The same sentencing principles and considerations apply when assisting or representing an Aboriginal defendant with a plea of guilty and in making submissions in mitigation of penalty as for non-Aboriginal people [see Guilty Pleas and Sentencing chapters]. However, there are a few considerations relevant to Aboriginal people which must be taken into account.
Sentencing Conferences
Section 22 of the Sentencing Act 2017 (SA) provides for the sentencing of an Aboriginal defendant in a less formal manner by way of a sentencing conference, and empowers the sentencing court to take into consideration any views expressed at the conference [see s 22(1)(b)]. This section may be utilised by any court sentencing an Aboriginal defendant where the defendant consents to the process. Section 22(2), however, makes it clear that a sentencing court is not compelled to convene a sentencing conference if it so determines not to convene one after considering all the relevant sentencing principles, purposes and factors.
Therefore, the sentencing court has discretion as to whether or not a conference is convened.
The Sentencing Act 2017 (SA) sections 3, 4, 9, 10 and 11 prescribe the factors a sentencing court should consider when determining a penalty following a plea of guilty (discussed in detail in the Guilty Pleas and Sentencing chapters) there are some which are particularly relevant to Aboriginal defendants:
Aboriginal identity
The same sentencing principles apply to all defendants regardless of their identity with a particular ethnic group ‘ but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group ’[see R v Fernando (1992) 76 A Crim R 58 at 62]. Furthermore, ‘ in imposing sentences courts are bound to take into account ... all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group’ [see Neal v R (1982) 149 CLR 305 at 326; [1982] HCA 55];
Whilst the same sentencing principles apply to all defendants, ‘a sentencing judge needs to be sensitive to the fact that there are particular mitigating factors which might apply more readily to Aboriginal offenders’ [see R v Tjami (2000) 77 SASR 514 at 517; [2000] SASC 311)];
Whilst Aboriginal identity is not necessarily a mitigating factor, Aboriginal identity may serve to ‘ explain or throw light on the particular offence and the circumstances of the offender’ [see R v Fernando (1992) 76 A Crim R 58at 62];
The principles outlined in Fernando are not restricted to Aboriginal people from remote communities [see R v Abdulla (1999) 74 SASR 337 at 344; [1999] SASC 239); R v Fuller-Cust [2002] 6 VR 496 at 523-524, 533; [2002] VSCA 168 for recognition of the impact of the Stolen Generation]. There is no distinction to be made in applying sentencing principles and authorities to Aboriginal people who live in traditional ways and Aboriginal people who live in urban areas. The ‘heritage of Aboriginal people raised in urban settings is relevant in explaining matters personal to the offender’ [see R v Smith (2003) 86 SASR 132; [2003] SASC 263].
Customary beliefs
Where customary beliefs are relevant to sentencing, those factors must be put before the court [see R v Shannon (1991) 57 SASR 14 at 16,18
A sentencing court may take into account Aboriginal customary law and the likelihood of retribution through customary punishment. To do so, ‘is not to sanction that retribution; it is to recognize certain facts which exist only by reason of that offender’s membership of a particular group’ [see Jadurin v R (1982) 7 A Crim R 182; 44 ALR 424 at 429; [1982] FCA 215]. Physical punishment of the defendant by the community is a relevant consideration at sentencing [see R v Poulson (2001) 122 A Crim R 388at 392].
Alcohol Abuse and Violence
It is appropriate for sentencing courts to recognise that the problems of alcohol abuse and violence in some Aboriginal communities ‘are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment’ [see R v Fernando (1992) 76 A Crim R 58 at 62];
Alcohol abuse is not normally a mitigating factor. However, ‘where the abuse of alcohol ... 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’ [see R v Fernando (1992) 76 A Crim R 58 at 62-63];
In assessing case law, it is clear that ‘ the courts are prepared to recognise as a mitigating circumstance, the disadvantageous position of Aboriginal persons ... allowance must be made with respect to offences of violence which are a product of abuse of alcohol which so often accompanies their existence, living as they are in economically deprived circumstances ’ [see Ingomar v Police (1998) 72 SASR 232at 236; [1998] SASC 6875];
The Fernando principles will likely apply in circumstances involving petrol sniffing [see Bux v Police [2009] SASC 352 at 315-317].
Imprisonment
A lengthy term of imprisonment may be “unduly harsh” when imposed upon an Aboriginal person ‘who has come from deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways’ [see R v Fernando (1992) 76 A Crim R 58 at 63; R v Tjami (2000) 77 SASR 514at 521; [2000] SASC 311];
When considering the imposition of a term of imprisonment, the court should give ‘recognition of the debilitating effect on Aborigines of this form of punishment ... even though it must be weighed against the need to provide protection for the community and the necessity for specific and general deterrence’ [see R v Abdulla (1999) 74 SASR 337 at 344; [1999] SASC 239].
Rehabilitation
In taking into account all factors relevant to sentencing, ‘full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part’ [see R v Fernando (1992) 76 A Crim R 58].
Community Protection
Whilst imprisonment may not provide the desired deterrent effect for alcohol abuse and violence, ‘ the courts must be very careful ... to not ... deprive Aboriginals of the protection which it is assumed punishment provides’ [see R v Fernando (1992) 76 A Crim R 58].
The Correctional Services Act 1982 (SA) allows for early release on home detention for Aboriginal or Torres Strait Islander prisoners serving a sentence of imprisonment who normally reside on traditional lands (including any place specified in the instrument of release as the person's residence) [see ss 37A(1) and 37A(6)]. However, prisoners sentenced in respect of certain offences, such as those involving violence, are not eligible for home detention [see s 37A(2)(d)]. For further information in relation to early release from imprisonment on home detention see the Sentencing chapter.
Sentencing considerations : Last Revised: Mon May 21st 2012
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