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Edney, Richard --- "The Need for a Higher Custody Threshold for Indigenous Offenders in Victoria" [2004] IndigLawB 64; (2004) 6(6) Indigenous Law Bulletin 17


The Need for a Higher Custody Threshold for Indigenous Offenders in Victoria

by Richard Edney

Introduction

Notwithstanding the publication of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’) in 1991, and the considerable expenditure of resources of Commonwealth, state and territory governments of Australia to implement those recommendations, Indigenous imprisonment in Australia remains at extremely high levels in comparison with the non-Indigenous community.[1] This appears unlikely to change significantly in the foreseeable future. It is within such a context that it is proposed to critique the claim in a recent Victorian Department of Justice discussion paper[2] that a key recommendation of the RCIADIC has been implemented. That particular claim by the Department of Justice relates to the Recommendation that imprisonment should be a sanction of last resort for Indigenous offenders. As part of this critique it will also be necessary to ‘deconstruct’, as it were, the content and utility of that particular recommendation in reducing Indigenous imprisonment. Finally, it will be contended that Recommendation 92, needs to be rearticulated (or a new version created) so that a higher custody threshold is applied to Indigenous offenders. The purpose of doing so is to ensure that imprisonment is, in fact, a sanction of last resort when Indigenous offenders present for sentence.

Recommendation 92 of the RCIADIC: Imprisonment as a Sanction of Last Resort

A key finding of the RCIADIC was not that Indigenous persons were dying in custody at a higher rate than non-Indigenous persons, but that the highly disproportionate number of Indigenous persons in custody meant that Indigenous persons were dying in far greater numbers in police and prison custody. To avoid a continuation, the RCIADIC focused not only on police and prison practices and procedures but also on the processes of the criminal justice system that had a direct impact on whether or not an Indigenous person would be placed in a custodial environment because of a breach of the criminal law.[3] In particular, the RCIADIC focused on the key decision makers in the criminal justice system and how those decision makers, if not sufficiently sensitive to the particular concerns of Indigenous offenders, could make decisions with disastrous consequences. Of particular moment were the actions of the judicial arm of government in relation to decisions regarding bail and sentencing. In that sense, the RCIADIC recognised the important ‘gate keeper’ function of judicial officers and how the significant judicial discretion involved in the decision to impose a term of imprisonment has a significant impact on the number of Indigenous persons in custody and thus the number of Indigenous deaths in custody.

That governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort.[4]

If properly implemented, Recommendation 92 of RCIADIC promised to offset the disproportionate incidence of Indigenous imprisonment in a dualistic manner. First, it emphasised that the use of imprisonment as a means of social control had proven a significant source of harm for the Indigenous community. Such an approach has resulted in deaths in custody, in the fracturing of families and communities and in the undermining of community ‘social capital’.[5] Second, this Recommendation emphasised to the sentencing court that in considering a disposition in a criminal matter for an Indigenous offender, the court must exhaust all other possible options before proceeding to a term of imprisonment.

On one level, Recommendation 92 promised to radically alter the experience of Indigenous persons in the criminal justice system with the expectation that it would direct Indigenous offenders away from confinement. Unfortunately, statistical data and the reality of criminal justice practices reveal that Recommendation 92 has had little, if any, apparent impact. Part of the problem lies with Recommendation 92 in that it was neither a new nor radical innovation in the operation of the criminal justice system but merely reflected a common law principle of long standing that a sentencing court should exhaust all sanctions before proceeding to impose a term of imprisonment.

Imprisonment as a Last Resort in Victoria

As noted in the recent discussion paper by the Victorian Department of Justice concerning the status of the RCIADIC recommendations, the claim is made that the recommendation concerning imprisonment as a sanction of last resort has been ‘fully implemented’.[6] To justify that finding, reference is made in the discussion paper to the Sentencing Act 1991 (Vic) and how that principle is embodied in the criminal justice system of Victoria.[7]

What this suggests is that the Victorian legislature did something ‘positive’ in relation to Recommendation 92 and that the principle of imprisonment as a sanction of last resort for Indigenous offenders was now fully operational in response to the RCIADIC. The difficulty with this claim is twofold. First, the common law of principle of parsimony has been long established as a sentencing principle in Victoria and was in existence prior to, and after, the RCIADIC. The principle of parsimony requires that the court, when selecting a sanction from the sentencing hierarchy, only chooses the penalty sufficient for that purpose.[8] In short, the principle encourages judicial restraint in the imposition of criminal penalties to ensure that disproportionate punishments are not imposed, as well as requiring the court to impose the least restrictive punishment in all the circumstances of the offence and the offender. In that sense, the principle of parsimony is a principle of long standing in criminal law and should have encouraged the use of the sanction of imprisonment as a last resort against Indigenous communities prior to the implementation of the RCIADIC.

In terms of legislative requirements that are imposed upon sentencing courts in Victoria, section 5(3) of the Sentencing Act 1991 (Vic) reflects the common law principle of parsimony[9] with equal application to Indigenous and non-Indigenous offenders. In this sense, the Victorian government has done nothing specific in directing judicial officers in relation to Indigenous offenders and in those circumstances it is mischievous for the Department of Justice to claim that there has been a ‘full’ implementation.

The Continuing Disproportionate Imprisonment of Indigenous People in Victoria

It is within this context that the imprisonment rate of Indigenous persons remains at high levels in Victoria. The most recent statistical figures from Victoria reveal an imprisonment rate for Indigenous persons of 1214.7 per relevant 100,000 of the population.[10] This imprisonment rate equates to a rate that is approximately 13 times greater than the non-Indigenous imprisonment rate.

The fact that the Indigenous imprisonment rate has not fallen within Victoria since the RCIADIC perhaps explains the establishment in 2002 by the Victoria Government of the Koori Court Division of the Magistrates Court.[11] Although a distinctive initiative aimed at addressing the continuing overrepresentation of Indigenous persons in custody by encouraging a more informal court process and providing a central role for elders in the sentencing process, that Court is still subject to the Sentencing Act 1991 (Vic).

A New Reading of Recommendation 92: The Importance of History to the Sentencing of Indigenous Offenders

Recommendation 92 of the RCIADIC was an attempt to counter the disproportionate imprisonment of Indigenous persons. Although a watershed document, the RCIADIC was actually part of a longer colonial discourse that had sought, since the invasion of Australia, to reduce Indigenous contact with the criminal justice system. A distinct aspect of the history has been the imprisoning of great numbers of the Indigenous community. That practice has imposed significant and enduring privations upon Indigenous communities throughout Australia. Unfortunately, it remains emblematic of the relationship between the Indigenous and non-Indigenous community.

The nature of that history is what Recommendation 92 attempted to remedy through informing the criminal justice system with a philosophy that would divert Indigenous persons from custody. So far, the promise of that philosophy has not been borne out in practical terms in the criminal justice system. Part of the reason perhaps lies with the nature of Recommendation 92 itself. As noted by Cunneen and McDonald, in the context of an earlier evaluation of the implementation of the RCIADIC throughout Australia,

This recommendation could have been much stronger: it simply refers to the need for legislation in this area, rather than the need for rigorous implementation of procedures to ensure that imprisonment is, in fact, a sanction of last resort.[12]

Part of the problem may also be that the analysis of the RCIADIC is framed by a distinctive method in the approach to Indigenous crime and punishment. A crucial assumption involves the invocation of a degree of confidence in the criminal justice system to achieve just outcomes for Indigenous persons who become involved within it. This underlying assumption is that the aims and commitments of the criminal justice system are relatively settled but the problem is in the perfection of that system in respect of Indigenous offenders. The problem with this approach is that it ignores that the criminal justice system has become so entrenched in the collective lives of Indigenous persons that there needs to be a radical reworking of a concept such as Recommendation 92 to make redundant the custodial imperative.

A Higher Custody Threshold for Indigenous Offenders: A Proposed Statutory Model

A possible method to ensure the proper implementation of Recommendation 92 is to amend the Sentencing Act 1991 (Vic) so that the ‘custody threshold’ (that is, the point at which an Indigenous person should be sentenced to a term of imprisonment) is higher than for a non-Indigenous offender. This could be achieved by including in the Act the following provision:

If during the sentencing hearing involving an Indigenous defendant the Court is considering a term of imprisonment the Court must request a pre-sentence report of the effects of such a term of imprisonment upon the Indigenous offender. This report is to be termed the ‘Prison Impact Statement’. The Prison Impact Statement should be prepared with the assistance of the following persons:

The Prison Impact Statement must contain the following information:

After receiving the Prison Impact Statement the Court should only impose a term of imprisonment if, and only if, it is satisfied that the term of imprisonment will be likely to be of more benefit than not for the offender.

The obvious argument to such a reform is that it treats Indigenous offenders ‘differently’ through imposing a higher custody threshold. What such an argument assumes is that the equality of law is a self fulfilling concept that operates upon the criminal justice system. The historical experience of Indigenous offenders suggests that this is not the case. In addition, the argument ignores the lived reality of Indigenous communities. That reality involves the exclusion from mainstream society, particularly in regard to key indicators of quality of life such as health, education, employment and home ownership. Offending behaviour and involvement in the criminal justice system is an aspect of that exclusion and a higher custody threshold seeks to address that exclusion in a more effective manner. To do otherwise, under the fiction of the equality of law in its administration, is to ignore the historical circumstances of Indigenous communities and to condemn further Indigenous persons to periods of imprisonment.

Conclusion

The current level of Indigenous imprisonment is unacceptable. This is particularly so in light of the empirical knowledge collected by the RCIADIC and the comprehensive recommendations put in place to address the harm caused by the criminal justice system to Indigenous communities. What is required, given what has occurred since the RCIADIC, is a more radical reworking of the concepts involving treatment of Indigenous persons in the criminal justice system. A higher custody threshold is a means of doing so. It does so because it is far more aggressive than Recommendation 92 in what it expects of the criminal justice system and its treatment of Indigenous offenders.

Richard Edney is a Solicitor and Lecturer in Law at Deakin University Law School.


[1] As at 30 June 2003 the Indigenous imprisonment rate was 1,888 prisoners per 100,000 adult Indigenous population. This means that Indigenous persons were 16 times more likely than non-Indigenous persons to be in prison. See Australian Bureau of Statistics Prisoners in Australia, ABS Catalogue No 4517.0 (2003).

[2] State Government Victoria Victorian Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody (Discussion Paper, Department of Justice, 2004).

[3] Note that the RCIADIC also emphasised the need for the wider social, economic and political conditions of Indigenous communities to be addressed as well. In particular, the principle of self determination was held to be central for the empowerment of Indigenous communities.

[4] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Recommendation 92 <http://www.atsic.gov.au/issues/law_and_justice/rciadic/default.asp> at 25 October 2004.

[5] Richard Edney ‘Indigenous Punishment in Australia: A Jurisprudence of Pain?’ (2002) 30 International Journal of the Sociology of Law 219, 228-230.

[6] State Government Victoria, above n2, Appendix, 13.

[7] Sentencing Act 1991 (Vic) s 5(3).

[8] Richard Fox and Arie Freiberg Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 186.

[9] Sentencing Act 1991 (Vic) s 5(3).

[10] State Government Victoria, above n2, 14-15.

[11] Magistrates Court (Koori Court) Act 2002 (Vic).

[12] Chris Cunneen & David McDonald Keeping Aboriginal and Torres Strait Islander People Out of Custody (1996) 125.


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