532. Prevalence of Non-traditional Elements in Sentencing. As pointed out already the sentencing of Aboriginal offenders is likely to involve not only a consideration of the extent to which Aboriginal customary laws are relevant, but also other factors. Most offences committed by Aborigines, including even traditionally oriented Aborigines, do not directly involve Aboriginal customary laws. The need to take into account such factors as socio-economic conditions, ways of life, and the special disadvantages faced by many Aborigines, has often been recognised. As Justice Brennan stated in R v Neal:
The fact that the incident was to be accounted for by the problems (whatever they are) of life on the Reserve was a material factor for consideration. It is erroneous to neglect consideration of emotional stress which explains criminal conduct. 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.
In R v Alwyn Peter the court, in sentencing a 22 year old Aboriginal from Weipa South Aboriginal community who had pleaded guilty to the manslaughter of his de facto wife, heard the evidence of a number of experts relating to the living conditions and the level of violence on Aboriginal reserves in Queensland. The court accepted that, while alcohol was often the trigger which released the violence, other factors had to be taken into account. Justice Dunn, in sentencing Peter, commented:
The evidence showed in detail the correctness of a belief held by myself and other Judges, that … the incidence of violent crime amongst Aboriginal communities in North Queensland is very high. The evidence also shows that, whilst alcohol is usually the trigger which releases violence, there are other factors to take into account. It is indeed because of those factors that so much uncontrolled drinking takes place … The inclination of my brother judges and myself to recommend such offenders as you for consideration for parole results I think from the fact that without the assistance of expert evidence we have perceived and made allowance for the fact that special problems exist in Aboriginal communities.
533. Discriminatory Sentencing Practices? There is no clear evidence that Australian courts when sentencing Aborigines discriminate either for or against them. Unfortunately, much of the available evidence is anecdotal and little empirical work has been done, even at superior court level. The Com mission’s own research into sentencing of Aborigines in Supreme Courts and District Courts does not demonstrate that Aborigines are more harshly treated in sentencing, having regard to the facts of particular cases. However, it has been asserted that Aborigines are treated more leniently than non-Aborigines for similar offences. There are certainly examples at least of treating Aborigines ‘differently’ to non-Aborigines. McCorquodale in a study which includes an examination of Aborigines appearing before the courts from 1788 to the present day, concluded that:
an examination of the judgments … suggests that there still persists in judicial minds a stereotyped impression of Aborigines as being not-quite-civilised, of being lesser persons in terms of inability to hold or resist drink, sexual morality, domestic abuse or neglect, capacity to seek out, obtain, and continue in responsible employment, and of public conduct. To that extent, the judges may simply be reflecting what is seen as a societal perspective, from which they could hardly be immune.
Even if McCorquodale’s conclusion, that many judges appear to adopt a stereotyped view of Aborigines, is accepted, it does not follow that the actual sentences imposed are discriminatory. McCorquodale does not assert that the sentences given to the Aboriginal offenders in the cases he studied were inappropriate. The special circumstances of an offender, whatever the offender’s race, are always capable of being taken into account in sentencing, which is (except where mandatory sentences apply) a more individualised process than any other in the criminal justice system. Quite apart from mitigation of sentence taking into account customary laws or local opinions, one factor which courts have taken into account in reducing sentences or imposing relatively short non-parole periods is the isolation that some traditional Aborigines with little knowledge of English would suffer if imprisoned for long periods in an urban gaol far from their own land and people. These special factors make any overall assessment of discrimination in sentencing particularly difficult. Detailed studies on this question which take into account all relevant variables have not yet been carried out. In the absence of such studies, it can only be said that the available information does not reveal the existence of discriminatory sentencing practices at Supreme Court or District Court level in the past 20 years.
534. Courts of Summary Jurisdiction. However, several studies suggest that the situation may be different in courts of summary jurisdiction. For example a study by Martin and Newby of Aborigines in summary courts in Western Australia aimed to compare the way summary courts dealt with Aboriginal and non-Aboriginal defendants, focussing in particular on different regional areas and on justice as dispensed by either magistrates or justices of the peace. The initial study focused on seven towns. Its preliminary conclusion was that:
The criminal justice process is characterized by lack of uniformity and inconsistency which tends overall to produce a more detrimental impact on Aboriginal than white defendants … Our results indicate variations in Court processes involving a complex interplay of variables whose cumulative influence has a more negative impact on Aborigines than on other Australians. They were:
more likely to be charged
more likely to be charged with a nuisance offence against ‘good order’
more likely to have their cases heard by Justices of the Peace.
Justices Courts were associated with:
least likelihood of legal representation
more sentences of imprisonment.
It appears that Aborigines appearing before justices of the peace, in rural areas in Western Australia and possibly elsewhere, are subjected to what could be termed an institutional form of discrimination. This raises the question whether justices of the peace should continue to hear criminal cases, especially those involving Aboriginal defendants. In particular it casts serious doubt on whether justices of the peace should continue to have the power to imprison. As soon as possible justices of the peace should be withdrawn from criminal cases, at least in areas with a high Aboriginal population, and be replaced by qualified magistrates. Justices of the peace sitting in ordinary courts of summary jurisdiction should be limited to hearing minor regulatory offences, minor traffic violations, and bail applications, together with other procedural matters. Alternatively, they should be empowered by law to impose only non-custodial sentences, with limited power to remand in custody accused persons whose offences may warrant more severe measures. Steps should also be taken to prevent default imprisonment being used as a device to imprison an accused, in cases where custodial sentences were not available.
535. Ineffectiveness of Gaol as a Deterrent. The evidence of excessive rates of Aboriginal imprisonment, summarised already, raises even more serious questions when one takes into account the generally accepted view that imprisonment is, for many, of little or no deterrent value. In R v Wesley Nganjmirra Justice Muirhead said:
Prison is seldom constructive, but the law provides imprisonment as a punishment for crime and courts, by whose authority I am bound, have emphasised very strongly that where crimes of violence are concerned the deterrent aspect of punishment becomes a powerful consideration, the law accepting that punishment by imprisonment may deter.
Little research has been done on Aboriginal perceptions of imprisonment, but there is a widely held view that for many Aborigines no stigma attaches to going to gaol. Ms Pat Lowe, a clinical psychologist with the Prisons Department in Western Australia, had this to say about the attitude of traditionally oriented Aborigines to imprisonment, at the Broome Prison to imprisonment:
Long sentences are unpopular, and prisoners do chafe at them, particularly when they are sent to metropolitan prisons for extensive periods. But shorter sentences of three to six months are often welcomed as ‘time out’ from the rough and tumble of fringe dwelling. Some prisoners are candid about this. They appreciate the good food, the peace and quiet of a more orderly existence, the TV and cards, the spell away from alcohol, and the company of the friends they meet again. This is in contrast to the attitude of most white prisoners, and of course reflects most of all on the conditions under which the Aboriginal prisoners normally live. Some regular customers become dependent on prison: on one occasion a man, released one day, broke back into the prison the following night because he was hungry.
If this assessment is correct it strongly reinforces the conclusion reached in the Commission’s Interim Report on Sentencing that imprisonment should not be used except in serious cases, and as a last resort. This issue will be discussed further in the Commission’s Final Report on Sentencing.
536. The Groote Eylandt Studies. A research report on Groote Eylandt prisoners by David Biles reached different conclusions, though from the same starting point. In Biles’ view:
Criminal justice services, in particular the use of imprisonment on the mainland, reinforces and rewards the criminal behaviour of some Groote Eylandters … [Flor many Groote Eylandters there is no perceived physical hardship or social stigma associated with being sent to prison in Darwin or elsewhere on the mainland. In fact, for many of them, all of the evidence suggests that going to prison’ may be an enjoyable experience! …The formal process of punishment for Groote Eylandt offenders is counter-productive in that it encourages further criminal behaviour. It is also very expensive.
He therefore recommended ‘that consideration be given to the establishment of a prison for up to 25 prisoners on Groote Eylandt’. Commenting on the Biles Report, Colin McDonald agreed that imprisonment on the mainland as well as being ineffective was no deterrent. But he did not consider that the answer was to build a prison:
This … will have implications for land rights, local social control, and for social harmony. While it might reduce costs to the governments, nothing Biles says convinces that it would help lower the unacceptably high imprisonment rate.
The Biles approach was also roundly criticised by other commentators:
His [Biles] ‘let’s build another prison’ solution to the complex problems of Aboriginal dispossession, inequality, poor living conditions, lack of employment and access to income maintenance, the effect of alcohol, acculturation, the destruction of natural and spiritual resources, and the historical legacy in the form of the criminal law, police practices and imprisonment, would be laughable were it not so tragic in its consequences.
The Biles Report and the comments it provoked led to the creation of the Groote Eylandt Aboriginal Task Force, consisting of 10 Aborigines appointed by the Commonwealth and Northern Territory Governments to look at the high rate of crime on Groote Eylandt. The Task Force Report rejected a number of conclusions in the Biles Report, as well as a number of aspects of the research supporting it. In particular the Task Force rejected the recommendation that a prison be built on Groote Eylandt:
In the Task Force’s view, a wide range of social factors lead to the high imprisonment rate of Groote Eylandt Aborigines, and their Report made many recommendations directed at social, educational and other issues, in an attempt to alleviate this.
537. The South Australian Aboriginal Customary Law Committee. As was pointed out in para 396, Aboriginal juveniles are disproportionately represented in criminal justice statistics. Indeed the statistics that are available indicate that Aboriginal juvenile offenders constitute a high percentage of all Aboriginal off enders. A study by the South Australian Aboriginal Customary Law Committee dealing with Aboriginal communities in the northwest and at Yalata in the west of the State showed that:
By far the greatest number of offences and certainly the source of greatest concern both to the Pitjantjatjara and their European supporters — or detractors — is a high incidence of child delinquency.
The Committee commented that:
While the data did not isolate petrol sniffing — since it is not at present an offence — there are prima facie grounds for believing that nearly all delinquency is associated with petrol sniffing.
The Report made a number of recommendations on the related problems of delinquency and petrol sniffing:
The practice of remanding children to Adelaide from remote Aboriginal communities to have their cases heard should cease.
Apart from the logistical problems and time delays, children are inappropriately separated from kinsfolk, but then feather-bedded with handsome meals, colour television, the latest movies … They return heroes, and provide the foundations of a notoriety that is perpetuated by their peers.
The Committee’s recommendation in relation to the remand of juveniles, though apparently appropriate, raises a number of practical questions. What is to be done with children living within the Pitjantjatjara lands who are remanded within the lands but have no other restraints placed upon them and who continue to commit offences? How will presentence reports be delivered or other assessments be carried out on Aboriginal juvenile offenders within the Pitjantjatjara lands? Further alternatives need to be dev eloped to the provisions of the Childrens Protection and Young Offenders Act 1979 (SA) for young offenders in the Pitjantjatjara lands. The recommendation that parents be held responsible for the actions of their children also needs careful consideration. Petrol sniffing is a major problem is some communities. But increased legal penalties are not necessarily the answer. What is to be done in the case of a juvenile offender who proves to be beyond the powers of a parent to control? Is the parent to be held responsible regardless? Will the change in legal responsibility have the desired effect of encouraging Aboriginal parents to exert greater authority over their children with respect to offences against the general law?
538. Relevance for this Report. The disproportionate representation of Aborigines at all levels of the Australian criminal justice system will not be avoided by providing greater discretions or setting out new rules for judges and magistrates in sentencing Aboriginal offenders. The primary reasons for this disproportionate representation lie outside the criminal justice system. But this is not to say that improvements cannot be made. Some limited impact can be made if action is taken at all levels (the police, the courts and the prisons). The extent to which improvements can be made at the general level, not just in relation to Aborigines, will be considered in the Commission’s Final Report on Sentencing. In relation to Aborigines, apart from the recommendations made in this Chapter for the continued, and more formal, recognition of Aboriginal customary laws in sentencing, the issues raised in paragraphs 532-537, while they may not directly relate to Aboriginal customary laws, point clearly to a need for something to be done. Too many Aborigines are being imprisoned for minor offences or for non-payment of fines, and the practices and procedures of the criminal justice system in some areas do work to the detriment of Aboriginal people compared to the rest of the population. There is a need for more precise data on the impact of the criminal justice system on Aboriginal communities, and for detailed studies, carried out in consultation with the communities concerned, on what measures work, or do not work, in particular situations.