The article notes that several common law countries have introduced 'hate crime' law, ie legislation designed to respond to the problem of prejudice-related crime. It discusses recent developments in Australian hate crime law, suggesting that there are three models (the penalty enhancement model, sentence aggravation model and substantive offence model) and then analysing some reported decisions under the sentence aggravation provisions that have operated in NSW since 2003 under s21A(2(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Mason suggests that four significant issues are apparent: whether the provisions apply to individual forms of hatred; whether intra-group conflict is covered; whether criminal conduct influenced by racial stereotypes comes within the ambit of the applicable motive test; and which groups should be protected under the legislation.
In critiquing the decision by the NSW Supreme Court (Criminal Appeal) in Dunn v R [2007] NSWCCA 312, an appeal against conviction of a man who sought to burn down a neighbour's residence because he (incorrectly) believed that the neighbour was a paedophile, Mason comments that -
This is a provocative and unique decision. Paedophiles have never been recognised as a protected category under hate crime laws. New South Wales appears to be the only jurisdiction in the world to do so. As discussed above, hate crime laws are designed to punish and denounce violence that is grounded in prejudice towards communities who are the historical objects of oppression: racial, religious, ethnic, gay/lesbian minorities and so on. Prejudice by its very definition denotes an irrational or unjustified negative attitude towards members of these communities. Paedophiles can be distinguished from groups conventionally protected under hate crime law on the basis that moral condemnation of their conduct is far from unjustified; their sexual conduct inflicts a clear and identifiable harm upon others (children) whilst the conduct of these other minority groups does not. Thus, negative attitudes towards adults who sexually abuse children do not fit easily within contemporary understandings of prejudice. This is not, of course, to say that vigilantism against paedophiles is warranted.Mason goes on to comment that -
Vigilantism against adults who sexually abuse children is unacceptable. However, as indicated above, the heavier penalties that crime laws impose are defended by advocates on the grounds of both proportionality and public policy. Hate crime is said to inflict greater harm than other crimes because it represents an attack upon the victim's core identity which, in turn, produces a sense of vulnerability within his/her wider community.
Ultimately, hate crime is said to undermine multiculturalism itself. Hate crime laws can thus be understood as an extension of anti-discrimination and equal opportunity principles into the criminal domain. Whether or not we agree with these ambitious social objectives, we need to recognise that by imposing harsher penalties such laws send the message that crimes motivated by prejudice are worse than crimes that are not accompanied by such feelings.
