Sentencing Aboriginal and Torres Strait Islander offenders

6.14     Aboriginal and Torres Strait Islander peoples hold a unique position as Australia’s first peoples. The experiences of Aboriginal and Torres Strait Islander peoples are canvassed in Chapter 2 of this report.

6.15     Sentencing courts in all jurisdictions have the ability to take account of an offender’s background of disadvantage, relying on submissions on the relevant issues being made or as provided in court-ordered pre-sentence reports. Courts can consider a range of subjective factors arising from the offender’s history. This may include, for example, where the offender experienced deprivation, poverty, trauma or abuse and those factors may affect a person’s moral culpability.[23] These can be taken into account irrespective of an offender’s cultural or racial background.

6.16     Among the many experiences unique to Aboriginal and Torres Strait Islander peoples, Aboriginal and Torres Strait Islander offenders may have experienced detrimental and intergenerational effects of past government policies and criminal justice practices.[24] As observed by ACT Legal Aid in their submission to this Inquiry:

Numerous reports have recognised the ongoing ‘complex effects of dispossession, colonisation and institutional racism on Aboriginal peoples’, including ‘poverty, unemployment, [poor] education, alcohol abuse, isolation, racism and loss of connection to family culture, land or Indigenous laws’… ATSI offenders must be considered in the context of the historical subjugation and dispossession that has shaped, engendered, and perpetuated ATSI disadvantage.[25]

6.17     There are existing provisions that enable some sentencing courts to consider factors related to Aboriginality when sentencing, and the common law has also provided some guidance. These are briefly discussed below.

Statutory provisions

6.18     Provisions related to considerations of Aboriginality when sentencing are found in the sentencing statutes of the ACT, Queensland, and SA. In the ACT, the Crimes (Sentencing) Act 2005 (ACT) directs the sentencing court to consider, among other things, the ‘cultural background’ of the offender.[26] The ‘cultural background’ of the offender is also a matter for inclusion in pre-sentence reports (see below).[27]

6.19     In Queensland, s 9 of the Penalties and Sentencing Act 1992 (Qld) determines that a sentencing court must, among other things, have regard to submissions made by a Community Justice Group about particular matters relating to an Aboriginal and Torres Strait Islander offender’s community, any cultural considerations, or available services or programs:

(2) In sentencing an offender, a court must have regard to—

(p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example—

         (i)     the offender’s relationship to the offender’s community; or

         (ii)    any cultural considerations; or

         (iii)   any considerations relating to programs and services established for offenders in which the community justice group participates;… [28]

6.20     The explanatory notes to s 9(2)(p) described community justice groups as entities comprised of Elders and respected persons who volunteer their time to develop and implement local strategies for addressing crime and justice issues in Aboriginal and Torres Strait Islander communities.[29] At the time of the provision’s introduction, there were more than 30 groups established in communities across Queensland, including remote, regional and metropolitan areas.[30] In 2017, there were close to 50 community justice groups in Queensland.[31]

6.21     Submissions to the sentencing court by community justice groups may be made on request by the prosecution, defence or the court, or at the volition of a Community Justice Group.[32]

6.22     The key factors that led to the current form of s 9(2)(p) was the over-representation of Aboriginal and Torres Strait Islander peoples in custody, and the need for greater community-based culturally appropriate options.[33] It was intended that submissions from community justice groups would give the sentencing court insight into the ‘reasons for the offending behaviour and relevant cultural and historical issues’.[34] Community justice groups could make the court aware of local sentencing options, particularly those in which the group participated. Submissions to this effect were to be of particular benefit to circuit courts in remote areas, with the responsible Minister noting in the second reading speech that it would be ‘expected that the advice of the community justice groups will lead to more appropriate sentencing options for offenders’ allowing for the ‘community to take a greater role in addressing offending behaviour in a culturally appropriate way’.[35]

6.23     There is a similar provision in Queensland relating to submissions by community justice groups regarding applications for release on bail.[36]

6.24     In their submission to this Inquiry, Caxton Legal Centre identified some limitations of the Queensland provision regarding submissions on sentencing. First, it observed that there was still no explicit requirement for sentencing courts in Queensland to take into account the ongoing and unique systemic and background factors affecting Aboriginal and Torres Strait Islander offenders.[37] Second, the provision did not require that submissions be sought from community justice groups, and, third, when obtained, there was no legislative requirement for sentencing judges to accept recommendations submitted by the Community Justice Group. For these reasons, Caxton Legal Centre supported ‘legislative redress’ of the Queensland provision.[38]

6.25     In SA, the sentencing statute provides for the convening of sentencing conferences when sentencing Aboriginal and Torres Strait Islander offenders.[39] These are designed to promote in the defendant ‘understanding of the consequences of criminal behaviour, and in the court, understanding of Aboriginal cultural and societal influences, and thereby make the punishment more effective’.[40]

6.26     A sentencing conference potentially involves the defendant (whose consent is required), members of their family, their legal representative, the prosecutor, an Aboriginal Justice Officer, and the victim, if they choose to participate.[41] A court may take the views expressed in the conference into consideration when determining a sentence, although it is discretionary.[42] In R v Wanganeen the South Australian Supreme Court commented that the provision was

a formal recognition of the cultural differences that should be accommodated when sentencing Aboriginal offenders … It is relevant for the purposes of this decision to again record the over-representation of Aboriginal people in the criminal justice system, and the relevance of Aboriginality in sentencing generally, in order to provide further context to the enactment of section 9C.[43]

6.27     The provisions in the ACT, Queensland and SA apply in all sentencing courts in those jurisdictions, not only to Aboriginal and Torres Strait Islander specific sentencing courts (such as Murri and Nunga courts).[44] The SA sentencing conference model received support from some stakeholders to this Inquiry.[45]

Common law

6.28     There is a considerable body of case law that provides guidance for sentencing courts when sentencing Aboriginal and Torres Strait Islander offenders in Australian jurisdictions.[46] The key decisions are outlined below.


6.29     In 1982, in reviewing the sentence of an Aboriginal offender in Neal v R, the High Court of Australia considered that the sentencing court ‘should have taken into account the special problems experienced by Aboriginals living in reserves’.[47] Brennan J went on to state:

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 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.[48]


6.30     A decade later, and a year after the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) delivered its report, Wood J delivered a decision in the Supreme Court of NSW of R v Fernando.[49] Fernando, a 48-year-old Aboriginal man, entered a plea of guilty to a charge of malicious wounding after stabbing his de facto partner a number of times. Fernando lived in an Aboriginal community in Walgett, in the far west of NSW. He had low levels of education, had been forcibly removed from his family as a child, and had an extensive criminal record, including a number of offences involving alcohol. Fernando had been consuming alcohol before the stabbing.

6.31     In the decision, Wood J enunciated the following principles in relation to the sentencing of Aboriginal offenders:

(A) The same sentencing principles are to be applied in every case irrespective of the identity of the particular offender or his membership of an ethnic or other group but that does not mean 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 with 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 reason of social or economic factors or 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.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.[50]

6.32     This judgment does not bind sentencing courts of other states and territories, nonetheless, the ‘Fernando principles’ have been described as a ‘convenient collection of circumstances that courts can take into account in an appropriate case’.[51] They have been influential across Australian jurisdictions, but do not automatically apply to all cases involving an Aboriginal or Torres Strait Islander offender, nor do they provide that a person’s ‘Aboriginality of itself is a mitigating factor’.[52] Rather, the principles provide a ‘framework for consideration of the issues of disadvantage often attending the subjective circumstances of individual Indigenous offenders’.[53] As Wood CJ later set out in R v Pitt:

What Fernando sought to do was to give recognition to the fact that disadvantages which arise out of membership of a particular group, which is economically, socially or otherwise deprived to a significant and systemic extent, may help to explain or throw light upon the particular offence and upon the individual circumstances of the offender. In that way an understanding of them may assist in the framing of an appropriate sentencing order that serves each of the punitive, rehabilitative and deterrent objects of sentencing.[54]

6.33     Some courts have ‘narrowed the application’ of the Fernando principles, particularly in the Northern Territory (NT) and WA—principally in cases involving serious offending.[55] Commentary on the application of the principles indicates they have been applied ‘unevenly’.[56] This may not be a bad outcome. The NSW Sentencing Council has suggested that this uneven application ‘may simply be a reflection of the protean nature of the objective and subjective circumstances of each case and/or the availability (or otherwise) of evidence as to the subjective circumstances of particular Indigenous offenders on sentence’.[57]

6.34     The Fernando principles continue to be utilised by the courts in sentencing offenders who have a background of disadvantage. Citing the decision of Simpson J in R v Kennedy,[58] the majority of the High Court of Australia affirmed this as the basis of the Fernando principles:

Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.[59]


6.35     In October 2013, the High Court delivered its decision in the case of William David Bugmy.[60] Bugmy was being held on remand for other offences when he assaulted a prison officer with a pool ball. The officer sustained a serious injury, resulting in partial blindness. Bugmy’s personal history was marked by disadvantage, violence, substance abuse, suicide attempts, mental illness and repeated incarceration as a juvenile and as an adult. Bugmy had entered a plea of guilty and was sentenced in the NSW Court of Criminal Appeal (NSWCCA) for various assault offences. He appealed to the High Court of Australia against the severity of the sentence on several grounds, two of which are particularly relevant to this Inquiry.

6.36     First, the appellant submitted that the NSWCCA had erred in accepting the prosecution’s submission that ‘the difficult circumstances of the respondent’s youth, in particular the prevalence of alcohol abuse and the lack of parental guidance … lost much of its force when it was raised against a background of numerous previous offences’.[61] The High Court agreed, noting that because the effects of ‘profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision’.[62]

6.37     The second ground of appeal was that the Court ought to have regard to two decisions of the Supreme Court of Canada: R v Gladue[63] and R v Ipeelee[64](discussed below). The appellant relied on these decisions as authority for two propositions: that sentencing courts should take into account the ‘unique circumstances of all Aboriginal offenders as relevant to the moral culpability of an individual Aboriginal offender’ and it should take into account the high rate of incarceration of Aboriginal Australians, which reflects a ‘history of dispossession and associated social and economic disadvantage’.[65]

6.38     The Canadian decisions related to s 718.2(e) of the Canadian Criminal Code, which prescribes imprisonment to be a last resort, with ‘particular attention to the circumstances of [A]boriginal offenders’. In Gladue, it was found that this statutory direction amounted to legislative recognition that the circumstances of Aboriginal peoples are unique and of the disproportionate rate of incarceration of Aboriginal peoples.[66] The Canadian experience is further discussed below.

6.39     In Bugmy, the appellant likened the existence of s 718.2(e) of the Canadian Criminal Code to provisions in NSW sentencing legislation which provide for imprisonment as a last resort, and which outline the factors to be considered in sentencing.[67] Noting the application of Neal and Fernando, the appellant furthersubmitted that, subsequent to both those decisions, there had been in Australia a myriad of court decisions, national reports, and commissions of inquiry and reviews that not only elevated public understanding and awareness of, but confirmed the ‘ongoing grave socio-economic difficulties in many Aboriginal communities and the link of these “background factors” to subsequent offending behaviour’.[68] The appellant quoted Gladue and Ipeelee to show that, when considering the context of offending, Canadian courts must take

judicial notice of the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal offenders.[69]

6.40     The appellant submitted that the High Court should require NSW courts to take into account these known systemic and background factors, rather than requiring the Aboriginal legal services to present authorities and publications relating to this same context in each case.[70]

6.41     The High Court rejected this ground of appeal, finding that the Canadian decisions on which the appellant relied were founded upon the legislative provision
s 718.2(e), which could be distinguished from the NSW provision because it did not direct the courts to give particular attention to the circumstances of Aboriginal people, further stating:

There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice.[71]

6.42     The High Court referred to Australian case law and principles that provide for consideration of disadvantage generally, which also applies within Aboriginal communities.[72] Ultimately, however, it rejected the argument that ‘courts ought to take judicial notice of the systemic background of deprivation of Aboriginal offenders’,[73] on the basis that it would be ‘antithetical to individualised justice’.[74]


6.43     Munda v Western Australia,[75] a case where an Aboriginal man had killed his de facto partner during a violent attack while intoxicated, was heard by the High Court together with Bugmy. Though primarily focused on issues related to appeal on sentence by the prosecution, the appellant argued that the Court of Appeal of the Supreme Court of Western Australia had failed to have proper regard to the appellant’s personal circumstances as an Aboriginal man, and to his systemic deprivation and disadvantage, including an environment in which the abuse of alcohol was endemic in Aboriginal communities.[76]

6.44     In relation to the abuse of alcohol, the High Court observed that the

circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but the consideration must be balanced with the seriousness of the appellant’s offending. It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.[77]

6.45     The High Court determined that, in the ‘absence of specific legislative direction of the kind discussed in the Canadian decisions of R v Gladue and R v Ipeelee, the starting point for discussion of this ground of appeal is the statement of Brennan J in Neal v The Queen’.[78]The appeal was dismissed. Among other things, the High Court found it to be ‘contrary to principle to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities’.[79] The High Court observed further:

To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.[80]