Conclusion

As has been argued, the principle of equality before the law requires sentencing courts to give close consideration to the relevance of an offender’s Aboriginality in the determination of an appropriate sentence.

The fundamental question is whether facts material to the sentencing discretion exist by reason of an offender’s Aboriginality. Whilst the issue has not been resolved in the ACT, there is growing acceptance of the need to consider the relevance of Aboriginality for all Indigenous Australians, regardless of how their Aboriginality is constituted. But, this requires sufficient evidence being placed before the sentencing court linking the Aboriginality of an offender, and their experience of Aboriginality, to their offending behaviour. It requires evidence of how uniquely Indigenous background and systemic factors have brought them to the point of sentence. Just this sort of evidence was found to exist in the lives of the 99 Indigenous Australians whose deaths in custody were investigated by the RCIADIC. However, it is apparent that this evidence is not being placed before the “mainstream” courts in the ACT, and may not routinely be placed before the “mainstream” courts elsewhere in Australia. Without this evidence, courts cannot be expected to meaningfully engage with the Aboriginality of offenders or the relevance of their Aboriginality in the sentencing process.

One concrete way to address this lack of evidence is to adopt a key recommendation of ALS criminal defence lawyers acting for Indigenous defendants in the ACT revealed in this chapter, namely, to increase the extent to which Aboriginality is a focus of attention within pre-sentence reports. To achieve this would require engagement with Indigenous expertise and the broader ACT ATSI community, a process that could draw upon existing relationships of trust built up through the operation of the Galambany Indigenous Sentencing Court.