Academic journal article Melbourne University Law Review

Lessons Lost in Sentencing: Welding Individualised Justice to Indigenous Justice

Academic journal article Melbourne University Law Review

Lessons Lost in Sentencing: Welding Individualised Justice to Indigenous Justice

Article excerpt

CONTENTS    I Introduction  II Sentencing Principles and the Relevance of Indigenous Background III One Step Forward: Accounting for Aboriginal Circumstances in     Canadian Sentencing  IV One Step Back: Accounting for Indigenous Circumstances in     Australian Sentencing   V Analysis of Bugmyin the Context of Individualised Justice       A Establishing the Link between Group and Individual Experience       B Considering Indigenous Status: Not Just a Principle of         Disadvantage  VI Conclusion 

I INTRODUCTION

The role of the criminal sentencing courts to account for the postcolonial experience of Indigenous peoples is of critical significance, not only for redressing the high incarceration rates of Indigenous people but also reflecting its incidence as a feature of Indigenous circumstance. In Australia, Indigenous offenders are heavily over-represented. (1) They account for 28 per cent of the prison population, (2) in spite of representing only 3 per cent of the general population. (3) The over-representation of Indigenous juveniles and Indigenous females is even more acute. Indigenous females account for over a third of the female prison population, (4) while Indigenous juveniles in Australia account for approximately 50 per cent of the youth detention population. (5) Over-incarceration is an aspect of systemic Indigenous disadvantage, which also includes economic deprivation, social marginalisation and poor health outcomes. (6) The decision to imprison contributes to Indigenous hardship through alienating individuals and fracturing community ties, (7) and increases the prospects of reoffending. (8) The effect is that large sections of the Indigenous population have ongoing contact with the prison system. (9) Sentencing in this context is not only a technical process of applying relevant factors to the offender and the offence but also a social responsibility.

In this article, we argue that sentencing courts can account for Indigenous systemic disadvantage while also promoting individualised justice--approaches that the High Court of Australia has regarded as antithetical. Indeed, recognition of systemic disadvantage provides for a fuller picture of the individual's circumstances. This has been accepted by the Supreme Court of Canada in sentencing Aboriginal offenders in R v Ipeelee ('Ipeelee'). (10) The extent of Aboriginal dispossession, disadvantage and over-incarceration is similar in Canada. For example, in Canada approximately 23 per cent of the prison population is Aboriginal, despite Aboriginal Canadians constituting approximately 4 per cent of the general population. (11) The Supreme Court has noted that for sentences to be condign to the individual there must be recognition of Aboriginal offenders' specific background as well as the broader circumstances of their communities. (12)

The High Court of Australia held in Bugmy v The Queen ('Bugmy) that it is not for sentencing courts to account for the broader experiences of Indigenous Australians as a feature of their common history and systemic inequality, or to promote non-custodial and rehabilitative sentencing options in recognition of these facts or the ensuing strengths inherent in Indigenous group membership and survival. (13) The Court rejected submissions that the Canadian approach to sentencing Aboriginal offenders should be adopted in Australia. (14) We argue that this represents a missed opportunity by the High Court to grapple with the complex interrelationship between individualised justice and Indigenous circumstances in the sentencing of Indigenous offenders.

II SENTENCING PRINCIPLES AND THE RELEVANCE OF INDIGENOUS BACKGROUND

Sentencing is a complex task. Sentencing judges and magistrates must take into account all of the circumstances of the offence and of the offender and structure a sentence that achieves a balance of competing purposes (discussed below). The High Court of Australia describes the purposes of sentencing and their application in the following way:

    protection of society, deterrence of the offender and of others who    might be tempted to offend, retribution and reform. … 
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