Introduction

Aboriginal and Torres Strait Islander (ATSI)^[174] Australians come before courts to be sentenced in numbers far greater than would be statistically expected given the size of the relevant population.

An appreciation of this overrepresentation necessitates the question: why? There is no simple answer. Indeed, the 1991 report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) devotes a whole volume to exploring the underlying issues which explain these disproportionate rates of imprisonment.^[181] In summary, the Commissioners found an answer in the history of colonial and post-colonial relations between Indigenous and non-Indigenous Australians and their institutions. They also found an answer in the legacy of discrimination, disadvantage and socio-economic inequality borne of this history.^[182] Tasked to inquire into the deaths of 99 Indigenous Australians who died in custody, the Commissioners found:

eighty-three were unemployed at the date of last detention; they were uneducated at least in the European sense — or under-educated — only two had completed secondary level; forty-three of them experienced childhood separation from their natural families through intervention by the State authorities, mission or other institutions; forty-three had been charged with an offence at or before aged fifteen and seventy-four at or before aged nineteen; forty-three had been taken into last custody directly for reasons related to alcohol and it can safely be said that overwhelmingly in the remaining cases the reasons for last custody was directly alcohol related...

What is dramatic here is that the Commissioners did not simply come to generalised conclusions about the reasons for custodial overrepresentation. They found these reasons reflected in the lives of the individuals who had died, and in their experience as Indigenous Australians:

What did emerge was that to understand the last hours of life of each individual and to truly understand the circumstances of their deaths Commissioners had to know the whole life of the individuals and, equally important, had to understand the experience of the whole Aboriginal community through their two hundred years of contact with non­Aboriginal society.^[184]

But understanding the systemic and background factors that result in Indigenous Australians coming before sentencing courts in disproportionate numbers does not directly bear upon how these offenders’ Aboriginality should or could be taken into account in sentencing. It is impermissible for a court to treat the reduction of general custodial overrepresentation as an objective in the sentencing of an individual.^[185] The reason for this is that a court must sentence an individual, taking into account their personal circumstances and the circumstances of their offence. In turn, to be relevant to the sentencing process, these unique circumstances must bear upon the need for retribution, deterrence, protection of society and the potential for reform.^[186]

How, then, does an understanding of the reasons for overrepresentation bear upon the sentencing of a particular Indigenous Australian? It does so only insofar as the systemic and background factors that result in this general overrepresentation are found to exist in the life of the individual offender being sentenced.

The fundamental premise of this chapter is precisely that which emerged from the Royal Commission: namely, that to understand the individual, we must understand the experience of the group to which they belong. And, that where facts relevant to sentencing emerge as a result of understanding an Indigenous offender within the context of their experience of Aboriginality, these should be taken into account in the interests of ensuring equal justice.

The case law supports this understanding of the relevance of Aboriginality in sentencing, though the issue has not received the same level of consideration in the ACT as it has elsewhere. However, the critical question is whether, in practice, Aboriginality and an offender’s experience of Aboriginality are being taken into account. This chapter seeks to answer this question through a consideration of sentencing in the ACT. It does so by drawing on published judicial decisions, but also by drawing upon the experience of Aboriginal Legal Service lawyers in the ACT who represent Indigenous offenders on a daily basis at the “coal face”.

The conclusion reached is that, in general, the Aboriginality of offenders coming before ‘mainstream’^[187] sentencing courts receives limited attention. It is further concluded that one significant reason for this is that pre-sentence reports, which are extensively relied upon in sentencing, do not themselves explore the unique systemic and background factors impacting on the lives of Indigenous offenders. Accordingly, there is often limited, if any, material before the court from which the relevance of an offender’s Aboriginality can be determined. Ultimately, it is contended that an opportunity is being missed and that the potential exists for pre-sentence report writers to do more to assist sentencing courts in their efforts to ensure the “even administration of criminal justice”^[188].