21. Aboriginal Customary Laws and Sentencing
A Special Sentencing Discretion?
518. The Issue. In Chapter 18 it was concluded that the creation of a defence based on Aboriginal customary laws exonerating an accused from criminal liability was not an appropriate way in which to recognise Aboriginal customary laws for the purpose of the general criminal law. It was however concluded that a partial defence which would have the effect of reducing murder to manslaughter was appropriate, where it was established that a person acted in accordance with Aboriginal customary laws in committing an offence. The effect would be to activate a sentencing discretion, avoiding a mandatory sentence of life imprisonment in those jurisdictions where this still applies. The question is whether, in addition to this ‘partial defence’, a specific sentencing discretion should be enacted, allowing a court to take account of Aboriginal customary laws in sentencing, in the case of offences which carry a mandatory sentence. In substance the question is whether in murder cases there should be a discretion available to a sentencing judge to impose a lesser sentence, if Aboriginal customary laws are a relevant factor in the offence.
519. The Northern Territory Experience before 1983. Before the enactment of the Criminal Code 1983 (NT) a judge sentencing an Aboriginal person convicted of murder in the Northern Territory had a discretion as to penalty. This was set out in sections 6(1C) and 6A of the Criminal Law Consolidation Act:
6(1C). Where an aboriginal is convicted of murder, the judge may impose such penalty as, having regard to all the circumstances of the case, appears to him to be just and proper.
6A. For the purpose of determining the nature and extent of the penalty to be imposed where an aboriginal is convicted of murder, the court shall receive and consider any evidence which may be tendered as to any relevant native law or custom and its application to the facts of the case and any evidence which may be tendered in mitigation of penalty.
These provisions were used rarely because very few Aborigines were convicted of murder. One of the exceptional cases was R v Gus Forbes, where the accused was found guilty and sentenced to 12 years imprisonment for murder and 8 years for rape, to be served concurrently, with a 6 year non-parole period. Justice Gallop, in sentencing Forbes, said:
The view that 1 take of the facts of the offences and of the crime of murder in particular, prompts me to order life imprisonment and ordinarily I would order life imprisonment. But s 6A of the Criminal Law Consolidation Act and the other provisions of the law put Aborigines in a special position when convicted of the crime of murder and I am required to take account of native law and custom and its application to the facts of the offence and any evidence which may be tendered in mitigation of penalty. I cannot ignore the fact that whether the European society likes it or not, rape is not as seriously regarded in the Aboriginal community as it is in the European community. I must take that into account. I must take into account also that in relation to this accused, there is a strong probability of pay-back by the deceased’s family and I suppose the most telling matter to take account on the question of penalty amounts to a banishment from his community and a banishment from the land with which he identifies himself. These factors cause me to mitigate the penalty that I think the crime of murder warrants and therefore I do not propose to inflict the statutory maximum, but it is a case in my view which comes very close to warranting the maximum.
The Criminal Law Consolidation Act provisions were considered in greater detail in R v Herbert and Others. In that case three Aboriginal women were convicted of the murder of a 58 year old man. Justice Gallop sentenced each to life imprisonment, declining to exercise the discretions available under s 6(1C) and 6A of the Criminal Law Consolidation Act. On a re-trial following a successful appeal to the Federal Court, the three women were again convicted of murder. Justice O’Leary discussed the scope of these sentencing discretions:
It seems clear to me that, whilst fixing the sentence for murder in the Territory as mandatory life imprisonment, the intention of the legislature was that, where it was an Aboriginal who was convicted of murder, that penalty should not apply, but rather there should be such penalty as ‘having regard to all the circumstances of the case, appears to, (the judge) to be just and proper’. The discretion there conferred on the sentencing judge is, I think, a wide and unfettered one. It is not, in my opinion, cut down by the provisions of s 6A. That section clearly refers back to s 6(1C), but in my view, is directory only. It requires the court to receive and consider evidence of any relevant native law or custom, if there be any involved, and its application to the facts of the case, as well as any evidence which may be tendered in mitigation of penalty.
Justice O’Leary held that there was no element of ‘native law or custom’ which could be said to have contributed to the offence. Nevertheless he was prepared to take into account other factors in mitigation:
There must be many cases where an Aborigine would not be able to show that there is any relevant native law or custom involved. In those cases, I do not think that the sentencing judge is thereby precluded from considering evidence tendered in mitigation of penalty. In my view, he may, and, in particular, he may consider evidence as to the background and history of the Aboriginal concerned, the extent of which he has or has not adopted white ways or manners, the degree to which his Aboriginal inheritance predominates and any problems of a transcultural nature that he may have experienced.
Justice O’Leary sentenced each of the women to 12 years imprisonment with a non parole period of 5 years 6 months. These sentences were upheld by the Federal Court after appeals by both the Crown and the 3 accused.
520. The Criminal Code 1983 (NT). Despite the general trend in other jurisdictions to abolish mandatory life sentences for murder the Criminal Code 1983 (NT) repealed the Criminal Law Consolidation Act (NT) and abolished the special sentencing discretion for Aborigines. Section 164 of the Code simply provides:
Any person who commits the crime of murder is liable to imprisonment for life which cannot be mitigated or varied under section 390.
Section 390 allows a shorter term of imprisonment to be imposed where life imprisonment is stipulated. Clearly it is intended that there should be no lesser sentence than life imprisonment following a conviction for murder. The view of the Northern Territory Government in relation to abolition was expressed in the following way:
My Government’s policy was that there was to be no distinction between the peoples of the Territory as regards the punishment for murder. A great deal of thought was given to considering whether a discretionary life sentence for murder should be introduced. Unfortunately, given the extremely high incidence of violent crime in the Territory, that approach could not be countenanced at this time. The decision was that murder was to be deeply stigmatised and set apart from all other offences.
The view taken was that other provisions of the Code, such as those dealing with coercion, diminished responsibility and sudden and extraordinary emergency, would be appropriate and sufficient to allow Aboriginal customary laws to be taken into account. Allowing Aboriginal customary laws to be taken into account as a matter of substance in establishing all the elements of the offence of murder, on this view, meant that it was unnecessary to preserve the discretion to take ‘native law and custom’ into account during sentence.
521. The Movement towards Sentencing Discretion in all Cases. In other jurisdictions, in Australia and elsewhere, the tendency has been towards conferring a sentencing discretion even in the case of murder, to allow special mitigating factors to be taken into account in sentencing, to allow decisions about the length of sentence actually imposed to be made by judges subject to the safeguards of appeal, and to bring the system of parole into play. A sentencing discretion in murder cases now exists in the Australian Capital Territory, New South Wales and Papua New Guinea, and recommendations for such a discretion have been made in New Zealand, Victoria and elsewhere. In proposing a sentencing discretion in murder cases the Victorian Law Reform Commission commented that:
The mandatory life sentence has been the subject of sustained criticism in Australia and elsewhere, because of both its absolute nature and its indeterminacy. In England, New Zealand and Australia there has been support for the replacement of the mandatory penalty with a discretionary sentence with a maximum of life. In New South Wales, the judge now has a limited discretion to impose a sentence less than life on a person convicted of murder, and in South Australia the judge, while still being required to impose a life sentence, can also set a minimum non-parole period. It is the view of the Commission that judges should be able to mark the specific blameworthiness of the offender by the sentence, which will be both public and appealable by defendants and by the Attorney-General, as they do in relation to almost every other offence.
522. The Commission’s Conclusion. In the Commission’s view Aboriginal customary laws should be taken into account, where relevant, in murder cases as in other cases. There is little justification for allowing customary laws to be taken into account in some cases and not others, especially at the sentencing level. Clearly the best way of achieving this would be by way of a general sentencing discretion applicable to all persons, Aboriginal or non-Aboriginal. But no such discretion exists in the jurisdictions (Northern Territory, South Australia, Western Australia and Queensland) which are most relevant for the purposes of the present Report, and it would be beyond the present Terms of Reference (as well as beyond Commonwealth legislative power) to recommend or enact a general sentencing discretion for murder. The question is therefore whether a special sentencing discretion is desirable in murder cases allowing the court to take Aboriginal customary laws into account in sentencing. There are two main arguments against a special law of this kind.
Discrimination and Special Laws. It can be argued that a special sentencing discretion of this kind would be discriminatory or divisive, since it would allow some Aboriginal defendants the possibility of mitigating their sentence in a way not available to other persons. This is a specific example of the general arguments based on discrimination and equality which were considered in Chapter 9. Indeed, the argument was put in precisely this context by counsel for the Northern Territory in appealing from the 12 year sentences for murder imposed by Justice O’Leary in R v Herbert & others. It was argued that s 10 of the Racial Discrimination Act 1975 (Cth) required a narrow interpretation of s 6(1C) of the Criminal Law Consolidation Act, restricting it to matters relevant in exercising the discretion under s 6A to mitigate a sentence on grounds of ‘native law or custom’. The implication of the argument seems to have been that a special discretion to take Aboriginal customary laws into account would not have contravened s 10 (or perhaps s 10 combined with s 8(1)), but that a general sentencing discretion in murder cases applicable only to Aborigines would do so. No attack on the validity of either s 6(1C) or s 6A of the Criminal Law Consolidation Act was made. The Full Federal Court commented that it had difficulty in understanding the argument:
It is unnecessary to consider whether, because of ss 6(1C) and 6A, there was conflict between s 5 of the Criminal Law Consolidation Act and the Racial Discrimination Act. That issue does not fall for determination. There is no attack upon the validity of ss 6(1C) and 6A. There is no doubt that, on any view, the legislature by those two sections made special provision with respect to the sentencing of Aboriginals convicted of murder. The only question is as to the nature and extent of the special provision which they made. The Racial Discrimination Act provides no useful guidance whatever as to that question.
To confer a sentencing discretion in murder cases just because the defendant is Aboriginal would, no doubt, be racially discriminatory within the meaning of the Racial Discrimination Act 1975 (Cth). But, as was concluded in Chapter 9, special measures for the recognition of Aboriginal customary laws will not be racially discriminatory if they are reasonable responses to the special and distinctive needs of those Aboriginal people affected, and are generally accepted by them. The first of these requirements is, in the Commission’s view, met in the case of a special sentencing discretion. The second is, so far as the Commission is aware, on the basis of consultation so far carried out, also met, although further consultation will be necessary in the implementation of the Commission’s recommendations.
Overlap between a ‘Partial Defence’ and a Special Sentencing Discretion. Alternatively, it can be argued that it is undesirable, or at least unnecessary, to have both a ‘partial defence’ capable of reducing murder to manslaughter where Aboriginal customary laws are involved (as recommended in Chapter 18) and a special sentencing discretion in murder cases. But there are a number of reasons why it is desirable to have both a partial defence and a sentencing discretion in cases of murder. It is likely to be more difficult to establish the partial defence, given the stricter proof requirements, than it may be to establish factors in mitigation of penalty. There may also be a reluctance by Aboriginal people to disclose aspects of their customary laws which would be necessary to establish the partial defence, a factor which may not be as crucial in relating to sentencing. But most importantly, the fact that an argument based on the partial defence has been unsuccessful does not necessarily mean that customary laws were not an element in the offence. Conduct which was not required or justified by Aboriginal customary laws may still be understandable or excusable to some degree by reference to customary law aspects.
Conclusion. For these reasons the Commission concludes that the proposed sentencing discretion to take Aboriginal customary laws into account should apply even where the sentence which would otherwise be imposed is a mandatory sentence (in particular, a life sentence in murder cases).