Description

Important authorities such as Neal v The Queen (1982) and R v Fernando (1992) have established that the Aboriginality of a defendant is a relevant consideration when formulating a sentence. However in R v Walter and Thompson (2004), the New South Wales Court of Criminal Appeal allowed a Crown appeal against sentence after finding that the sentencing judge made an error by taking into account the Aboriginality of a defendant who did not come from a dysfunctional family and did not have a history of deprived socioeconomic circumstances or alcohol abuse. Similarly, in R v Newman, R v Simpson (2004), the majority of the Court distinguished between a case where an Aboriginal defendant came from a rural or remote setting and a case where an Aboriginal defendant came from an urban setting and had not proven any links with a particular Aboriginal community. Neal and Fernando had established the substantial equality principle, which requires courts to take into account all material facts, including facts which exist only by reason of an offender’s membership of an ethnic or other group. This article argues that cases like Walter and Thompson, and Newman and Simpson, are inconsistent with the substantial equality principle in so far as they suggest that the relevance of Aboriginality to sentencing depends on whether a defendant is ‘Aboriginal enough’. Such cases also divert attention from the need to develop sentencing principles that respond to both the overrepresentation of Indigenous people in prison and the reasons for that fact. Courts need not ignore Indigenous overrepresentation in prison as a relevant factor in selecting non custodial sentencing options.