The decision of R v Fernando remains one of the most influential decisions on the relationship between Aboriginality and sentencing under Australian criminal law. The eight proposed sentencing principles, as they apply to Indigenous persons for the purposes of sentence, have provided authoritative guidance for Courts of Criminal Appeal throughout Australia. In recent decisions however, the propositions in that decision by Justice Wood have been qualified in their application in a cluster of New South Wales Court of Criminal Appeal decisions. Firstly, the article outlines the principles of Fernando. It then discusses the NSW Court of Criminal Appeal decisions and highlights the method by which they qualify and ultimately undermine the principles of Fernando. It is contended that these decisions should not be followed, principally because they attempt to confine the reach of Fernando by fundamentally misapprehending the nature of Indigenous identity in a post-colonial society.