6.1 The Terms of Reference to this Inquiry direct the ALRC to consider sentencing in examining the incarceration rates of Aboriginal and Torres Strait Islander peoples. Sentencing decisions are crucial in determining whether a person goes to prison and for how long. The sentencing decision may be affected by the seriousness of the offence and any subjective characteristics of the offender, including criminal history.
6.2 Aboriginal and Torres Strait Islander offenders are more likely to have prior convictions and to have served a term of imprisonment than non-Indigenous offenders. Aboriginal and Torres Strait Islander offenders may have also experienced trauma that is unique to their Aboriginality. This could include, for instance, direct or indirect experience of the Stolen Generation, loss of culture, and displacement. Aboriginal and Torres Strait Islander peoples who have experienced this type of trauma may distrust police and government agencies.
6.3 Sentencing courts are able to consider the relevance and impact of systemic and background factors affecting an Aboriginal or Torres Strait Islander offender when taking into account subjective characteristics at sentencing, but are not required to do so. The High Court determined that, in the absence of legislative authority, to take ‘judicial notice’ of the ‘systemic background of deprivation of Aboriginal offenders’ more generally would be ‘antithetical to individualised justice’.
6.4 For reasons of fairness, certainty, and continuity in sentencing Aboriginal and Torres Strait Islander offenders, the majority of stakeholders to this Inquiry supported the introduction of provisions requiring sentencing courts to take a two-stepped approach. First, to take into account the unique systemic and background factors affecting Aboriginal or Torres Strait Islander peoples, then to proceed to review evidence as to the effect on that particular individual offender.
6.5 The ALRC recommends the introduction of such provisions. The ALRC further recommends that in the courts of superior jurisdiction (District/County and Supreme Courts), taking account of unique systemic and background factors should be done through the submission of ‘Indigenous Experience Reports’ (IERs), ideally prepared by independent Aboriginal and Torres Strait Islander organisations. In courts of summary jurisdiction (Local or Magistrates Courts) where offenders are sentenced for lower level offending—and time and resources are limited—the ALRC recommends that courts accept evidence in support of the provisions through less formal methods.
6.6 The recommendations of this chapter aim to ensure sentencing courts are provided with all the information relevant to the unique experiences and systemic factors affecting Aboriginal or Torres Strait Islander peoples, and their impact on the offender. This would enable courts to impose the most appropriate sentence on Aboriginal and Torres Strait Islander offenders, taking into account all of the circumstances, including any available and appropriate community-based options.