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Flynn, Martin --- "Not 'Aboriginal Enough' for Particular Consideration When Sentencing?" [2005] IndigLawB 13; (2005) 6(9) Indigenous Law Bulletin 15


Not ‘Aboriginal Enough’ for Particular Consideration When Sentencing?

by Martin Flynn

Introduction

An unfortunate trend is becoming evident in the State of New South Wales (‘NSW’). Increasingly, the NSW Court of Criminal Appeal is willing to distinguish important authorities (Neal v Queen[1] (‘Neal’) and R v Fernando[2] (‘Fernando’)) establishing that the Aboriginality of a defendant will be a relevant consideration when formulating a sentence. In R v Walter & Thompson[3] (‘Walter & Thompson’) the Court allowed a Crown appeal against the sentence after finding, inter alia, that the sentencing judge made an error by taking account of the Aboriginality of a defendant who ‘did not come from a dysfunctional family’ and did not have a ‘history of deprived socio-economic circumstances or alcohol abuse’.[4] Similarly, in R v Newman, R v Simpson[5] (‘Newman & Simpson’) the majority of the Court distinguished between a case where, on the one hand, an Aboriginal defendant came from ‘a particular local or rural setting’ or ‘a remote community’[6] or ‘had been living on an Aboriginal reserve’[7] and a case where, on the other hand, an Aboriginal defendant came from an urban setting and had not proven any links with a discrete Aboriginal community. The Court held that it would be wrong for a defendant in the latter category to attract ‘any special consideration’ on account of his Aboriginality.

Neither judgment in Walter & Thompson or in Newman & Simpson contain any criticism of Neal or Fernando. In Neal, Brennan J stated that, while the ‘same sentencing principles are to be applied to’ every racial group (the ‘formal equality principle’), those sentencing principles compel courts to take into account ‘all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group’ (the ‘substantial equality principle’). Fernando reiterated the importance of the substantial equality principle and elaborated upon some of the implications of the principle. For example, alcohol abuse by an Indigenous defendant is relevant to sentencing where that abuse reflects the defendant’s socioeconomic circumstances and the impoverished situation of his community.

Elsewhere I have argued that Newman & Simpson may not be inconsistent with Neal and Fernando in so far as Newman & Simpson affirms the necessity for an Aboriginal defendant to adduce a sufficient evidential basis for a sentencing court to apply the substantial equality principle.[8] A defendant must adduce evidence - submissions from counsel should usually be adequate[9] - on the significance of the fact that he or she is an Aboriginal person.

In this article I will make two further arguments on the implications of the substantial equality principle. First, cases like Walter & Thompson and Newman & Simpson are inconsistent with the substantial equality principle in so far as they suggest that the relevance of Aboriginality to sentencing depends upon whether a defendant is ‘Aboriginal enough’. Secondly, such cases divert attention from the need to develop sentencing principles that respond to both the fact that, nationally, an Indigenous person is 16 times more likely than a non-Indigenous person to be in prison and the reasons for that fact.[10] Again, it is the substantial equality principle that provides a principled basis for escaping this history of overrepresentation.

Not ‘Aboriginal enough’?

The above summary of Walter & Thompson and Newman & Simpson reveals an impoverished understanding of facts that are capable of being material to the sentencing of an Indigenous defendant. Accepting that some Indigenous defendants do not have a history of deprived socioeconomic circumstances and that many do not live on reserves, the fact remains that every Indigenous person is a member of a visible racial minority in a community that is often not tolerant of racial minorities.

The facts of Walter & Thompson itself are revealing. The triggering incident for the offence was a bouncer’s refusal to admit the two Indigenous defendants into a nightclub. The bouncer told the defendants that they would not be admitted because one of them was wearing tracksuit pants. However, the bouncer’s evidence revealed a more nuanced position:

Both guys had been drinking but I wouldn't say they were legless. The guy with the track pants was more affected by alcohol than the dark guy. When I saw them coming down the street, I decided that I was not going to let them in no matter what they were wearing. They didn't look like our normal clientele.[11] (Emphasis added.)

The defendant’s dress was not the true reason for their refused entry. The true reason may have been because they were affected by alcohol, however the emphasised text suggests an additional reason for the refusal. The Indigenous defendants did not look like the ‘normal clientele’ in a way that is not explained. The possibility that ‘race’ played a part in the refused entry – I put it no higher – in no way condones the subsequent mindless violence done by the defendants in order to secure entry to the club. However, the mere existence of the possibility bespeaks of the experience of many Indigenous people.

The Royal Commission into Aboriginal Deaths in Custody observed that the daily experience of most Aboriginal people included interacting with suspicious and unsympathetic non-Aboriginal people.[12] The cumulative effect of these interactions will vary. However, such interactions are not confined to Indigenous people who live in rural and remote areas. It is surprising, therefore, that the majority of the NSW Court of Criminal Appeal was so quick to eliminate the possibility of mitigation in a case such as Newman & Simpson where the evidence was that the defendant had endured childhood taunts and gotten into fights because of his colour.[13] The possibility that these experiences have had an effect on an Aboriginal defendant that stands to be sentenced ought, consistently with the substantial equality principle, be considered.

The precise manner in which the Aboriginality of a defendant may be reflected in a sentence will depend upon the particular history of the defendant and the particular offence. That is not to say – as Hunt CJ said in the case of William Gordon – that Aboriginality may be ignored because, for example, sexual offences are ‘white, middle-class crimes’.[14] Rather, a Court may, in a given case, be required to state that the Aboriginality of a defendant has had a limited influence on a sentence because the violent or sexual circumstances of the offence point to the need for a condign sentence.

‘Particular consideration’ when sentencing

The problematic approach of the NSW Court of Criminal Appeal to the sentencing of Aboriginal defendants (described above) is not evident in other jurisdictions. On the contrary, the Victorian Court of Appeal has recently affirmed the importance of applying the substantial equality principle to an Aboriginal defendant ‘living in an urban or a rural situation’ on the basis that the Court must consider ‘the person's own experience as an Aboriginal person’.[15] The Supreme Court of Canada has considered the relevance of Aboriginality to sentencing in the context of a provision of the Criminal Code of Canada which states that ‘all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders’.[16] In R v Gladue,[17] the Court concluded that one implication of the quoted provision was that a sentencing court could ‘reduce the imposition of jail sentences [on Aboriginal defendants] where to do so would not sacrifice the traditional goals of sentencing.’

An Opportunity?

The Canadian statute combines the ‘imprisonment as a sanction of last resort’ principle that is well known in Australian law with an acknowledgment that the principle is of ‘great importance for the sentencing of Indigenous offenders whose rates of imprisonment show a significant degree of overrepresentation.’[18] The substantial equality principle demands that all material facts relevant to Aboriginality be considered when sentencing. Some Australian courts have observed that Indigenous overrepresentation in prison, of itself, is a material fact that ought to be considered when formulating a sentence.[19] Gladue is significant because it shows how this material fact can result in a reduction in the number of custodial sentences so long as the goals of sentencing are not compromised. The possibility of applying the substantial equality principle in this way was adverted to in Attorney General's Application (No 1); R v Ponfield; R v Scott; R v Ryan; R v Johnson[20] when Groves J observed that a court may have to give ‘particular consideration’ to Aboriginal defendants in light of known evidence on Indigenous overrepresentation.

How would it Work?

The traditional goals of sentencing demand that serious offences of violence result in substantial imprisonment terms for Indigenous and non-Indigenous defendants alike. However, where an Indigenous defendant is facing a relatively short term of imprisonment because of the combination of the objective seriousness of the offence and the fact that the defendant has prior convictions, a sentencing court could pause and reflect on whether sufficient weight has been accorded to factors that arise by reason of the Aboriginality of the defendant. A Court, by informing itself by reading expert statistical publications if necessary, is able to take judicial notice of Indigenous overrepresentation in prison for a particular offence.[21] Revisiting mitigating factors personal to the defendant may indicate that a non-custodial sentence is warranted. Depending on the sentencing options available to a court, the ‘revisited’ factors may indicate that a particular ‘culturally relevant’ non-custodial sentencing option is indicated. The important point is that a sentencing court need not ignore Indigenous overrepresentation in prison.

The findings of one research study reveal that the application of the substantial equality principle in the manner suggested could significantly influence the Indigenous imprisonment rate. Joanne Baker’s study of persons convicted and sentenced for the offence of assault in the Local Court of NSW[22] revealed that Indigenous defendants with prior convictions were significantly more likely to be imprisoned than non-Indigenous defendants with prior convictions.[23] The data ‘did not necessarily signal discriminatory treatment of Indigenous persons by’ the sentencing court though because, compared to non-Indigenous defendants, Indigenous defendants may have presented with a larger number of prior convictions or more serious prior convictions. However, Baker’s research did reveal that the imposition of relatively short imprisonment terms contributed significantly to NSW Indigenous imprisonment rates. For example, a 54 per cent reduction in the number of Indigenous persons imprisoned for assault in NSW would be achieved if, instead of imposing a sentence of less than six months’ imprisonment, a sentencing court imposed a non-custodial sentencing option. [24]

Conclusion

Walter & Thompson and Newman & Simpson are not isolated examples of cases where the NSW Court of Criminal Appeal has sought to confine the application of Fernando to narrow circumstances.[25] However, there are cases from the same Court where the principle in Fernando has not been so confined. [26] I have mentioned Attorney General's Application (No 1) and there are others. The debate ought not distract from the essential question to be answered by every sentencing court: what is the appropriate sentence ‘for this offence, committed by this offender, harming this victim, in this community’?[27]

Martin Flynn is a Senior Lecturer in Law at the University of Western Australia.


[1] [1982] HCA 55; (1982) 149 CLR 305, 326.

[2] (1992) 76 A Crim R 58.

[3] [2004] NSWCCA 304.

[4] Ibid [58].

[5] [2004] NSWCCA 102.

[6] Ceissman [2001] NSWCCA 73; (2001) 119 A Crim R 535 [30] and R v Morgan [2003] NSWCCA 230; (2003) 57 NSWLR 533 [22] quoted in Newman & Simpson (Howie J) [62], [65].

[7] R v Powell [2000] NSWCCA 108 discussed in Newman & Simpson (Howie J) [66].

[8] Martin Flynn, ‘Fernando and the Sentencing of Indigenous Offenders’ (2004) 16(9) Judicial Officers Bulletin 67.

[9] Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25], [27].

[10] Australian Bureau of Statistics Prisoners in Australia, ABS Catalogue No 4517.0 (2003).

[11] R v Walter & Thompson [2004] NSWCCA 304 [18].

[12] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) <http://www.atsic.gov.au/issues/law_and_justice/rciadic/default.asp> 12.1.4.4-12.1.8 and Chapter 13 at 9 November 2004.

[13] [2004] NSWCCA 102, [59].

[14]William Todd Gordon (1994) 71 A Crim R 459 470.

[15] R v Fuller-Cust [2002] VSCA 168 [91].

[16] Criminal Code RS C 1985, c 46, s 718.2(e).

[17] [1999] 1 SCR 688 [50].

[18] NSW Law Reform Commission Report 96: Sentencing Aboriginal Offenders (2000), [2.6].

[19] For example, see Queen v Keith Carberry [2000] ACTSC 60 [7]-[8].

[20] [1999] NSWCCA 435 [40].

[21] Evidence Act 1995 (NSW), s 144(1(b).

[22] Joanne Baker, ‘The Scope for Reducing Indigenous Imprisonment Rates’ (2001) Crime and Justice Bulletin No 55, NSW Bureau of Crime Statistics and Research 1.

[23] Ibid 6-7.

[24] Ibid 8-9. A different question is whether a shift in emphasis from custodial sentences to non-custodial sentences would influence recidivism rates: Leigh S Roeger, ‘The Effectiveness of Justice Sanctions for Aboriginal Offenders’ (1994) 27 Australian and New Zealand Journal of Criminology 264.

[25] R v Ah-See [2004] NSWCCA 202 [20]-[21]; R v Walkington [2003] NSWCCA 285 [31]; R v Peckham [2003] NSWCCA 293; R v Pitt [2001] NSWCCA 156 [19]; R v Drew [2000] NSWCCA 384 [21]; R v RLS [2000] NSWCCA 175 [14]-[15].

[26] R v Peterson [2000] NSWCCA 47 [22]; R v Powell [2000] NSWCCA 108 [17]; R v Cook [1999] NSWCCA 234 [35].

[27] R v Gladue [1999] 1 SCR 688 [80].

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