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Aboriginal sentencing punishes the victims by Dr Hannah McGlade 7 August 2013 The High Court appeals by the Aboriginal Legal Service in both NSW and Western Australia seek to ensure Aboriginal offenders receive reduced sentences in accordance with the principles developed in R v Fernando (1992). According to this case, systemic deprivation and disadvantage by reason of a person’s Aboriginality must be taken into account in sentencing. In considering these appeals, the High Court should give some consideration to the human rights of Aboriginal victims, predominantly women and children, and in accordance with the fundamental principle of equality before the law. In Australia, Aboriginal family violence is the leading cause of Aboriginal incarceration. Western Australia now has the highest incarceration of Aboriginal people in the nation, and more than half of all men charged with family violence offences are Aboriginal men. Nationally, Aboriginal women are between 10 and 15 times more likely to be a victim of domestic violence homicide than their nonAboriginal counterparts, and an estimated 45 times more likely to be hospitalised as a result of the violence. Some experts consider these figures are conservative. Aboriginal family violence homicide is now the most common form of homicide in Australia and increasingly Aboriginal women, presumably in response to violence, are responsible for the death of male partners.
None of this means that reduced sentencing is the right course of action. Reduced sentencing discriminates against Aboriginal victims who have the right to sentencing that reflects the seriousness of the crime against them. It gives the wrong message that the courts regard violent offenders as the “victim” by reason of Aboriginality. It risks the threat of retribution on the part of the aggrieved victim’s family, who may not feel that justice has been properly done. Leniency in sentencing of Aboriginal offenders does not necessarily reduce imprisonment rates. Reforms to the Canadian Criminal Code in 1996 that required courts to consider all
reasonable sanctions other than imprisonment, with particular attention to the circumstances of Aboriginal offenders, did not result in any decline in Aboriginal incarceration, but rather the reverse. This has been especially true for Aboriginal women offenders, who are the fastest-growing component of the Canadian prison populations. The majority of offending in Aboriginal communities in Canada, as in Australia, is intra-Aboriginal, with victims most commonly women and children. As Canadian criminologists Dickson Gilmor and La Prairie argue: “When one looks at the lesser sentence given to these offenders, it is difficult to determine which of two equally unacceptable mindsets is at work. Page 1
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“Is Aboriginal offending somehow less serious, because, for some reason, Aboriginal offenders are not as culpable for their actions as others? Or are their victims somehow less in need of the system’s albeit limited protections? Are their injuries and needs less deserving of serious attention and response?” Reduced sentences can also provide offenders with greater opportunity to further offend. The Munda case on appeal is itself a useful example in this respect. Prior to killing his wife, the offender Munda had in 2009 pleaded guilty to a violent assault where he hit his wife with a large rock and bashed her head with a garden spade. Munda received the benefit of a 12-month suspended sentence for this attack and was clearly very free to commit the act of “manslaughter” on the same victim, his wife, in 2010. Many violent offenders are repeat offenders and, having received the benefit of lenient sentences (or bail or parole), are free to commit further violent offences, such as sexual assault or murder. The Aboriginal Legal Services behind the High Court cases are funded to represent Aboriginal people at risk of incarceration and do not support Aboriginal victims of family and domestic violence and sexual assault, being women and children. The role that ALSs have played in actively protecting the rights of violent offenders has long been questioned. As one Aboriginal women asked many
years ago: “They say it’s human rights, but what about her rights?” The sentencing principles being urged are at odds with the national commitment to end violence against Australian women and children and the recognition that such violence must never be excused or condoned. Unfortunately, government policy responses, such as the National Plan to Reduce Violence against Women and Children, are weak and poorly lacking in implementation. Aboriginal leadership has also been lacking, with women’s voices against violence silenced. Neither the Human Rights and Equal Opportunity Commission, nor the National Aboriginal Congress, which were both prepared to intervene in a High Court case concerning a challenge to Queensland alcohol restrictions, have intervened in support of the deceased victim or her family in Munda’s case.
Aboriginal women and children deserve greater respect for their human rights, not just from offenders but also from governments and courts that have a duty to ensure effective remedies and protection for the victims. While there is much we can learn from Canada, we should not be bound to repeat the problems associated with the Canadian sentencing reforms in Australia. We urgently need to see the development of criminal justice responses based on respect for human rights, justice and healing. This will give Aborigines a real chance of growing safer Aboriginal communities in the future. Hannah McGlade’s book Our Greatest Challenge: Aboriginal Children and Human Rights won the 2011 Stanner Award. This article appeared in The Australian on 2 August 2013 and is republished with the author’s permission.
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