Abstract
The cases of Bugmy and Munda decided by the High Court in 2013 raised the impact of social deprivation on Aboriginal defendants, in that it mars the development of an individual exposed to alcohol and alcohol-fuelled violence, and that full weight must be given to this in sentencing considerations. This significant legal precedent, in the backdrop of Aboriginal over-representation in the criminal justice system, invites the question of the relevance of the characterisation of the reasonable man in the law of provocation and delivery of equal justice, in a culturally heterogeneous society such as Australia. The case for constructing a contemporary reasonable man, clothed in Aboriginal identity, for equitable sentencing outcomes for Aboriginal defendants is explored.
Highlights
The social blight of Aboriginal overrepresentation in the justice system in Australia continues to pose a legal and moral challenge.1. Through their judgments and discourse, have examined systemic deprivation in the background of Aboriginal defendants and its impact on Aboriginal offending, as evidenced in the wide discretion applied when an Aboriginal defendant is before their court.2 * Correspondence: duende@bigpond.net.au 1 Stephen Rothman AM, The Impact of Bugmy and Munda on Sentencing Aboriginal and Other Offenders, Paper delivered at the Ngara Yura Committee Twilight Seminar on 25 February 2014
The Australian Law Reform Commission highlighted its concern about the underrepresentation of Aboriginal people on juries despite being heavily overrepresented in the criminal justice system
In writing about how Lord Aitkin’s judgments still guide Australian law, Applegarth190 observes from many of his judicial decisions, Lord Aitkin considered ‘that principled decisions should rest upon the judicial officer having an understanding of the conditions of life of ordinary people’
Summary
The social blight of Aboriginal overrepresentation in the justice system in Australia continues to pose a legal and moral challenge. Some jurists, through their judgments and discourse, have examined systemic deprivation in the background of Aboriginal defendants and its impact on Aboriginal offending, as evidenced in the wide discretion applied when an Aboriginal defendant is before their court.. A possible consequence of this is to expand the scope of individualised justice in sentencing to include Aboriginality as a mitigatory factor, so as to improve justice outcomes for Aboriginal defendants in the justice system It is argued there may be a case to be established for similar treatment of other minorities in societies outside Australia where sentencing considerations could be informed by the contemporised ‘reasonable person’ test. In the intervening years there have been other important inquiries and reports highlighting the social position of Aboriginal people in Australian society and their significant disadvantage This body of knowledge has informed judicial thinking, giving rise to a growing number of cases where courts have handed down judgment distinguishing it on the basis of disadvantage suffered by the Aboriginal defendant.
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