Criminal division – sentencing

11.2.19 Relevance of Aboriginality

In Bugmy v The Queen [2013] HCA 37 at [37]-[39], French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ said:

[37] “An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence. In this respect in Kennedy v The Queen [2010] NSWCCA 260 at [53], Simpson J has correctly explained the significance of the statements in Fernando:

‘Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.’

[38] The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender's conduct: Fernando (1992) 76 A Crim R 58 at 62 (E).. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand [at 62 (C)]. His Honour considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor [at 62 (E)]. To do so, he said, is to acknowledge the endemic presence of alcohol in 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.’ [at 62-63 (E)]

[39] The other respect in which Wood J proposed that an offender's Aboriginality may be relevant to the sentencing determination is in a case in which because of the offender's background or lack of experience of European ways a lengthy term of imprisonment might be particularly burdensome [at 63 (G)]. In each of these respects, the propositions enunciated in Fernando conform with the statement of sentencing principle by Brennan J in Neal (1982) 149 CLR 305 at 326:

‘The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.’”
In DPP v Taylor [2005] VSCA 222 at Nettle JA, with whom Eames JA & Hollingworth AJA agreed, approved the relevance which the trial judge had placed on the respondent’s Aboriginality. At [14] His Honour said:

“As Eames JA put it in R v Fuller-Cust (2002) 6 VR 496 at 520:

’79. To ignore factors personal to the applicant , and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself. Not only would that offend principles of individual sentencing which apply to all offenders but in this case it would fail to identify the reasons for his offending and, in turn, the issues which have to be addressed if rehabilitation efforts are to successfully be adopted so as to ensure that he does not re-offend and, in turn, to ensure the long-term safety of the public.

80. To have regard to the fact of the applicant’s Aboriginality would not mean that any factor would necessarily emerge by virtue of his race which was relevant to sentencing, but it would mean that a proper concentration would be given to his antecedents which would render it more likely that any relevant factor for sentencing which did arise from his Aboriginality would be identified, and not be overlooked. Exactly the same approach should be adopted when considering the individual situation of any offender, so that any issue relevant to that offender’s situation which might arise by virtue of the offender’s race or history would not be overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored.

81. In Neal v R (1982) 149 CLR 305 at 326 Brennan J held:

‘The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of the particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the administration of justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.’”

See also R v Wordie [2003] VSCA 107 at [31]; DPP v Rose [2005] VSCA 275 at [19]; R v McCartney [2006] VSCA 35 at [7]-[9]; R v Clarke [2006] VSCA 174 at [59]-[60]; R v Charles [2007] VSCA 190 at [14]; R v Morgan [2007] VSCA 192 at [15]-[16].

11.2.20 Relevance of recall or risk of recall by Parole Board

In R v Piacentino – R v Ahmad [2007] VSCA 49 a Court of Appeal constituted by 5 judges held that-

• 
  Where an adult offender falls to be sentenced for offences constituting breach of parole but is to be sentenced at a time when he has not had his parole revoked by the Adult Parole Board, then the sentencing judge may not have regard to the possibility that he might be later called upon by the Parole Board to serve some or all of the balance of his parole sentence {at [71] per Eames JA with whom Buchanan, Vincent, Nettle & Redlich JJA agreed}.
  
• 
  The contrary decision of the Court of Appeal in R v Orphanides (2002) 130 A Crim R 403; [2002] VSCA 86 should no longer be followed {at [71] & [141]}. It follows that an approach to sentencing which has applied since 2002 to the benefit of offenders has been reversed and dicta such as that in DPP v Reid [2004] VSCA 105 at [18]; R v Greenslade [2004] VSCA 213 at [31] and R v Airey [2006] VSCA 31 at [10] is no longer good law.
  
• 
  However, a sentencing court which takes into account the fact that parole has been revoked is not having regard to any possibility or likelihood that the length of time spent in custody will be affected in the future but rather having regard to a state of affairs then in existence. In those circumstances consideration of the revoked parole period may be relevant to application of the principle of totality. {See the judgments of Buchanan JA at [3], Eames JA at [78]-[88] and Nettle & Redlich JJA at [142], the latter citing R v Hunter [2006] VSCA 129 at [28]-[29]}.
  

In R v Scholes [2007] VSCA 303 Whelan AJA, with whom Maxwell P & Buchanan JA agreed, referred to R v Piacentino [2007] VSCA 49 and said at [44]:

“The sentencing judge was not entitled, in considering totality or on any other ground, to have regard to the possibility that the Adult Parole Board would take action concerning the appellant’s unexpired parole period.”