Sentencing and Aboriginal Customary Laws: General Principles

504. Building on Existing Judicial Practice. As the cases referred to earlier in this Chapter demonstrate, the courts, especially the Supreme Courts of the Northern Territory, South Australia and Western Australia, have had considerable experience in dealing with the problems involved in the recognition of Aboriginal customary laws in sentencing. This experience is a convenient starting point in considering the issue to what extent and in what ways Aboriginal customary laws should be recognised in the sentencing of Aboriginal offenders. The fact is that they are already recognised to a considerable degree. In considering reform, it is helpful to build on the existing experience in this field, if necessary reinforcing or elaborating on it. The courts have consistently recognised a distinction, which in the Commission’s view is fundamental, between taking Aboriginal customary laws into account in sentencing, on the one hand, and incorporating aspects of Aboriginal customary laws in sentencing orders, on the other. The courts have consistently rejected arguments that Aboriginal customary laws, because they are not formally recognised by the general law and may in some respects contravene it, cannot be taken into account in sentencing. But they have, with some exceptions, been much more cautious about suggestions that aspects of Aboriginal customary laws (eg traditional punishments, initiation) should be incorporated into sentences (eg explicitly by being made a condition attached to a bond or as an implicit basis on which a lesser sentence is imposed). The following paragraphs spell out this distinction in more detail, in the light of the cases in which such issues have been raised, before going on to consider whether the principles which in the Commission’s view ought to be applied require legislative endorsement in some way (para 516-517), and whether the discretion to apply these principles ought also to be available in cases where no discretion otherwise exists (para 518-522).