Equality before the law

Abstract

Some sentencing factors are offence-specific, while others cut across all forms of offending. One of the most important – and contested – examples of the latter is the offender’s social background. Are offenders who present for sentencing with a socially disadvantaged background – or who belong to a minority group which historically has been associated with high rates of imprisonment – entitled to some mitigation on this basis? CHAPTER OVERVIEW This chapter explores how courts in Australia and Canada have dealt with the relevance of race and cultural and social background factors, and it considers these sources of mitigation in the light of the principle of equality before the law. It begins with a short discussion of the principles of equality followed by a sketch of the over-representation of Aboriginal people in prisons in the Western world, before focusing on the way in which Australian and Canadian jurisdictions have dealt with the relevance of factors associated with Aboriginality. Analysis of the position in Australian jurisdictions suggests that, in recent years, courts have moved from a position which accepted that a more lenient approach to Aboriginal offenders was justified to one which emphasizes the need to denounce and deter violence. While this appears to be a reaction to a legitimate concern with problems of violence in Aboriginal communities, the criticisms of this approach are outlined. The Canadian Supreme Court’s decision in Gladue is then discussed, together with the arguments of its critics and advocates and its extension to other socially and economically disadvantaged offenders.