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Cultural Background

The content on this page was last reviewed on 25 March 2019.

Recent legislative amendments: Section 16A(2A) was amended by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) to include a carve-out allowing the court to take customary law or cultural practice into account for the purposes of s 16A(2)(ma). That sub-section provides that if the offender’s standing in the community was used to aid in the commission of the offence, that is to be taken into account as a matter which aggravates the seriousness of the criminal behaviour.

*Guidance from these amendments has not yet been incorporated into the commentary

1. Overview

There are no provisions in the Crimes Act 1914 (Cth) which specifically regulate or guide the sentencing of federal offenders from particular racial or cultural backgrounds.

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. Amendments to Crimes Act 1914 (Cth)

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) meaning that 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) 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. However, the sentencing judge ‘operated under the assumption that s 16A(2A) applied’ when sentencing.2 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’.2

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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), under the common law cultural background remains a matter that a sentencing judge may consider.3 Section 16A(2) is not an exhaustive statement of the matters to which the court may consider when sentencing federal offenders.4 Cultural background may be relevant to an offender’s antecedents, which a court is required to consider in exercising the sentencing discretion under s 16A(2)(m).5

In Neal v The Queen [1982] HCA 55, Brennan J commented on the consideration of cultural background under the 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 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].6

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.7 This means that the individual circumstances of an offender which are related to their race or cultural background should not be ignored.8 In R v Fuller-Cust [2002] VSCA 168, Eames JA (dissenting) 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 (emphasis added).

The High Court cited this passage with approval in Munda v Western Australia [2013] HCA 38, [52].

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.9 Rather, ‘[s]uch a matter must be established like other facts on a plea,’9 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’10 of a particular race.

It is then for the sentencing judge to determine whether they are satisfied on the evidence of a particular fact.9 If so satisfied, the sentencing judge must decide what weight to attribute to that fact when exercising sentencing discretion.9

3.3 Cultural Background and disadvantage in upbringing

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:

“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.” [Kennedy v The Queen [2010] NSWCCA 260, [53].]

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 held 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 Court may consider how cultural background informed the criminal behaviour

In HAT v The Queen [2011] VSCA 427, the Court commented on the consideration of cultural background under the common law, stating at [87]:

In determining what weight should be attached to the fact that particular cultural norms informed an offender’s criminal behaviour, the sentencing judge should consider whether those cultural norms obliged the offender to engage in the relevant criminal behaviour or confined the choices of the offender so to diminish the offender’s moral culpability or whether the cultural norm merely provided a justification for a voluntary decision to engage in the criminal behaviour.

In HAT v The Queen [2011] VSCA 427, the Court gave weight to the fact that a Vietnamese cultural norm of ‘blind obedience to parents’ requests’11 provided part of the reason for the offenders offending and to that extent reduced the offender’s moral culpability.12

In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301, the offender breached various sections of the Fair Work Act 2009 (Cth) by failing to give staff their entitlements. Bromwich J stated at [61], [176] that:

Ms Sarah Zhu gave evidence that she was obedient to Mr Chen because he was her boss, and that defiance of the boss by a junior employee is not tolerated in the Chinese culture in which she was raised. She suggested that it would bring shame on her family if she was disrespectful to Mr Chen. She said that she was mindful that her residential visa status was dependent on her continuing employment with NSH Restaurant Pty Limited.

The cultural and related factors relied upon by Ms Sarah Zhu cut both ways. While they might be seen to reduce, to some limited extent, her moral culpability, they also indicate that the need for specific deterrence is heightened. While it was submitted on behalf of Ms Sarah Zhu that the cultural factors contributing to her conduct are no longer in play, it is not apparent why that is so apart from her no longer being reliant on a visa. Balancing those factors produces little advantage either way. As a matter of evidence, the cultural factors were less than compelling and did not properly explain the duration of the contraventions. As a matter of public policy, the cultural explanation for the contraventions can only be given limited weight (emphasis added).

3.5 Court may consider effect of cultural background on sentence of imprisonment

An individual’s membership of a particular race may be relevant to sentencing where a lengthy term of imprisonment might be ‘particularly burdensome’13 because of an offender’s ‘[cultural] background’.13

In Elomar v The Queen [2014] NSWCCA 303, two co-offenders 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 they were ‘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’.14 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.

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

Under the 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 v The Queen [2011] VSCA 427, 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.” [Veen v The Queen [No 2] [1988] HCA 14.]

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.

For example, in the Western Australian 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.

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.15

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5. Sentencing or Discharging Offenders on Basis of Customary Law or Cultural Practice

The Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) inserted sub-s 2A into s 16A, which prescribes the relevant matters for sentencing, and an identical provision into s 19B of the Crimes Act 1914 (Cth), which allows a court to discharge an offender without proceeding to conviction. Sections 16A(2A) and 19B(1A) preclude a court from considering customary law or cultural practice as a mitigating or aggravating factor under those sections.

An identical provision, s 15AB(1)(b), was inserted  into s 15AB. This section deals with bail applications of federal offenders.

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

5.1 Exception

Section 16A(2A) does not apply in relation to certain 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: s 16A(2AA)(f).

‘Cultural heritage’ is defined as having the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999, and includes sacred sites.16

‘Cultural heritage object’ is defined as an object that is important for cultural, religious, ethnological, archaeological, historical, literary, artistic, scientific or technological reasons.16

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  1. Rogers v The Queen (1989) 44 A Crim R 301, 307. See also Bugmy v The Queen [2013] HCA 37, [36]–[37]. 
  2. HAT & Ors v The Queen [2011] VSCA 427, [82].  
  3. The explanatory memorandum of the Crimes Amendment (Bail and Sentencing) Act 2006 states 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’: Explanatory Memorandum, Senate, Crimes Amendment (Bail And Sentencing) Bill 2006, 3. 
  4. DPP (Cth) v El Karhani (1990) 51 A Crim R 123. 
  5. 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 offenders 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.’ 
  6. See also Bugmy v The Queen [2013] HCA 37, [36], [41]. 
  7. R v Fuller-Cust [2002] VSCA 168, [80] (Eames JA). 
  8. 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). 
  9. HAT v The Queen [2011] VSCA 427, [89] (Redlich JA, Neave JA and Lasry AJA agreeing).    
  10. Rogers v The Queen (1989) 44 A Crim R 301, 307 (Malcolm CJ). 
  11. HAT v The Queen [2011] VSCA 427, [92] (Redlich JA, Neave JA and Lasry AJA agreeing). 
  12. HAT v The Queen [2011] VSCA 427, [93] (Redlich JA, Neave JA and Lasry AJA agreeing). 
  13. Bugmy v The Queen [2013] HCA 37, [39] citing R v Fernando (1992) 76 A Crim R 58, [63].  
  14. Elomar v The Queen [2014] NSWCCA 303 [747]. 
  15. 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]. 
  16. Crimes Act 1914 (Cth) s 3.