Indigenous (In)justice: sentencing Indigenous offenders in Victoria

HV Public Presentation by Professor Arie Freiberg AM (Monash University) at Balwyn Library Meeting Room on 22 June, also via Zoom

Report by Jennie Stuart

Last year, after eighteen years, Professor Freiberg stepped down as Chairman of the Victorian Sentencing Advisory Council. During this time he had written extensively about sentencing reform, and advocated for educating both the broader community, as well as lawyers, about it. He began by reminiscing: in 1977, as a young criminologist he and his mentor wrote about Aborigines and the courts, as follows,

In the years since the colonisation of Australia the philosophy underlying policies relating to Aborigines has fluctuated from that of extermination, segregation and malevolent neglect to a more recent one of assimilation and Europeanisation. Perhaps the most basic criticism (of the law) and one which engenders the perception of egregious injustice in a legal centralist system is that based on the imposition of a system of law that is foreign and uninvited.

It would not be unreasonable to expect the law and its agencies to be meaningful to the people who are subjected to it, and it would seem that unless this is done and if the law becomes increasingly removed from what is viewed as justice, it will rely on force for its validity rather than on consent.

In the intervening forty-six years, however, the grim reality of over-representation of Indigenous people in the criminal justice system has persisted. Across Australia, in 2021, Indigenous people were imprisoned about 14 times more frequently than the general population. In addition, while in Victoria 1.6% of young people aged between 10 and 20 years of age were Indigenous, 18 % of those under direction by the Children’s Court were of Indigenous origin, with many moving from child protection to subsequent contact with the criminal justice system.

The causes at the heart of this predicament include the legacy of colonialism, dispossession of land, intergenerational trauma, systemic racism and socio-economic disadvantage. And Australia is not alone: there are similar scenarios with other indigenous peoples in America, Canada and South America.

There are many social determinants associated with repeated contact with the criminal justice system, including out-of-home care, poor school education, being Indigenous, early police contact, cognitive disability, poor mental health support, drug and alcohol abuse and unstable housing.[1] Other contributing factors are structural racism and discrimination within the criminal legal system and the lack of adequately-resourced support, which is community-led and culturally appropriate. Professor Freiberg also argues strongly that prison itself is criminogenic.

Breaking the cycle

There have been many reports and countless articles over the past forty years attempting to throw light on the pathways and factors underlying this persistent over-representation, and these have generated hundreds of recommendations for reform.

With respect to sentencing Indigenous offenders Professor Freiberg started by recounting the case of an Indigenous offender with a complex past social and criminal history and challenged the audience to adjudicate. ‘You be the judge’ is an exercise he frequently sets for his students.

The law is based on the principle of equal justice but with a capacity to accommodate special or compelling circumstances, which must be weighed against the nature and gravity of the offence.

Sentencing courts in all jurisdictions can take an offender’s background of disadvantage into account, as may be outlined in a pre-sentencing report. For example, poverty, trauma, abuse and deprivation may be seen as affecting an offender’s moral culpability.

The ‘cultural background‘ of an offender can also be considered in some jurisdictions. The Victorian Aboriginal Legal Service (VALS) has begun compiling ‘Gladue reports’. These are prepared with help from someone who understands the offender’s Aboriginal community, and may include information about complex historical and cultural issues.

In Victoria there have been Koori courts in operation since 2002. There are now fifteen at the Magistrates Court level. A children’s Koori Court started in 2005 and a County Koori Court in 2008.  The offender must plead guilty and Aboriginal Elders and Respected Persons provide background information, as well as advice on cultural practices, protocols and perspectives that may help the Magistrate with sentencing. However, while these courts were set up with the aims of deterring crime and reducing recidivism there has been no evidence to support this in Victoria, so far.

Sentencing Indigenous offenders is hampered by the current framework of risk assessment that focuses on social deficits. This tends to reproduce bias about Indigeneity, while failing to acknowledge the strengths of culture and community. It also places the consequences of social disadvantage on the individual, overlooking the broader social and political context, of colonial ideology and intervention.

Culturally–appropriate sentencing has been recommended by VALS. The Koori-led Wulgunggu Ngala Learning Place is an example of this, providing an opportunity for Indigenous offenders to connect with culture under the supervision of Elders as they fulfil the conditions of their Community-based Order.

Self-determination

The UN Declaration of the Rights of Indigenous Peoples states, ‘Indigenous people are entitled to self-determination, and to autonomy or self-government over their internal affairs.’

The Royal Commission into Aboriginal Deaths in Custody in 1991 recommended independent Aboriginal Justice Advisory Committees. The Victorian Aboriginal Justice Agreement was set up in 2000 after consultation between the government and various Indigenous groups. This was another step along the path to self-determination with the potential to build social capital.

In view of the fact that in 2015 the Victorian Government said that it was committed to advancing Indigenous self-determination, there have been calls to embed this in the Sentencing Act 1991 (Vic). The current work towards treaty within Victoria is also expected to empower Aboriginal communities and lead to improved outcomes.

 The recording of this presentation can be viewed on Youtube: https://youtu.be/6MxpJ1Owawk


[1]McCausland, R. and Baldry, E. (2023) “Who does Australia Lock Up? The Social Determinants of Justice”, International Journal for Crime, Justice and Social Democracy. doi: 10.5204/ijcjsd.2504.