• Introduction
• General sentencing discretion
• Sentencing principles and Aboriginal offenders
• Specific factors considered in sentencing Aboriginal offenders
• The need for legislative provisions

2.1 In cases coming before the criminal courts, the judge or magistrate exercises a discretion in determining an appropriate sentence. Judicial officers are guided in the exercise of that discretion by sentencing principles developed through the common law, supplemented to some extent by statute. These general principles apply to every offender being sentenced, regardless of race or background. In applying sentencing principles, a judicial officer is required to consider all of the material circumstances of each case and each individual offender. To do otherwise would be an arbitrary and inflexible application of the law.

2.2 The cultural or social background of the offender may be a relevant consideration. Aboriginality does not of itself mean that an offender will automatically receive special or lenient treatment, since it may have no bearing on the commission of the offence. However, in some cases the sentencing judge may decide that, because of an offender’s Aboriginality, he or she has been so disadvantaged that it would be unfair not to take this into consideration in determining the level and type of sentence to be imposed. The cultural context in which an offence is committed, together with the impact of Aboriginal customary law on sentencing, is discussed in Chapter 3.

2.3 This chapter focuses on cases where a person’s Aboriginality is relevant to determining the appropriate sentence. Where such relevance has been established, the Commission looks at how the general sentencing principles may be applied, and the type of specific factors that courts may consider. It also examines the limitations of sentencing in reducing recidivism and in addressing the basic problems which contribute to Aboriginal over-representation in the criminal justice system.

GENERAL SENTENCING DISCRETION

2.4 In exercising sentencing discretion, a judicial officer selects an appropriate sanction from within the range of penalties prescribed for a particular offence, endeavouring to “make the punishment fit the crime, and the circumstances of the offender, as nearly as may be”.¹ The sentence should be the minimum necessary to achieve the purposes of punishment.² The objectives and aims of punishment are traditionally stated as retribution, deterrence, rehabilitation and incapacitation. The Commission, in its earlier publications on sentencing, added to these the further objective of denunciation, but not that of reparation.³ In its first Report on Sentencing, the Commission recommended that legislation should expressly provide a statement of the purposes for which a court may impose sentence,⁴ but a statutory hierarchy of purposes was rejected. The process of sentencing, it was recognised, involves a complex and intricate interplay, and the sentence determined by the court in any particular instance emerges as an instinctive synthesis, resulting from a compromise between “distinct and partly conflicting principles” as applied to the almost infinitely variable facts and circumstances of the individual case.⁵

2.5 One of the core principles which govern the exercise of the courts’ discretion in sentencing is that of proportionality. This principle states that a punishment must not exceed that required by the objective seriousness of the offence, independent of concerns for the protection of the public or the rehabilitation of the offender.⁶ Factors relevant to determining proportionate punishment are the degree of harmfulness of the conduct, and the extent of the offender’s culpability.⁷ Other common law principles which courts apply in sentencing are consistency (avoiding inexplicable disparities between the sentences given to co-offenders and between offenders generally accused of the same or similar types of offences)⁸ and totality (ensuring that the aggregate sentence for a series of convictions is just and appropriate to the totality of the criminal behaviour).⁹ Courts are also to reserve the maximum punishment available for an offence for the most serious type of offence in each category to which that punishment applies,¹⁰ and only pass sentence for the elements of the crime which have been proved against the accused.¹¹

Imprisonment as a sanction of last resort

2.6 Perhaps the most fundamental principle of sentencing is that imprisonment should be a punishment of last resort, to be imposed only where a non-custodial punishment is inappropriate.¹² This principle has statutory recognition in New South Wales,¹³ and in several other Australian jurisdictions.¹⁴ It is a principle acknowledged to be of great importance for the sentencing of Indigenous offenders whose rates of imprisonment show a significant degree of over-representation.¹⁵

2.7 In its Discussion Paper on Sentencing, the Commission considered whether there was a need to give greater effect to the principle of imprisonment as a sanction of last resort in New South Wales.¹⁶ The Commission proposed that, where possible, offenders guilty of offences which would attract short terms of imprisonment should generally be diverted from custodial sentences. This would affect a large number of offenders, given that of the 7,121 offenders sentenced to a term of imprisonment in the Local Courts in 1999, 6,145 (86.29%) were given a sentence of an average of six months or less. The average term of imprisonment for all offences in the Local Courts was 4.8 months.¹⁷ The figures for Aboriginal offenders are comparable: of the 1,323 Aboriginal offenders sentenced to a term of imprisonment in the Local Courts in 1999, 1,143 (86.39%) were given a sentence of an average of six months or less. The average term of imprisonment for all offences by Aboriginal offenders in the Local Courts was 4.6 months.¹⁸

2.8 In Report 79, the Commission recommended that judges and magistrates should provide reasons justifying any decision to impose a sentence of imprisonment of six months’ duration or less, including reasons why a non-custodial sentence is not appropriate.¹⁹ The Commission holds firmly to the view that the recommendation in its final form will have the effect of directing the mind of the sentencing court not only to the suitability of imprisonment, but also to the suitability of other sentencing options.²⁰

Limits on the principle of imprisonment as a last resort

Mandatory sentencing

2.9 In some States and Territories, the principle of imprisonment as a last resort is over-ridden by statutes making imprisonment mandatory for certain offences.²¹ While not directly relevant to the position in NSW, the Commission notes that the impact of these “mandatory sentencing” provisions, particularly as they apply to and affect young Indigenous people, has been the subject of much recent scrutiny, both in Australia and in the international arena. This focus reached its height in early 2000, following the death in custody of a 15 year old Aboriginal offender imprisoned under Northern Territory mandatory sentencing laws.²²

2.10 In March of 2000, the United Nations Committee on the Elimination of Racial Discrimination reported that the West Australian and Northern Territory’s mandatory sentencing schemes:

appear to target offences that are committed disproportionately by Indigenous Australians, leading to a racially discriminatory impact on (Indigenous people’s) rate of incarceration”.²³

2.11 Following debate of the Senate Committee’s Report, the Prime Minister negotiated a compromise agreement with the Chief Minister of the Northern Territory to increase the use of diversionary proceedings as an alternative to mandatory sentencing, and to increase the age for “juveniles” from 17 to 18.²⁹ Under the agreement, diversion will be compulsory for minor offences committed by juveniles, and within police discretion for more serious offences, with the Commonwealth to allocate $5 million in funding for this purpose.³⁰

2.12 The Northern Territory Law Society has objected to the agreement as a substitute for Commonwealth legislative action, on the basis that, by requiring offenders to admit to the offence prior to diversion, it compromises fundamental principles of justice such as the presumption of innocence.³¹ The Northern Territory Police Association has also expressed reservations in regard to the agreement, arising out of the broad discretion given to police in the decision to lay charges in relation to serious offences.³²

Lack of non-custodial options

2.13 The application of the principle of imprisonment as a last resort will be limited in situations where non-custodial alternatives are unavailable or impractical for various reasons. The Commission deals with sentencing options in Chapter 5.

Factors relevant to sentencing generally

2.14 Within the framework provided by the general principles, the common law, and now legislation in several jurisdictions, indicates the various factors concerning the offence and the offender which may also be taken into account in determining an appropriate sentence. An extensive list of factors exists, derived from the common law.³³ A recent trend in sentencing in Australian jurisdictions has been to incorporate guidance within legislation as to those factors which should be taken into account, with the aim of achieving a more rational and consistent approach to sentencing.³⁴ The factors contained within the various pieces of legislation are generally drawn from the common law, but not exhaustively so, and differences exist between jurisdictions. In the Australian Capital Territory and at the Commonwealth level, sentencing legislation requires courts to take into account an offender’s cultural background, when relevant to sentencing.³⁵

2.15 In its Report on Sentencing, the Commission declined to recommend that sentencing legislation in New South Wales follow the trend to include such factors, preferring reliance on the common law statement of principles.³⁶ The factors considered by the courts to be relevant fall into five broad categories,³⁷ namely:

• the nature of the offence;
• the nature of the offender;
• the offender’s response to the charges;
• the effect of the offence and sanction; and
• the sentence imposed on a co-offender.

SENTENCING PRINCIPLES AND ABORIGINAL OFFENDERS

Relevance of Aboriginality to sentencing

2.16 Aboriginal people are subject to the protection and sanction of the criminal law in the same way as other members of the community. In Mabo v Queensland (No 2),³⁹ the High Court considered recognition of Aboriginal criminal law as an alternative body of law operating alongside the Australian common law.⁴⁰ The court asserted the universality of the criminal law’s operation, applying to people of Aboriginal descent as to all people in Australia, and not subject to their acceptance, adoption, request or consent. The basic principle of equality before the law is offended, the court ruled, when different criminal sanctions apply to different persons for the same conduct; different sanctions, that is, arising from separate systems of criminal justice and laws.⁴¹

2.17 Under the common law, the mere fact that an offender is an Aboriginal person is, of itself, irrelevant to sentencing. To discriminate on the grounds of race in sentencing an offender would violate the fundamental principle of equality before the law, and, in some circumstances, might also contravene section 9 of the Racial Discrimination Act 1975 (Cth).⁴² Nevertheless, the Aboriginality of an offender in a particular case may have a bearing upon the question of sentence.⁴³ The High Court expressed the position in the following terms:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group.

But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.⁴⁴

(A) The same sentencing principles are to be applied in every case irrespective of the identity of the particular offender or his membership of an ethnic or other group but that does not mean the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group.

(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand with Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.

2.20 Whether the particular offender falls within the principles considered in Fernando will be determined in the individual case. Aboriginal offenders are not an homogenous group,⁴⁷ and the circumstances of each offender must be considered individually. In the absence of specific evidence that Aboriginality had any impact on the commission of the offence, it should be taken into account only in a general way.⁴⁸ As Justice Toohey has noted:

Aboriginality may in some cases mean little more than the conditions in which the offender lives. In other cases it may be the very reason why the offence was committed.⁴⁹

2.21 The principles expounded in Fernando have been accepted and applied in New South Wales. In some instances, especially those involving murder, the court has treated the objective seriousness of the offence as outweighing Fernando-type subjective considerations in the determination of sentence.⁵⁰ Fernando was similarly adopted, but the subjective considerations it contains distinguished, by the Court of Criminal Appeal in R v Carr,⁵¹ when it held that the Fernando considerations are not enlivened merely by the fact that the defendant was Aboriginal and had been drinking prior to the offence, but required some further evidence or argument, which was not present in that case. In R v Cutmore,⁵² the court suggested that Fernando may have particular application to circumstances where the offender and victim had a long standing association and where the offence arose in this context.

2.22 Generally, a court must order that at least three-quarters of a custodial sentence be served in prison: the remainder may be served on parole.⁵³ The court may vary the ratio between parole and non-parole periods if special circumstances exist. In several recent cases in New South Wales, consideration of the defendant’s history of disadvantage as an Aboriginal person and long history of substance abuse⁵⁴ has resulted in shorter custodial terms and longer parole periods than would otherwise have been handed down. For example, in R v King,⁵⁵ the Court of Criminal Appeal upheld a sentence of one year imprisonment with a three year parole period. Similarly, in R v Stone,⁵⁶ the defendant had initially been sentenced to a term of 3 years’ imprisonment for the offence of using an offensive weapon to prevent lawful apprehension. The Court of Criminal Appeal relied on Fernando to reduce the sentence to a minimum custodial term of 18 months, with an additional parole period of 18 months. In R v Alh⁵⁷ and R v Dixon⁵⁸ , both involving pleas for manslaughter, a 3 ˝ year minimum and 4 year additional term, and a 5 year minimum and 4 ˝ year additional term, were imposed respectively. In R v Little, in relation to a plea for murder, an 11 year minimum term, with an additional 5 years was imposed, the court giving weight to the fact that the accused had entertained suicidal thoughts while in custody.⁵⁹ More recently in R v Jancek,⁶⁰ the offender was sentenced to a minimum term of 2 years in prison and an additional parole period of 4 years in relation to the offence of assault with intent to rob with an offensive weapon.

2.23 The Fernando principles (or equivalent) have also been adopted in other Australian courts.⁶¹

2.24 The conclusion is made by some commentators that leniency is being shown by courts to avoid accusations of racial bias.⁶² This view has been rejected by the courts:

Any approach adopted could conceivably be criticised as racist. Sympathy for the plight of Aboriginal people can be portrayed as paternalistic and patronising, and the notion that Aboriginal offenders should be sentenced more leniently for violent offences is capable of conveying an implication of moral inferiority. On the other hand, there is compelling evidence of the disproportionately high representation of Aborigines in the criminal justice system, the severity of its impact on those who are incarcerated and the disastrous consequences which all too frequently ensue.⁶³

SPECIFIC FACTORS CONSIDERED IN SENTENCING ABORIGINAL OFFENDERS

2.26 From an examination of the case law applying the general sentencing principles in circumstances where Aboriginality is a relevant concern, it is possible to discern a number of specific factors to which the courts give weight. As in any exercise of the sentencing discretion, the weight attributed to such factors will be a matter for determination in each case.⁶⁵ They can be categorised as follows:

• those relevant to traditional culture and customary law;
• those relevant to the communities from which the offender, and frequently the victim, come; and
• those associated with the background and life experiences of Aboriginal offenders.

2.27 There are factors specifically related to Aboriginal law, culture and tradition which may be relevant to sentencing when the offender is an Aboriginal person. Recognition of customary laws by courts and examples of the direct impact of customary law on sentencing are discussed in detail in Chapter 3.

Factors relating to Aboriginal communities

2.28 Not only can a sentencing court have regard to the interests of the community at large, but the special interests of an offender’s immediate community may be considered.⁶⁶ The communities from which many Aboriginal offenders come may have special characteristics, social structures and strictures, values and concerns, which exist solely by reason of the peoples’ Aboriginality. The means by which such views can be put before the court is considered in Chapter 4.

Opinions of the offender’s and/or victim’s community

2.29 Courts have regularly taken account of the opinion of an Aboriginal community about matters such as whether the offender should return to the community,⁶⁷ the seriousness of the offence,⁶⁸ the defendant’s character,⁶⁹ and what an appropriate penalty might be,⁷⁰ although it is recognised that, as with the general community, these considerations should not prevail over what might otherwise be a proper sentence.⁷¹ The danger that an injustice may occur should the court pay attention to public pressure has also been recognised.⁷² Predominantly, but not exclusively,⁷³ such consideration of community values and beliefs has occurred when that community lives a discrete, usually tribal, existence.

The effect of the sentence on the community

2.30 In determining sentence, courts have taken into account the effect that particular sentences may have on relationships within a community.⁷⁴ In Victoria, there have been examples where offences committed between family members have been resolved informally by an apology or payment of a restitution, and courts have taken this into account in sentencing.⁷⁵

The effect of the sentence on victims

2.31 A dilemma inherent in mitigating sentences due to the subjective circumstances of the offender, is the danger that the victims may be denied the full protection of the law. Victims of Aboriginal offenders are often also Aboriginal people, frequently from the same community.⁷⁶ Aboriginal women and children have been seen as particularly vulnerable. The Report entitled Heroines of Fortitude, documented the accounts of a small number of victims of sexual assault in New South Wales, including Aboriginal women.⁷⁷ The Report highlighted the perception held by some Aboriginal women that lower sentences were given to Aboriginal men, sending a message to the community that offences committed by Aboriginal men against Aboriginal women were less of a crime. Judges have made clear the need for the criminal law to protect Aboriginal women from violence, in a manner consistent with the protection given to women in the rest of the community:

[Many offences] have involved violence against other Aborigines, frequently women and children. It would be grossly offensive of the legal system to devalue the humanity and dignity of members of Aboriginal communities or to exacerbate any lack of self-esteem felt within those communities by reason of our history and their living conditions ... Aboriginal women and children who live in deprived communities or circumstances should not also be deprived of the law’s protection.⁷⁸

Factors relating to the lives of Aboriginal offenders

2.32 At paragraphs 2.16-2.20 above, the Commission discussed the relevance of Aboriginality and the general approach of the courts in applying sentencing principles to Aboriginal offenders. In R v Daniel, Justice Fitzgerald, then President of the Queensland Court of Criminal Appeal, highlighted some specific factors of which courts should be aware regarding Aboriginal offenders:

It is at least implicitly accepted ... that there are often two victims involved in the offences committed by Aborigines, especially drunken Aborigines, one the victim of the offence and the other the offender, whose race has been tragically affected by the colonisation of this country, harsh treatment, dispossession, the separation of children from families, the introduction of European diseases, and the misuse of alcohol and, more recently, other drugs. A refusal to reduce the sentence which would otherwise be appropriate in all the circumstances, including considerations personal to the offender, can appear to be an obdurate denial of the harm experienced by the Aboriginal race since British settlement.⁸⁰

• consideration of whether, given the background and circumstances of a particular offender, a custodial sentence may have an unduly harsh effect;⁸¹
• the offender’s residence in a remote, traditional Aboriginal community,⁸² including the special problems associated with living on reserves or in remote areas;⁸³
• the unique difficulties encountered by an Aboriginal person coming from a remote, traditional community in adjusting to an urban environment;⁸⁴
• the endemic nature of hearing loss among Aboriginal people and its contribution to development of social and psychological problems;⁸⁵ and
• the discrimination, exclusion and disadvantage evident in the background and upbringing of a particular Aboriginal offender.⁸⁶

Offenders with substance dependencies

2.35 A study by the Department of Corrective Services estimated that 80% of all inmates were sentenced for drug-related matters, and more than 75% of Aboriginal offenders in the study were assessed as having indications of dependence.⁸⁷ The effect, particularly the ramifications for violent behaviour, that alcohol or drug addiction has on Aboriginal people and their communities has been considered by the courts.⁸⁸ Drug dependency is not of itself a mitigating factor,⁸⁹ but may, in individual cases, be relevant to explaining the commission of the offence, and the circumstances of the offender.⁹⁰ As outlined above, in R v Fernando, Justice Wood put it thus:

Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginal [people] of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor.

This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.⁹¹

2.37 In its first year of operation, 224 drug-dependent offenders from greater Western Sydney were placed in rehabilitation programs. While early evaluation is proving difficult, it is encouraging that 87.1% of all participants did not re-offend while on the program. Of the 224 participants, just over 6% identified as being of Aboriginal or Torres Strait Islander background. The average length of the suspended custodial sentence received by all participants was 11.5 months, and all but one of the participants had at least one prior conviction.⁹⁵ As this accords with the profile of many Aboriginal offenders, it is conceivable that their participation rate in the program may increase.⁹⁶

Offenders with an intellectual disability or mental illness

2.38 Special considerations arise when any offender, including an Aboriginal person, with an intellectual disability and/or a mental illness is being sentenced, particularly considering the lack of appropriate treatment options within the custodial system.⁹⁷ There is evidence to suggest that significant numbers of Aboriginal people in the criminal justice system have an intellectual disability and/or mental illness, and that there is a high rate of undiagnosed and untreated depression and other mental conditions among Aboriginal people.⁹⁸

2.39 The Commission has issued a Report entitled People with an Intellectual Disability and the Criminal Justice System,⁹⁹ containing a comprehensive package of reforms. The Commission does not consider it necessary or desirable that there be specific statutory provision in relation to sentencing offenders with an intellectual disability or mental illness. It is crucial, however, that sentencing courts receive adequate, and in the case of Aboriginal offenders, culturally sensitive, information to enable a proper assessment of an offender’s circumstances. Recommendations about this are made in Chapters 4 and 7.

Lower life expectancy

2.40 Aboriginal people have significantly lower life expectancies than non-Aboriginal Australians.¹⁰⁰ It was submitted to the Commission that there should be legislative provision to take this fact into account in sentencing.¹⁰¹ It is argued that this accords with recognising facts material by reason of a person’s ethnicity,¹⁰² and would be consistent with Australia’s international treaty obligations.¹⁰³ However, the common law already achieves the desired result. The application of sentencing law, particularly for more serious offences when a long term of imprisonment is likely, will always take into account the life expectancy of the individual offender, and whether the sentence will be harsher because of the person’s lower life expectancy,¹⁰⁴ or state of health.¹⁰⁵

The limitations of sentencing

2.41 Judges and magistrates are well aware of the “seemingly endless cycle of offending and imprisonment, a perfunctory perpetuation of futility” for many Indigenous offenders.¹⁰⁶ The dilemma they face is unenviable. The priorities of the general community in relation to sentencing would seem to be punishment and retribution, leaving little scope for rehabilitation. The presumption that punishment is necessarily a deterrent to further offending may have little relevance for a person marginalised from the mainstream of society.¹⁰⁷

2.42 Sanctions imposed by the courts are often ineffective in rehabilitating Indigenous offenders and breaking the cycle of recidivism. This is particularly true regarding custodial sentences, and especially for young people, for whom prison may be “a further insidious way of dislocating and alienating ... youth from their culture, community and traditional values, which may guide them into more constructive lives”.¹⁰⁸ The former Social Justice Commissioner’s view is that for Indigenous youth “imprisonment simply does not work. It builds resentment, anger, and sows the seeds of further, more serious offending.”¹⁰⁹ Aboriginal prisoners themselves have stated that “the use of imprisonment for young people on short sentences for more minor offences had the effect of establishing prison as a learning centre with a revolving door”.¹¹⁰

2.43 Justice Fitzgerald articulated the dilemmas facing judges, and the limitations of the law, when he concluded that:

[t]he criminal law is a hopelessly blunt instrument of social policy, and its implementation by the courts is a totally inadequate substitute for improved education, health, housing and employment for Aboriginal communities. Irrespective of race, the criminal justice system increasingly merely punishes those who are the product of deficient or failed social policies. ... While courts cannot entirely yield to the pessimistic belief that adequate punishment frequently does not act as a deterrent to violent offences, it is unrealistic to think that imprisonment is a wholly satisfactory response to behaviour based on anger, resentment, powerlessness and frustration related to deprivation and oppression, whatever the race of the offender.¹¹¹

THE NEED FOR LEGISLATIVE PROVISIONS

2.45 The Commission has considered the question of whether the common law sentencing discretion discussed in this chapter requires legislative statement in so far as its application to Aboriginal offenders is concerned. Legislation in other jurisdictions contains principles regarding sentencing and Aboriginal offenders.¹¹²

2.46 In its previous Report on Sentencing, the Commission rejected the proposition that the principles of sentencing should be reduced to statutory form, considering that the application of sentencing principles is best left to judicial discretion.¹¹³ In this Reference, the Commission has consulted on the desirability of incorporating into legislation principles which would apply to the sentencing of Aboriginal offenders, particularly the principles in R v Fernando. Overwhelmingly, such a move was not supported.

2.47 The Commission is of the view that legislative prescription of sentencing principles would add nothing to the existing common law and is consequently unnecessary. At present, the general sentencing principles may flexibly be applied to the individual circumstances of each case. As this chapter has shown, there are numerous precedents for regarding consideration of Aboriginality where it is a relevant factor in sentencing. This should ensure that all material factors which exist by virtue of an offender’s Aboriginality can be considered by the sentencing court. The Commission acknowledges that the potential for discrimination against Aboriginal offenders still exists, but rejects the notion that this would be overcome by a legislative statement of sentencing principles. Rather, in serving justice to the maximum extent, the challenge is to ensure that all factors relevant to each case and each offender are presented to the court. The recommendations in the remainder of this Report are designed to facilitate this in relation to Aboriginal offenders.

1. Webb v O’Sullivan [1952] SASR 65 at 66 (Napier CJ); see also Budget Nursery Pty Ltd v FCT (1989) 42 A Crim R 81 at 85.

2. Webb v O’Sullivan [1952] SASR 65.

3. See New South Wales Law Reform Commission, Sentencing (Discussion Paper 33, 1996) (“NSWLRC DP 33”) at para 3.2-3.24; and New South Wales Law Reform Commission, Sentencing (Report 79, 1996) (“NSWLRC Report 79”) at para 14.10-14.18. See also the discussion in R v Veen (No 2) (1988) 164 CLR 465.

4. NSWLRC Report 79, Recommendation 85 at para 14.10.

5. H L A Hart, Punishment and Responsibility (Clarendon Press, Oxford, 1968) at 1. See also R v Engert (NSW, CCA, No 60654/95, 20 November 1995, unreported) at 1-2 (Gleeson CJ); NSWLRC Report 79 at para 14.13.

6. R v Veen (1979) 143 CLR 458 at 467, 468, 482-483, and 495.

7. See R v Veen (No 2) (1988) 164 CLR 465.

8. See Lowe v The Queen (1984) 154 CLR 606; Bugmy v The Queen (1990) 169 CLR 525.

9. See NSWLRC DP 33 at para 3.41.

10. R v Oliver (1980) 7 A Crim R 174; Ibbs v The Queen (1987) 163 CLR 447 at 451-452.

11. De Simoni v The Queen (1981) 147 CLR 389.

12. R v Parker (1992) 28 NSWLR 282.

13. The Justices Act 1902 (NSW) s 80AB prevents a magistrate from imposing an order involving full-time imprisonment “unless satisfied, having considered all possible alternatives, that no other course is appropriate”. See also Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1); Children (Criminal Proceedings) Act 1987 (NSW) s 33(2); and Young Offenders Act 1997 (NSW) s 7a in relation to juveniles.

14. Crimes Act 1914 (Cth) s 17A; Sentencing Act 1991 (Vic) s 5(4); Penalties and Sentences Act 1992 (Qld) s 9(2)(a)(i); Crimes Act 1900 (ACT) s 429C; Sentencing Act 1995 (WA) s 6(4).

15. The RCIADIC recommended that governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort: Recommendation 92.

16. NSWLRC DP 33 at para 3.26-3.34.

17. New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1999 (Statistical Report Series, 2000) at Tables 1.7, 1.11.

18. New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1999 at Tables 1.8, 1.12. The Australian Bureau of Statistics reported that, in 1998, 46.5% of Indigenous prisoners were serving sentences of 12 months or less, compared with 37.7% of the non-Indigenous prison population: ABS, Prisoners in Australia: Results of 1998 National Prisoner Census (ABS, June 1999) (“Prisoners in Australia 1998”) at 50 and 78.

19. NSWLRC Report 79, Recommendation 40, para 8.2-8.7.

20. Sentencing options are examined in detail in Chapter 5.

21. Western Australia imposes a minimum term of 18 months imprisonment where an offender is convicted of certain serious offences for the third or subsequent time: see Young Offenders Act 1994 (WA) s 124 in relation to juveniles, and Criminal Code (WA) s 401 in relation to adult offenders. The Northern Territory has mandatory sentencing provisions concerning property offences for juveniles and adults: see Juvenile Justice Act 1996 (NT) s 53AE-G and Sentencing Act 1995 (NT) s 78A-B, respectively. For judicial comment on the impact of these provisions on Aboriginal people: see Wynbyne v Marshall (1997) 117 NTR 11.

22. M Kingston, “Sentencing laws linked to reconciliation” The Sydney Morning Herald (Saturday, 11 March, 2000) at 3.

23. Australia, Senate Legal and Constitutional References Committee, Inquiry into the Human Rights (Mandatory Sentencing and Juvenile Offenders) Bill 1999 (AGPS, Canberra, 2000) (“SLCRC Report”) at 1.5.

24. “UN urges Howard to review State laws” Sunday Telegraph (Sunday, 26 March, 2000) at 19; “Australia thumbs nose at UN” Sydney Morning Herald (Friday, 31 March, 2000) at 1.

25. J Este and B Haslem, “Howard ‘must intervene’ on sentencing” The Australian (Friday, 18 February, 2000) at 14; for Law Council’s comments, see also K Lawson, “Top lawyer slates WA, NT sentencing” The Canberra Times (Friday, 18 February, 2000) at 3.

26. SLCRC Report at 5.91.

27. SLCRC Report at 8.19.

28. SLCRC Report at 6.28.

29. M Grattan, “A sop, but enough to quell rebels” The Sydney Morning Herald (Tuesday, 11 April, 2000) at 2; B Lagan, “Lawyers ask: What about presumed innocence?” The Sydney Morning Herald (Wednesday, 12 April, 2000) at 4.

30. M Grattan, “A sop, but enough to quell rebels” The Sydney Morning Herald (Tuesday, 11 April, 2000) at 2; B Lagan, “Lawyers ask: What about presumed innocence?” The Sydney Morning Herald (Wednesday, 12 April, 2000) at 4.

31. B Lagan, “Lawyers ask: What about presumed innocence?” The Sydney Morning Herald (Wednesday, 12 April, 2000) at 4.

32. B Lagan, “Lawyers ask: What about presumed innocence?” The Sydney Morning Herald (Wednesday, 12 April, 2000) at 4. The NT Police Association expressed concern that the width of this discretion could open police decisions to direct legal challenge and the prospect of judicial review.

33. See, generally, NSWLRC DP 33 at Chapter 5.

34. Criminal Law (Sentencing Act) 1988 (SA) s 10; Crimes Act 1914 (Cth) s 16A; Sentencing Act 1991 (Vic) s 5(2); Penalties and Sentences Act 1992 (Qld) s 9(2); Crimes Act 1900 (ACT) s 429A; Sentencing Act 1995 (NT) s 5(2). But see Sentencing Act 1995 (WA) s 6-8.

35. See Crimes Act 1914 (Cth) s 16A(2)(m) and Crimes Act 1900 (ACT) s 429A(1)(k).

36. See NSWLRC Report 79 at para 14.14-14.18. The Crimes (Sentencing Procedure) Act 1999 (NSW) provides for the NSW Court of Criminal Appeal to issue guideline sentencing judgments in relation to any matter on application from the Attorney General: s 37.

37. These categories are derived from R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (OUP, Melbourne, 1985) at Chapter 11, and K Warner, Sentencing in Tasmania (Federation Press, Sydney, 1991) at Chapter 11.

38. Neal v The Queen (1982) 149 CLR 305 at 326; R v Fernando (1992) 76 A Crim R 58 at 62.

39. Mabo v Queensland (No 2) (1992) 175 CLR 1.

40. Walker v New South Wales (1994) 182 CLR 45. See S Yeo, “Case Note: Walker v New South Wales” (1995) 19 Criminal Law Journal 160.

41. Walker v New South Wales (1994) 182 CLR 45 at 49; see N Lofgren, “Aboriginal Community Participation in Sentencing” (1997) 21 Criminal Law Journal 127 at 130.

42. See R v Rogers and Murray (1989) 44 A Crim R 301 at 307 (Malcolm CJ).

43. Most judges and magistrates surveyed by the Commission indicated that they thought it was necessary to know the person being sentenced was Aboriginal.

44. Neal v The Queen (1982) 149 CLR 305 at 326 (Brennan J). See also R v Iginiwuni (NT, CCA, Muirhead J, No 6 of 1975, 12 March 1975, unreported) at 23-25; and R v Rogers and Murray (1989) 44 A Crim R 301 at 306-307 (Malcolm CJ).

45. (1992) 76 A Crim R 58 at 62-63.

46. R v Hickey (NSW, CCA, No 60410/94, Simpson J, 27 September 1994, unreported) at 4.

47. R v Woodley (1994) 76 A Crim R 302 at 305-308; R v Russell (1995) 84 A Crim R 386 at 392 (Kirby P); see also C Charles, “Sentencing Aboriginal People in South Australia” (1991) 13 Adelaide Law Review 90.

48. R v Russell (1995) 84 A Crim R 386 at 392 (Kirby P).

49. Toohey J, unpublished address given to the National Criminal Law Congress on Aboriginal Customary Law (24 June 1988). See also R v Fernando (1992) 76 A Crim R 58 at 62.

50. R v JB (NSW, CCA, No 60683/97, 27 April 1999, unreported). See also R v Hickey (NSW, CCA, No 60410/94, Simpson J, 27 September 1994, unreported); R v Cutmore (NSW, CCA, No 60672/98, 28 May 1999, unreported).

51. [1999] NSWCCA 200.

52. (NSW, CCA, No 60672/98, 28 May 1999, unreported).

53. Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2).

54. Fernando principles E and G.

55. R v King (NSW, CCA, No 60721/95, 27 November 1996, unreported).

56. R v Stone (1995) 84 A Crim R 218.

57. (NSW, Supreme Court, No 70106/94, Dunford J, 26 May 1995 unreported).

58. (NSW, Supreme Court, No 70033/95, Loveday AJ, 18 November 1994, unreported).

59. (NSW, Supreme Court, No 70030/96, Hidden J, 17 October 1997, unreported).

60. R v Jancek (NSW, Supreme Court, No 70015/98, James J, 23 November 1999, unreported). In this case, the Fernando principles in relation to alcohol abuse were extended to apply to other forms of substance abuse, including heroin addiction.

61. Leering v Nayda [1997] 4 NTSC 4; Cook v Chute [1997] NTSC 76; Amagula v White (NT, Supreme Court, No 92/97, Kearney J, 7 January 1998, unreported); R v Daniel [1998] 1 QdR 499; Ingomar v Police [1998] SASC 6875. This followed previous judicial consideration of the issue in R v Anderson (1954) NTJ 240; R v Iginiwuni (NT, CCA, Muirhead J, No 6 of 1975, 12 March 1975, unreported); R v Friday (1984) 14 A Crim R 471 at 472 (Campbell CJ); R v Juli (1990) 50 A Crim R 31. R v Bulmer (1987) 25 A Crim R 155; R v Rogers and Murray (1989) 44 A Crim R 301 at 306-307.

62. See, eg, J Walker and D McDonald, “The Over-Representation of Indigenous People in Custody in Australia” Trends and Issues in Criminal Justice Series (No 47, AIC, Canberra, 1995) at 4. One submission noted that some in the Aboriginal community consider that come judicial officers impose harsher sentences on Aboriginal people than on other Australians: G Hiskey, Submission at 3.

63. R v Daniel [1998] 1 QdR 499 at 530.

64. See discussion in R Broadhurst, A Ferrante and N Loh, Crime and Justice Statistics for Western Australia 1992 (University of Western Australia Crime Research Centre, 1993).

65. See R v Fern (NSW, Supreme Court, No 70071/95, Abadee J, 21 August, 1997, unreported).

66. R v Minor (1992) 59 A Crim R 227; R v Daniel [1998] 1 QdR 499 at 534 (Moynihan J).

67. Ogle v Mahoney (Qld, CCA, No 132/97, 5 August 1997, unreported).

68. R v Mamarika (NT, Supreme Court, No 23/78, Gallop J, 9 August 1978, unreported); Robertson v Flood (1992) 111 FLR 177; Munungurr v The Queen (1994) 4 NTLR 63 at 71; but see R v Watson (1986) 69 ALR 145, where acceptance in community of knife wounds was rejected as relevant.

69. R v Mamarika (NT, Supreme Court, No 23/78, Gallop J, 9 August 1978, unreported).

70. For example, R v Minor (1992) 59 A Crim R 227; R v Friday (1984) 14 A Crim R 471; R v Davey (1980) 50 FLR 57; R v Keeway (NT, Supreme Court, Foster CJ, 15 June 1981, unreported); R v Mamarika (NT, Supreme Court, SCC 23 of 1978, Gallop J, 9 August 1978, unreported), upheld on appeal: Mamarika v The Queen (1982) 63 FLR 202; Robertson v Flood (1992) 111 FLR 177; R v Wilson Jagamara Walker (1994) 68 ALB 26; and Joshua v Thomson (1994) 119 FLR 296.

71. Robertson v Flood (1992) 111 FLR 177 at 188 (MildrenJ); R v Minor (1992) 79 NTR 1; Munungurr v The Queen (1994) 4 NTLR 63 at 71.

72. Joshua v Thomson (1994) 119 FLR 296.

73. R v Turner (NT, Supreme Court, 28 November 1979, unreported) in which instance the community involved other fringe-dwelling Aborigines near Alice Springs.

74. R v Minor (1992) 59 A Crim R 227; R v Jagamara (NT, Supreme Court, Muirhead J, 28 May 1984, unreported); Macdonald v Clarmont (Qld, CCA, No 48/97, 15 April 1997, unreported).

75. Victorian Aboriginal Legal Service, Submission at 4.

76. R v Fernando (1992) 76 A Crim R 58 at 64; R v Daniel [1998] 1 QdR 499 at 531; R v Friday (1985) 14 A Crim R 471 at 472 (Connolly J).

77. NSW, Department for Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (November 1996).

78. R v Daniel [1998] 1 QdR 499 at 530. See also, R v Pat Edwards (NT, Supreme Court, SCC No 155 -156/81, Muirhead J, 16 October 1981, unreported); R v Woodley (1994) 76 A Crim R 302 at 316, 318, 321; R v Bell (Qld, CA, No 116/94, 20 June 1994, unreported); R v Telford (Victoria, CA, No 267/95, 4 June 1995, unreported); Amagula v White (NT, Supreme Court, No 92/97, Kearney J, 7 January 1998, unreported); The Queen v Hagen and Tilmouth (NT, Supreme Court, Kearney J, 17 July 1990, unreported).

79. R v Rogers and Murray (1989) 44 A Crim R 301 at 315 (Wallace J); R v Davey (1980) 2 A Crim R 254 at 259 (Muirhead J); R v Bulmer (1987) 25 A Crim R 155 at 158 (Connolly and McPherson JJ), and at 162 (Derrington J); R v Watson (1986) 69 ALR 145; R v Friday (1985) 14 A Crim R 471; Ashwin v Morris (WA, Supreme Court, No 1102/98, Miller J, 21 October 1998, unreported); Brown v Police (1997) 190 LSJS 11. See also C Baker, “North Queensland Aborigines and Criminal Justice in the Courts” (1992) 17 University of Queensland Law Journal 57 at 64.

80. [1998] 1 QdR 499 at 530.

81. R v Daniel [1998] 1 QdR 499; R v Fernando (1992) 76 A Crim R 58; R v Jungala (NT, Supreme Court, No 97/77, Muirhead J, 8 December 1977, unreported); R v Russell (1995) 84 A Crim R 386; R v Juli (1990) 50 A Crim R 31; Everett v The Queen (1994) 75 A Crim R 550 at 556 (Ipp J).

82. Leech v Peters (1988) 40 A Crim R 350; Roberts v Young (SA, Supreme Court, No 9408/86, White J, 30 December 1986, unreported).

83. Neal v The Queen; R v Friday (1984) 14 A Crim R 471; R v Bulmer, R v Yougi (1987) 33 A Crim R 301; Houghagen v Charra (1989) 50 SASR 419; Leech v Peters (1988) 40 A Crim R 350.

84. Harradine v The Queen (1991) 61 A Crim R 201. See also Leering v Nayda [1997] 4 NTSC 4.

85. R v Russell (1995) 84 A Crim R 386; Howard et al, “Aboriginal Hearing Loss and the Criminal Justice System” (1993) 3 ALB 9; The Queen v AT (NT, Supreme Court, Thomas J, 26 October 1992, unreported). Some 20-40% of Aboriginal people reportedly have some form of hearing deficiency: see R v Russell (1995) 84 A Crim R 386 at 393 (Kirby P).

86. R v Fernando (1992) 76 A Crim R 58; R v Clinch (1994) 72 A Crim R 301; E (A Child) (1993) 66 A Crim R 14.

87. “Drug” includes alcohol: see NSW, Department of Corrective Services, Annual Report 1997-1998; also M Kevin, The Alcohol and Other Drug Screen with Inmate Receptions (NSW, Department of Corrective Services, Research Bulletin No 19, Sydney, 1997).

88. See especially: R v Fernando (1992) 76 A Crim R 58; R v Rogers and Murray (1989) 44 A Crim R 301 at 305 (Malcolm CJ), at 315 (Wallace J); Juli v The Queen (1990) 50 A Crim R 31; R v Charlie, Uhl and Nagamarra (WA, Supreme Court, No 96/87, Burt CJ, 14 August 1987, unreported).

89. And is “not an excuse”: see R v Henry & Ors [1999] NSWCCA 111 in the guideline judgment on armed robbery.

90. See, eg, R v Coleman (1990) 47 A Crim R 306 at 327 (Hunt J); R v Talbot (1992) 59 A Crim R 383; and NSWLRC DP 33 at para 5.64.

91. R v Fernando (1992) 76 A Crim R 58 at 62 (Wood J).

92. The first in Australia, the Drug Court commenced operation on 8 February 1999, originally funded for a two year pilot: Drug Court Act 1998 (NSW); G Murrell, “The Drug Court of New South Wales” (1999) 11 Judicial Officers’ Bulletin 9.

93. Drug Court Act 1998 (NSW) s 24(1).

94. Non-compliance renders the offender liable to sanctions, including imprisonment, or termination of the program, upon which the court reconsiders the initial sentence it imposed: Drug Court Act 1998 (NSW) s 10, 11 and 15.

95. NSW, BOCSAR, NSW Drug Court Evaluation (No 50, April 2000) «www.lawlink.nsw.gov.au/bocsar1.nsf/pages/drugcourtevaltext».

96. The Select Committee on the Increase in Prisoner Population has recommended that the New South Wales Bureau of Crime Statistics and Research include in its evaluation of the Drug Court the success or otherwise of the outcomes of Indigenous people who participate in the program: New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population, Inquiry into the Increase in Prisoner Population: Issues Relating to Women, rec 6.162. The Commission supports this recommendation.

97. See Office of the Social Justice Commissioner, Indigenous Deaths in Custody 1989-1996 (ATSIC, Canberra, 1996) at 142-143.

98. See S Hayes, People with an Intellectual Disability and the Criminal Justice System: Two Rural Courts (NSWLRC Research Report 5, 1996); S Hayes and D McIlwain, The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (Report to the Criminology Research Council, Canberra, 1988).

99. NSWLRC, People with an Intellectual Disability and the Criminal Justice System (Report 80, 1996).

100. See P Anderson, K Bhatia and J Cunningham, Occasional Paper: Mortality of Indigenous Australians (Australian Bureau of Statistics & Australian Institute of Health and Welfare, Canberra, 1996); though reliable information on life expectancy and death is currently only available from South Australia, Western Australia and the Northern Territory: McLennan, R Maddern, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples (ABS, Canberra, 1997) at 1.

101. Lofgren, Submission at 3.

102. Neal v The Queen (1982) 149 CLR 305 at 326 (Brennan J).

103. That is, the Universal Declaration of Human Rights, Art 3; International Covenant on Civil and Political Rights [1980] ATS 23, Art 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 Art 1.

104. R v Sopher (1993) 70 A Crim R 570 at 573; R v Hunter (1984) 36 SASR 101; R v Yates [1985] VR 41.

105. R v Smith (1987) 44 SASR 587 at 589 (King J); Bailey v DPP (1988) 38 A Crim R 154 at 155 (Mason CJ, Brennan, Deane, Toohey JJ), at 158 (Wilson J).

106. R v Woodley (1994) 76 A Crim R 302 at 304.

107. For example, the assumption that a lengthy prison sentence will deter Aboriginal offenders and others in his (or her) community is feared to be a “vain expectation”: Judge Forno, Submission. See also Nelson v Chute (1994) 72 ACrimR 85; R v Yougi (1987) 33 A Crim R 301; R v Russell (1995) 84 A Crim R 386; and P Chantrill, The Kowanyama Justice Group: A Study of the Achievements and Constraints on Local Justice Administration in a Remote Aboriginal Community paper presented at the Australian Institute of Criminology Occasional Seminar Series (Canberra, 11 September 1997 «www.aic.gov.au/cinferences/occasional/indexhtml».

108. Australia, Aboriginal and Torres Strait Islander Social Justice Commissioner, Fourth Report (M Dodson, AGPS, Canberra, 1996) (“Social Justice Commissioner Report (1996)”) at Chapter 2.

109. Social Justice Commissioner Report (1996) at Chapter 2.

110. Cunneen and McDonald (1997) at 126.

111. R v Daniel [1998] 1 QdR 499 at 530.

112. See eg, Crimes Act 1914 (Cth) s 16A(2)(m), Crimes Act 1900 (ACT) s 429A(1)(k), and for juveniles, Young Offenders Act 1993 (SA) s 3(3)(e) and the Young Offenders Act 1994 (WA) s 46(2)(c).