Kentwell v R (No.2) [2015] NSWCCA 96

• Aboriginal male adopted by non-Aboriginal family at 12 months – felt like “a black fella in a white fella’s world” – trouble at school – grew up ignorant of cultural heritage – early alcohol abuse due to school experience – asked to leave home due to drinking problem: at [73]-[74]
• On re-sentence accepted that Fernando and Bugmy considerations could apply to ‘non-traditional’ cases involving social exclusion as experienced by offender: at [13] per Bathurst CJ, at [88]-[94] per Rothman J.
• Reference to studies which establish link between social exclusion and discrimination and aggression and anti-social behaviour: at [90]-[94] per Rothman J

[90] I proceeded in Lewis to rely upon studies in the United States of America relating to the effect on behaviour of social exclusion and discrimination. It is unnecessary to reiterate those comments or refer in detail again to the studies.

[91] Those studies disclose, somewhat counter-intuitively, that social exclusion from the prevailing group has a direct impact and causes high levels of aggression, self-defeating behaviours, and reduced pro-social contributions to society as a whole, poor performance in intellectual spheres and impaired self-regulation. While intuitively, for those who have not themselves suffered such extreme social exclusion, the response to exclusion would be greater efforts to secure acceptance, the above studies make clear that the opposite occurs.

[92] Thus, a person, such as the appellant, who has suffered extreme social exclusion on account of his race, even from the family who had adopted him, is likely to engage in self-defeating behaviours and suffer the effects to which earlier reference has been made. This is how the appellant has been affected.

[93] Circumstances such as that are akin to a systemic background of deprivation and are a background of a kind that may compromise the person’s capacity to mature and to learn from experience: Bugmy at [41] and [43]. As a consequence, this background of social exclusion will, on the studies to which detailed reference has been made in Lewis, explain an “offender’s recourse to violence…such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced”: Bugmy at [44].

[94] The studies by Professor Baumeister, reference to which is contained in the judgment in Lewis, make clear that such extreme social exclusion will likely result in anti-social behaviour and most likely result in criminal offending. However, in each case, there must be evidence to suggest the application of these principles and the effect of the exclusion. In this case, the evidence in relation to the appellant of that factor is substantial.

• Accepted evidence of impact of social exclusion on offender, with evidence of prospects of rehabilitation justify lesser sentence – balanced against seriousness of offending: at [98]-[99]