Specific considerations - Aboriginal and Torres Strait Islander people

NSW

  • Judicial Commission of NSW, Equality before the Law: Bench Book (2018).

    The bench book provides general guidance on sentencing of Indigenous persons. This discussion does not specifically relate to sentencing Indigenous offenders who have committed domestic violence offences. It notes that the sentencing, decision(s) and/or written judgment must be ‘fair and non-discriminatory’. The bench book then lists a number of points to consider at [2.3.7]:

    • An aboriginal person must be treated fairly and without discrimination;
    • Whether a victim impact statement should be read out in court;
    • It is important to ensure that the sentencing, decision and/or written judgment: is not harsher that it would be if the person was not Aboriginal; is not paternalistic; takes into account the Royal Commission into Aboriginal Deaths in Custody recommendations to divert Aboriginal people away from detention/imprisonment if at all possible, and where detention is unavoidable, to detain/imprison the person as close to their community as possible;
    • ‘Takes account of the fact that high levels of incarceration result in the institutionalisation of a large proportion of Aboriginal offenders and a lengthy term of imprisonment may be particularly harsh for an Aboriginal offender’;
    • ‘Where relevant, takes account of the principles in relation to the sentencing of Aboriginal offenders’ first articulated in R v Fernando (1992) 76 A Crim R 58, 62-63;
    • Take into account relevant evidence from local Aboriginal groups or elders;
    • Where available, consider circle sentencing, the forum sentencing intervention program, and/or youth justice conferencing;
    • ‘Note that circle sentencing tends to be effective only where the offender and the Aboriginal people conducting the circle sentencing are from the same tribal group, otherwise the public shaming and respect elements of circle sentencing are not likely to have the same effect’;
    • ‘Takes account of the fact that some Aboriginal people may be punished according to customary law’;
    • ‘Takes account of the fact that Aboriginal people tend to have much lower incomes than non-Aboriginal people — so a specific level of fine for them will often mean considerably more than the same level of fine for others and may lead to licence disqualification for failure to pay a fine’;
    • ‘Is written down at the time of sentencing (in as simple and direct English as possible), and then given to the defendant and/or their legal representative — so as to help ensure understanding and compliance’.

QLD

  • Supreme Court of Queensland, Equal Treatment Bench Book (2005).
    ‘The Royal Commission into Aboriginal Deaths in Custody recommended that incarceration be used only as a last resort when sentencing Indigenous people. Throughout Queensland there are examples of local Indigenous community groups working constructively with the police and the courts in deterring and dealing with Indigenous crime and assisting in the sentencing process […]The Murri Court was officially opened in Brisbane in August 2002 and serves to assist Magistrates, court officers and, in particular, Indigenous defendants. The purpose of the Brisbane Murri Court is “to impose appropriate sentences by having regard to the offence committed and the defendant’s personal and cultural background”’ (p. 102). It takes into account cultural issues relevant to the defendant and provides a forum where Indigenous people have an input into the sentencing process. ‘It seeks to overcome language and cultural barriers by having an Elder present to assist in dialogue between the defendant, Magistrate and other court officers’ (p. 103).

WA

  • Fryer-Smith, Stephanie, Aboriginal Benchbook for Western Australia Courts (2nd ed, 2008).

    Chapter 8 of the bench book deals with sentencing of Aboriginal offenders.

    Chapter 8.1 Introduction

    By way of introduction, the bench book notes that Aboriginal customary law ‘is characterised by notions of summary justice, strict liability, payback and family/group punishment and responsibility: Bolton v Nielsen (1951) 53 WALR 48’ [8.1.1]. ‘Principles of substantive equality may support a special approach to the sentencing of Aboriginal offenders’ [8.1.3]. The Royal Commission into Aboriginal Deaths in Custody: National Report examined the role of sentencing in the high incarceration rate of Aboriginal people and made a number of recommendations to reduce that rate including that imprisonment should be used as a last resort, criminal records should be expunged after an appropriate time has lapsed, authorities should consult with Aboriginal communities and organisations, and an appropriate range of non-custodial sentencing options should be made available [8.1.4].

    Chapter 8.3 Aboriginality

    Sentencing principles: ‘The same principles are to be applied in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group: Neal v the Queen (1982) 42 ALR 609; Rogers and Murray (1989) 44 A Crim R 301; State of Western Australia v Richards [2008] WASCA 134’ [8.3.1].

    Chapter 8.4 Aggravating factors

    Domestic violence: ‘The primary concern of the courts must be to protect women in the community from vicious, drunken and abusive behaviour: Woodley (1994) 76 A Crim R 302; ‘Even where a complainant continues to cohabit with an offender, the court should deal with assaults upon that complainant as it would a member of the wider community: Woodley (1994) 76 A Crim R 302; ‘Courts cannot deal with the core problem of an offender being unable to resist the use of physical violence when intoxicated and angered by his/her partner’s conduct: Woodley (1994) 76 A Crim R 302; Daniel (1997) 94 A Crim R 96’ [8.4.1].

    Chapter 8.5 Mitigating factors

    Facts existing only by reason of ethnicity, circumstances underlying alcohol/substance abuse, emotional stress, cultural dislocation, effect of removal from family, socio-economic factors, the impact of imprisonment, customary punishment, the wishes of the Aboriginal community, the impact of traditional belief.