Hennessy, Peter --- "Aboriginal Customary Law and Sentencing" [1988] AboriginalLawB 12; (1988) 1(30) Aboriginal Law Bulletin 14

• Aboriginal Customary Law And Sentencing
• The Basic Principle
• A General Sentencing Discretion
• Aborigines And Prison
• Alternatives To Imprisonment
• Other Procedural Alternatives
• Pre-Trial Diversion Schemes
• Conclusion

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Aboriginal Customary Law and Sentencing

by Peter Hennessy

The Law Reform Commission's Report in its inquiry into the recognition of Aboriginal customary laws one of the issues the Australian Law Reform Commission was asked to consider was: whether, and in what manner, existing courts dealing with criminal charges against Aborigines should be empowered to apply Aboriginal customary law and practices in the trial and punishment of Aborigines.

The Report of the inquiry was tabled in Federal Parliament in June 1986. It contains extensive discussion of the relationship between Aborigines and the criminal justice system. I t considers whether new criminal law defences based on Aboriginal customary laws should be created and whether Aboriginal customary law offences should be codified and enforced by the Australian court system. The report sets out appropriate principles which should be applied in the sentencing of Aborigines where the operation of customary laws is relevant to the offence. It also considers procedural alternatives such as the powers of lower courts not to proceed to conviction, discretions not to prosecute, no bill applications and pre-trial diversion schemes. These procedural alternatives are put forward as a valid way of taking account of the operation of Aboriginal customary laws.

The basic principle

The Commission's Report sets out the basic principle that the Australian criminal laws should apply to all persons, Aboriginal and non-Aboriginal. However, in its application to Aboriginal people special consideration needs to be given to the continued operation of Aboriginal customary laws.

The discriminatory impact of the criminal justice system upon Aboriginal people as evidenced by the disproportionate number of Aborigines in Australian goals raises concerns over the sentencing practices of judges and magistrates. The approach of the Law Reform Commission was to examine the existing practices of judges sentencing Aborigines in cases where Aboriginal customary laws were relevant to the offence. This revealed that judges do take account of Aboriginal customary laws in determining an appropriate sentence, including taking account of the imposition or likely imposition of a traditional physical punishment. The Commission's research and investigations did not produce any reliable evidence of discriminatory sentencing practices in cases involving Aborigines at Supreme or District Court levels in recent years, although the Report conceded that more detailed studies needed to be carried out. However, a number of studies involving courts of summary jurisdiction, especially those courts which are staffed by lay justices of the peace, appear to indicate that Aborigines are more likely to be given sentences of imprisonment. In an attempt to resolve this the Commission proposed that justices of the peace sitting in ordinary courts of summary jurisdiction should be limited to hearing minor regulatory offences or at least should not have the power to impose custodial sentences.

A general sentencing discretion

On the basis of the research into the sentencing practices of judges in the higher courts the Commission considered it appropriate to build on these practices. It recommended that courts should have a general sentencing discretion to take account of Aboriginal customary laws. (ALRC 31, para 1007).

It also enunciated a number of principles which it considered relevant for taking Aboriginal customary laws into account. In doing this, it recognised a fundamental distinction which needs to be drawn between taking customary laws into account in sentencing and seeking to incorporate aspects of Aboriginal customary law in a sentencing order The Commission said that the latter was inappropriate. The courts should not incorporate or require traditional punishments or other customary law processes to occur as a condition for the release of an offender or for the mitigation of punishment. It specified the following sentencing principles for taking account of Aboriginal customary laws:

• A defendant should not be sentenced to a longer term of imprisonment than would otherwise apply, merely to 'protect' the defendant from the application of customary laws including 'traditional punishment' (even if that punishment would or may be unlawful under the general law):
• Similar principles apply to discretions with respect to bail. A court should not prevent a defendant from returning to the defendant's community (with the possibility or even likelihood that the defendant will face some form of traditional punishment) if the defendant applies for bail, and if the other conditions for release are met;
• Aboriginal customary laws area relevant factor in mitigation of sentence, both in cases where customary law processes have already occurred and where they are likely to occur in the future;
• Aboriginal customary laws may also be relevant in aggravation of penalty in some cases, but onlywithin the generally applicable sentencing limits (the' tariff) applicable to the offence;
• Within certain limits the view of the local Aboriginal community about the seriousness of the offence, and theoffender, are also relevant in sentencing;
• But the courts cannot disregard the values and views of the wider Australian community, which may have to be reflected in custodial or other sentences notwithstanding the mitigating force of Aboriginal customary laws or local community opinions;
• Nor can the courts incorporate in sentencing orders Aboriginal customary law penalties or sanctions which are contrary to the general law;
• In some circumstances, where the form of traditional settlement involved would not be illegal (eg community discussion and conciliation, supervision by parents or persons in loco parentis, exclusion from land) a court may incorporate such a proposal into its sentencing order(eg as a condition for conditional release or attached to a bond), provided that this is possible under the principles of the general law governing sentencing. Care is needed to ensure appropriate local consultation in making such orders, and flexibility in their formulation. In particular it is important that anyone into whose care the offender is to be entrusted, is an appropriate person, having regard to any applicable customary laws (eg is in a position of authority over him, and not subject to avoidance relationships), has been consulted and is prepared to undertake the responsibility:
• An offender's opportunity to attend a ceremony which is important both to him and his community may be a relevant factor to betaken into account on sentencing, especially where there is evidence that the ceremony and its associated incorporation within the life of the community may have a rehabilitative effect. However initiation or other ceremonial matters cannot and should not be incorporated in sentencing orders under the general law. (ALRC 31, pare 542).

An important aspect of the application of these principles is to ensure that local Aboriginal community opinion is able to be heard by the court in determining an appropriate sentence. This may be relevant in determining whether Aboriginal customary laws have been an aspect of the offence but also, perhaps more importantly whether traditional punishment has been, or is likely to be, imposed. The Report considers a number of options for presenting community opinion including presentence reports, separate community representation on sentencing, a special role of the prosecution or for the defence and, most importantly of all, statements made directly to the court by those concerned. Many judges and magistrates in the Northern Territory, for example, have actively encouraged community representatives to come to the court to present material. This may include views on an appropriate sentence for the convicted person. The Commission's Report sought to endorse this approach. (ALRC 31, para 531).

Aborigines and prison

An issue raised in the Law Reform Commission's Report was the extent to which imprisonment was a deterrent for Aboriginal people. There is a widely held view that for many Aborigines no stigma attaches to going to gaol although there is little empirical evidence to substantiate these claims. Ms Pat Lowe, a clinical psychologist with the Prisons Department in Western Australia, has made the following observation:

Long sentences are unpopular, and prisoners do chafe at them, particularly when they are sent to metropolitan prisons for extensive periods. But shorter sentences of three to six months are often welcomed as 'time out' from the rough and tumble of fringe dwelling. Some prisoners are candid about this. They appreciate the good food, the peace and quiet of a more orderly existence, the television and cards, the spell away from alcohol, and the company of friends they meet again. This is in contrast to the attitude of most white prisoners, and of course reflects most of all on the conditions under which the Aboriginal prisoners normally live. (Cited in ALRC 31, para 535).

While there is much anecdotal evidence to support this view, the fact that imprisonment might not be a deterrent for some Aboriginal people does not explain the large number of Aborigines in Australian prisons. [Indeed, it calls into question the relevance and effectiveness of incarceration as a sentence in many instances. Recent evidence placed before the Royal Commission into Aboriginal Deaths in Custody, offers a counterpoint to Ms Lowe's portrait of prison life: for example, evidence of the living conditions for Aborigines in Adelaide goal, given at the inquiry into the death of Kingsley Dixon. Ed's Note]

Alternatives to imprisonment

The most common sentencing alternatives to imprisonment are:

• discharge with or without conviction:
• supervised or unsupervised bonds:
• community service orders.

In relation to bonds and community service orders special problems do arise for Aborigines, especially those living in remote communities. Apart from the practical problem of remoteness which makes it difficult for probation and parole officers to visit regularly and compile reports, there may be difficulty for the officer to gain a full understanding of the community in which the client lives. The end result may be nominal supervision only As well, most Aboriginal communities do not fit into the accepted model for the operation of a probation and parole service. In a town or city a probation or parole service may be able to exercise some influence over where a person lives and works and over his or her associates. This is simply not possible in a small, remote Aboriginal community. The importance of kinship should also not be underestimated as this may place a person under certain obligations and result in breach of a bond. Similar problems arise in relation to community service orders as local supervision is often a problem.

Some Aboriginal communities have however developed their own sentencing alternatives. For example, at Aurukun in far North Queensland, the local court, which is constituted byAboriginal justices of the peace, regularly sentences offenders to spend a period of lime on one of the outstations. Offenders will generally be sent to an outstation where they have kin or relatives. It is also common for judges in the Northern Territory to take evidence of community opinion that convicted persons should not return to their home community for a set period of time but that another Aboriginal community is prepared to accept the person for that period. Periods of absence of offenders from their home communities often resolves local problems without the offenders having to spend the time in prison.

Developing such alternatives requires close consultation between local Aboriginal communities and their representatives and with relevant court and probation and parole officers.

Other procedural alternatives

A more fundamental sentencing alternative is to seek to ensure that fewer Aboriginal people are actually processed by the courts. A number of procedural and administrative discretions are available including decisions not to prosecute, the entering of a nolle proposequi (or no bill) by the Crown, and prosecution for a lesser offence which would enable the matter to be dealt with by a magistrate. The court itself, of course, also has the sentencing discretion not to proceed to a conviction or to discharge an offender absolutely or conditionally. In relation to prosecutorial discretions the Commission Report suggested that it may be appropriate for particular cases not to proceed where Aboriginal customary laws were a significant mitigating factor and where all those concerned in the local community had resolved the matter and did not wish further proceedings to be taken. The following factors were suggested as relevant to be considered:

• that the offence against the general law had a customary law basis:
• whether the offender was aware that he or she was breaking the law:
• whether the matter has been resolved locally in a satisfactory way in accordance with the customary law process:
• whether a victim of the offence wished the matter to proceed:
• whether alternatives to prosecution are available (eg a diversion procedure):
• whether the broader public interest would be served by engaging in legal proceedings. (ALRC 31, 272-8).

Pre-trial diversion schemes

The Report also notes the pre-Trial diversion schemes that have been tried with apparent success in Canada and New Zealand. In New Zealand, for example, the Maori community of west Auckland had operated a kind of community court which hears cases referred to it by the court, the police, the local school and voluntary community officers. It deals both with offences which had been committed as well as anti-social behaviour and general community problems. Cases are diverted from the courts to the To Atalu Maori Committee, provided the offender agrees for the matter to be dealt with by the Committee and abides by its decisions. The Committee attempts to get community involvement by requiring parents, family or others to attend. The most common punishment imposed by the Committee is community work. (ALRC 31, para 484).

The Law Reform Commission received many submissions suggesting that a diversion scheme would be suitable for customary law cases. In the Commission's view, diversion is relevant to a wide range of minor offences, not simply those involving customary law. However any scheme of diversion needs to consider issues such as the stage of the proceedings at which diversion operates, the selection of appropriate cases for diversion and the need for due process if more serious offences are included.

Conclusion

The Law Reform Commission's Report was directed at the recognition of Aboriginal customary laws and not the more general issue of Aboriginal involvement with the Australian criminal justice system. The Report recommended that customary law should be recognised by the criminal justice system. The most appropriate way for this to be done was at the sentencing stage of the process, rather than by creating new offences or defences. However, there also is scope for various procedural alternatives such as discretions to prosecute and diversion schemes which would allow customary laws to be recognised and may reduce the number of Aborigines in prison.