R v Lewis [2014] NSWSC 1127

• Aboriginal adopted by Caucasian parents at 6 weeks – informed of adoption at age nine after comment at school – became rebellious – subjected to racist comments impacting schooling – sought and became easily influenced by other Aboriginal youth and commenced antisocial behaviour – became involved in drugs, alcohol, violence, abuse and criminal activity: at [26]-[31]
• Applied Fernando and Bugmy to ‘non-traditional’ case – offender relying upon social exclusion not exposure to physical and alcohol abuse in home environment: at [37]-[38], [43]
• Considered academic writing on effect of social exclusion during childhood as suffered by offender

[40] In a most helpful submission, aided by an equally helpful Crown submission, Mr Bruce SC cited some passages from the Baumeister studies. The Crown acknowledged its possible application, at page 7 of its supplementary Crown submissions, in the following terms:

“It is accepted that the evidentiary material provides the court with some bases to conclude that the offender did suffer social exclusion in his formative years. From the Baumeister Study it would appear that the offender’s reaction to social exclusion by connecting with his cultural peers and resorting to an antisocial lifestyle marked by alcohol and drug abuse, violence and criminality was expected and possibly inevitable.”

[41] The thesis of Professor Baumeister can be summarised in the following passage and I apologise for citing it at length. In R.F. Baumeister & C.N DeWall, “The Inner Dimension of Social Exclusion: Intelligent Thought and Self-Regulation Among Rejected Persons” (2005) Journal of Personality and Social Psychology, 888, 589-504, the authors remarked:

“It is easy to propose how people ideally or optimally would respond to social exclusion. They ought to redouble their efforts to secure acceptance. Toward that end, they should reduce their aggressive and antisocial tendencies and increase prosocial behaviour. They should improve at self-regulation so as to perform more socially desirable actions. And even if improved social acceptance is not a promising option, they ought at least to become more thoughtful and intelligent and should avoid self-defeating behaviours, so as to fare better on their own if necessary. Yet our laboratory studies have found the opposite of all of these to be closer to the truth.

Initially we thought that emotional distress would be the central feature of the impact of social rejection, and all behavioural consequences would flow from this distress. This too has been disconfirmed. Across many studies we have found large behavioural effects but small and inconsistent emotional effects, and even when we did find significant differences in emotion these have failed to mediate the behaviours. Indeed, the sweeping failure of our emotion mediation theories has led us to question the role of emotion in causing behaviour generally (but that is another story).

Self-regulation and cognition, instead of emotion, have emerged from our most recent data as the most important inner processes to change in response to social exclusion. Rejected or excluded people exhibit poorer self-regulation in many spheres. They also show impairments in intelligent thought, though these are limited to forms of thought that are linked to self-regulation (that is, thinking processes that depend on effortful control by the self’s executive functioning).

Nonetheless, the findings from this work have helped shed light on both the inner and outer responses to exclusion. They help illuminate why many troubled individuals may engage in maladaptive or seemingly self-destructive behaviours. They may also have relevance to the responses of groups to perceived exclusion from society as a whole. Although there are some exceptions, such as the intellectually vigorous culture maintained by Jews during the centuries of discrimination and ghettoization, many groups who felt excluded or rejected by society have shown patterns similar to those we find in our laboratory studies: High aggression, self-defeating behaviours, reduced prosocial contributions to society as a whole, poor performance in intellectual spheres, and impaired self-regulation. Our findings suggest that if modern societies can become more inclusive and tolerant, so that all groups feel they are welcome to belong, many broad social patterns of pathological and unhealthy behaviour could be reduced.”