Sentencing Aboriginal OffendersBy: Alanah and Leah

Background Info

Aboriginal Australians tend to have higher arrest rates and rates of imprisonment.This could be because:• Lack of educational opportunity• High levels of unemployment• High levels of drug and alcohol abuseNSW law takes this into consideration when being punished

R v Fernando Judgment (1992) 76 A Crim R 58

• Based on a combination of SOCIAL, ECONOMIC, CULTURAL and other circumstances that frequently occur in Aboriginal offenders.

• Not all Aboriginal offenders are entitled to these benefits, they only apply where the factors outlined in the judgment are actually present.

Principles for sentencing Aboriginal offenders

• Sentencing is to be the same as in every other case however, the court needs to take into account the reasons that may apply.

• Relevance of acknowledging aboriginality is to explain the offence and the circumstances rather than to lessen the punishment.

• The court must recognize the problems of alcohol abuse and violence and consider remedies that help the situation more than just imprisonment.

• The courts must be very careful when punishing due to not depriving Aboriginals of protection which is assumed punishment provides.

Principles for sentencing Aboriginal offenders

• Although drunkenness is not usually an excuse, where abuse alcohol by the offender reflects their socioeconomic circumstances and the environment in which they grew up in that can and should be taken into account as something that would lessen the punishment.

• The court must avoid any hint of racism, paternalism, or collective guilt while also realistically assessing the crime within it’s setting and circumstances.

• An Aborigine from a deprived or disadvantaged background and has little experience of European ways, a long imprisonment may be particularly harsh when in an environment dominated by people of European descent with little understanding of his culture and society.

Circle Sentencing

• New approach to justice in indigenous communities.• Seeks to provide a greater level of community

involvement and reduce cultural divide between the offender and the justice system.

• Involves Aboriginal community representatives and the offender and victim’s family and friends in the decision making process