Thursday, October 03, 2013

Ethnicity, deprivation, and manifest inadequacy of sentence

In the absence of legislation requiring special consideration at sentencing for the ethnicity of the offender, the relevance of social deprivation is the same for all offenders: Bugmy v The Queen [2013] HCA 37 (2 October 2013) at [37].

Where an offender's abuse of alcohol is relevant to the commission of the offence and is a reflection of the environment in which the offender was raised, it may be taken into account as a mitigating factor [38], as also it may be if the offender's background would make imprisonment particularly burdensome [39]. This is because all material facts must be taken into account in all sentencing decisions.

However the weight to be given to circumstances arising from deprivation may vary according to the purpose of punishment that is being considered at each stage of the exercise of determining the appropriate sentence [44]. Sentence reduction arising from circumstances of deprivation, like that arising from mental illness, is not inevitable [47].

A court of final appeal is not a sentencing court, and if it identifies an error in principle it is likely to remit the case for reconsideration by the appellate court that is responsible for oversight of sentencing decisions, cf [49] and see [60] of Munda, below.

Munda v Western Australia [2013] HCA 38 (2 October 2013) addresses the relevance of previous sentencing decisions in determining whether a present sentence is manifestly inadequate, referring at [39] to Hili v The Queen [2010] HCA 45 (discussed here on 10 December 2010), and holding that reference to comparable cases may be an indication of inadequacy but, because the demonstration of an existing range of sentences does not establish that that range is correct, it is not determinative. Also relevant are the maximum penalty and the seriousness of the particular offence. (Bell J dissented on whether the sentence here had been manifestly inadequate.)

Also in Munda the Court approved [43] the principle that "[it is wrong] to reduce the weight to be given to general deterrence in circumstances where alcohol-fuelled violence is endemic in the community generally, even if not sufficiently deterred in fact by the prospect of imprisonment" (quoting McLure P in the Court of Appeal in Munda).

The prospect of retribution being exacted in the community was raised and although the point didn't have to be decided in Munda the Court strongly hinted that this should be irrelevant [61]-[63], because vendettas must be discouraged, punishment is meted out by the state, and offenders should not be given a choice as to the mode of their punishment.

There is also some discussion in Mundy of the residual discretion of an appellate court to decline to increase a sentence that is manifestly inadequate, particularly to avoid double punishment or interference with rehabilitation, but subject to the need to avoid the manifest injustice of upholding an inadequate sentence [64]-[78].