Contents
Terms of reference
Participants
List of recommendations
Executive summary
1. INTRODUCTION
BACKGROUND
TERMINOLOGY
BACKGROUND TO SENTENCING OF ABORIGINAL OFFENDERS
Explaining over-representation
Unique position of Indigenous Australians
International obligations
OTHER RELEVANT INQUIRIES
Royal Commission into Aboriginal Deaths in Custody
Implementation of Royal Commission recommendations
1997 Ministerial Summit
Other inquiries
THE INTERNATIONAL SCENE
The relevance of the international scene
STATEMENT OF COMMITMENT TO ABORIGINAL PEOPLE
Delivery of programs for Aboriginal people
NATURE AND CONDUCT OF THE COMMISSION’S INQUIRY
THE COMMISSION’S APPROACH
The role of the Aboriginal community
Recommendations as to sentencing
Structure of the Report
Beyond sentencing
Reconciliation
2. SENTENCING PRINCIPLES
INTRODUCTION
GENERAL SENTENCING DISCRETION
Imprisonment as a sanction of last resort
Limits on the principle of imprisonment as a last resort
Mandatory sentencing
Lack of non-custodial options
Factors relevant to sentencing generally
SENTENCING PRINCIPLES AND ABORIGINAL OFFENDERS
Relevance of Aboriginality to sentencing
Cases which have applied the Fernando principles
SPECIFIC FACTORS CONSIDERED IN SENTENCING ABORIGINAL OFFENDERS
Factors relating to Aboriginal law, tradition and culture
Factors relating to Aboriginal communities
Opinions of the offender’s and/or victim’s community
The effect of the sentence on the community
The effect of the sentence on victims
Factors relating to the lives of Aboriginal offenders
Offenders with substance dependencies
Offenders with an intellectual disability or mental illness
Lower life expectancy
The limitations of sentencing
THE NEED FOR LEGISLATIVE PROVISIONS
3. ABORIGINAL CUSTOMARY LAW
INTRODUCTION
“Urbanisation” of New South Wales’ Aboriginal population
Self-determination
DEFINING ABORIGINAL CUSTOMARY LAW
BACKGROUND
DEFINING THE ISSUES
RECOGNITION OF ABORIGINAL CUSTOMARY LAW BY THE GENERAL CRIMINAL LAW – AN EVALUATION
Arguments and Recommendations of the ALRC
Further arguments in favour of recognition
Further argument against recognition
Report of RCIADIC
Submissions and judicial response
Survey of New South Wales District Court Judges and Local Court Magistrates
Conclusion
RECOGNITION OF CUSTOMARY LAW ON THE BASIS OF MABO
RECOGNITION OF CUSTOMARY LAW ON THE BASIS OF THE OFFENDER’S CULTURAL BACKGROUND
Precedents for the exercise of judicial discretion
R v Wilson Jagamara Walker
R v Minor
R v Miyatatawuy
R v Shannon
Munungurr v The Queen
R v Bara Bara
R v Burton
R v Rogers and Murray
R v Juli
CONCLUSION
EVIDENCE AND PROCEDURE
VIOLENCE AGAINST WOMEN
4. THE ABORIGINAL COMMUNITY’S ROLE IN SENTENCING
INTRODUCTION
RATIONALE FOR COMMUNITY INVOLVEMENT
Broad acceptance of the concept
The Royal Commission into Aboriginal Deaths in Custody
Other inquiries
Government policy
International experience
Views of the judiciary
TYPES OF COMMUNITY INVOLVEMENT
General community-based initiatives
AJAC and community involvement
Conferencing
Conferencing generally
Youth conferencing in New South Wales
Youth conferencing and Aboriginal offenders
New Zealand model
Circle sentencing in Canada
Circle courts generally supported
Proposed trial in New South Wales
THE COMMISSION’S RECOMMENDATION
Extending conferencing to adult offenders
Support for Circle Sentencing trial
A legislative base
5. SENTENCING OPTIONS
GENERAL APPROACH TO SENTENCING
FULL-TIME CUSTODY
A segregated custodial facility?
Ivanhoe Warakirri Centre
Yetta Dhinnakkal
Release from custody on parole
Post-release support
ALTERNATIVES TO FULL-TIME CUSTODY
Home Detention
Periodic detention
NON-CUSTODIAL OPTIONS
Community Service Order
Probation
Fines
6. FEMALE OFFENDERS
INTRODUCTION
NEED FOR SEPARATE CONSIDERATION OF WOMEN
STATISTICS
Numbers in the criminal justice system
Deficiencies in statistical information
CONTEXT OF OFFENDING
Historical context
Contemporary context
DISCRIMINATION
ROLE IN THE FAMILY AND THE COMMUNITY
WOMEN’S EXPERIENCE OF PRISON
SENTENCING OPTIONS AND INITIATIVES
Full-time custodial sentences
Mothers’ and Children’s Program
Transitional Centres
Home detention
Periodic detention
Community Service Orders
Multi-purpose community centres
Canadian initiatives
Healing Lodge
Other initiatives
THE CRIMINAL JUSTICE SYSTEM GENERALLY
CONCLUSION
7. COMMUNICATION AND EDUCATION
COMMUNICATION DIFFICULTIES
OVERCOMING COMMUNICATION DIFFICULTIES
Increasing awareness of Aboriginal cultural issues
Aboriginal cultural training programs
Aboriginal Court Liaison Officers
Conclusion
Employing linguistic and cultural experts
Background
Legislation
Role of an interpreter
Conclusion
LEGAL REPRESENTATION
APPENDICIES
APPENDIX A: List of Submissions
APPENDIX B: Consultations
APPENDIX C: Justice John Dowd’s dissenting view on statutory recognition of Aboriginal customary law
TABLE OF LEGISLATION
TABLE OF CASES
SELECT BIBLIOGRAPHY
