Honour crimes are (at least in this post) offences that are motivated, in whole or in part, by the offender’s recognised community values.

Crimes perpetrated by migrants tend to gain the most media attention, but there’s many types of honour crime. Other examples include initiation and punishment rites of bikie gangs, traditional indigenous practices like ritual spearing, and even entrenched police corruption like that responsible for the conviction of the Birmingham Six.

These crimes throw a spanner into the works of the justice system, particularly sentencing. Honour crimes draw attention to the legal fiction that courts work under that the community is one homogenous group. It’s really more of a sea of people with a diversity of opinions and perspectives.

If criminal offending is prompted by attitudes that are not held by the majority of people, but held by a significant number and are passed on to successive generations from parent to child, what then? Such views pose a difficult sentencing problem. Is the subjective view of the offender mitigating in that it may be the product of an established system of cultural values, or is it aggravating because the offender claims jusitification for their actions?

The argument can be taken in either direction.

Federal Law

Commonwealth law tries to shortcut the entire argument and prevent customary law or cultural practice being used as a defence, in mitigation or as aggravation.

The Commonwealth Crimes Act 1914 provides at s 16A,

16A Matters to which court to have regard when passing sentence etc.

(1) …

(2) …

(2A) However, the court must not take into account under subsection (1) or (2) 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.

(2B) In subsection (2A):

“criminal behaviour” includes:

(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.

State Law

There’s no similar provision in Victoria or NSW. (If anything, s 19 of the Charter cuts in the opposite direction). Customary laws or cultural practices don’t offer a defence at law, but may be taken into account on sentence.

In Hussain v R & Ali v R [2010] NSWCCA 184 the NSW Criminal Court of Appeal considered an appeal on sentence for offences of assault, aggravated burglary and abduction. The appellants were brothers-in-law. Their victim was the wife of one of the men and the sister of the other. She had gone to live with another man after the breakdown of her marriage. The appellants went to her new address, broke in and abducted her. She escaped while being taken away in a car.

After the escape the husband signalled an intention to flee to New Zealand, but both appellants later surrendered themselves.

James J [at 21 and 22]:

[The husband] presented himself to a police station, where he was arrested. He was informed that he was being arrested for the abduction of [his wife] and was cautioned. He then said, “But she is my wife”.

[The brother] also presented himself at a police station, where he was arrested and cautioned. He then said, “Listen she is my sister and she has been cheating on her husband. This is shameful to my family. She should be at home with her kids and husband”

The sentencing judge took the preliminary view that the offences were mitigated by the “shaming” conduct of the victim.

James J [at 47 and 48]:

In the sentence hearing the prosecutor submitted that the two more serious offences committed by [the husband] fell towards the mid range for offences of their kind. The sentencing judge then referred to [the wife’s] infidelity with her cousin and described it as a “powerfully mitigating factor”, – His Honour added “I think it makes a difference between something that would otherwise have fallen in the mid range, an offence that would, as a result of the mitigation, be very much probably mid way between the middle range and the low end middle range”.

What his Honour said, like many impromptu remarks made in the course of an exchange during a hearing between the bench and legal representatives, is not precisely expressed but indicates, in my opinion, that, contrary to the submission which had been made by the prosecutor and contrary to the present ground of appeal, his Honour was then observing that, because of the powerfully mitigating factor of [the wife’s] infidelity, the objective seriousness of the more serious offences committed by [the husband] was below the middle of the range.

The ground of appeal was rejected. Davies J agreed with the outcome but added strongly worded comments of his own about the assertion that the infidelity of the victim lessened the objective seriousness of the crimes against her [ at 80 – 82]:

It was submitted on behalf of both [husband] and [brother] that, all other things being equal, when an offender is a close relative of the victim that association in most cases and in the present case makes the act of criminality of a lesser nature. I do not agree with that submission. It overlooks the fact that a victim who is a relative, and particularly a wife, may be in a more, rather than a less, vulnerable position with regard to the wrongful acts of the offender. It contains the inference that it is less serious to commit a crime, whether a crime involving property or a crime of violence against a relative compared with a stranger.

In the present case it wrongly provides support for the attitude [the husband] expressed to the Police at the time of his arrest for the abduction of his wife that he was entitled to do it “because she is my wife”, and the attitude of [the brother] when he was arrested that “she is my sister and she has been cheating on her husband. This is shameful to my family.”

Those views and attitudes have no place in Australian society. A submission that offences committed against relatives are of a lesser criminality should be firmly rejected.

That view can be contrasted with the Victorian position in DPP v Pham & Ors [2010] VSCA] 181 where three men were sentenced for aggravated burglary in a situation that was different but perhaps no less morally dubious.

Buchanan JA [at 1]:

[The first appellant] is the brother of [another appellant] and the brother-in-law of [the third appeallant]. [The first appellant’s] wife told him that his sister, whom the respondent later told police was ‘a bit slow’ had been sexually assaulted by [the victim]. [The first appellant] told the other respondents and at about nine o’clock at night all three went to the house in which the victim resided. [The victim] was in the house with his eight year old daughter. They were in the sitting room. [The victim] was watching television and his daughter was doing her homework when the power went out.

After cutting power to the home, the appellants forced entry and beat the victim, breaking his eye socket. They took hold of his penis and told him they intended to cut it off. The beating occurred in the presence of the victim’s daughter, who was prevented from calling the police.

Each appellant was given a 32-month suspended sentence, a penalty the Director of Public Prosecutions appealed and the Court of Appeal held to be appropriate.

Buchanan JA [Beach and Ashley JJA in agreement]:

Although the sentencing judge and counsel for the appellant characterised the respondents’ conduct as that of vigilantes, that description must be placed in context. I accept that the victim was innocent, but the respondents held another view. The relationship between [the first appellant] and his sister imposed a cultural obligation upon the respondent to take the matter up with the victim for the purpose of ensuring his sister’s future protection. His co-offenders were bound to him by ties of blood and marriage.

Both sets of appellants were awarded sentences of several years duration. The appellants in Victoria had their sentences entirely suspended; the appellants in NSW not suspended at all. All the men had clean criminal histories, stable employment, good references and expressed contrition by the time they appeared at court.

I think the Victorian case attracted far more lenient actual sentences (both in the original sentencing hearing and upheld on the appeal) because the behaviour of the appellants, while equally unlawful, expresses a cultural response shared by a larger proportion of the community. Whether that is fair or not, I don’t know.