Aboriginality and Sentencing in the ACT

This chapter is concerned with the extent to which Aboriginality is taken into account by mainstream courts in the ACT. However, it should be recognised that an Indigenous sentencing court operates in the ACT and that this court is well placed to identify facts material to the sentencing discretion which exist by reason only of an offender’s Aboriginality.

The ACT Galambany Circle Sentencing Court is one of over 50 Indigenous sentencing courts in operation in Australia.^[222] This Court commenced on 5 May 2004, as a division of the ACT Magistrates Court and was previously known as the Ngambri Circle.^[223] The name was changed to reflect diversity within the ACT ATSI population. “Galambany” means “we all, including you”.^[224] The Court’s aims, objects and operations are set out in practice directions issued by the ACT Magistrates Court.^[225] In general the Court aims to involve the ATSI community in the process and provide a culturally relevant avenue for Indigenous people to be sentenced, in order to address the issue of Indigenous over-representation in the Australian criminal justice system and Indigenous offending behaviour.^[226] The Court’s processes are available, on application, to ATSI offenders who have pleaded guilty and whose offences can be finalised in the Magistrates Court and are not sexual offences.

There is now a presumption in favour of having the offender referred for assessment, designed to ensure that those offenders who wish to participate are given the opportunity to apply and be assessed.^[227] The Magistrates Court does not publish statistics on the percentage of ATSI offenders who are sentenced in the Galambany Court as compared to the mainstream courts, but data for the June 2012 quarter indicated that there were 25 adults and nine young people referred to the Court in the 2011­2012 year and 24 adults and seven young people assessed and sentenced.^[228]

As will be seen later, solicitors from the ALS support their clients’ decision to attend the Galambany Court as, in some instances, they find it to be a more appropriate and beneficial sentencing method.

A broader view of the relevance ofAboriginality? Judicial consideration of the relevance ofAboriginality in sentencing in the ACT

Leaving to one side the Galambany Court, the relevance of Aboriginality in sentencing has received limited consideration in the ACT, at least insofar as published appellate decisions are concerned. The ACT Court of Appeal briefly considered the issue in an appeal against a sentence imposed by a single judge of the Supreme Court in Love v A,^{[229] [230] [231] though no statement of general principle emerged. Critically, there are two conflicting decisions of single judges of the Supreme Court on appeal from the Magistrates Court in which the relevance of Aboriginality in sentencing is discussed, namely, Crawford v Laverty55 and TM v Karapanos and Bakes5i These decisions will be discussed below. It will be argued that the former adopts a restrictive interpretation of the relevance of Aboriginality in sentencing, whilst the latter takes a broad, inclusive view consistent with the general principle established in Neal.}

In general, what is common to the majority of these decisions is an apparent lack of evidence establishing the link between the Aboriginality of offenders and relevant sentencing considerations.^[233] The result is that the relevance of Aboriginality is often either inferred or dismissed.

In Crawford v Laverty, Crawford appealed against eight sentences of imprisonment imposed in the Magistrates Court. The first ground of appeal was “that the learned Magistrate gave insufficient weight to the principles in Fernando”^[234] Penfold J’s decision with respect to this ground of appeal reflects the NSWCCA pre- Waters^[235] approach to sentencing Aboriginal offenders. Specifically, her Honour stated: “It is apparent that the Fernando principles are of primary relevance to offences by Aboriginal offenders within Aboriginal communities, and in particular where the offences are associated with alcohol abuse and resulting violence within those communities”.^[236] This is further highlighted in her judgment at [23]:

The appellant was not charged with an offence committed within an Aboriginal community, or offences attributable to the excessive use of alcohol. Rather, he is charged with a property offence (the refusal to submit DNA testing is consequential on the police investigation of his property offence) committed within and against the broader community... Those property offences were not committed as a result of alcohol abuse, but arose from the appellant’s need to fund a heroin addiction.

It is not apparent whether there was any evidence before the Court linking the offender’s Aboriginality to his offence or present circumstances, but the decision disclaims the relevance of Aboriginality except in circumstances analogous to those under consideration in Fernando.

By contrast, in TM v Karapanos and Bakes,^[237] Refshauge J endorsed a broader view of the relevance of Aboriginality in sentencing on an appeal from as sentence imposed by the ACT Children’s Court, despite His Honour receiving limited submissions on the point.^[238] The offender challenged the sentences imposed on her for three offences committed while in custody. The third ground of appeal was “that the principle for taking into account the Aboriginality of the appellant expressed in R v Fernando (1992) 76 A Crim R 58 should have been taken into account”.^[239]

By reference to the principles in Fernando, Refshauge J stated: “Those principles, though perhaps arising out of the difficult circumstances of sentencing Aboriginal offenders in remote communities, are not so limited”.^[240] Refshauge J went on to approve the principles established by the Victorian Court of Appeal in Terrick,^[241] describing them as representing a “comprehensive approach”,^[242] which:

... requires the sentencer to assess the extent to which the circumstances of the upbringing of the offender, here TM, including social, environmental and cultural factors, assumed significance in the application of sentencing principles, including identifying influences which have contributed to the commission of the offences relevant to the nature of the sentence to be imposed.^[243]

The judgment does not explicitly disclose how these principles were taken into account in TM’s case, or how the evidence explicitly linked the offender’s Aboriginality to her offending.

The ACT Court of Appeal had an opportunity to resolve the apparent conflict of authority in relation to the relevance of Aboriginality in sentencing in the case of Love v A.^[246] Counsel for the appellant argued that there was a failure by the sentencing judge to take into consideration a rehabilitation opportunity available to the appellant by virtue of his Aboriginality, namely an Indigenous employment program at a mine site in remote South Australia. It was argued that this was a relevant sentencing fact existing by reason only of the offender’s Aboriginality. Penfold, Burns and North JJ upheld the appeal on different grounds, and therefore found it unnecessary to address the issue in any detail.^[247] However, in the course of their decision, they stated:

We are not convinced that the connection between the appellant’s Aboriginality and the availability of this rehabilitation program only to Indigenous offenders, as such, required any different treatment from the treatment that would be appropriate for evidence that any offender whose early disadvantages had apparently contributed to his offending behaviour had a particular rehabilitation program open to him.^[248]

It is apparent from this passage that the Court was not persuaded, on the evidence, that differential treatment was required on account of the appellant’s Aboriginality. Notwithstanding this, the Court of Appeal had before it an Aboriginal offender who had been sentenced for 16 offences of burglary and theft committed in the general community of Canberra. He was not living and had not lived in a defined rural or remote Aboriginal community and whose offending was associated with a history of illicit drug use, in addition to his abuse of alcohol.^[249] None of these factors was considered to render consideration of his Aboriginality irrelevant. What is apparent from the decision is that the Court of Appeal did not consider it necessary to indicate a position of support or otherwise for the approach adopted by the Victorian Court of Appeal in Terrick.

The legal position in relation to the relevance of Aboriginality in sentencing in the ACT remains to be clarified. What is apparent, from a review of decisions in the ACT, as elsewhere, is that for Aboriginality to be taken into account in sentencing, appropriate evidence supporting the link between that Aboriginality and relevant sentencing considerations must be before the court.

However, a review of published decisions is not sufficient to enable a conclusion to be drawn about the extent to which Aboriginality is being taken into account in sentencing in the ACT. In particular, it excludes from consideration the approach being adopted in the Magistrates Court, which does not publish sentencing decisions. It is therefore necessary, and desirable, to obtain an insider’s view. The following section aims to do so by canvassing the views of those legal practitioners who are principally tasked to appear for Aboriginal offenders being sentenced by the Magistrates Court in the ACT, namely, lawyers at the ACT branch of the Aboriginal Legal Service (ALS).

The relevance of Aboriginality in sentencing in the ACT: Practitioners’ view

In April 2012, face-to-face interviews were conducted with the three ACT defence lawyers in the ALS criminal law team, all of whom routinely represented Indigenous defendants in the ACT. Each of the participating

solicitors was male and had one to two years’ experience as criminal defence lawyers at the ALS in the ACT. However, collectively the group had over 35 years of experience as practicing solicitors.

The limitations of the research are acknowledged. Firstly, due to the research focus on the ACT, the sample size was limited to three. Secondly, the research is limited by the fact that the ALS solicitors do not represent all Indigenous offenders in the ACT; the participants’ experience is necessarily limited to the Indigenous offenders that they have represented. The issue of self-disclosure also has the potential to limit the research findings. It could be expected that there would have been a degree of reluctance to provide negative answers to questions which refer to current practices and procedures. This may have occurred even though the identities of the solicitors were kept anonymous,^[250] due to the small number of participants and the small size of the ACT. The participants were likely to have contemplated how their comments may reflect back on them.^[251] In spite of these limitations, we suggest that the responses obtained provide an invaluable insight into how Aboriginality is taken into account in sentencing in the ACT.

The ALS solicitors were separately asked the following questions:

1. In your opinion does a person’s Aboriginality affect the length or type of sentenced imposed on Indigenous offenders in the Australian Capital Territory? If so, in what way?

2. What is your opinion on how a person’s Aboriginality is taken into account when sentencing Indigenous offenders?

3. What is your opinion of how section 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT) is applied by judges and magistrates in relation to a person’s Aboriginal cultural background?

4. Do judges and magistrates make distinctions between rural and urban offenders and what are the implications for your clients?

5. What recommendations, if any, do you feel are needed in this area of law in the Australian Capital Territory?

6. Do the pre-sentence report writers focus on a person’s Aboriginality?

Aboriginality: Impact on length and type of sentence

The general consensus among the participants was that Aboriginality had limited, if any, effect on the length or type of sentence imposed on Indigenous offenders in mainstream courts. As highlighted by one participant, “I think it has very little bearing in the mainstream sentencing”. Mainstream sentencing was the focus of the research, but it is interesting to note, by way of contrast, that all participants were of the view that Aboriginality was being taken into account by the Galambany Sentencing Court.

How is Aboriginality taken into account?

Participants were asked “What is your opinion on how a person’s Aboriginality is taken into account when sentencing Indigenous offenders?” The common theme in the participants’ answers was a person’s upbringing. All participants acknowledged that, where an Indigenous offender’s upbringing had a nexus with the offending behaviour which caused the person to offend, then that could be taken into account.

One solicitor answered that a person’s Aboriginality does not on its own affect the sentence imposed on an offender; rather, Aboriginality would only be taken into account through its ability to cast light on common problems and issues facing the Indigenous community in the ACT, adding that if those issues or problems had a link to why the offences took place, then that could be taken into account. Another participant stated:

Everyone is equal before the law, [but] if there are some circumstances which go towards the commission of an offence, which are unique to someone’s upbringing, then that provides some mitigation in sentence.

Aboriginal cultural background and ACT sentencing legislation

The participants were asked about the impact for Indigenous defendants of the inclusion of “cultural background” as a relevant sentencing consideration contained in section 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT). Responses were consistent with the overall view that Aboriginality has a limited impact on sentencing in mainstream courts in the ACT. With respect to the judicial application of the “cultural background” criterion, one participant stated:

I’m not sure. I’m not sure you can really quantify how it is [taken into account?]. It’s not often referred to by sentencing magistrates in their reasons for sentence. So, I’m not aware of any case law which gives a guidance to the Courts on how that’s supposed to be taken into account.

Another participant said:

Well that section refers also to: character, integrity, antecedents, and age, physical or mental condition of the offender. All of which carry a lot of weight. Ironically, cultural background carries very little weight and I don’t think it has, it has little to no consideration, whereas the other factors, I mean character, antecedents, age, physical or mental condition play a substantial role.

Rural and urban Indigenous persons

The general consensus among the participants was that in the ACT, the distinction between urban and rural Aboriginal offenders is not referred too much at all. As one participant stated: “I don’t see it referred to much, just in my experience... the [issue of] Aboriginality, full stop”. Another participant stated: “Well, my experience has been submitting on these matters that it’s not of so limited application, as to be applicable [only] to Aboriginal people in remote rural areas”. This participant also commented on this change in approach by the ACT courts, stating:

the tendered logic was that if people are so removed from the moral standards of the wider community then that could only really happen if they were living in remote areas and not part of the mainstream community. The reality is, there [are] significant pockets of isolation and disadvantage. right here in Canberra, the nation’s capital city. Therefore, if you’re going to limit it by limiting those principles to, as only applying to those people from remote areas, then you’re ignoring, you’re ignoring the obvious — that people from the same ethnic backgrounds live together, have relationships together, often don’t move outside those ethnic backgrounds. Whether they live in remote geographical areas or whether they live in capital cities or urban areas.

Pre-Sentence Reports and Aboriginal Circumstances

Perhaps the most telling responses were received when participants were asked “Do the pre-sentence report writers focus on a person’s Aboriginality?” Responses to this question appear, at first glance, to differ markedly. While all three mentioned that Aboriginality was referred to, to some extent, in the pre-sentence reports, two of the three solicitors took the view that Aboriginality was given insufficient attention. In particular, one participant was adamant that the pre-sentence reports which had been prepared for his clients were completely ineffective in taking a person’s Aboriginality into account:

Well yeah, they don’t, they just don’t... in those pre-sentence reports, they say, well, the offender is a 23 year old Aboriginal man and that’s it, and that’s supposed to cover the field.

As was noted by another participant, this results in a greater burden being placed on defence lawyers to provide evidence and make submissions on the importance of a defendant’s Aboriginality in the sentencing process. Moreover, it is apparent from the responses that pre-sentence reports are not drawing explicit links between Aboriginality and offending. Nor, it would appear, judging from all the participants’ responses, do pre-sentence reports address the potential for Indigenous- specific pathways for rehabilitation, reform or healing.

Two key recommendations were made by participants, each designed to ensure greater consideration of Aboriginality in sentencing. Firstly, in line with concerns about the absence of consideration of Aboriginality in pre-sentence reports, one participant advocated Indigenous involvement in the pre-sentence report writing process, and specifically, the recruitment of Indigenous pre-sentence report writers. A second participant advocated increasing access to the Galambany Court. In particular, he argued that this should be a right for Indigenous offenders for all offences. He expressed concern that his clients were not always successful in their application for Circle Sentencing, with the implication being that their Aboriginality was not then sufficiently taken into account in the Magistrates Court. We note that this response predated the most recent Galambany Court Practice Directions implemented in August 2012 which include a presumption that all and ATSI offenders be assessed for the program if they so choose and are not otherwise excluded.^[252]