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Edney, Richard --- "The Retreat from Fernando and the Erasure of Indigenous Identity in Sentencing" [2006] IndigLawB 11; (2006) 6(17) Indigenous Law Bulletin 8

The Retreat from Fernando and the Erasure of Indigenous Identity in Sentencing

by Richard Edney


The decision in R v Fernando[1] (‘Fernando’) is – and remains – one of the most influential decisions on the relationship between Aboriginality and sentencing under Australian criminal law. The eight proposed sentencing principles, as they apply to Indigenous persons for the purposes of sentence, have provided authoritative guidance for Courts of Criminal Appeal throughout Australia.

In recent decisions however, the propositions in that decision by Wood J have been qualified in their application in a cluster of New South Wales Court of Criminal Appeal decisions. It is proposed to outline those decisions and to highlight the method by which they qualify and ultimately undermine the principles of Fernando. It will be contended that these decisions should not be followed. The principle reason why they should not be followed is that they attempt to confine the reach of Fernando by fundamentally misapprehending the nature of Indigenous identity in a post-colonial society. Before considering these post-Fernando decisions it will first be necessary to outline the principles of Fernando.

The Decision in Fernando

Fernando was a decision of a New South Wales Court of Criminal Appeal and was handed down in 1992. In that decision, Wood J identified a number of propositions that effectively represented a distillation of a number of extant authorities that had considered the relationship between Aboriginality and sentencing. The propositions in Fernando were as follows:

A. The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offender’s membership of such a group.
B. The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
C. It is proper for the court to recognise that the problems of alcohol abuse and violence that to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
D. Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed that punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
E. While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worse effects.
F. That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
G. That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reasons of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background, with little understanding of his culture and society or his own personality.
H. That in every sentence exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might be otherwise attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.[2]

The principles outlined in Fernando did not arise in a vacuum but effectively consolidated a number of existing sentencing principles that considered the relationship between Aboriginality and sentencing. In addition, Fernando was influenced by a wider non-Indigenous consciousness of the complex, tragic and insidious relationship between Indigenous communities and the criminal justice system that had been revealed in 1991 with the publication of the Royal Commission into Aboriginal Deaths in Custody[3] (‘RCIADIC’). Thus the decision in Fernando occurred in a context of the recent publication of the findings and recommendations of the RCIADIC.

The Retreat from Fernando

The principles in Fernando have stood relatively unqualified for a significant period of time.[4] In the more recent history of the New South Wales Court of Criminal Appeal, this has changed. I will deal with those cases in turn.

The first significant decision was the decision of the New South Wales Court of Criminal Appeal in R v Ceissman[5] (‘Ceissman’), involving a Crown appeal against sentence. In Ceissman, Wood CJ – who propounded the principles in Fernando – distinguished Fernando and stated that the sentencing Judge in this case ‘was at risk of mis-applying the decision in Fernando’.[6] Wood CJ thought the sentencing Judge was at such a risk because of the factual circumstances of the particular offender in this case. As Wood CJ noted:

The present is not such a case, nor is it one which needs to be understood as having occurred in a particular local or rural setting, or one involving an offender from a remote community for whom imprisonment would be unduly harsh because it was to be served in an environment that was foreign to him or her.[7]

Wood CJ then elaborates further why Fernando should not apply in relation to this offender and states:

I am unable to see the existence of any factor arising from the fact that the respondent’s grandfather was part aboriginal, that would, in accordance with Fernando, attract special consideration.[8] (Emphasis added.)

This is a significant statement. Not only is the use of the word ‘part-Aboriginal’ poor use of language given the history of Australia and institutional classification of Indigenous persons according to racist, ‘scientific’ categories,[9] but the use of word ‘rural’ is indicative of the construction of an unfortunate binary that suggests that Indigenous persons in urban communities are beyond the scope of Fernando.

Later in the same year, in the decision of R v Pitt[10] (‘Pitt’), the issue of the appellant’s Aboriginality was again considered and Wood CJ further recast the decision in Fernando. A specific ground of appeal was that the sentencing Judge did not give sufficient weight to the deprived background of the appellant in the context of the decision of Fernando. The appellant was raised on a mission in Moree with his six siblings and was subject to abuse by a drunken and violent father. He left school after repeating Year Eight and had a limited work history. In addition, he had a history of substance abuse and self-harm and attempts at suicide. That history had been outlined to the sentencing Judge in two psychiatric reports. Commenting on that evidence Wood CJ first noted that

evidence concerning the applicant’s background was quite limited. No evidence was led from the applicant or from his family concerning it.[11]

Thus Wood CJ appears to suggest that notwithstanding the reporting of those matters to psychiatrists, this evidence is not of great weight because the applicant or his family had not provided testimony on those matters. Such an approach is unfair given that the prosecution and the sentencing Judge did not take issue with those matters, and they consist of what may be termed objective facts.

In any event Wood CJ – and this is the core of the decision – then noted:

[S]o far as I can see there was nothing of an exceptional kind, in the aboriginality or upbringing of the applicant, that called for any particular mitigation of sentence. Regrettably, his childhood experiences have been shared by many persons across a wide range of ethnic, social and racial backgrounds, and the present was not a case of an offender having been brought up within a wholly dysfunctional community that was dominated by substance abuse.[12]

There are two key aspects to this judicial reasoning which are problematic and threaten the content of Fernando. First, if the reasoning of Pitt is accepted, there is a now a need for a degree of ‘exceptionality’ in the history of the Indigenous offender for it to attract the operation of the Fernando principles. The requirements of this ‘exceptionality’ of Aboriginality are not spelt out in Pitt. A possible interpretation is that this new test requires a court to consider the ‘degree’ of deprivation of the Indigenous offender to ascertain whether it reaches a sufficient level to be mitigating. Thus mere, as opposed to extreme, deprivation would not suffice. The second aspect of the judicial reasoning is that effectively Aboriginality is rendered invisible as this disadvantage is assumed to be the same as all other ethnic groups.

What Wood CJ utilises in this pivotal paragraph in Pitt is a classic type of liberalism that assumes that all persons within a community commence their life equally positioned. Such a political philosophy has little consideration for the operation of historical forces and events. In respect of Indigenous communities it simply ignores the history of Indigenous communities, their dispossession and subsequent extraordinary levels of intervention by non-Indigenous institutions. It was also a type of reasoning that was popular until the RCIADIC shattered the ideology of a neutral criminal justice system that stood outside relations of power and domination. A cursory examination of the life stories that make up RCIADIC and upon which the RCIADIC Recommendations are built, would reveal that the Indigenous experience of the criminal justice system is unique and different. By making the applicant’s Aboriginality irrelevant – and by denying the Indigenous difference – in this manner, the decision by Wood CJ in Pitt effectively destroys the principles in Fernando.[13]

In the later decisions of R v Newman, R v Simpson[14] (‘Newman & Simpson’) and R v Kelly[15] (‘Kelly’) the New South Wales Court of Criminal Appeal confirmed this ‘new’ approach to the application of the Fernando principles and thus the narrow application of this decision was consolidated. In addition, the decision of Newman & Simpson was notable for its questioning of whether the appellants were in fact Indigenous and the need for evidence of that fact. Thus in Newman & Simpson it was stated that:

The present applicant is described in written submissions on his behalf as being “of Aboriginal descent”. Assuming that was a relevant matter, there was no evidence of that fact before the sentencing judge.[16]

This comment was made in the context of the applicant who was represented by the Aboriginal Legal Service and where no issue was made by the sentencing Judge or the prosecution that the applicant was in fact Indigenous. Such judicial doubting of the Indigenous ancestry of the applicant further demonstrates the difficulty of courts to deal with nature of the Indigenous experience in a post-colonial society.[17]

Implications: We Will Tell You What You Are

The most concerning aspects of the decisions in Ceissman, Pitt, Newman & Simpson and Kelly, is that they attempt to define the contemporary Indigenous experience and who may be entitled to rely upon Aboriginality for the purpose of sentencing. In effect, the judgments attempt to undercut the position of Indigenous offenders and the benefits that accrue for mitigation of sentence because of a deprived background. The nature and complexity of contemporary Indigenous identity in a post-colonial society such as Australia is ignored and, again, Indigenous identity is defined by the powerful non-Indigenous institution of law.

In addition, while erasing the Indigenous identity of the offender in those cases the judgments do not even use the legal definitions of Aboriginality.[18] Instead, by judicial proclamation an offender’s Indigenous identity is extinguished – for the purpose of the law – in an instant. This judicial change of position is most unfortunate. What it confirms is that even in the context of an apparent remedial decision such as Fernando, the common law possesses within it the ability to turn away from previous beneficial decisions, thus confirming the inherent instability of Indigenous interests in a legal system. That the Courts do so within the decisions discussed without even a discussion or realisation of the implications for the legal construct of Indigenous identity reflects the limits of the law to comprehend properly the nature of Indigenous experience in Australia.

Richard Edney is a Senior Lecturer in Law at Deakin University Law School and a Solicitor.

[1] (1992) 76 A Crim R 58.

[2] (1992) 76 A Crim R 58, 62-63 (Wood J).

[3] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) <> at 2 February 2006.

[4] In R v Hickey, (Unreported, NSW Court of Criminal Appeal, Simpson J, 27 September 1994), Justice Simpson went to some length to confirm that the propositions in Fernando were not to entitle an Indigenous offender to greater leniency in sentencing. This is in conformity with the decision of the High Court of Australia in R v Neal [1982] HCA 55; (1982) 149 CLR 305, 326 (Brennan J) where it was confirmed that it was not Aboriginality per se that was a mitigating factor, but exposure to social and economic disadvantage often associated with membership of Indigenous community that was important.

[5] [2001] NSWCCA 73.

[6] Ibid [29].

[7] Ibid [30].

[8] Ibid [33].

[9] For an examination of that history see Gordon Briscoe, Counting, Health and Identity: A History of Aboriginal Health and Demography in Western Australia and Queensland, 1900-1940 (2003) Chapters 1 and 2.

[10] [2001] NSWCCA 156.

[11] Ibid [15].

[12] Ibid [18].

[13] Wood CJ confirmed the correctness of the new approach to the Fernando also in the latter case of R v Morgan [2003] NSWCCA 230; (2003) 57 NSWLR 533, 538-539.

[14] [2004] NSWCCA 102.

[15] [2005] NSWCCA 280.

[16] R v Newman, R v Simpson [2004] NSWCCA 102, [59] (Howie J).

[17] This failure to understand the Indigenous experience is not confined to the criminal law. For an excellent example of the failure of the law to properly comprehend Indigenous history in the context of native title applications see A Reilly and A Genovese, ‘Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence’ (2004) 3 Indigenous Law Journal 19.

[18] Shaw v Wolf (1998) 163 ALR 205.

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