Indigenous Australians and sentencing
Why in a book such as this is it considered appropriate to devote a chapter specifically to sentencing? The answer finds its origin in the report of the Royal Commission into Aboriginal Deaths in Custody (hereafter the RCIADIC).1 The RCIADIC was established in 1987 in response to concern regarding the number and frequency of Aboriginal people dying in custody and discontent with official explanations for those deaths. The Commission found, amongst other things, that:
[T]he conclusions are clear. Aboriginal people die in custody at a rate relative to their proportion of the whole population which is totally unacceptable and which would not be tolerated if it occurred in the non-Aboriginal community. But this occurs not because Aboriginal people in custody are more likely to die than others in custody but because the Aboriginal population is grossly over-represented in custody. Too many Aboriginal people are in custody too often.2
In fact, the RCIADIC found that, as at 30 June 1989, ‘there were 15 times as many Aboriginal people in prison than there were non-Aboriginal people’.3 That is, for every 100,000 Aboriginal people making up the general adult population of Australia, 1,464.9 Aboriginal people were in prison as compared to only 97.2 non-Aboriginals per 100,000 non-Aboriginal persons.
Sadly, little has changed in the 16 years or so since the RCIADIC reported. According to the Australian Bureau of Statistics, as at 30 June 2006, for every 100,000 Aboriginal people making up the general adult population of Australia, 1,668 were in prison as compared to an overall imprisonment rate for all Australians (Indigenous and non-Indigenous) of 163 per 100,000.4
Aboriginal Australians were 13 times more likely than non-Aboriginal Australians to be in prison as at 30 June 2006. Statistically, it remains the case, therefore, that far too many Aboriginal people are in custody.
That is not to say that the sentences imposed upon those Aboriginal people serving custodial sentences were inappropriate. There is no reason to think that they were anything but appropriate. But it cannot be the case that Aboriginal Australians are inherently more criminal than non-Aboriginal Australians.
The sheer number of Aboriginal people in custody tells us nothing about the reasons why they are in custody. In this regard, the report of the RCIADIC is of great importance. Not only were the Commissioners charged with the responsibility of investigating the 99 deaths of Aboriginal people that occurred in custody, but in addition the Commissioners were authorised to report on issues underlying the individual deaths in custody and, in doing so, to ‘take account of social and cultural and legal factors which … appear to have a bearing on those deaths’.
The Commission found that personal factors common to those that died ‘constantly re-appear in the broad fabric of Aboriginal society’.5 Those recurring factors in the lives of the deceased and experienced generally in Aboriginal society were as follows: unemployment; a lack of education; childhood separation from natural families through intervention by the State; contact with the police and the criminal justice system at an early stage in life; recurring contact with the police; offending linked to alcohol abuse; alcoholism; a poor standard of health; social marginalisation; and economic debilitation.6
The Commission went further and traced the origins of this bleak picture to the implementation of the policies of non-Aboriginal Australia since colonisation, which saw the Aboriginal people dispossessed of their lands. Dispossession is particularly significant. Not only does it mark the ‘destruction of the Aboriginal economy’, but it ‘threatened the Aboriginal culture which all over Australia was based upon land and [the] relationship to land’.7 Accompanying dispossession was the pursuit by successive governments of policies that had the effect of destroying the spiritual and cultural beliefs of Aboriginal society and progressively disempowered the Aboriginal people to the extent where they have become dependent upon non-Aboriginal Australia for virtually everything.8
The consequence of this history is the partial destruction of Aboriginal culture and a large part of the Aboriginal population and also disadvantage and inequality of Aboriginal people in all the areas of social life where comparison is possible between Aboriginal people and non-Aboriginal people. The other consequence is the considerable degree of breakdown of many Aboriginal communities and a consequence of that and of many other factors, the losing of their way by many Aboriginal people and with it the resort to excessive drinking, and with that violence and other evidence of the breakdown of society. As this report shows, this legacy of history goes far to explain the over-representation of Aboriginal people in custody, and thereby the death of some of them.9
In recent times, both Aboriginal and non-Aboriginal Australia have done much to turn back the tide of history. However, the statistical evidence referred to above suggests that there remains much to do. So too, many of the chapters in this book, such as those by Tracey Bunda, His Honour Judge Chivell, the Honourable Elliott Johnston AO QC and the Honourable Edward Mullighan QC, indicate that much remains to be done.
In fact, these views have been confirmed by the findings of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander People from Their Families.10 That Inquiry concluded that ‘[a]n entrenched pattern of disadvantage and dispossession continues to wreak havoc and destruction in Indigenous families and communities’.11 The forcible separation of Aboriginal children from their families whether at the instigation of welfare or justice agencies has had, and will continue to have, a profoundly destructive impact on Aboriginal society and culture.
Social justice measures taken by governments should have special regard to the inter-generational effects of past removals. Parenting skills and confidence, the capacity to convey Indigenous culture to children, parental mental health and the capacity to deal with institutions such as schools, police, health departments and welfare departments have all been damaged by earlier policies of removal.
Unless these conditions are altered and living conditions improved, social and familial disruption will continue. Child welfare and juvenile justice law, policy and practice must recognise that structural disadvantage increases the likelihood of Indigenous children and young people having contact with welfare and justice agencies. They must address this situation.12
This is consistent with our own experience and observation from working within the criminal justice system. The ‘legacy of history’ has been farreaching and its debilitating consequences continue to plague Australia.
The objectives to be achieved in sentencing have been variously described. In Webb v O’Sullivan, Napier CJ remarked that ‘the courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be’, bearing in mind that the principal objective was the protection of the public, but, subject to that, mercy should be extended.13 In AB v The Queen, McHugh J commented:
Many, probably the large bulk of, sentences reflect compromises between conflicting objectives of sentencing. One objective is to impose a sentence that reflects adequate punishment for the culpability of the convicted person, having regard to the community’s view concerning the need for retribution, denunciation, deterrence, community protection and sometimes vindication. Another objective is to impose a sentence, with or without conditions, that will further the public interest by encouraging and not discouraging the convicted person to renounce criminal activity and to re-establish himself or herself as a law-abiding citizen. Still another objective is that the sentence should reflect an allowance for those circumstances, personal to the convicted person, which call for mitigation. These objectives and others have to be achieved within a conceptual framework that requires that there should be parity between sentences, that the sentence should be proportional to the circumstances of the crime and that, where more than one sentence is involved, the total sentence should not exceed what is appropriate for the overall criminality of the convicted person.14
It is obvious then that the recurring factors experienced generally in Aboriginal society as observed by the RCIADIC and the effects of colonisation and dispossession upon the Aboriginal people are highly relevant to the determination by a court of the appropriate penalty to be imposed in a given case.15 The judiciary has been quick to acknowledge this.16 For example, in R v Clarke, Mullighan J, sitting in the South Australian Court of Criminal Appeal, stated:
 … As the law stands at present, it is accepted that aboriginality in itself is not a matter in mitigation. As Brennan J explained in Neal v The Queen (1982) 149 CLR 305, a case involving an Aboriginal man, at 326:
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 group or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice.
 It is clear that an Aboriginal offender cannot expect special treatment just because he or she is Aboriginal: Wanganeen v Smith (1977) 73 LSJS 139, R v Fernando (1992) 76 A Crim R 58, R v Smith  SASC 263. However, as those cases acknowledge, aboriginality may be relevant to the sentencing process in a particular case. It is to be expected that in many cases the aboriginality of an offender will be a relevant and important factor in the sentencing process. Many Aboriginal people are marginalised by society and lack opportunities that are more available to others. For many, realisation of legitimate expectations is unlikely. In many cases, there is an inability to fit in with the non-aboriginal community which contributes to isolation and dissatisfaction. However, those general and other similar observations may not be applied as a matter of course.17
It is for this reason that, in the first edition of this book, the importance of those representing Aboriginal people in the courts becoming familiar with the impact of colonisation upon their Aboriginal client and accurately relating that history and its subsisting effect before a sentencing court was emphasised.
Aboriginality as a factor to be taken into account in sentencing is most stark where the offending occurs within a discrete Aboriginal community in which traditional means of social control have been weakened by the impact of colonisation or where customary law or traditional ways play a governing role in the explanation or punishment of criminal conduct.18 However, Aboriginality remains a factor to be considered wherever the individual Aboriginal person chooses to live.19 At all times, it must be borne in mind that:
Aboriginal Australians, like any other group within the Australian community, are not homogenous. Every person is a product of different circumstances. Although there are certain matters of more pressing concern to one group over another, it is dangerous to suggest that these problems extend to all members of that community. See eg. C.Charles, ‘Sentencing Aboriginal People in South Australia’ (1991) 13 Adel LR 90.20
Thus, where a court is called upon to consider Aboriginality, the court must consider not only the impact of colonisation, Aboriginal culture and the influence of customary law at the general level, but at the specific level as well. With respect to the latter, this will involve the court in considering how an individual’s Aboriginality has impacted upon such things as that individual’s ability to participate in the community, his or her ability to access services provided in the community and his or her ability to take advantage of opportunities in the community.21
It is important to point out that it is not a matter of an Aboriginal person receiving special treatment. Rather it is a matter of ensuring that the application of the law, which assumes all people to be equal, is, in fact, being applied to equals equally and not to unequals equally. Sentencing requires many value judgments to be made. Value judgments that reflect the judicial officer’s perception of the individual, their attitude, their value and their potential to contribute to society viewed from the perspective of the sentencer’s own values. The extent to which the sentencer perceives an Aboriginal offender’s life to vary from the regarded norm will result in greater intervention by the State. In the absence of a full appreciation of Aboriginality in the individual case, therefore, racism by way of the adherence to values, systems, procedures and outcomes that exclude others of a different culture and background and further marginalise them may readily and unwittingly occur.22 The RCIADIC has alerted us all to the danger of racism in our attitudes, practices and systems that have pervaded Australian history since colonisation and without conscious effort may continue to do so.23
In South Australia, the Nunga court provides an example of where the judiciary has adapted its practices on sentencing so as to ensure that it listens to the Aboriginal people and is fully informed as to the relevance of Aboriginality to the imposition of sentence.24 Similar adaptations to the traditional sentencing process have occurred in many of the other States.
It is equally also important to point out that a sentencer must avoid any hint of paternalism or patronisation.25
Of course, it is not just a matter of considering Aboriginality so that the appropriate penalty is imposed minded of the circumstances of the Aboriginal person sentenced. It is also a matter of justice being done and justice contributing to the wider Australian community. In this regard, the criminal justice system works to reinvest the Aboriginal people with the dignity long denied them and contributes to supporting and strengthening the Aboriginal culture, which is crucial to the recovery of Aboriginal society and to Australia moving forward as a whole.
Listening and understanding is important. It is not unreasonable to state that the experience of the Aboriginal people has been that they are listened to, but not heard.26
Assumptions implicit in the application of stereotypes must be avoided. Assumptions implicit in the imposition of a set of values inconsistent with the reality of the person to be sentenced must be avoided if the law is to be applied equally. It is in this regard that the decision of the Victorian Court of Appeal in R v Fuller-Cust is particularly interesting.27
Mr Fuller-Cust pleaded guilty to a number of offences including multiple counts of rape committed upon two women in violent, humiliating and degrading circumstances. He was sentenced to 20 years’ imprisonment with a non-parole period of 17 years.