Public Defenders

Sentencing Aboriginal Offenders


by Dina Yehia
This paper was presented at the ALS Conference on 1 July 2003


1. In a recent paper on sentencing issues Andrew Haesler referred to BOSCAR figures that revealed the rise in the prison population over recent years. In 1989 there were 4,800 people in full time custody in New South Wales. In June 2001 it was 7,750. In February 2003 the numbers topped 8,000, nearly 2000 of who were on remand.

2. Aboriginal prisoners comprise 19% of the total inmate population; Aboriginal women comprise approximately 34% of the female inmate population. The number of Aboriginal prisoners has increased by 30% over six years compared to a 17% increase for the non-Aboriginal prison population. 'Beyond Justice' NSW Aboriginal Justice Plan, 2003 p 25.

3. There are many reasons for the disproportionate rate at which Aboriginal people come into contact with the criminal justice system and are incarcerated. Cunneen suggests, 'there is a need to a multifaceted conceptualisation of Aboriginal over-representation which goes beyond single casual explanations (such as poverty and racism). An adequate explanation involves analysing interconnecting issues which include historical and structural conditions of colonisation, of social and economic marginalisation and systematic racism, while at the same time considering the impact of specific (and sometimes quite localised) practices of criminal justice and related agencies'. Cuneen C (2001) 'conflict, politics & crime' Allen and Unwin, Sydney.

4. As criminal defence lawyers appearing for Aboriginal offenders, our role is quite narrowly focused. While we should always be mindful of the historical, economic and social context in which Aboriginal people experience life, our role as lawyers is to use the legislation and case law available to get the best result for the client. In my view, this is becoming an increasingly difficult and complicated task.

5. This paper is divided into two parts. It will deal with some of the recent changes in sentencing law and the relevant case law on sentencing Aboriginal offenders.

The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 ('the 2002 Act')

Judicial Discretion:

6. On 1 February 2003, significant changes to New South Wales sentencing law were made by the 2002 Act which effected amendments to the Crimes (Sentencing Procedure) Act 1999 ('CSP Act'). In particular, the amendments which commenced on 1 February:
(a) added a statutory statement of the purposes of sentencing (s3A);

(b) provided a more elaborate list of factors relevant to sentence (including specified aggravating and mitigating factors) (s21A);(c) provided for a new system of standard non-parole sentencing for designated serious offences (ss54A-54D).

7. The Attorney General, in his Second Reading speech, distinguished the 2002 Act's new scheme of sentencing from mandatory minimum sentencing: The Honourable Bob Debus, Legislative Assembly 23.1002 pp 5,813 and 5,815.

'At the outset I wish to make it perfectly clear: the scheme of sentencing being introduced by the government today is not mandatory sentencing. The scheme being introduced by the government today provides further guidance and structure to judicial discretion. It does not replace judicial discretion. These reforms are primarily aimed at promoting consistency and transparency in sentencing and also promoting public understanding of the sentencing process.

By preserving judicial discretion we ensure that a just, fair and humane criminal justice system is able to do justice in the individual case. This is the mark of a criminal justice system in a civilised society.

By preserving judicial discretion we ensure that when in an individual case extenuating circumstances call for considerations of mercy, considerations of mercy may be given. A fair, just and equitable criminal justice system requires that sentences imposed on offenders be appropriate to the offence and the offender, that they protect the community and help rehabilitate offenders... The imposition of a just sentence. requires the exercise of a complex judicial discretion. The sentencing of offenders is an extremely complex and sophisticated judicial exercise'.
Traditionally, Australian courts have attached significant value to the breadth of discretion available in passing sentence. Even with the advent of guideline judgements, the courts have again and again reiterated the importance of a broad sentencing discretion. In R v Whyte (2002) 55 NSWLR 252Spigelman CJ said at 276:
'The maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account. Sentences must be individualised'.

8. The broad sentencing discretion of NSW courts is confirmed by s21 CSP Act which provides for a general power to reduce penalties below the maximum fixed by statute.

9. Notwithstanding the fact the Courts continue to assert the importance of judicial discretion, the reality is that the promulgation of guideline judgements has resulted in the increase of the number of prison sentences imposed and an increase in the length of those sentences both as they apply to the head sentence and the non-parole periods.

10. This reality is well demonstrated in the case of offences pursuant to s52A(1)* of the Crimes Act (dangerous drive occasioning death). Before the promulgation of the guideline judgement in Jurisic 29% of offenders were dealt with by way of a prison sentence as opposed to 55% after Jurisic. Before the guideline the highest percentage of offenders (45%) received a non-parole period of 12 months. After Jurisic the average length of non-parole periods has increased.

11. In my view the amendments contained in the 2002 Act will result in an increased number of offenders receiving prison sentence for longer periods of time both in relation to offences contained in the Table to Division 1A and generally. It is therefore incumbent upon advocates to understand the legislation and to address effectively the matters which assist the client.

Section 3A Purposes of Sentencing:

12. The section applies to all offences whenever committed except where the sentencing proceedings relate to a conviction or a plea of guilty that was entered and not withdrawn before 1 February 2003 (Schedule 2, Part 7 (Sentencing Procedure) Act 1999).

13. Section 3A specifies the purposes for which a Court may impose a sentence on an offender:

'The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community'. 14. There may be some debate in the months to come as to whether s3A alters the common law position as to the purposes of sentencing. In Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 (2002) NSW CCA 515, Spigelman CJ said at paragraphs 57-60:

'Further, this Court did not receive submissions about the impact of s3A of the 1999 Act which also takes effect from 1 February 2003. It is arguable that some of the 'purposes of sentencing', which must now guide sentencing decisions, constitute a change of pre-existing sentencing principles.

For example, 'prior' case law refers to the role of sentencing to protect the community, but that objective was often said to be achieved by means of rehabilitation, deterrence or retribution. Section 3A* now suggests that this should be regarded as a separate 'purpose' and one concerned with the protection of the community 'from the offender'.
It may also be arguable that s3A(e)- making the offender 'accountable' - introduces a new element into the sentencing task. The same may be true of the reference to 'harm' to 'the community' in s3A(g).
In the absence of argument, I would not wish to be understood to be expressing a view on these matters. The possibility that prior sentencing principle may need to be reviewed does, however, support the conclusion that the present application is premature'.

15. Peter Johnson SC, in a paper delivered to the Judicial Commission of NSW, 'Reforms to NSW Sentencing Law- the Crimes (Sentencing Procedure) amendment (Standard Minimum Sentencing) Act 2002' argues that s3A does not involve any significant alteration of the common law purposes of sentencing. He refers to cases such as Rv Cuthbert (1967) 86 WN (Part 1)272 at 274,; R V Rushby (1977) 1 NSWLR 594 at 597-8; R v Hayes (1984) 1 NSWLR 740 at 744; Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476, to suggest that protection of the community may be served by specific and general deterrence, rehabilitation and incapacitation, all of which may be observed in s 3A.

16. When arguing the importance of the principle of rehabilitation in the general framework relevant to the purposes of sentencing pursuant to s3A, emphasis should be placed on the statutory recognition that rehabilitation may serve to protect the community from offenders. That recognition was given some expression in the recent enactment of Part 9 of the Criminal Procedure Act 1986 (ss 173-180).

17. These provisions, which commenced on 24 February 2003, relate to certain offences capable of summary disposal. The objects of Part 9 include - 'to reduce the likelihood of future offending behaviour by facilitating participation in such [intervention] programs': (s173(1)*. Section 173(2)(b) notes that, in enacting Part 9, Parliament recognises that 'the successful rehabilitation of offenders contributes to the maintenance of a safe, peaceful and just society'.

18. Insofar as the NSW Court of Criminal Appeal, in Attorney-General's Application No. 2 of 2002, raised questions concerning s3A(e) and (g) of the CSP Act, it is noteworthy that s7(1)(a) Sentencing Act (NZ) includes amongst the purposes of sentencing 'to hold the offender accountable for harm done to the victim and the community by the offending' and s7(1)(b) states as a purpose 'to promote in the offender a sense of responsibility for, and acknowledgement of, that harm. The Court of Appeal of New Zealand has observed that s7 'conveniently lists purposes of sentencing which were recognised by the common law ': R v Cassidy (2002) NZ CA 245 at 10.

19. Whether the NSW Court of Criminal Appeal will ultimately take the view that s3A has significantly altered the common law position as to the purposes of sentencing, is a matter yet to be resolved. However, as Johnson SC P Johnson SC - para 51. points out in his paper it should be observed that s 5(1) CSP Act remains in the statute:

'5(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate'.

20. This reflects the common law principle that imprisonment is a sentence of last resort: R v James (1985) 14 A Crim R 364; R v O'Connor (1986) 23 A Crim R 50; Parker V Director of Public Prosecutions (1992) 28 NSWLR 282 at 296.

Standard Non-Parole Terms:

21. The 2002 Act inserts a new Division 1A (ss54A - 54D) into Part 4 of the Principal Act. The new Division provides for standard non-parole periods for a number of select and generally, but not exclusively, serious offences. They are listed in the Table to the Division (and attached to this paper for convenience). The relevant sections apply to all offences committed on or after 1 February 2003.

22. Division 1A of Part 4 of the 2002 Act does not apply to sentencing of an offender:

(a) to imprisonment for life or for any other indeterminate period: s54D(1)(a); (b) to detention under the Mental Health (Criminal Procedure) Act 1990: s54D(1)(b); (c) if the offence for which the offender is sentenced is dealt with summarily: s54D(2). 23. The offences specified in the Table include:

* murder,
* conspiracy to murder,
* attempted murder,
* wounding with intent to do bodily harm or resist arrest,
* certain assault offences involving injury to police officers,
* certain sexual offences, including sexual intercourse with a child under ten years of age,
* certain robbery and break and enter offences,
* car-jacking,
* certain offences involving commercial quantities of prohibited drugs,
* certain offences involving unauthorised possession of firearms,
* intentionally causing a bushfire.

24. Although there are a number of offences included in the Table which have the same maximum penalty the legislature has seen fit to set differing standard non-parole periods. For example, offence items 2, 3, 4, 10, 11 and 13 each carry a maximum penalty of 25 years imprisonment. The standard non-parole periods for these offences, however, vary from seven years (items 4, 11, 13) to 10 years (items 2 and 3) and to 15 years (item 10). Such an approach involves concepts which are new to the law of sentencing.

What is the Standard Non-Parole Period?

25. The standard non-parole period represents the non-parole period for an offence which falls in the middle range of objective seriousness: s54A. In the second reading speech, the Attorney General said:

'The concept of a sentencing spectrum is well known to sentencing judges and criminal law practitioners. The first important point of reference, which must be considered in the sentencing exercise is the maximum penalty for an offence. The maximum penalty is said to be reserved for the 'worst type of case falling within the relevant prohibition': R v Tait and Bartley (1979) 46 FLR 386 at 398. However, as the High Court observed in Veen No. 2 (at 478), this does not mean that a 'lesser penalty must be imposed if it be possible to envisage a worse case'. At the other end of the sentencing spectrum lie cases which might be described as the least serious or trivial.
The new sentencing scheme proposed in the Bill introduces a further important reference point, being a point in the middle of the range of objective seriousness for the particular offence. The identification of a further reference point within the sentencing spectrum will provide further guidance and structure to the exercise of the sentencing discretion. Every sentencing exercise necessarily involves the identification by the court of where the offence lies in the spectrum of objective seriousness. In Ibbis v The Queen(1987) 163 CLR 447, the High Court referred at 451-2 to the need for a sentencing judge to identify where in the spectrum of objective seriousness an offence lies. Chief Justice Spigelman recently restated this principle in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69. The Chief Justice referred again to the principle in Whyte at 276-7 when his Honour stated:
'However, in this State the principle of proportionality identified in Veen v The Queen (1979) 143 CLR 458 esp at 490; Veen v The Queen (No. 2) (1988) 164 CLR 465 esp at 472-3 and 476has long been held to permit, indeed to require, that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender'.

26. In effect, the Attorney General was pointing out that the concept of an offence displaying criminality in the middle of the range of objective seriousness for a particular type of offence is not unknown to sentencing judges. The term 'middle range of objective seriousness' does not simply mean the mid point on the JIRS statistics because those sentences were calculated taking into account all relevant factors.

27. The standard non-parole period is a figure taking into account the middle of the range of objective seriousness only, without taking into account any other factor relevant to sentence. It is, in effect a starting point in the sentencing exercise relating to the objective seriousness only.

28. The middle range is not assessed by reference to some or all of the aggravating circumstances noted in s21A(2) unless they are an element of the offence. Where one or more of the aggravating circumstances listed in s21A(2) do form an element of the offence and are thereby taken into account in fixing what is the middle of the range, they cannot be taken into account again in increasing the sentence beyond the standard non-parole. In other words. a sentencing judge cannot 'double count' if the aggravating factor is an element of the offence.

Section 21A - Aggravating, Mitigating and Other Factors in Sentencing:

29. The new s21A applies to sentencing for all offences, whether they are dealt with on indictment or in the summary jurisdiction of the Local Court or Children's Court, and whether or not the offence is contained in the Table to the new Division 1A.

30. However, with respect to the scheme of standard non-parole period sentencing under Division 1A, s21A plays a further important role. If the sentencing judge is of the view that the particular criminality involved falls into the middle of the range of objective seriousness and therefore enlivens the standard non-parole period, he/she has to then determine whether there are reasons for setting a non-parole period longer or shorter than the standard. The variation of the starting point must be based on only those matters referred to in s21A.

31. In the second reading speech, the Attorney-General, Mr Debus, said (Legislative Assembly, Hansard, 23 October 2002):

'The Bill also recasts existing s21A of the principal Act with a new section that sets out clearly identified and well-recognised aggravating and mitigating factors to be taken into account by sentencing courts in determining the appropriate sentence for an offence, if those circumstances are relevant and known to the court.

The court is also required to take into account any other objective or subjective factor that affects the relative seriousness of the offence. The requirement in proposed s21A for a court to take into account aggravating and mitigating factors and other matters applies in sentencing for all offences, not just to offences that are subject to a standard non-parole period under proposed Division 1A, Part 4, of the principal Act. The identification of aggravating and mitigating factors in proposed ss21A(2) and (3) restate the application of such factors to the sentencing exercise as they presently apply at common law. This is made clear by proposed ss21A(1), which provides that the Court is to take into account the aggravating and mitigating factors referred to in ss(2) and (3) of s21A 'which are relevant and known to the Court'. For example, the aggravating factor under proposed ss21A(2)(d) that 'the offender has a record of previous convictions' is to be taken into account if that factor is relevant to the sentencing exercise.

In the case of Veen (No 2)in the High Court, the majority stated how the antecedent criminal history of an offender can be relevant to sentencing. The majority stated that such a history can be relevant when it illuminates the moral culpability of the offender in the instant case or shows a dangerous propensity or a need to impose condign punishment to deter the offender and other offenders from committing similar offences. Proposed s21A(4) provides that a sentencing court is not to have regard to any aggravating or mitigating factor specified in the section if it would be contrary to any Act or rule of law to do so. This provision makes it clear, for example, that a rule of law such as that expressed in The Queen v De Simoni(1981) 147 CLR 383 is not affected. In the case of de Simoni, the High Court held that a sentencing court may not take into account circumstances of aggravation that would have warranted a conviction for a more serious offence for which the offender was not charged. Thede Simoni principle is further preserved by the operation of the concluding words of proposed s21A(2).

Proposed s21A(5) makes it clear that the fact that a specified aggravating or mitigating factor is relevant and known to the court does not require the court to automatically increase or reduce the sentence. Not all subjective factors present in a particular case will automatically result in the reduction or increase of a sentence. For example, the courts have consistently held that issues of youth, mental disability or cultural background will not in every case lead to a reduction of a sentence by way of mitigation.

It is a well-accepted principle of sentencing that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation. However, as the Court of Criminal Appeal recently reaffirmed in R v AEM(snr), KEM and MM(2002) NSWCCA 58, there is a point at which the seriousness of the crime committed by a youth is of such a nature, is so great, that the principle must, in the public interest, give way.

As the High Court state in the case of Veen (No 2), the various purposes of punishment are guideposts to the appropriate sentence. These guideposts sometimes point in different directions. For example, the existence of a causal relationship between the commission of an offence and an offender's mental disability does not automatically produce the result that the offender will receive a lesser sentence. The presence of a mental disability in an offender may, in a particular case, be given little weight because of the overriding need to protect the community. This principle has been affirmed in a series of decisions of the Curt of Criminal Appeal in New South Wales in R v Engert(1995) 84 A Crim R 67, R v Wright(1997) 93 A Crim R 48 and R v Mitchell(1999) 108 A Crim R 85'.

32. Section 21A(1) emphasises that existing statutory and common law factors may still be taken into account in determining sentence. Section 21A(2) and (3) do not constitute an exhaustive list of factors which may aggravate or mitigate sentence : R v Yeoman (2003) NSWSC 194 at paragraph 41. Factors such as youth, mental disability and cultural background can still operate, depending upon the circumstances of the case, to mitigate sentence. The common law principles if relevant to these factors remain available to be applied. Principles such as totality and parity also continue to apply. Statutory provisions such as s6 Children (Criminal Proceedings) Act 1987 continue to apply to sentencing proceedings.

33. Section 21A provides that in determining the sentence to be imposed the court must take into account the particular matters that are 'relevant and known to the court' When assessing the facts to be taken into account on sentence the general rule is that a sentencing judge:

'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities':R v Storey [1998] 1 VR 359 at 369.

34. This rule was qualified in Olbrich v The Queen (1999) 199 CLR 270 where it was held that where the facts could not be determined the judge was not obliged to sentence the offender on the most favourable view of the facts. The rule was further modified in Weininger v The Queen (2003) 77 ALJR 872 where the majority joint judgement of Gleeson CJ, McHugh, Gummow and Hayne JJ (Kirby dissented) noted at [22]:

'There is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along the line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter, which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple'.

35. In Weininger the majority was concerned with what could be 'proved' by an absence of convictions on a person's criminal record. This alone did not allow the sentencing judge to draw the conclusion Mr Weininger was of prior good character. The sentencing judge was entitled not to be persuaded. This was quite different to saying that an aggravating feature had been proved beyond reasonable doubt. While it may be the situation that in relation to some uncontroversial factors pursuant to s21A formal proof is not required, Weininger did not overrule Storey. If a matter is to aggravate a sentence it must still be proved beyond reasonable doubt. A Haesler: Sentencing Issues 2002 p 14.

36. When a person stands for sentence for a standard non-parole period offence, the following approach has been suggested by Johnson SC as being appropriate:

(a) The court may use a staged approach to assist in reaching an appropriate sentence. This approach appears to be mandated by the legislation (s54A). The court would first consider where the offence lies within the range of objective seriousness for that particular offence. (b) In assessing the objective seriousness of the offence, some of the aggravating factors set out in s21A(2), and a lesser number of the mitigating factors set out in s21A(3) (those dealing with the objective seriousness only) will be taken into account if the constitute an element of the offence or throw light on the objective seriousness of the offence. (c) As the standard non-parole period represents an offence in the middle range of objective seriousness, variation from that starting point must follow if in fact the offence is not, by reference to it's objective gravity, in the middle of the range.

(d) A sentencing judge would seek to avoid any double counting of factors in determining sentence, especially aggravating factors referred to in s21A(2). The sentencing judge should have regard to the closing words in s21A(2) 'the court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(e) Subjective features as listed in s21A(3) must operate to reduce the standard non-parole period or whatever period calculated after aggravating factors have been taken into account. (f) Common law principles (s21A(1)*) and other rules of law (s21A(4)) may be taken into account arriving at an appropriate sentence : R v Yeomans [2003] NSWCCA 194. When assessing what is meant by 'taken into account' the decision in Weininger is important. (g) Having taken into account the synthesis of factors to be considered under s21A, the court determines the type of sentence to be imposed, custodial or non-custodial. (h) If a non-custodial sentence is to be imposed, reasons must be given setting out the factors taken into account to reach this result: s54C(1).

(i) If a sentence of imprisonment is to be imposed, the court pronounces sentence as required by s44(1) by first setting the non-parole period, then the additional balance of the term having determined whether 'special circumstances' exist under s44(2). (j) If the non-parole period is increased or decreased from the standard non-parole period, the court must identify each of the factors taken into account: s54B(4). (k) Overall, it is expected that the court must, as part of an intuitive process, synthesis all the relevant factors in the circumstances of the case. In the end, the synthesised or intuitive sentence and non-parole period must reflect the objective and subjective features of the case: Whyte at [152].

37. As defence advocates we must continue to encourage courts to retain an appropriate proportion between the offender and the offence. The key to any defence submission must be to convince the Court to depart from the standard minimum for reasons set out in s21A, common law principles and any other relevant statutory principle.

Case Law Relevant To Sentencing Aboriginal Offenders:

38. The same sentencing principles apply to Aboriginal offenders as to non-Aboriginal offenders. The law does not want to be seen to be applying a discriminatory practice in how it deals with indigenous offenders! This is not to say that Aboriginality and the disadvantage that may be suffered as a result of economic, social and cultural deprivation is not relevant to the sentencing process.

39. Wood J in R v Stanley Edward Fernando (1992) 76 A Crim R 58, distilled the following principles from a number of cases which had already been decided:

(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offender's membership of such a group.(B) The relevance of the aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reasons of social or economic factors who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

40. These principles have been applied in a number of subsequent cases. However, it is important to remember that the principles are not necessarily enlivened simply because the offender is Aboriginal. In submitting that the Fernando principles apply the advocate must establish the disadvantage the offender has suffered as a result of his/her aboriginality. To this end keep in mind the following checklist when obtaining instructions:

* obtain details of family history,
* details of where the offender was born and raised,
* raised by parents, extended family or foster care,
* what schooling available when growing up,
* the type of employment available (if raised in rural area),
* if born and raised in a metropolitan area, where the family originated from and why they came to be in the city,
* the type of housing their parents had,
* the type of work their parents had,
* any issues of substance abuse/violence in the family environment,
* any issues of substance abuse/violence in the extended family or the community,
* any evidence of racism suffered eg not securing employment, housing difficulties.
* if residing in the city what contact with non-aboriginal community.
* organise an appropriate witness to give the evidence of background eg member of the extended family, a field officer, an employee of an aboriginal organisation, a Director.
* Psychiatric material relating to the impact on the offender of any disadvantage or separation.

Head Sentence:

41. The Fernando principles can be taken into account in fixing the length of the head sentence. In New South Wales, in R v Stanley John Fernando [2002] NSWCCA 28 at 64, the Chief Justice (with whom Wood CJ at CL and Kirby J agreed) stated that:

'As is well established, it is a primary objective of sentencing for criminal offences that the community must be protected from the commission of crimes by deterring both the particular offender and other possible offenders - referred to as personal and general deterrence respectively. In a case of the character now before the Court, by an offender with this record, the protection of the community requires a substantial period of imprisonment. It is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the Court is presented with information about the personal circumstances which have led an individual into a life of crime'.

42. At paragraph 67 the Chief Justice reiterated the principle that an offender is not entitled to any special leniency by reason of his or her Aboriginality. However, he added: 'Nevertheless, particular mitigating factors may feature more frequently in some groups than they do in others'.

43. When addressing the length of the head sentence to be imposed reliance can also be placed on obiter in a number of cases which refer to the over representation of Aboriginal people in the gaols. In R v Leonard unreported Court of Criminal Appeal 16 July 1998, Adams J noted:

'There is no doubt that in this State, indeed throughout Australia, people of aboriginal descent are represented in our prisons at a proportion which is tragic and having regard to the undoubted difficulties which they have in prison, it is desirable in those cases especially to attempt to devise the lowest possible sentence that is appropriate having regard to the circumstances of each case'.

In R v Russell (1995) 84 A Crim R 386 at 392, Kirby J stated:

'...general concern of the community, shared by the judiciary, that there are extremely high proportions of Aboriginals in prison. Present sentencing law does little to alleviate this problem or indeed to lessen the rate of offending.
Although, quite clearly, a custodial sentence was appropriate and necessary in the present case, the usefulness of long custodial sentences for Aboriginal offenders must increasingly be called into question in light of the Royal Commission and other reports produced in recent years. Judges with the responsibility of sentencing must be generally familiar with these considerations.

Special Circumstances:

44. The Fernando principles, particularly ( c) (f) (g) and (h) if applicable, should usually constitute special circumstances. (Query the advantage of such a finding in light of the new s44 of the CSP Act). There have been a number of cases where the Fernando principles have been applied in finding special circumstances: R v Lana Ryan [2002] NSWCCA 171; R v Toomey unreported, Court of Criminal Appeal 22 July 1998; R v Ah See [1999] NSWCCA 175 at 16; R v Cook [1999] NSWCCA 234 at 35

45. The implications for the case law on aboriginality and sentencing is not complete without consideration of the dissenting judgement of Justice Eames in the recent Victorian Court of Appeal decision in R v Fuller Cust [2002] VSCA 168 Court of Appeal 24 October 2002.

44. The case involved an appeal by an Aboriginal applicant against a sentence of 20 years imprisonment, with a non-parole period of 17 years, for a number of offences including rape, indecent assault, false imprisonment and recklessly causing injury. The evidence established that the applicant had an Aboriginal mother and an Irish father. When he was a child he was removed from his parents and placed in the care of the Social Welfare Department on the grounds that they had no 'settled place of abode'. He was subsequently placed in foster care which was unsuccessful. He was both psychologically and sexually abused. Psychiatric evidence was led to the effect that the sexual offences committed by the applicant occurred in the setting of his 'experiencing anger in reaction to perceived personal rejection and betrayal' rather than as a result of seeking sexual gratification simply performing acts against vulnerable women.

45. The appeal was upheld on the basis that error had been demonstrated in relation to the cumulation of sentences. The overall sentence was reduced to 17 years 3 months, with 14 years non-parole period. In the course of argument the applicant relied upon the submission that the sentencing judge gave insufficient weight to the applicant's background, particularly the sexual abuse he suffered as a child and the fact that he had been removed from his biological family and placed in unsatisfactory institutional care and highly unsatisfactory foster care. In addressing the issue of aboriginality the majority judgement simply referred to the accepted view that the same sentencing principles apply to an Aboriginal offender as to any other offender, but there may be particular matters that the court must take into account in applying those principles which are mitigating factors at [60].

46. Justice Batt noted, however, that the applicant came from Geelong and that the 'way of life' of offenders in those cases (referring to Fernando etc) was far different from the applicant's situation. These remarks indicate that Batt J had the view that indigenous people from south-eastern states such as NSW and Victoria were to be treated differently from indigenous people from other communities. The justification for differential treatment was unclear, however such a distinction is an example of judicial sleight of hand which sometimes appears in the NSW authorities. The use of the 'tribal/urban' framework is an example of a lack of understanding of the nature of aboriginality and community and demonstrates a cultural arrogance.

47. In sharp contrast to the judgement of Batt J, the dissenting judgement of Eames J went beyond the considerations of social and economic disadvantage suffered by Aboriginal offenders to an approach that deals more with complex aspects of childhood development, colonisation and cultural identity. Eames J gave a considered analysis of how matters relating to separation and aboriginality ought to be factored into the sentencing process. Unlike the reasoning expressed by the judge at first instance, Eames J accepted the validity of the term 'stolen generation' to describe the situation in which indigenous people were removed from their natural family. He considered the applicant's aboriginality and how, by virtue of that status, he was removed from his biological parents. Such removal was critical to an appreciation of the applicant's subjective circumstances:

'Considerations arising from an offender's Aboriginality may exist whether the Aboriginal person is living in an urban or a rural situation. In any instance the Court is seeking to gain a proper appreciation of the circumstances of the individual offender for the purposes of sentencing, including such factors relevant to that offender as the person's own experience as an Aboriginal person.

When regard is had to the welfare and other expert reports which were tendered before the learned sentencing judge it emerges very clearly that far from his Aboriginality being an irrelevance to the circumstances in which the offending conduct occurred, it is pivotal. Indeed, the history of the applicant has remarkable similarities to many of the cases reported upon by the Royal Commission into Aboriginal Deaths in Custody. The impact of a person being separated from family, endeavouring to regain contacts with that family, being rebuffed in those efforts, and thereupon suffering anxiety about being denied the opportunity to fully embrace his or her Aboriginality, was often addressed in individual reports and in the findings of the final report of the Royal Commission. The Commissioners recognised the impact of a person, in those circumstances, being socialised not into the family and kin network which would otherwise be the experience of an Aboriginal person living in urban circumstances but being socialised, instead, by the need to survive in institutional communities, including juvenile detention facilities and homes. That is not say that in all cases of such separation the impact on the child in later years must have been adverse: that possibility, however, must be recognised'[91 and 92].

Future Direction:
50. Some of the purposes of sentencing now expressed in s3A CSP Act may be characterised as expanding the parameters of sentencing of offenders. The objectives of promoting rehabilitation; making the offender accountable foe his or her actions; and encouraging the offender to recognise the harm done to the victim and the community, are in similar terms to those expressed in section 718 of the Canadian Criminal Code.

51. The Supreme Court of Canada examined the changes to sentencing that had been effected by section 718 in the decision of R v Gladue[199] 1SCR 688. The Court said:

'Clearly, s718 is, in part, a restatement of the basic sentencing aims, which are listed in paras (a) through (d. What are new, though, are paras (e) and (f), which along with para (d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras (d), (e), and (f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. The need for offenders to take responsibility for their actions is central to the sentencing process...In our view, Parliament's choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing for all offenders.

The Supreme Court in Gladue defined restorative justice as:

'In general approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime.

The Court compared the different approaches to sentencing in these terms:

'Restorative justice necessarily involves some form of restitution and reintegration into the community. Central to the process is the need for offenders to take responsibility for their actions. By comparison, incarceration obviates the need to accept responsibility. Facing victim and community is for some more frightening than the possibility of a term of imprisonment and yields a more beneficial result in that the offender may become a healed and functional member of the community rather than a bitter offender returning after a term of imprisonment.

52. There appears to be a move toward the concept of restorative justice, at least in the way in which sentencing proceedings are to be conducted in the Local and Children's Courts. As Lester Fernandez suggests in his paper 'Sentencing Aboriginal Offenders', the following changes will flow from a consideration of restorative justice principles:

* Restorative sentencing goals do not usually correlate with the use of prison as a sanction. * Through its reference to the community, restorative justice principles would lead judges to consider whether imprisonment would actually serve to deter or to denounce crime in a sense that would be meaningful to the community from which the offenders come from. In many instances, more restorative sentencing principles will gain primary relevance because the prevention of crime as well as individual and social healing cannot occur through other means.

* Sentencing judges would have to consider the place of the offender within the community, and to enquire as to what understanding of criminal sanctions is held by the community, and what the nature of the relationship is between the offender and his or her community

53. While none of these considerations mean that sentences of full time imprisonment will be imposed less frequently, in appropriate cases it remains (indeed it has become more of an imperative) important that submissions be made with a view to shifting the focus from punitive justice to restorative justice.

Dina Yehia
Public Defender