Where Aboriginal customary law gives rise to the commission of a sexual offence against a minor, the protection afforded by the law to girls under 16 prevails over the customary practice, and the cultural context does not permit mitigation to the same degree as where the offender faces punishment under both systems. A distinction is drawn between custom that leads to the offender being punished by both the law and the community (stronger mitigation) and custom that gives rise to the offence itself (weaker mitigation). A sentence of 24 hours imprisonment for unlawful sexual intercourse with a 15-year-old in the context of a promised marriage was held manifestly inadequate.
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