Lofgren, Neil --- "Diminished Indigenous Life Expectancy as a Mitigating Factor in Sentencing" [1997] IndigLawB 59; (1997) 4(3) Indigenous Law Bulletin 21
Diminished Indigenous Life Expectancy as a Mitigating Factor in Sentencing
by Neil Lofgren
The statistics of shortened [Aboriginal] life expectancy are our mothers and fathers, uncles, aunties and elders who live diminished lives and die before their gifts of knowledge and experience are passed on.[1]
A tragic repercussion of the economic, cultural and social deprivation endemic in many Aboriginal communities is the diminished life expectancy of Aboriginal peoples. Indeed, Aboriginal peoples have the lowest life expectancy of every other indigenous population including Maori (Aotearoa), Native American (USA) and First Nations (Canada).[2] This disadvantage has been extensively documented in numerous Australian government reports, including those from the Australian Bureau of Statistics which report that the gap in life expectancy between the Aboriginal and wider Australian community continues to remain up to 18 years for males and 20 years for females.[3]
Both Commissioners Elliot Johnston QC and Hal Wootten QC of the Royal Commission Into Aboriginal Deaths in Custody have commented on this.[4] Indeed, Commissioner Wootten, in reporting on one of the deaths, noted that at 41 years of age, the deceased '... was already approaching the life expectancy of an Aboriginal male in Victoria of the 1980s'.[5] Similar observations were made in a number of other reports of the Inquiry into the deaths of individuals. Nevertheless, no jurisdiction has accepted diminished Aboriginal life expectancy as a mitigating factor in sentencing. In the absence of statutory recognition of this proposition, I now turn to examine the common law.
The South Australian Court of Criminal Appeal has accepted that limited life expectancy may justify a shorter pre-parole period.[6] In another case involving a 74 year old male, it also observed that '[a] sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him'.[7] A number of other cases involving people living with HIV/AIDS may also be relevant. For example, in R v Smith (1987) 44 SASR 587 at 589, King CJobserved that:
'[t]he state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have on the sentencing process. III health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Service authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is serious risk of imprisonment having a gravely adverse effect on the offender's health' [My emphasis].
This principle was approved by the High Court[8]. It has also been applied in a number of other appellate courts where sentences were reduced on the grounds that imprisonment had a grave effect on health.[9] Neither is it restricted to HIV/AIDS cases.[10]
These precedents suggest that it is arguable that the courts should take into account diminished Aboriginal life expectancy as a mitigating factor in sentencing. This proposition is also supported by judicial recognition of the special social problems affecting Aboriginal communities.[11] For example, the High Court in Neal v R [1982] HCA 55; (1982) 149 CLR 305, Brennan J (at 326) held that when imposing a sentence the courts are bound to take into account all material facts, including those which exist only by reason of the offender's membership of an ethnic or other group.'[12]
Similarly, in Rogers v R (1989) 44 ACR 301, Malcolm CJ (at 307) stressed that the mitigating factor was not the offender's Aboriginality, but rather the social, economic, and other disadvantages associated with membership of the Aboriginal race. In addition, the Penalties and Sentences Act 1992 (Qld) s9(2)(p), the Sentencing Act 1991 (Vic) s5(2)(g), and the Crimes Act 1900 (ACT) s429A(1) all contain open-ended provisions which provide advocates with a statutory basis for presenting legal arguments that diminished Aboriginal life expectancy is a mitigating factor in sentencing. They also provide the courts with the scope to entertain any relevant circumstances when sentencing.
The required legislation would be consistent with the principle of 'equality of impact' articulated by Professor Ashworth:
'The argument, then, is that whilst it is just to impose the same sentence on two equally culpable offenders for two equally grave offences, it is unjust to do so if the two offenders have such differing "sensibilities" that the sentence would have a significantly different effect on each of them. The sentencer should take account of any relevant and significant differences, and should strive to achieve equality of impact' [My emphasis][13]
Ashworth further argues that this '... principle should lead a sentencer to reduce a fine for an offender of little means and to reduce a prison sentence for an offender whose expectation of life is short'.[14]
Legislation enacting this proposition is consistent with Australia's international treaty law obligations to protect life, and may address the disproportionate number of Aboriginal peoples in custody.[15] It may also motivate policy makers to act on issues arising from diminished Aboriginal life expectancy, such as the provision of concessions for Aboriginal peoples in their forties, or the implementation of outcome-based strategies which address the quality of life of the Aboriginal community.
For helpful comments on earlier drafts the author wishes to thank Peter Kilduff (barrister, Owen Dixon West), and Gemenu Kumarasinhe (solicitor, Lismore Aboriginal Community Legal Centre,) who also proposed this research.
[1] 1. M Dodson, Second Report 1994, Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Canberra, 1995, p 100.
[2] S J Kunitz, Disease and Social Diversity: The European Impact on the Health of Non-Europeans, Oxford University Press, New York, 1994, p 24.
[3] P Anderson, K Bhatia and J Cunningham, Mortality of Indigenous Australians, ALPS, Canberra, 1994, p 12; W McLennan, The Health and Welfare of Australia: Aboriginal and Torres Strait Islander Peoples, ABS, Canberra, 1997, p 92..
[4] Royal Commission Into Aboriginal Deaths in Custody, National Report, ALPS, Canberra, 1991, Volume 3, Para 23.1.6 (and see footnote 5).
[5] Royal Commission into Aboriginal Deaths in Custody, Report of the Inquiry into the Death of Harrison Day, AGPS, Canberra, 1990.
[6] R v Reynolds (1983) 10 ACR 30 at 32 per Wells j (with whom Mohr J agreed), at 38 per Sangster J.
[7] R v Hunter (1984) 36 SASR 101 at 103 per King CJ.
[8] Bailey v DPP [1988] HCA 19; (1988) 34 ACR 154 at 155 per Mason CJ, Brennan, Deane and Toohey JJ, at 158 per Wilson J.
[9] R v McDonald (1988) 38 ACR 470 at 474-475 per Roden J (with whom Wood and Loveday JJ agreed); R v Eliasen (1991) 53 ACR 391 at 395-396 per Crockett j (with whom McGarvie and Phillips JJ agreed); and R v Doyle (1996) 84 ACR 287 at 292 per Smart, Badgery-Parker, and Simpson JJ.
[10] R v McDonald (1988) 38 ACR 470 at 474 per Roden J (with whom Wood and Loveday JJ agreed); Linon v Hayes (1988) 47 SASR 172 at 176 per Perry J; and R v Sellen (1991) 57 ACR 313 at 318 per Gleeson CJ, Kirby and Campbell JJ.
[11] Neal v R [1982] HCA 55; (1982) 149 CLR 305 at 314-315 per Murphy J, at 326 per Brennan J; Re Mathew (deed) [1951] VicLawRp 29; (1951) VLR 226 at 232 per O'Bryan J; Jabaltjari v Hammersley (1977) 15 ALR 94 at 98 per Muirhead J; R v Davey [1980] FCA 134; (1980) 50 FLR 57 at 62 per Muirhead J; Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197 at 211-212 per Nader J; R v Yougie (1987) 33 ACA 301 at 304 per Derrington J; Rogers v R (1989) 44 ACR 301 at 305 per Malcolm CJ; and R v Fernando (1992) 76 ACR 58 at 62-63 per Wood J.
[12] Neal v R [1982] HCA 55; (1982) 149 CLR 305 at 314-315 per Murphy J; Jadurin v R [1938] ArgusLawRp 53; (1982) 44 ALR 424 at 429 per St John, Toohey and Fisher JJ; Houghagen v Ghana (1988) 50 SASR 419 at 422 per Bollen J; Rogers v R (1989) 44 ACR 301 at 307 per Malcolm CJ; and R v full (1990) 50 ACR 31 at 37 per Malcolm CJ, at 50 per Pidgeon J.
[13] A Ashworth, Sentencing and Penal Policy, Weidenfeld and Nicolson, London, 1983, pp 277-278.
[14] Ibid at 276.
[15] Universal Declaration of Human Rights, Article 3; International Covenant on Civil and Political Rights [1980] ATS 23, Article 6; and Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty [1991] ATS 19, Article 1.