This Report into the sentencing of Aboriginal offenders forms part of a general referral to the Commission in 1995 by the then Attorney General, the Hon Jeff Shaw QC, to review sentencing law in New South Wales. The Commission published a report on the general principles of sentencing (LRC 79) in December 1996. This Report focuses on the special issues which arise in relation to the sentencing of Aboriginal offenders.
The Report details the over-representation of Aboriginal people in the criminal justice system and notes that this disparity is increasing. The rate of recidivism for Aboriginal offenders is a matter of serious concern. Aboriginal people are also dying in custody in increasing numbers. There have been 147 Indigenous deaths in custody since the Royal Commission into Aboriginal Deaths in Custody, compared with 99 deaths in the previous decade.
The explanation for this over-representation is complex and multi-layered. A significant contributing factor is the socially, economically and culturally disadvantaged position of many Aboriginal people. They belong to a substantially alienated, marginalised, disempowered segment of Australian society, suffer systemic discrimination and are frequently extremely disadvantaged in almost every aspect of society, especially in terms of life expectancy, health, housing, education, employment and income. They suffered dispossession of their land and have been subjected to government policies which forced the removal of their children.
The increasing over-representation of Aboriginal people in the criminal justice system, rising levels of incarceration and deaths in custody signalled an urgent need to review the availability and appropriateness of sentencing options for Aboriginal offenders.
The Report considers whether legislation should contain special principles which would apply to the sentencing of Aboriginal offenders. It concludes that the existing common law principles of sentencing are sufficiently flexible to take account of the circumstances of Aboriginal offenders.
The Commission’s terms of reference specifically asked the Commission to consider whether there should be legislative endorsement of the court practice of taking into account Aboriginal customary laws when relevant in sentencing Aboriginal people. The Commission has concluded that, despite the common law precedent for judicial discretion to recognise Aboriginal customary law, there should be legislative endorsement of the common law discretion. The totality of reasons for recognising Aboriginal customary law are outlined in Chapter 3. Legislating for recognition of Aboriginal customary law has potential symbolic significance for New South Wales’ credibility in the reconciliation process; for redress of the alarming consequences of Aboriginal contact with the criminal justice system, and the incidence of incarceration and deaths in custody; and for according respect to Aboriginal people, and real value to Aboriginal culture.
The Report also looks at the involvement of Aboriginal communities in the sentencing process and examines community-based initiatives, in particular, conferencing and circle sentencing. These are discussed in Chapter 4.
The Report discusses the current sentencing options, including alternatives to full-time custody and non-custodial options, and evaluates their cultural appropriateness and effectiveness in achieving rehabilitation and reducing recidivism. The Royal Commission into Aboriginal Deaths In Custody emphasised that, for Aboriginal people who were already caught up in the criminal justice system, what is of immediate concern is that policies and programs are applied which might direct them away from that system wherever possible; or, if not, might provide alternatives to imprisonment. The Royal Commission also expressed concern that, in New South Wales, non-custodial sentences appeared to be under-utilised as an alternative punishment for Aboriginal offenders.
The special needs of Aboriginal women offenders are looked at in Chapter 6. There are a number of reasons why, in a report on sentencing Aboriginal offenders, separate consideration of female Aboriginal offenders is necessary. In particular, Aboriginal women are over-represented in prisons to an even greater extent than Aboriginal men and this over-representation is increasing. In spite of this, Aboriginal women remain largely invisible in the picture of criminal justice. Research, policies, programs and correctional institutions focus almost entirely on the needs of the male offender.
Chapter 7 discusses the difficulties which many Aboriginal people experience in communicating effectively, both as witnesses in the courtroom and as defendants in the sentencing process, and suggests ways in which these difficulties may be ameliorated.
