitigation in the particular circumstances, although mere drunkenness would not normally be accepted as a mitigating factor. As Muirhead J said in The Queen v Iginiwuni, SupCt NT (SCC No 6 of 1975, 23-5); unreported; 12th March 1975:

“Both aboriginal and white people are generally speaking subject to the same laws. For years, however, the Judges of this Court in dealing with aborigines have endeavoured to make allowance for ethnic, environmental and cultural matters …”

It is a notorious fact that the increased use of alcohol by aboriginal persons in relatively recent times has caused grave social problems, including problems of violence, in the communities in which they live. The general circumstances which have led to problems associated with the consumption of alcohol may themselves provide circumstances of mitigation …

• In setting the sentence Malcolm CJ also took into account that Rogers would serve his imprisonment in the south of the state away from his ordinary environment: at p.311