Sentencing Issues

490. Introduction. The primary purpose of this Chapter is to consider whether, and to what extent, Aboriginal customary laws should be taken into account in the sentencing process. Aboriginal customary laws may be relevant to sentencing in a number of different ways. An Aborigine may commit an offence against the general law when acting in accordance with customary laws, or the offence, whether it involves any aspect of customary laws or not, may have significant consequences and require, or lead to, some response such as some ‘pay-back’ or ‘traditional punishment’ by other Aborigines involved. Tensions may have been created within an Aboriginal community as a result of an offence and members of the community will have views on how the offender should be dealt with. What principles should the courts apply in such cases, and is legislation desirable to reinforce or vary present sentencing practices? These questions, important though they are, represent only one aspect of a broader range of issues relating to the sentencing of Aborigines. In Chapter 17 some of the evidence of the disproportionate imprisonment of Aborigines was outlined.[69] But it is clear that most offences for which Aborigines are imprisoned involve few or no traditional elements — whether these are alcohol-related crimes of violence, or ‘victimless’ offences for which short sentences of imprisonment are (often unnecessarily) imposed, or which result in imprisonment in default of payment of a fine. These broader sentencing issues are at the heart of much of the disquiet about the Australian criminal justice system’s apparently discriminatory impact on Aborigines.[70] The problems cannot be dealt with comprehensively within the present Terms of Reference.[71] But they do need to be taken into account in considering what can be done to recognise Aboriginal customary laws in sentencing, and they are accordingly discussed briefly later in this Chapter.[72]