Rogers and Murray (1989) 44 A Crim R 301

• 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