Lessons lost in sentencing: welding individualised justice to indigenous justice.

• Jurisdiction: Australia
• Date: 01 August 2015
• Author: Anthony, Thalia

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. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. (15) Legislation in Australia and Canada stipulates that the core purposes of sentencing are ensuring that an offender is denounced and receives a 'condign' sentence or adequate punishment, and producing good consequences for the offender and society in terms of deterrence, community protection and rehabilitation. (16) Ultimately, it is for the sentencing judge or magistrate to weigh up these competing purposes and see that they are reflected in the sentence, whether this be custodial or non-custodial. (17)

The High Court of Australia has referred to the sentencing process as involving an 'instinctive synthesis', (18) which accepts that there is not a decisive sentencing principle or set of factors in every case. Rather, the sentencing court subjectively and intuitively assesses the various sentencing principles and factors to 'take account of all of the relevant factors and to arrive at a single result which takes due account of them all'. (19) This includes relevant mitigating and aggravating circumstances. (20) The methodology of 'instinctive synthesis' has been described in Markarian v The Queen in the following way:

the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence. (21) Except in cases where mandatory minimum sentences are required, the sentencing process is an individualised one, tailored to the particular offence, the particular offender and the particular facts of the case. Individualised justice in sentencing requires proportionality not only to the harm but to the circumstances of the offender. (22) This principle is foundational to sentencing in Australia as well as other common law jurisdictions, including Canada, as discussed below. As a corollary, courts in the United States have noted that 'there is no greater inequality than the equal treatment of unequals'. (23)

In Australia, the principle of 'equal justice' in sentencing hinges on individualised justice because it requires 'that like should be treated alike but that, if there are relevant differences, due allowance should be made for them'. (24) Given that every offence and every offender will be different, sentencing courts need to determine the weight to be given to competing purposes of punishment.

Consideration of Indigenous background can comply with these sentencing principles in numerous ways. It may be relevant to culpability. Recognition that rates of Indigenous offending are a consequence of the impact of colonisation, with the socioeconomic disadvantage and psychological trauma that this has wrought, (25) substantiates a claim that an Indigenous offender is less deserving of punishment. (26) In other words, understanding an individual offender's history, and that of the group to which they belong, gives weight to a claim that it is principally the offender's circumstances that have produced the offending, rather than their individual choices. The New Zealand cases of Nishikata v Police (27) and R v Rawiri (28) established a nexus between individualised justice and recognition of cultural context to reduce moral culpability.

An offender's Aboriginality might [also] impact on his or her motive to offend, [thereby] providing an explanation' for their conduct. (29) However, these same facts may demonstrate alternative principles, namely, the need for sentences that promote community protection, deterrence and rehabilitation. In relation to deterrence, Indigenous identity might provide insights into the likelihood (or unlikelihood) of future offending and the circumstances that contribute to this potential. It may speak to the appropriateness of certain sentences, presenting options where strength of community, reintegration and pride can be harnessed to achieve individual reform and deterrence. (30) It may also inform the court of how the offender is otherwise being punished by his or her own community. These are but examples. The point is that an offender's Indigenous identity and circumstances might conceivably bear upon the appropriateness of a particular sentence in myriad different ways.

We contend that consideration of systemic and specific Indigenous circumstances is consistent with sentencing principles in Australia, including principles of equal and individualised justice. Justice Rothman has recently stated that every individual being sentenced must be treated equally, including with reference to their peculiar facts, such as suffering borne from a '200 year history of dispossession from their own land; exclusion from society; discrimination; and disempowerment'. (31) He further notes: 'To treat Aborigines differently in Australia by taking account of such factors is an application of equal justice; not a denial of it'. (32) This does not result in a race-based discount, as the suffering will be in different degrees, or, for some, there will be no suffering flowing from this history. (33) It accommodates what Hudson calls 'social culpability' in order to reflect the contextual constraints and influences on the individual's behaviour. (34) However, not accounting for these factors denies Indigenous offenders their unique historical, cultural and politico-economic context. (35) It imposes a race neutrality that results in unequal and prejudicial outcomes. (36) In what follows we consider the Canadian position with respect to taking the circumstances of Aboriginal offenders into account...