Site Logo

Cultural Background

Cultural Background

The content on this page was last reviewed on 15 June 2022.

1. Overview

In 2006, the term ‘cultural background’ was deleted from the listed sentencing factors in s 16A(2)(m) Crimes Act 1914 (Cth) through the passage of the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth). There is no provision in the Crimes Act 1914 (Cth) permitting a court to take into account ‘cultural background’ on sentence.

Part IB of the Crimes Act 1914 (Cth) contains specific provisions regulating when a court may take into account customary laws or cultural practice on sentence: see Section 2.

Race itself is not a permissible ground of discrimination in the sentencing process, as this would be contrary to s 9 of the Racial Discrimination Act 1975 (Cth).1

See also: Indigenous Offenders

2. Relevant Provisions

2.1 The term ‘cultural background’ and s 16A(2)

In 2006, the term ‘cultural background’ was deleted from the listed sentencing factors in s 16A(2)(m) Crimes Act 1914 (Cth) through the passage of the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth). A court sentencing a federal offender is no longer expressly required to consider an offender’s cultural background.

The term ‘cultural background’ was also deleted from s 19B(1)(b)(i) Crimes Act 1914 (Cth) (which gives courts a power to dismiss a charge or discharge a person without proceeding to conviction). Cultural background is no longer a factor to which the Court must have specific regard in deciding to dismiss a charge or discharge a person without proceeding to conviction. The amendments apply to offences committed after the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth), which entered into force on 13 December 2006.

In the money laundering case of HAT & Ors v The Queen [2011] VSCA 427, the offending occurred between December 2005 and October 2006, prior to the removal of ‘cultural background’ from s 16A(2) and the insertion of sub-s 2A in December 2006 that excludes consideration of customary law and cultural practice. However, the sentencing judge ‘operated under the assumption that s 16A(2A) applied’ (at [82]). On appeal, Redlich J held that due to the timing of the offending prior to the removal of the section, ‘the learned sentencing judge was required under s 16A(2)(m) to take into account the applicants’ cultural backgrounds’ (at [82]).

2.2 Exclusion: customary law and cultural practice

Section 16A(2A) provides that:

(2A)  However, the court must not take into account under subsection (1) or (2), other than paragraph (2)(ma), any form of customary law or cultural practice as a reason for:

(a)  excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

(b)  aggravating the seriousness of the criminal behaviour to which the offence relates.

Section 19B(1A) similarly provides (in respect of the Court’s power under s 19B(1) to dismiss a charge, or discharge a person without proceeding to conviction):

(1A)  However, the court must not take into account under subsection (1) any form of customary law or cultural practice as a reason for:

(a)  excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
(b)  aggravating the seriousness of the criminal behaviour to which the offence relates.

The terms ‘customary law’ and ‘cultural practice’ are not defined in legislation.

2.3 Exception: prescribed laws

Section 16A(2AA) provides that s 16A(2A) does not apply to the offences specified in s 16A(2AA)(a)–(e), or to any other law prescribed by the regulations that relates to ‘entering, remaining on or damaging cultural heritage’, or ‘damaging or removing a cultural heritage object’. There are no laws currently prescribed by the regulations for the purpose of s 16A(2AAA)(f).

‘Cultural heritage’ is defined in s 3 as having the ‘same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 (Cth), and includes sacred sites’.

‘Cultural heritage object’ is defined in s 3 as ‘an object that is important for cultural, religious, ethnological, archaeological, historical, literary, artistic, scientific or technological reasons’.

2.4 Exception: standing in the community

Section 16A(2A) contains an express carve-out to the general exclusion on taking into account customary law and cultural practice, for the purpose of s 16A(2)(ma).

Section 16A(2)(ma) provides that:

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(ma) if the person’s standing in the community was used by the person to aid in the commission of the offence—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

Return to Top

3. Relevance of Cultural Background Under the Common Law

While cultural background is no longer a sentencing factor which must be considered under s 16A(2), cultural background remains a matter that a sentencing judge may consider under the common law. The Explanatory Memorandum to the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) states (at 3) that ‘[s]ubject to the amendment to be made by item 5, a court will still be able to take into consideration the “cultural background” of an offender, in sentencing that offender, should it wish to do so, but this amendment removes an unnecessary emphasis on the “cultural background” of convicted offenders’.

Section 16A(2) is not an exhaustive statement of the matters to which the Court may consider when sentencing federal offenders.2

Cultural background may be relevant to an offender’s antecedents, which the Court is required to consider in exercising the sentencing discretion under s 16A(2)(m).3

In Neal v The Queen [1982] HCA 55, Brennan J commented on the consideration of cultural background at common law, stating at [13]:

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. [Emphasis added]

The statement of principle in Neal v The Queen [1982] HCA 55 was cited with approval by the High Court in Munda v Western Australia [2013] HCA 38, [53] and Bugmy v The Queen [2013] HCA 37, [39].4

3.1 Cultural background and antecedents

When considering the individual situation of an offender, regard to cultural background may be necessary in order to give ‘proper concentration’ to the offender’s antecedents.5

This means that the individual circumstances of an offender which are related to their race or cultural background should not be ignored.6

In R v Fuller-Cust [2002] VSCA 168, Eames JA (dissenting, but subsequently cited with approval by the High Court in Munda v Western Australia [2013] HCA 38, [52]) stated at [79]–[80]:

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.

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.

3.2 Evidentiary requirements

A sentencing judge is not required to act upon a mere assertion that an offender’s cultural background impacted on their offending. Rather, ‘[s]uch a matter must be established like other facts on a plea,’ by pointing to the material facts such as ‘social, economic, and other disadvantages which may be associated with or related to a particular offender’s membership’ of a particular race.7

It is then for the sentencing judge to determine whether they are satisfied on the evidence of a particular fact. If so satisfied, the sentencing judge must decide what weight to attribute to that fact when exercising sentencing discretion.7

3.3 Cultural background and deprived background

Cultural background will often be of importance where there is evidence that an offender’s cultural background was relevant to creating some form of disadvantage in the offender’s upbringing.

In Bugmy v The Queen [2013] HCA 37 the plurality noted at [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, Simpson J has correctly explained the significance of the statements in Fernando [(1992) 76 A Crim R 58 at 62]:

‘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.’

3.3.1 Deprived background is not a factor which diminishes in weight over time

In Bugmy v The Queen [2013] HCA 37, the High Court held that the effects of profound childhood deprivation do not diminish with the passage of time or repeat offending. The plurality stated at [43]:

[T]he experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. [Emphasis added]

3.4 Hardship and cultural background

An offender’s cultural background may be relevant to sentencing where a lengthy term of imprisonment might be ‘particularly burdensome’8 on them, by reason of that cultural background.

For example, in R v DS [2005] VSCA 99, the Court noted that serving a term of imprisonment would be of particular difficulty for the offender, a Thai national, given ‘her cultural background and isolation in Australia’ (at [19]).

However, in Cappis v The Queen [2015] NSWCCA 138, [78]–[79] Garling J (Gleeson JA and Johnson J agreeing) stated that the fact that the offender was a foreigner, which would make his time in prison more difficult, was of ‘strictly limited significance’ on sentence, quoting the following statement from R v Ferrer-Eris (1991) 55 A Crim R 231, 239:

There were a number of subjective facts which the judge took into account. The respondent is incarcerated in a foreign country, living amidst a foreign language and a foreign culture. He is isolated from any outside contact. However, with all due respect to views to the contrary which may have been expressed by others, I do not consider that very much weight should be given to that particular circumstance.

The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact. [Emphasis added]

In Cappis v R [2015] NSWCCA 138, Garling J (Gleeson JA and Johnson J agreeing) went on to state at [80]–[82]:

There is no reason why the fact that any foreigner, present in Australia, as a temporary visitor, who chooses to commit a crime in the deliberate way in which this applicant has, ought expect that such hardship as inevitably follows from being isolated from and friends [sic], ought carry any significant weight.

The applicant’s submissions suggest an entitlement to a further 5% discount to reflect this factor. There is no such entitlement. His isolation from family and friends is a factor to be considered, but one which is of very limited significance.

Here, on the particular facts of this case, it was a matter which carried very little, if any, weight in the sentencing process. I detect no error on the part of the sentencing Judge with respect to this aspect.

In Elomar v The Queen [2014] NSWCCA 303, an offender sought to appeal on the ground that the sentencing judge failed to give appropriate weight to the subjective factor of cultural isolation. The offender submitted that he was ‘isolated and depressed, had basic English and no Arabic, had received nil visits for over a year before sentence, was experiencing cultural isolation, and was estranged from his wife and four children’ (at [747]). The Court said at [751] that:

While the authorities on which Hasan relies say that matters such as cultural isolation can be taken into account as a discounting factor when sentencing, they also say that ordinarily not much weight should be given to that factor. The authorities do not go so far as to say that in every case where that consideration exists, it should operate to discount the sentence.

See further: Hardship to the Offender.

3.5 Court may not consider how cultural background informed the seriousness of criminality

Section 16A(2A) specifically prevents the Court from taking into the offender’s cultural practice or customary law when assessing the seriousness of the offender’s criminal behaviour. Although common law principles may allow the offender’s cultural background to be considered in some instances, as discussed above, an offender’s cultural practice or customary law cannot be used to moderate the seriousness of the offending.

Return to Top

4. Consideration of Cultural Background Must Not Result in Disproportionate Sentence

At common law, courts have found that where cultural background is relevant to sentence, it must not be given such weight as to render the punishment disproportionate to the objective gravity of the offence.

For example, in HAT & Ors v The Queen [2011] VSCA 427 (a case decided in circumstances where s 16A(2A) did not apply to preclude taking into account cultural practice or customary law) the Court stated at [90]:

The offender’s particular cultural background must not loom so large in the sentencing calculus that insufficient weight is given to the objective seriousness of the offending, and to other sentencing principles to the extent that the sentence imposed fails to adequately punish the offender or to act as a deterrent to others from a similar cultural background. Hence the fact that cultural norms may play a part in the instinctive synthesis does not give rise to a different ranges [sic] of sentences applicable to those who fall within a particular cultural group and those who do not. Though the offender’s criminal conduct may have been affected by cultural attitudes, the sentencing of a member of such a group is not to be approached in a different way from the sentencing of any other member of the community. While cultural considerations may give rise to some degree of leniency, the punishment must remain proportionate to the objective gravity of the offence. [Emphasis added]

The High Court commented on the centrality of the proportionality analysis in Munda v Western Australia [2013] HCA 38, stating at [53]:

Mitigating factors must be given appropriate weight, but they must not be allowed ‘to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.’ [Citations omitted]

4.1 Factors relating to mitigation and aggravation

A court should be careful to consider whether a relevant fact relating to an individual’s cultural background is mitigating or aggravating.

In Bugmy v The Queen [2013] HCA 37, the High Court noted that evidence of a deprived background does not necessarily have the same mitigatory relevance for all the purposes of punishment. An offender’s inability to control a violent response to frustration due to childhood exposure to extreme violence may reduce the offender’s moral culpability for that inability. However, it may also increase the importance of protecting the community from the offender.9

Similarly, in the case of E (A Child) (1993) 66 A Crim R 14, Franklyn J stated at [19]:

[W]hilst the factors of Aboriginality, ethnic oppression, socioeconomic deprivation, family environment and similar matters or any of them may have relevance in a particular case to the appropriate sentence to be imposed on an offender, none of them is self-executing in the sense that its mere existence necessarily requires a reduction of the penalty otherwise appropriate to the offence. Such matters may explain, at least to some extent, motive or a lack of it, identify influences which have contributed to the commission of the offence which may or may not be mitigatory and reveal circumstances which might be relevant to the appropriateness or otherwise of a custodial term and of probation and/or parole eligibility in a particular case. 

Return to Top

  1. Rogers v The Queen (1989) 44 A Crim R 301, 307. See also Bugmy v The Queen [2013] HCA 37, [36]–[37].[]
  2. DPP (Cth) v El Karhani (1990) 51 A Crim R 123.[]
  3. In Commissioner of Taxation v Baffsky [2001] NSWCCA 332, [27] it was noted that the word ‘antecedents’ is ‘wide enough to include all aspects, favourable and unfavourable of an offender’s background, past life, personal, family, social, employment and vocational circumstances, and of his current way of life and its inter-action with the lives and welfare of others.’[]
  4. See also Bugmy v The Queen [2013] HCA 37, [36], [41].[]
  5. R v Fuller-Cust [2002] VSCA 168, [80](Eames JA).[]
  6. R v Fuller-Cust [2002] VSCA 168, [80] (Eames JA); Munda v Western Australia [2013] HCA 38, [52] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).[]
  7. HAT & Ors v The Queen [2011] VSCA 427, [89] (Redlich JA, Neave JA and Lasry AJA agreeing).[][]
  8. Bugmy v The Queen [2013] HCA 37, [39], citing R v Fernando (1992) 76 A Crim R 58, [63].[]
  9. Bugmy v The Queen [2013] HCA 37, [44]. See also Munda v Western Australia [2013] HCA 38, [52]; Western Australia v Upkett [2013] WASCA 263, [70].[]
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

© 2023 The National Judicial College of Australia (NJCA). Powered by

Privacy Policy|Terms and Conditions