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[2009] NTSC 24
procedural. The objection was upheld to the extent that the affidavit could not be read to determine the objective seriousness of the alleged crimes. The affidavit could be read for the other purposes...
Southwood J ruled that section 91 prevented the defendant from using evidence of customary law and cultural practice to argue that his alleged offending was objectively less serious or that he was less morally culpable for that reason. The evidence was not excluded for every sentencing purpose: the ruling allowed it to be read for the other purposes the defence had identified. The decision concerned admissibility and use of evidence before sentencing, not the defendant’s guilt or the eventual sentence.
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2,153 words · generated 28/09/2026
The Queen v Wunungmurra is an evidentiary ruling delivered by Southwood J in the Supreme Court of the Northern Territory on 9 June 2009. It arose before sentencing on an indictment charging Dennis Wunungmurra with two offences against his wife. Count 1 alleged that, on 8 September 2008 at Galiwinku, he caused her harm intending to cause serious harm, contrary to s 177 of the Criminal Code (NT). Count 2 alleged an aggravated assault on 17 August 2008 ([1]). The judgment records that Wunungmurra had indicated an intention to plead guilty, but had not yet been arraigned ([2]). It therefore does not record a final plea, finding of guilt or sentence.
4 cited instruments linked from this judgment.
The defence proposed to read an affidavit from Rose Laymba Laymba, a senior member of Aboriginal clan groups at Milingimbi who was knowledgeable about Yolngu customary law and cultural practices ([6]). She described traditional laws said to apply to women married to Yidditja men and circumstances in which a man from the Yidditja and Dhalwangu clan groups, who was a Dalkaramirri, might inflict severe corporal punishment on his wife with a weapon ([8]). The affidavit expressed her opinion that Wunungmurra had acted in accordance with traditional law and his duties as a husband, father and Dalkarra man ([8]–[9]).
The defence proposed several uses for the affidavit: context and explanation, objective seriousness, the defendant’s disposition and likelihood of reoffending, rehabilitation prospects and character ([3]). The prosecution objected only to its use in assessing objective seriousness, relying on s 91 of the Northern Territory National Emergency Response Act 2007 (Cth) ([4]–[5]). The Court’s ruling was correspondingly specific: the affidavit could not be read to determine objective seriousness, but it could be read for the other purposes identified by the defence ([28]–[29]).
The central question was not whether the affidavit’s account of customary law was correct, nor whether the alleged conduct was criminal. It was whether sentencing legislation barred that account from being used for a particular sentencing purpose: reducing the assessment of the offending’s seriousness.
Section 91 provided that, in determining a sentence for an offence against Northern Territory law, a court must not take customary law or cultural practice into account as a reason for excusing, justifying, authorising, requiring or lessening the seriousness of criminal behaviour, or for aggravating it ([18]). Section 3 defined “criminal behaviour” to include physical elements of an offence and fault elements relating to those elements ([19]).
Southwood J read the section strictly and treated it as clear in its terms ([20]). The judgment reasoned that “lessening” or “aggravating” seriousness meant assessing the gravity or objective seriousness of the offence at a lower or higher level than otherwise ([22]). That meaning brought the proposed use of the affidavit within the provision. The defence’s anticipated argument, as described by the judge, was that acting in accordance with cultural duty reduced moral culpability and therefore reduced objective seriousness ([10]). The Court accepted the prosecution’s submission that using customary law in that way would amount to justifying the criminal behaviour or lessening its seriousness ([24]).
The judgment also set out the usual components of an objective-seriousness assessment. These include the physical elements, consequences, fault elements, factors affecting the offender’s mental state and reasons for offending. Motivation, mental state, illness and intellectual disability are examples of matters that can bear on culpability, where causally connected with the offence ([23]). The Court’s conclusion was that s 91 excluded customary law or cultural practice as a reason for lowering or raising seriousness, even though reasons and motives may ordinarily be relevant in sentencing.
The Court acknowledged that the restriction could prevent an individualised assessment based on all relevant facts, affect proportionality and result in sentences that might be considered disproportionate ([25]). It nevertheless held that those concerns did not permit a court to disregard clear statutory language. Parliament could preclude particular matters from sentencing consideration, a course the judge compared with legislatively prescribing sentences or specifying aggravating and mitigating circumstances ([26]). The likely effect was greater relative weight on the physical elements and the invasion of the victim’s rights, and less on reasons or motive ([27]).
The conclusion was not that cultural evidence was inadmissible for every purpose. Applying a strict reading, the Court held that s 91 encroached on general sentencing principles only so far as its text required. It expressly stated that the section did not remove all consideration of customary law and cultural practice from sentencing ([29]). That distinction explains why the affidavit remained available for the other purposes identified at [3].
The judgment describes the pre-existing Northern Territory sentencing position at [17]. Before the Emergency Response Act, sentencing courts could, in appropriate cases, take traditional Aboriginal law and cultural practices into account when relevant to objective seriousness or moral culpability. The judgment says that courts had sometimes considered an offender’s moral culpability lessened where the person acted in accordance with traditional law or cultural practice. Those matters were considered under established sentencing principles and the Sentencing Act (NT).
The Court then construed s 91 as changing that position for Northern Territory offences covered by the provision. Its reasoning was that Parliament intended to alter established sentencing principles by expressly prohibiting specified uses of customary law and cultural practice ([21]). The prohibition applies where such matters are used to excuse, justify, authorise, require, lessen or aggravate the criminal behaviour. In particular, an argument that customary obligations reduce culpability cannot be used to lower objective seriousness where it operates as a reason to justify the behaviour or lessen its seriousness ([22]–[24]).
The change was not described as a complete ban on customary-law evidence during sentencing. Southwood J’s final paragraph stresses that the statute does not remove “all consideration” of customary law or cultural practice ([29]). The dividing line in this ruling is the purpose for which the information is used. Evidence relied on to lower or raise seriousness is prohibited by s 91; the ruling left other identified sentencing uses available.
This is the Court’s account of the statutory position as at the date of its decision. The supplied judgment does not set out subsequent amendments to s 91 or later legislative developments. It therefore cannot establish whether the law has since changed.
At [20], Southwood J says that s 91 is clear and adopts a “plain and strict reading”. In practical terms, the judge starts with the enacted words and does not treat the section as extending beyond what those words prohibit. The paragraph lists the prohibited uses: excusing, justifying, authorising, requiring, lessening or aggravating criminal behaviour.
At [22], the judgment equates “lessening the seriousness” with assessing objective seriousness at a lower level than would otherwise apply. This is important because the prohibition is not confined to an explicit claim that conduct was lawful or excusable. It also reaches an argument that cultural practice should make the offence less serious for sentencing purposes.
At [23], the Court explains that objective seriousness ordinarily involves more than the physical act. Consequences, fault, mental state and reasons for offending may matter, along with factors affecting culpability. The judgment recognises that motive can ordinarily be relevant, but holds that s 91 restricts reliance on customary law or cultural practice for the specified purpose.
At [24], the judge applies that statutory interpretation to the proposed evidence. If customary law is used to conclude that an offender who acted in accordance with traditional law is less morally culpable for that reason, the evidence is being used to justify the behaviour or lessen its seriousness. On the facts of the proposed submission, that use was prohibited.
At [28], the operative ruling is direct: the affidavit could not be read to determine objective seriousness. At [29], the Court gives the qualification: it could be read for the other purposes identified at [3], and the statutory provision should not be treated as removing all consideration of customary law and cultural practice. Read together, those paragraphs establish a purpose-specific restriction, not a blanket evidentiary exclusion.
The ruling is most directly relevant to sentencing proceedings for a Northern Territory offence where a party proposes to use customary law or cultural practice to reduce or increase the assessment of the seriousness of the criminal behaviour. The example in this case was evidence that the defendant had acted in accordance with customary duties, offered as a reason to reduce moral culpability and objective seriousness ([8]–[10], [24]).
The principle is not confined on the face of the judgment to evidence about a particular community, offence or relationship. Section 91 is expressed by reference to “any form” of customary law or cultural practice and applies when determining a sentence for an offence against a law of the Northern Territory ([18]). The Court’s interpretation addresses both lessening and aggravating seriousness, so the statutory restriction is not limited to arguments favourable to an offender ([20], [22]).
The ruling also matters where evidence has multiple proposed uses. A court considering an objection would need to distinguish the prohibited use from other purposes. Here, the prosecution objected only to use for objective seriousness; the judge permitted the affidavit to be read for the other stated purposes ([3]–[5], [28]–[29]). The judgment does not decide how every possible mixed-purpose submission should be handled, or what limits might apply to other uses in a different evidentiary setting. Its express point is narrower: s 91 does not exclude all customary-law or cultural-practice material from sentencing.
The supplied judgment contains no account of later cases applying, distinguishing, approving or questioning R v Wunungmurra. It was delivered on 9 June 2009, and the case materials provided here identify authorities that Southwood J referred to, but do not provide later treatment of this decision. Accordingly, no claim about its subsequent reception or current precedential status can be made from the supplied material.
The authorities listed in the judgment are earlier authorities, not later treatment of Wunungmurra. R v Way is referred to for the factors ordinarily relevant to objective seriousness ([23] and footnote 4). Potter v Minahan is cited in relation to the clarity of Parliament’s intended alteration of sentencing principles ([21] and footnote 3). Nicholas v The Queen, Baker v The Queen, Fardon v Attorney-General (Queensland) and Byrnes v The Queen are cited in support of the proposition that perceived undesirability or unfairness does not justify failing to give effect to legislation ([25] and footnote 5). R v Glennan is cited for strict construction of penal statutes ([20] and footnote 2). R v GJ and Hales v Jamilmira are identified in the footnote discussing relevant pre-existing Northern Territory sentencing principles ([17] and footnote 1).
Those references help explain the reasoning in this decision, but they do not establish how later courts treated the decision itself. A research assessment of subsequent application would require later judgments or other legal sources not included in the supplied text.
The judgment decides a defined evidentiary issue, and leaves several matters unresolved in the supplied text. First, it does not explain in detail how a sentencing court should separate evidence offered for a permitted purpose from the same evidence being used indirectly to lessen seriousness. The ruling states that the affidavit could be read for the other purposes identified at [3], but it does not provide a general test for managing overlap between those purposes and the prohibited one.
Second, the Court does not determine the weight, if any, to be given to the affidavit for the permitted purposes. It rules on whether it may be read for those purposes, not on whether its assertions are accepted or what effect they would have on the eventual sentence ([28]–[29]). Nor does the decision determine whether the defendant’s account of events, the deponent’s description of customary law, or the deponent’s opinion would ultimately be accepted.
Third, the judgment recognises a tension between the statutory exclusion and individualised proportional sentencing ([25]–[27]), but does not resolve any constitutional or broader validity challenge to s 91. Its conclusion is that the provision must be applied according to its clear terms, not that the policy concerns are unfounded ([25]–[26]).
Finally, the supplied text does not establish whether later legislative amendments or later decisions have altered, refined or limited the approach. The decision itself supports the distinction between using customary law to change the assessment of seriousness, which s 91 prohibits, and considering it for another sentencing purpose, which the Court said remained possible. The exact application of that distinction outside the particular evidentiary objection remains dependent on the statutory text and facts before the relevant court.
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CRIMINAL LAW - Sentencing - Evidentiary Ruling - Objection to Evidence about customary law and cultural practice being tendered for the purpose of establishing the objective seriousness of criminal offences - moral culpability - application and interpretation of s 91 of Northern Territory National Emergency Response Act 2007 (Cth).
Northern Territory National Emergency Response Act 2007 (Cth) s 91; Sentencing Act (NT) s 104A.
Baker v The Queen [2004] HCA 45; (2005) 223 CLR 513; Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1; Fardon v Attorney-General (Queensland) [2004] HCA 46; (2004) 223 CLR 575; Hales v Jamilmira [2003] NTCA 9; (2003) 13 NTLR 14; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173; Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277; R v GJ (2005) 196 FLR 233; R v Glennan (1970) 91 WN (NSW) 609; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, referred to.
The Crown: MP Grant QC, Solicitor General for the Northern Territory
The Crown: The Office of the Director of Public Prosecutions
The Defendant: North Australian Aboriginal Justice Association
The Queen v Wunungmurra [2009] NTSC 24
[1] The defendant has been charged with two counts on an indictment dated 25 February 2009. Count 1 charges that contrary to s 177 of the Criminal Code (NT), on 8 September 2008 at Galiwinku, he, with intent to cause serious harm, caused harm to Wendy Manamawuy Garrawarra. The alleged victim is the defendant's wife. Count 2 charges the defendant with the aggravated assault of his wife on 17 August 2008.
[2] The defendant has informed the Court that he intends to plead guilty to the crimes charged on the indictment. However, he has not been arraigned as yet.
[3] The defendant seeks to read an affidavit of Mrs Rose Laymba Laymba, which was sworn on 30 April 2009, in support of his plea on sentence for the following purposes: to provide a context and explanation for the defendant's crimes; to establish the objective seriousness of the defendant's crime; to establish the offender does not have a predisposition to engage in domestic violence and it is unlikely the offender will re-offend; to establish the offender has good prospects of being rehabilitated; and to establish the defendant's character.
[4] The prosecution objects to the affidavit of Ms Laymba Laymba being read for the purpose of establishing the objective seriousness of the crimes committed by the defendant. The prosecution argues that s 91 of the Northern Territory National Emergency Response Act 2007 (Cth) ("the Emergency Response Act") prevents the affidavit of Ms Laymba Laymba being read for that purpose.
[5] The prosecution does not object to the affidavit of Mr Laymba Laymba being read for the other purposes identified by the defence.
[6] Ms Laymba Laymba is a senior member of three Aboriginal clan groups at Milingimbi. She is one of nine Jungaya for the Gamaalanga, Malarra and Gorryindi clan groups. She is knowledgeable about customary law and cultural practices of the Yolngu people who live at Milingimbi. She is a distant relative of the defendant. She calls him "Guthara". Her affidavit has been filed in accordance with 104A of the (NT).
[11] The wider context in which the Emergency Response Act was enacted may be gleaned from s 5 of the Act and the Explanatory Memorandum.
[12] The Emergency Response Act was part of a package of legislation that facilitated the Australian Government's intervention in the governance of Aboriginal people and their communities in the Northern Territory with the aim of improving the safety and wellbeing of Aboriginal people and children in particular who are living in those communities. Section 5 of the Act states the object of the Act is to improve the well being of certain communities in the Northern Territory.
[13] The Explanatory Memorandum for the Northern Territory National Emergency Response Bill that was circulated by the authority of the Minister for Families, Community Services and Indigenous Affairs stated:
This bill will provide the new principal legislation for the Australian Government's response to the national emergency confronting the Welfare of Aboriginal children in the Northern Territory.
[14] The Emergency Response Act has six main parts: Part 2 of the Act introduced measures to modify the Liquor Act (NT) in order to give effect to restrictions on the possession, consumption, sale and transportation of liquor in the Northern Territory, particularly on land in areas prescribed in the Act; Part 3 of the Act introduced a scheme of accountability intended to prevent, and detect, misuse of publicly funded computers located in the prescribed areas within the Northern Territory with the aim of preventing access to pornography and the misuse of computers for other illegal purposes; Part 4 of the Act introduced arrangements for the acquisition of five year leases over certain Aboriginal townships in the Northern Territory and the forfeiture of certain leases known as town camps; Part 5 of the Act recognises that continuing and improving services that are provided by community services entities in those areas defined in the Act to be business management areas is a necessary step towards effectively addressing other problems experienced in these areas (These services include basic community needs such as housing construction and maintenance, community services and various types of municipal services such as waste collection and road maintenance.); Part 6 of the Act amends Northern Territory law in relation to granting bail to Aboriginal people and sentencing Aboriginal offenders; and Part 7 of the Act introduced a new licensing regime that applies to persons who operate community stores in indigenous communities and ensures the delivery of the income management regime.
[15] The precise mischief that s 91 of the Emergency Response Act is intended to remedy is unclear. However, statements about the purpose of s 91 of the Act are to be found in the Explanatory Memorandum.
[16] The relevant provisions of the Explanatory Memorandum state:
Part 6 amends Northern Territory law to prohibit the relevant authority, when exercising bail or sentencing discretion in relation to Northern Territory offences, from taking into consideration any form of customary law or cultural practice to lessen or aggravate the seriousness of the criminal behaviour of offenders and alleged offenders. Part 6 also strengthens Northern Territory bail provisions to better secure the safety of victims and witnesses in remote communities.
On 14 July 2006, the Council of Australian Governments agreed that no customary law or cultural practice excuses, justifies, authorises, requires or lessens the seriousness of violence or sexual abuse. All jurisdictions agreed that their laws would reflect this, if necessary by future amendment. The Council of Australian Governments also agreed to improve the effectiveness of bail provisions in providing support and protection for victims and witnesses of violence and sexual abuse.
The Commonwealth implemented the Council of Australian Governments decision through the Crimes Amendment (Bail and Sentencing) Act 2006 (the Bail and Sentencing Act) which applies to bail and sentencing discretion in relation to Commonwealth offences. The Bail and Sentencing Act amended the Crimes Act 1914 (the Crimes Act) to preclude consideration of customary law or cultural practice from sentencing discretion and bail hearings as a reason for excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence or alleged offence relates. The amendments also preclude consideration of customary law or cultural practice as a reason for aggravating the seriousness of criminal behaviour to which the offence relates.
Northern Territory legislation lists the factors a court shall have regard to in sentencing an offender. This list refers generally to any aggravating or mitigating factor concerning the offender and the extent to which the offender is to blame for an offence, but does not specifically refer to customary law or cultural practice.
The [Australian] Government wishes to ensure that the decisions of the Council of Australian Governments, as implemented by the Bail and Sentencing Act, apply in relation to bail and sentencing discretion for Northern Territory offences.
Section 122 of the Constitution provides the Commonwealth with a very broad power to make laws directly regulating Territory matters, including in relation to bail and sentencing. The Commonwealth provisions in Part 6 will prevail over any inconsistent Territory laws.
Clause 91 expressly prohibits a court from taking into account customary law or cultural practice as an excuse or justification for criminal behaviour when sentencing a person for having committed a Northern Territory offence, thus preventing a court from reducing the sentence imposed on an offender on the basis of customary law of cultural practice. This clause also precludes a court taking into account customary law or cultural practice as a reason for aggravating the seriousness of criminal behaviour, thus preventing a court from increasing the sentence imposed on an offender on the basis of customary law or cultural practice.
[17] At the time the Emergency Response Act was assented to by the Australian Parliament sentencing courts in the Northern Territory, in appropriate cases, took traditional Aboriginal law and cultural practices into account when such laws or cultural practices were relevant in determining the objective seriousness of an offence or the level of moral culpability of an offender and on occasion sentencing courts held that the moral culpability of an offender was lessened because he or she had acted in accordance with traditional Aboriginal law or cultural practices. Such matters were taken into account in accordance with established sentencing principles and the sentencing purposes and guidelines contained in the Sentencing Act (NT)[1].
[18] Section 91 of the Emergency Response Act states:
In determining the sentence to be passed, or the order to be made, in respect of any person for an offence against a law of the Northern Territory, a court must not take into account any form of customary law or cultural practice as a reason for:
(a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
(b) aggravating the seriousness of the criminal behaviour to which the offence relates.
[19] Section 3 of the Emergency Response Act defines criminal behaviour to include:
(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
(b) any fault element relating to such a physical element.
[20] In my opinion s 91 of the Emergency Response Act is clear in its terms. On a plain and strict reading[2] of the section, the scope of the preclusion enacted by s 91 of the Emergency Response Act is that in determining the sentence to be passed on an offender, a court must not take into account customary law or cultural practice as a reason for:
excusing the criminal behaviour;
justifying the criminal behaviour;
authorising the criminal behaviour;
requiring the criminal behaviour;
lessening the seriousness of the criminal behaviour; or
aggravating the seriousness of the criminal behaviour
[21] By enacting these provisions the Australian Parliament intended to alter the well established sentencing principles applying in the Northern Territory accordingly. So much is irresistibly clear[3] from the express terms of s 91 of the Emergency Response Act and the context in which the legislation came to be enacted. Such an alteration in sentencing principles appears to have been agreed by the Australian Government and all State and Territory Governments.
[22] The words "lessening the seriousness of the criminal behaviour" and "aggravating the seriousness of the criminal behaviour" which are contained in s 91 of the Emergency Response Act are synonymous with determining the gravity or objective seriousness of the offence at some lower or higher level than would otherwise have been the case.
[23] The effect the preclusions against taking into account customary law or cultural practice as a reason for either lessening or aggravating the seriousness of the criminal behaviour when determining the sentence to be passed on an offender and the definition of criminal behaviour in s 3 of the is that a court cannot take into account customary law or cultural practice when determining the gravity or objective seriousness of a crime committed by an offender. Ordinarily when a sentencing court determines the gravity or objective seriousness of an offence the court takes into account: the actus reus or physical elements of the offence; the consequences of the criminal behaviour in question; the mens rea, or the fault elements of the offence, and those factors which might properly be said to have impinged on the mens rea of the offender; and the reasons for the commission of the offence. Some of the relevant circumstances which might properly be said to have impinged on the mens rea include the motivation of the offender (for example duress, provocation, robbery to feed a drug addiction), the mental state of the offender (for example, intention is more serious than recklessness), and any mental illness or intellectual disability suffered by the offender. All of these factors affect the extent or degree of moral culpability of the offender. While they are matters which are personal to the offender they are taken into consideration because of their causal connection with the commission of the offence.
[28] I rule that the affidavit of Ms Laymba Laymba may not be read for the purpose of determining the objective seriousness of the crimes alleged against the defendant.
[29] The affidavit of Ms Laymba Laymba may be read for the other purposes referred to in para [3] above. The relevant principle to be applied in the interpretive process is that s 91 of the Emergency Response Act may only be construed to encroach upon general sentencing principles so far as a strict reading of the provision would allow. Penal statutes should be read strictly and courts must only apply the actual commands of the legislation. The purpose and operation of s 91 of the Act is not to remove all consideration of customary law and cultural practice from the sentencing process.
[1] The relevant principles and some of the relevant authorities are discussed by the Court of Criminal Appeal of the Northern Territory in R v GJ (2005) 196 FLR 233 and Hales v Jamilmira [2003] NTCA 9; (2003) 13 NTLR 14.
[2] Penal statutes should be read strictly R v Glennan (1970) 91 WN (NSW) 609.
[3] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 308.
[4] R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at pars [83] to [92].
[5] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at [37]; Baker v The Queen [2004] HCA 45; (2005) 223 CLR 513 at [6]; Fardon v Attorney-General (Queensland) [2004] HCA 46; (2004) 223 CLR 575 at [23]; Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1 at 33-4.
R
Wunungmurra [2009] NTSC 24
(2005) 223 CLR 513
(1999) 199 CLR 1
(2004) 223 CLR 575
(2003) 13 NTLR 14
(1998) 193 CLR 173
(1908) 7 CLR 277
(2005) 196 FLR 233
(2004) 60 NSWLR 168
The objection was upheld to the extent that the affidavit could not be read to determine the objective seriousness of the alleged crimes. The affidavit could be read for the other purposes identified at [3].
[7] The defendant comes from the Yidditja and Dhalwangu clan groups at Milingimbi. He is a Dalkaramirri.
[8] In her affidavit Ms Laymba Laymba deposes to certain traditional Aboriginal laws that apply to women who are married to Yidditja men and the circumstances when according to traditional Aboriginal law a man who comes from the Yidditja and Dhalwangu clan groups and is a Dalkaramirri may inflict severe corporal punishment on his wife with the use of a weapon. It is her opinion that the defendant acted in accordance with traditional Aboriginal law when he engaged in the behaviour which is the subject of the counts charged on the indictment. Ms Laymba Laymba states the defendant was carrying out his duty as a responsible husband and father and he was acting in accordance with his duty as a Dalkarra man.
[9] According to Ms Laymba Laymba, in Yolngu culture a man who is a Dalkaramirri is said to have a role similar to a judge or magistrate. He sings ceremonial songs, runs funeral ceremonies and decides what to put in the death chamber of a deceased person. A Dalkaramirri is also a team leader. He is the senior person. Part of the role of a Dalkaramirri is to enforce traditional Aboriginal law. He is required to enforce the law and act as a role model.
[10] Mr Wild QC submitted that the affidavit of Ms Laymba Laymba was relevant to the level of the objective seriousness of the criminal behaviour of the defendant because it contained information about the factors operating on the defendant at the time in question and the circumstances which caused the defendant to act in the way he did. I anticipate that the defence would like to use the some of the evidence contained in Ms Laymba Laymba's affidavit as the basis of a submission that because the defendant was doing his cultural duty and acting in accordance with traditional Aboriginal law his level of moral culpability and thereby the level of objective seriousness of his criminal behaviour is lessened.
[24] I accept the Solicitor General's submissions that it follows that s 91 of the Emergency Response Act precludes a sentencing court from taking into account customary law or cultural practice as a basis for finding that an offender who acted in accordance with traditional Aboriginal law is less morally culpable because of that fact. That would be a consideration going to the criminal behaviour constituting the offence. To take into account customary law or cultural practice in that way would be for the purpose of justifying or lessening the seriousness of that criminal behaviour.
[25] The fact that legislation might be considered unreasonable or undesirable because it precludes a sentencing court from taking into account information highly relevant to determining the true gravity of an offence and the moral culpability of the offender, precludes an Aboriginal offender who has acted in accordance with traditional Aboriginal law or cultural practice from having his or case considered individually on the basis of all relevant facts which may be applicable to an important aspect of the sentencing process, distorts well established sentencing principle of proportionality, and may result in the imposition of what may be considered to be disproportionate sentences, provides no sufficient basis for not interpreting s 91 of the Emergency Response Act in accordance with its clear and express terms. The Court's duty is to give effect to the provision.[5]
[26] Parliament may preclude a court from taking particular matters into account for sentencing purposes. Such a course is little different to parliament prescribing the sentence to be imposed for a particular offence or stipulating what are the aggravating and mitigating circumstances in relation to a particular offence.
[27] The effect of s 91 of the Emergency Response Act is that when sentencing courts are determining the objective seriousness of an offence in cases in which the section is applicable, proportionally greater weight will be given to the physical elements of the offence and the extent of the invasion of the rights of the victim of the offence. Less weight will be given to the reasons or motive for committing the offence.