Judicial Consideration of the Relevance of Aboriginality in Sentencing

The following section presents an overview of the case law on Aboriginality in sentencing.^[189] The issue was first considered by the High Court in the case of Neal, where Brennan J explained:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group.

This statement of general principle recognises that individual circumstances cannot be neatly separated from the circumstances of the group or community to which the individual belongs. Such recognition opens the door to a full consideration of offenders’ circumstances, including their historical, cultural, socio-economic and psychological experience of Aboriginality. Arguably, the logical conclusion of Neal requires sentencers to engage with and understand the Indigenous experience in all its complexity.

Significantly, Justice Brennan did not circumscribe judicial consideration of Aboriginality in sentencing; his Honour left open what might be considered within the terms “all material facts” and how these facts might be material to the sentencing discretion. In addition, he made no attempt to restrict claims to group identity, for example, by suggesting that consideration of Aboriginality in sentencing is to be restricted to “tribal” or “traditional” Indigenous Australians. However, Aboriginality will only affect a person’s sentence where that fact casts light on the individual’s circumstances, which need to be explained in the context of their Aboriginality.

Hopkins recently described the decision in Neal as “an invitation to judges to throw off the yoke of their own experience and consider the particular circumstances of the Indigenous person before them through the lens of Aboriginal experience”,^[191] but subsequent interpretations have sought to limit its scope. This has created a “divisive and intolerable”^[192] situation whereby some Indigenous offenders may be regarded as not “Aboriginal enough”^{[193] [194] for the principle set out in Neal to apply.}

Only some kinds OfAboriginality count

The leading NSW case is R v Fernando² which involved an offender being sentenced for maliciously wounding his de facto partner with a knife while heavily intoxicated. The offence was committed in a rural NSW town with a large Indigenous community. The offender was described as having a “deprived background” and a history of alcohol abuse. Wood J developed eight sentencing principles (“the Fernando principles”) to be considered when sentencing an Indigenous offender. These can be summarised as follows:

• The same sentencing principles are to be applied in every case but a court should not ignore facts which exist only by reason of the offender’s membership of an ethnic or other group;

• Aboriginality is relevant in terms of explaining the offence and circumstances of the offender;

• Alcohol abuse and violence within Aboriginal communities may not be solved through imprisonment;

• Indigenous communities should be protected from serious violence by drunken offenders in their communities (even in the absence of evidence proving the effectiveness of imprisonment);

• While drunkenness is not normally an excuse or mitigating factor, where the offender’s abuse of alcohol reflects their socio-economic circumstances and background, that can and should be taken into account as a mitigating factor;

• Sentencing courts must avoid any hint of racism, paternalism or collective guilt when sentencing Indigenous offenders, but must recognise the offender’s subjective circumstances;

• A sentence of imprisonment may be particularly harsh for an Indigenous person who is not familiar with non-Indigenous life or comes from a deprived background; and

• The need to ensure the punishment fits the crime is to be balanced against the need for rehabilitation.

A recent review of the impact of Fernando by the NSW Sentencing Council described the application of the principles in the appellate courts as “uneven”.^[195] The impact of Fernando and subsequent decisions^[196] in NSW has been to restrict the application of Neal to cases involving Indigenous offenders in specific rural or remote communities where alcohol abuse is endemic and who have committed violent offences while intoxicated. We would argue that such an approach fails to appreciate the full complexity of post-colonial Indigenous experience and the relevance of this to achieving equal justice in sentencing. Edney has described the decisions as “fundamentally misapprehending the nature of Indigenous identity in post-colonial society”^[197] and “attempting] to define the contemporary Indigenous experience and who may be entitled to rely upon Aboriginality for the purpose of sentencing”.^[198] Flynn has likewise argued that although

some Indigenous defendants do not have a history of deprived socioeconomic circumstances and that many do not live on reserves, the same fact remains that every Indigenous person is a member of a visible racial minority in a community that is often not tolerant to racial minorities.^[199]

A broader view of Aboriginality?

In her review of the Fernando principles, Manuell pondered “What does it mean to be an Indigenous person?” and whether any disadvantage experienced differs, “depending on whether the offender grew up in urban, regional or remote areas”.^[200] In contrast to the narrow approach taken in the cases above, some decisions have shown a more expansive approach to these issues. Significantly, in the 2007 decision of Waters, James J stated on behalf of the NSW Court of Criminal Appeal that “[c]ontrary to a submission made by the Crown, I would not regard the approach to sentencing Aboriginal offenders outlined in Fernando as being limited to Aborigines who live in isolated communities”.^{[201] [202] This statement was recently approved by Refshauge J of the ACT Supreme Court in TM v Karapanos and Bakes?9}

The South Australian Court of Criminal Appeal has also demonstrated a clear willingness to consider the Aboriginality of offenders even where their circumstances are significantly removed from those present in Fernando or similar cases.

The offender was unsuccessful in his appeal. Nevertheless, two members of the Court made clear that consideration of Smith’s Aboriginality and experience of Aboriginality was fundamental to the appropriate exercise of the sentencing discretion, regardless of his urban circumstances. Justice Gray stated that the offender’s “urban Aboriginality raises important considerations”,^{[203] [204] adding that it “provides an explanation for his conduct. This factor is mitigatory”.[205] In addition, Lander J observed:}

In my opinion no distinction is to be drawn between an Aboriginal person to whom European culture is foreign because of a lack of exposure to that culture (ie: a traditional Aboriginal), and an Aboriginal person to whom European culture is foreign, not because a lack of exposure to that culture, but simply as a result of that person’s identity as an Aboriginal person...

The heritage of Aboriginal people raised in urban settings is relevant in explaining matters personal to the offender. Insofar as that heritage throws light on such matters, and on the circumstances of the offending, there is no rigid distinction to be made between the approach to be taken to urban Aboriginal people and those Aboriginal people often described as “tribal”.^[206]

There have also been two notable Victorian decisions which have taken a broader approach to offenders’ Aboriginality.

Fuller-Cust pleaded guilty to five counts of rape, two counts of indecent assault, one count of false imprisonment and one count of recklessly causing injury. He appealed against the sentence of 20 years’ imprisonment, and succeeded on a ground unrelated to his Indigenous status, resulting in a three year reduction in his sentence.^[208] In the decision, his background was set out in detail. He had been removed from his Aboriginal mother and non-Aboriginal father as a toddler and repeated requests for his return and access to him were denied by the Social Welfare Department. By the time the offender was two, he and his sister were living with non-Indigenous foster parents, who subsequently rejected him after instances of deprivation and physical discipline. He was also sexually abused by a foster uncle. He was reunited with his mother at the age of 15, but this was unsuccessful. A consulting forensic psychiatrist gave evidence to explain, amongst other things, the causal link between this dysfunctional and disadvantaged background and the offending for which he was to be sentenced.

Batt JA and O’Bryan AJA found that in the circumstances, community safety, and specific and general deterrence, as well as denunciation of the offender’s conduct, were of far greater importance than any mitigation due to the offender’s Aboriginality. The judges did, however, recognise the offender’s background as a relevant mitigating factor, including the sexual abuse he had suffered, and the fact that he had been placed as an infant into unsatisfactory institutional and foster care.

Eames JA provided a powerful dissent, arguing that “to ignore factors personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself”.^{[209] [210]} With explicit reference to the principle in Neal,³ Eames JA accepted the invitation, and indeed the responsibility, to consider the offender’s circumstances through the lens of Aboriginal experience. To ask and answer the question of what material facts existed by reason of the offender’s Aboriginality, Eames JA turned to insights drawn from the RCIADIC and the Stolen Generations “Bringing Them Home” report.^[211] His Honour accepted as a partial explanation for the offender’s circumstances and behaviour the common and documented experience of Indigenous Australians as a group. He identified facts material to the offender’s life existing by virtue of his membership of the group of Indigenous Australians separated from their families, brought up without connection to kin and community.

The decision recognised that it is not just social and economic disadvantages which may lead an Indigenous person to commit an offence, but also acknowledged that the more complex issues of historical and cultural differences, such as being a member of the Stolen Generation, should be taken into account in order to ensure the individual is sentenced appropriately. Crucially, Eames JA was able to understand Fuller-Cust as a product of the particular historical and social impacts on Indigenous Australians and perceived him as “an Aboriginal person severed from and unable to embrace his Aboriginality”.^{[212] [213]}

Eames JA’s approach was approved by the Victorian Court of Appeal in DPP V Terrick,⁴ where Maxwell P, Redlich JA and Robson AJA set out eight propositions relevant to the sentencing of Indigenous Australians, including that

• Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or (if relevant) of the offender’s alcohol or drug addiction.

• The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge, and will depend on: (a) the nature and extent of the disadvantage [and] (b) the nexus (if any) with the offending..

• Thus, Aboriginal offenders are not to be sentenced more leniently than non-Aboriginal persons on account of their race.

• When applying sentencing principles, which are common to all Victorians, a different outcome may result for an Aboriginal offender if it is shown that “mitigating factors in the background of the offender, or [in the] circumstances of the offence, occurred or had an impact peculiarly so because of the Aboriginality of the offender”.

Such considerations require a careful examination of the history of the offender. The relevance of Aboriginality to an offender’s disadvantaged background must be established by appropriate evidence.^[214]

These propositions were endorsed in the ACT by Refshauge J in TM v Karapanos and Bakes,^[215] where his Honour described the propositions as “representing] a comprehensive approach which will be helpful to sentencers who must deal with Aboriginal offenders whose deprived background lead them often and too often into the criminal justice system”.^[216]

The decision in Terrick clearly marked a return to the general principle propounded by Brennan J in Neal over 25 years earlier. Indeed, it expanded on it, as it was the first decision where a majority of an Australian appellate court agreed that historical and cultural disadvantages often found in Indigenous communities are powerful considerations when sentencing Indigenous offenders. There was no talk of restriction to cases involving alcohol abuse or to circumstances bound by offence type, location or other factors. Instead, the approach embraces the complexity of post-colonial Aboriginal identity, requiring a “careful examination of the history of the offender” and requires the court to take factors into account which exist by reason of the offender’s Aboriginality.

However, as was made clear by the Victorian Court of Appeal in Terrick, facts that exist by reason of offender’s Aboriginality and the relevance of these facts must be established by “appropriate evidence”. In other words, there must be a basis in evidence to establish a link between the offender’s Aboriginality and the circumstances of the offence or the circumstances of the offender. Hopkins recently drew attention to the failure of counsel to explicitly refer to the principles in Fernando or to make submissions and provide evidence which establishes a link between a defendant’s experience as an Aboriginal person and their offending behaviour.^[217] Hopkins further argues that this has caused a “recurrent theme in judgments disavowing the importance of Aboriginality in the sentencing of particular Indigenous offenders”.^[218] We will return to the issue of the need for evidence to establish the offender’s history and experience of Aboriginality — and the means of obtaining such evidence — in later sections of this chapter.