NSW
Judicial Commission of NSW, Equality before the Law: Bench Book (2022).
2.3.8 discusses points to consider in sentencing Aboriginal offenders, however it does not deal specifically with domestic and family violence related offences.
QLD
Supreme Court of Queensland, Equal Treatment Bench Book (2016).
Chapter 10, Part VI:
“The Department of Justice and Attorney-General funds Community Justice Groups (CJGs) in a number of urban, regional and remote Aboriginal and Torres Strait Islander Communities in Queensland. CJGs consist of Elders, traditional owners and community members and they provide support to Indigenous people who have come into contact with Queensland’s Criminal Justice System as either victims or offenders. The introduction of CJGs forms part of the Queensland Government’s response to recommendations made following the Royal Commission into Aboriginal Deaths in Custody. Judges can obtain assistance with sentencing from Community Justice Groups. Section 9(2) of Penalties and Sentences Act 1992 (Qld) provides:
“In sentencing an offender, a court must have regard to –…
(o) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example:
1.
the offender’s relationship to the offender’s community; or
2.
any cultural considerations; or
3.
any considerations relating to programs and services established for offenders in which the community justice group participates”.
Section 150(1)(g) of the Youth Justice Act 1992 (Qld) is in similar terms with respect to Aboriginal or Torres Strait Islander children.
The Supreme Court and District Court have also facilitated the making of CJG submissions through practice directions. Apart from assisting in the sentencing process, CJGs are also involved in providing a range of local initiatives intended to reduce crime and divert Aboriginal and Torres Strait Islander offenders away from the criminal justice system.” [p112]
WA
Fryer-Smith, Stephanie, Aboriginal Benchbook for Western Australia Courts (2nd ed, 2008).
Chapter 8 of the bench book deals with sentencing of Aboriginal offenders.
Chapter 8.1 Introduction
By way of introduction, the bench book notes that Aboriginal customary law ‘is characterised by notions of summary justice, strict liability, payback and family/group punishment and responsibility: Bolton v Nielsen (1951) 53 WALR 48’ [8.1.1]. ‘Principles of substantive equality may support a special approach to the sentencing of Aboriginal offenders’ [8.1.3]. The Royal Commission into Aboriginal Deaths in Custody: National Report examined the role of sentencing in the high incarceration rate of Aboriginal people and made a number of recommendations to reduce that rate including that imprisonment should be used as a last resort, criminal records should be expunged after an appropriate time has lapsed, authorities should consult with Aboriginal communities and organisations, and an appropriate range of non-custodial sentencing options should be made available [8.1.4].
Chapter 8.3 Aboriginality
Sentencing principles: ‘The same 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: Neal v the Queen (1982) 42 ALR 609; Rogers and Murray (1989) 44 A Crim R 301; State of Western Australia v Richards [2008] WASCA 134’ [8.3.1].
Chapter 8.4 Aggravating factors
Domestic violence: ‘The primary concern of the courts must be to protect women in the community from vicious, drunken and abusive behaviour: Woodley (1994) 76 A Crim R 302; ‘Even where a complainant continues to cohabit with an offender, the court should deal with assaults upon that complainant as it would a member of the wider community: Woodley (1994) 76 A Crim R 302; ‘Courts cannot deal with the core problem of an offender being unable to resist the use of physical violence when intoxicated and angered by his/her partner’s conduct: Woodley (1994) 76 A Crim R 302; Daniel (1997) 94 A Crim R 96’ [8.4.1].
Chapter 8.5 Mitigating factors
Facts existing only by reason of ethnicity, circumstances underlying alcohol/substance abuse, emotional stress, cultural dislocation, effect of removal from family, socio-economic factors, the impact of imprisonment, customary punishment, the wishes of the Aboriginal community, the impact of traditional belief.
NSW
Judicial Commission of NSW, Equality before the Law: Bench Book (2022).
2.3.8 discusses points to consider in sentencing Aboriginal offenders, however it does not deal specifically with domestic and family violence related offences.
QLD
Supreme Court of Queensland, Equal Treatment Bench Book (2016).
Chapter 10, Part VI:
“The Department of Justice and Attorney-General funds Community Justice Groups (CJGs) in a number of urban, regional and remote Aboriginal and Torres Strait Islander Communities in Queensland. CJGs consist of Elders, traditional owners and community members and they provide support to Indigenous people who have come into contact with Queensland’s Criminal Justice System as either victims or offenders. The introduction of CJGs forms part of the Queensland Government’s response to recommendations made following the Royal Commission into Aboriginal Deaths in Custody. Judges can obtain assistance with sentencing from Community Justice Groups. Section 9(2) of Penalties and Sentences Act 1992 (Qld) provides:
“In sentencing an offender, a court must have regard to –…
(o) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example:
1.
the offender’s relationship to the offender’s community; or
2.
any cultural considerations; or
3.
any considerations relating to programs and services established for offenders in which the community justice group participates”.
Section 150(1)(g) of the Youth Justice Act 1992 (Qld) is in similar terms with respect to Aboriginal or Torres Strait Islander children.
The Supreme Court and District Court have also facilitated the making of CJG submissions through practice directions. Apart from assisting in the sentencing process, CJGs are also involved in providing a range of local initiatives intended to reduce crime and divert Aboriginal and Torres Strait Islander offenders away from the criminal justice system.” [p112]
WA
Fryer-Smith, Stephanie, Aboriginal Benchbook for Western Australia Courts (2nd ed, 2008).
Chapter 8 of the bench book deals with sentencing of Aboriginal offenders.
Chapter 8.1 Introduction
By way of introduction, the bench book notes that Aboriginal customary law ‘is characterised by notions of summary justice, strict liability, payback and family/group punishment and responsibility: Bolton v Nielsen (1951) 53 WALR 48’ [8.1.1]. ‘Principles of substantive equality may support a special approach to the sentencing of Aboriginal offenders’ [8.1.3]. The Royal Commission into Aboriginal Deaths in Custody: National Report examined the role of sentencing in the high incarceration rate of Aboriginal people and made a number of recommendations to reduce that rate including that imprisonment should be used as a last resort, criminal records should be expunged after an appropriate time has lapsed, authorities should consult with Aboriginal communities and organisations, and an appropriate range of non-custodial sentencing options should be made available [8.1.4].
Chapter 8.3 Aboriginality
Sentencing principles: ‘The same 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: Neal v the Queen (1982) 42 ALR 609; Rogers and Murray (1989) 44 A Crim R 301; State of Western Australia v Richards [2008] WASCA 134’ [8.3.1].
Chapter 8.4 Aggravating factors
Domestic violence: ‘The primary concern of the courts must be to protect women in the community from vicious, drunken and abusive behaviour: Woodley (1994) 76 A Crim R 302; ‘Even where a complainant continues to cohabit with an offender, the court should deal with assaults upon that complainant as it would a member of the wider community: Woodley (1994) 76 A Crim R 302; ‘Courts cannot deal with the core problem of an offender being unable to resist the use of physical violence when intoxicated and angered by his/her partner’s conduct: Woodley (1994) 76 A Crim R 302; Daniel (1997) 94 A Crim R 96’ [8.4.1].
Chapter 8.5 Mitigating factors
Facts existing only by reason of ethnicity, circumstances underlying alcohol/substance abuse, emotional stress, cultural dislocation, effect of removal from family, socio-economic factors, the impact of imprisonment, customary punishment, the wishes of the Aboriginal community, the impact of traditional belief.