Sentencing – Aboriginal Offenders

Adam, Stewart & Katherine

Factors of Aboriginal Sentencing

Lack of educational opportunity High levels of unemployment High levels of drug/alcohol abuse

› All of which contribute to high rates of perpetrators and Aboriginal victims

› These circumstances are seen as mitigating the culpability of Aboriginal offenders (NSW)

Principals when Sentencing Aboriginal Offenders

Case R v Fernando set a number of precedents that are to be applied in sentencing Aboriginal offenders:1. Same sentencing principals are applied in

every case, regardless of the identity of any offender

2. The relevance of Aboriginality does not mitigate the punishment. However, it emphasizes the circumstances of the offender

3. The court recognizes the relationship between alcohol/drug abuse, violence and aboriginal communities. Other remedies are required other than imprisonment to solve the issue.

4. The courts must be careful in their sentencing policies to not deprive Aboriginals of the protection which derives from assumed punishment

5. Intoxication is not normally an excuse/mitigating factor; the abuse of alcohol reflects the socio-economic and environment in which the offender has grown up

6. The court must avoid any hint of racism, paternalism, or collective guilt. However, the court must realistically and objectively asses the seriousness of the crime

7. Any Aboriginal who has come from a deprived background (socially/economically) or who has not received any experience of European ways, a lengthy term of imprisonment may be harsh as the Aboriginal does not have an understanding for their culture and society.

Circle Sentencing is a new approach to justice in indigenous communities. This method seeks to provide more community involvement and reduce the cultural division between the offender and justice system.

Circle Sentencing