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Edney, Richard --- "The Stolen Generation and Sentencing of Indigenous Offenders" [2003] IndigLawB 16; (2003) 5(23) Indigenous Law Bulletin 10

The Stolen Generation and Sentencing of Indigenous Offenders

by Richard Edney

The Human Rights and Equal Opportunity Commission’s Report Bringing Them Home was a landmark document that detailed the circumstances in which Indigenous children were removed from their families as part of government policy.[1] The consequences of that policy have been significant. It has undermined the ‘social capital’[2] of Indigenous communities throughout Australia and caused intergenerational trauma and suffering in those communities. The term ‘stolen generation’ has recently entered public discourse to describe the phenomenon although, of course, Indigenous communities have long been aware of the pain and suffering caused by the policy.[3] The concept is still contested by particular quarters of Australian society,[4] however, it is generally conceded that an Indigenous person’s membership of the stolen generation produces negative consequences, particularly relating to sense of identity and place.[5] Such consequences have resulted in psychic and cultural harm, and often significant distress throughout the life course of affected individuals. One of these consequences is involvement in the criminal justice system through offending behaviour. This article will suggest a basis upon which membership of the stolen generation may be properly taken into account when sentencing an Indigenous offender.

For this purpose, the dissenting judgment of Justice Eames in the recent Victorian Court of Appeal decision in R v Fuller-Cust (‘Fuller-Cust’) will be considered.[6] Fuller-Cust involved an appeal by an Indigenous defendant against a sentence of 20 years imprisonment, with a non-parole period of 17 years, for a number of offences including rape, indecent assault, false imprisonment and recklessly causing injury.

The judgment of Justice Eames has significant implications for the caselaw on aboriginality and sentencing. Existing authorities focus on social and economic disadvantage as a factor to be accounted for in sentencing.[7] Perhaps the most significant effect of Justice Eames’ judgment will be the development of a jurisprudence that goes beyond social and economic disadvantage to an approach that deals with the more complex aspects of childhood development, colonialism and cultural identity. Of further note is the judgment’s use of Bringing Them Home and the findings of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’).

Opening up the pain: The RCIADIC and Bringing Them Home

The RCIADIC and Bringing Them Home are crucial public documents that have provided the non-Indigenous community with a profound insight into the nature of Indigenous life, the pervasive and intrusive nature of state intervention into Indigenous communities, and the devastating consequences of such intervention.[8] It is significant that the demands of Indigenous communities were the catalyst for the establishment of both inquiries. The inquiries were driven by the individual tragedies within Indigenous communities which were perceived by those communities as having common themes. These tragedies arose not as a result of individual and isolated incidents but events which were thematic in the social reality of Indigenous communities. The communities discussed in the RCIADIC and Bringing Them Home were victims of state intervention of a high order and the overwhelming outcome, from their perspective, was dislocation, separation and trauma.

Of greater significance is the linkage between the reports. Although first in time by six years, the RCIADIC addressed the results of the matters which came to prominence in Bringing Them Home. Childhood separation and removal often figured in the life story and deaths of the 99 Indigenous people who were part of the RCIADIC brief. This linkage is critical because it provides the basis for the argument that a jurisprudence concerning aboriginality and sentencing must address the widespread separation of Indigenous children from their families and the culpability of the state for those acts.

The stolen generation and sentencing

Justice Eames’ decision is perhaps the first reported judgment in Australian criminal law where belonging to the stolen generation has been considered a matter which should mitigate the punishment for a criminal offence.[9] The judgment is significant in the way it refutes the trial judge’s reasoning concerning the stolen generation. The trial judge and prosecutor took issue with the use of the term ‘stolen generation’. It was claimed to be an ‘emotional term’, and the person who used the term when giving evidence on behalf of the appellant was attacked as being an ‘advocate’.[10] The trial judge contended that non-Indigenous people had also been separated from their families and placed in inappropriate foster care.[11] This aspect of the trial judge’s reasoning was explicitly criticised by Justice Eames because it rendered the appellant's aboriginality irrelevant. His Honour considered the appellant’s aboriginality to be ‘pivotal’ in determining the appropriate weight to be placed upon his childhood separation from his family when sentencing.[12]

Justice Eames’ judgment gave a sophisticated analysis of how matters relating to separation and aboriginality ought to be factored into the sentencing process. Justice Eames accepted the validity of the term ‘stolen generation’ to describe the situation in which Indigenous people were removed from their natural family.[13] To support this treatment of the term, His Honour referred to Cubillo v Commonwealth, where members of the stolen generation claimed damages for their treatment.[14] Justice Eames made the assumption that the stolen generation resulted from a deliberate state practice. He placed the stolen generation at the forefront of the analysis as to whether or not separation could be relevant to sentencing. His Honour considered such matters were extremely relevant to the sentence that was to be imposed upon the appellant. Consideration of his aboriginality and how by virtue of that status he was removed from his natural parents was critical to appreciate the subjective circumstances of the offender and his offending. Not to consider these matters, and thus to ignore the appellant’s aboriginality, would be to sentence the appellant as ‘someone other than himself’.[15]

A significant aspect of the judgment is Justice Eames’ explicit linking of the RCIADIC and Bringing Them Home.[16] In particular, His Honour draws the conclusion that the life stories of the Indigenous prisoners who were the subject of the RCIADIC were substantially similar to the stories of those in Bringing Them Home.[17] The RCIADIC found that of the 99 deaths investigated a substantial proportion of those persons were members of the stolen generation.[18] Justice Eames found this presented a cogent argument that the experience of childhood separation was connected to not only significantly reduced life chances but contributed to subsequent criminal behaviour.

Aboriginality as incidental: The majority judgment in Fuller-Cust

In contrast to the contextual and sophisticated legal analysis of Justice Eames, the lead majority judgment of Justice Batt in Fuller-Cust treated the appellant’s aboriginality as an incidental matter that could be easily accommodated in sentencing the appellant and did not require a thorough analysis of its significance. Justice Batt notes:

So far as the applicant’s Aboriginality is concerned, the law, as I understand it, is that the same sentencing principles apply to an Aboriginal offender as to any other offender, but there may be particular matters which a court must take into account in applying those principles which are mitigating factors applicable to the particular offender, including disadvantages associated with the offender’s membership of Aboriginal race: Neal v The Queen; R v Rogers and Murray ; and R v Fernando. (The way of life of the offenders in those cases was far different from that of the applicant in Geelong and elsewhere in Victoria).[19]

This aspect of the judgment is an example of judicial sleight of hand, where aboriginality is purported to be taken into account but in the circumstances of the appellant’s case found not to be of great significance because he was from Victoria. The placement of those remarks in brackets is instructive, indicating that Justice Batt had the view that Indigenous people from south-eastern states such as New South Wales and Victoria were to be treated differently from other Indigenous communities. The justification for this differential treatment is not clear, although it may demonstrate a fundamental misunderstanding by His Honour of the nature of aboriginality and community networks that are central to Indigenous culture in all parts of Australia.

In addition, the use by Justice Batt of the tribal/urban framework is an example of the placement of a non-Indigenous analytical framework upon Indigenous communities, in the mistaken belief that such non-Indigenous understandings are properly able to categorise Indigenous communities. It is also a demonstration of a cultural arrogance that is associated with colonisers in their attempt to frame and understand the experience of persons they have oppressed. As is noted in a paper by the New South Wales Law Reform Commission in the context of discussing the extent of Aboriginal customary law in New South Wales:

[T]he issue of whether it is valid to consider the application in New South Wales of Aboriginal customary law is not dependent upon categorizing the Aboriginal population into “tribal”, “semi-tribal” and “urban”. This is too simplistic, and the process has been strongly criticized by Aboriginal writers.[20]

The stolen generation as a mitigating factor

Under Anglo-Australian criminal law a premium is placed on the concept of individual responsibility. An individual who commits an offence is punished individually for that offence. The difficulty of such an assessment of human behaviour is that it ignores the social context from which a person emerges. It downplays the role played by historical events and circumstances in an individual’s life story which may lead to them being punished for a criminal offence. The narrow concept of individual responsibility is especially problematic for Indigenous offenders because it is indifferent to notions of community and family which are at the core of Indigenous social networks.

Justice Eames’ judgment is an attempt, within the legal context, to ensure that Indigenous peoples’ unfortunate history is properly taken into account as a mitigating factor at the sentencing stage of the criminal justice process. This case presents facts that are all too common to Indigenous people who have been subject to treatment such as inappropriate placement in foster care, systematic estrangement from their cultural identity, prevention of access between children and their parents, and the lack of any attempt at remedial measures to assist adults who have experienced such extreme life events. To understand these matters properly a court must treat aboriginality as pivotal to the sentencing process and not, as the majority did, one factor amongst many. In this case the key events in the appellant’s life were contingent upon and circumscribed by his aboriginality.

Conclusion

The significance of Justice Eames’ judgment in Fuller-Cust is manifold. Its primary importance is that it extends the acknowledgment of disadvantage suffered by Indigenous communities beyond social and economic disadvantage to include matters relating to the psychic and cultural harm that has been inflicted upon Indigenous communities. Previous caselaw on aboriginality as a factor in sentencing has focused primarily on social and economic disadvantage which, although important matters to be taken into account, fail to capture the full experience of Indigenous people in post-colonial Australia. Justice Eames’ judgment may lead the way for the development of a more sophisticated and complex understanding of Indigenous offending. Courts may become aware of the issues faced by Indigenous communities as an aspect of colonial history but which have been omitted from previous understandings of Indigenous offending.

Richard Edney is a practicing solicitor and a lecturer at Deakin University Law School.

[1] Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander from Their Families (1997)

[2] The term ‘social capital’ is a relatively new concept in the area of social theory. What the term encompasses is the idea that every community has certain resources. Those resources are measured not solely in income or property terms, as in the traditional economic understanding of the term, but in how communities function through a complex web of interpersonal, reciprocal relationships. As applied to the experience of Indigenous peoples in a colonial society such as Australia, the actions of the state through processes such as the removal children has undermined the social capital of Indigenous communities. For an introduction to this concept see generally S Baron, J Field and T Schuller (eds), Social Capital: Critical Perspectives (1999). The practice of punishment by imprisonment is another example of a process, which has undermined the social capital of Indigenous communities. See R Edney, ‘Indigenous Punishment in Australia: A Jurisprudence of Pain’ (2002) 30 International Journal of the Sociology of Law 219, 228-230.

[3] In R v Fuller-Cust [2002] VSCA 168 Supreme Court of Victoria, Eames J notes in a footnote at paragraph [92] that ‘The adverse impact of separation of Aboriginal children, for whatever reason, has been long recognized, the first academic writing on the topic being at least as early as 1951, by Professor R.M Berdnt’.

[4] The details of the arguments for denying the existence of the stolen generation as well as the persuasive arguments for the recognition of the stolen generation are set out thoroughly, in R Manne, In Denial: The Stolen Generations and the Right (2001).

[5] See generally A Haebich, Broken Circles: Fragmenting Indigenous Families, 1800-2000 (2000). For personal accounts of removal see C Bird (ed), The Stolen Generation: Their Stories (1998) 19-110.

[6] R v Fuller-Cust [2002] VSCA 168, Supreme Court of Victoria, Court of Appeal, 24 October 2002.

[7] See for instance Jabaltjari v Hammersley (1977) 15 ALR 94, 98 per Muirhead J; Neal [1982] HCA 55; (1982) 149 CLR 305, 326 per Brennan J; Rogers and Murray (1989) 44 A Crim R 301, 307 per Malcolm J; Fernando (1992) 76 A Crim R 58, 62-64 per Wood J; Daniel [1997] QCA 139; (1997) 94 A Crim R 96.

[8] See generally C Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (2000), Chapters 1 –2.

[9] Note that Justice Eames was in dissent in Fuller-Cust. It is a powerful dissent both in how the factual background of the appellant is constructed by His Honour through a prescient understanding of how childhood separation is of particular significance, but also in the indication in the reasons for judgment that His Honour would have imposed a shorter total effective sentence on that basis that his Honour found the trial judge imposed a crushing sentence that offended the principle of totality. See R v Fuller-Cust [2002] VSCA 168, [65], [149] – [150] per Eames J. An application for special leave to the High Court of Australia has been lodged on behalf of the appellant.

[10] R v Fuller – Cust [2002] VSCA 168, [71]-[72] per Eames J.

[11] Ibid, [73] per Eames J.

[12] Ibid, [92] per Eames J.

[13] Ibid, [77] per Eames J.

[14] See Cubillo v Commonwealth [2000] FCA 1084; (2000) 174 ALR 97, 114 per O’Loughlin J; Cubillo v Commonwealth [2001] FCA 1213; (2001) 183 ALR 249, 254 per the Court.

[15] R v Fuller-Cust [2002] VSCA 168, [79] per Eames J.

[16] Ibid, [77], [92], [137], [139]-[140] per Eames J.

[17] Ibid, [137] per Eames J.

[18] Ibid, [92] where Eames J notes :

[T]he history of the applicant has remarkable similarities to many of the cases reported

upon by the Royal Commission into Aboriginal Deaths in Custody. The impact of a person

being separated from family, endeavouring to regain contacts with that family, being rebuffed

in those efforts, and thereupon suffering anxiety about being denied the opportunity to fully

embrace his or her aboriginality, was often addressed in individual reports and in the

findings of the report of the Royal Commission. The Commissioners recognized the impact

of a person, in those circumstances, being socialised not into the family and kin network

which would otherwise be the experience of an Aboriginal person living in urban circumstances

but being socialised, instead, by the need to survive in institutional communities, including

juvenile detention facilities and homes.

[19] R v Fuller-Cust [2002] VCSA 168, [60] per Batt J. Justice O’Bryan joined the judgment of Justice Batt. See Fuller-Cust [152] – [158]. The majority allowed the appeal and re-sentenced the appellant to a 17 year term of imprisonment with a non-parole period of 14 years by allowing a higher degree of concurrency between the individual counts. In contrast Justice Eames found that the sentence was a crushing one that offended the principle of totality and that a shorter term of imprisonment should be imposed. See Fuller-Cust, [65].

[20] New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders, Report 96 (2000), [3.4], <http://www.lawlink.nsw.gov.au./lrc.nsf/pages/r96> . My thanks to the anonymous referee who drew my attention to this report.


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