Grose [2014] SASCFC 42; (2014) 240 A Crim R 409

• Sentencing judge declined to order Aboriginal sentencing conference under s.9C (SA) Criminal Law (Sentencing) Act 1988 – on appeal Court found refusal an error in exercise of sentencing discretion and sentence manifestly excessive – matter remitted for sentencing conference
• In considering validity and purpose of sentencing conference Gray J referred to importance of using conference to identify and understand risk factors associated with criminal offending – referred to findings of Royal Commission into Aboriginal Deaths in Custody and other studies which showed such factors more prevalent in Aboriginal populations – importance of Courts being alert to possible relevance of factors including childhood separation from families, social marginalisation, intergenerational cycle of abuse and violence, lack of education and unemployment, poor health and alcohol abuse in relation to Aboriginal offenders and cultural dispossession: at [41]-[51]

[49] There remains a high level of incarceration of Aboriginal people. In the 20 years following the Royal Commission report, the proportion of Aboriginal prisoners has almost doubled. As at 30 June 2013, there were 8,430 prisoners who identified as Aboriginal and Torres Strait Islander, representing just over one quarter, 27%, of the total prisoner population of 30,77547. It has been noted by the Indigenous Justice Clearinghouse that:48

… Indigenous offenders are particularly over-represented in acts intended to cause injury, public order offences, offences against justice and unlawful entry … Indigenous offenders are younger than non-Indigenous offenders, have their first contact with the justice system at a younger age, and are more likely to be repeat offenders. High risk alcohol consumption is a significant risk factor, as is socioeconomic disadvantage. Risk factors around dispossession, colonisation and child removal are more difficult to measure, but are thought to have contributed to social disorganisation and an intergenerational cycle of violence …

[50] The overrepresentation of Aboriginal people in prison demonstrates an ongoing need for the criminal justice system to be alert to the factors that create a risk of offending. In 1997, the Human Rights and Equal Opportunity Commission49 in its National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families: Bringing Them Home Report found that “[a]n entrenched pattern of disadvantage and dispossession continues to wreak havoc and destruction in Indigenous families and communities.”50 It noted the ongoing relevance of the removal of Aboriginal people from their family:51

Social justice measures taken by governments should have special regard to the inter-generational effects of past removals. Parenting skills and confidence, the capacity to convey Indigenous culture to children, parental mental health and the capacity to deal with institutions such as schools, police, health departments and welfare departments have all been damaged by earlier policies of removal.

Unless these conditions are altered and living conditions improved, social and familial disruption will continue. Child welfare and juvenile justice law, policy and practice must recognise that structural disadvantage increases the likelihood of Indigenous children and young people having contact with welfare and justice agencies. They must address this situation.

[51] More contemporary evidence also demonstrates that the risk factors which the Royal Commission identified as contributing to interaction with the legal system, such as poor health, limited education and unemployment, continue to be statistically more prevalent in Aboriginal communities.52 It has been suggested that the risk factors for offending by Aboriginal people are largely similar to those for the wider population, but that the higher incidence of such factors may explain higher rates of offending.

Further, there exist risk factors specific to Aboriginal people, including forced removal, which have an intergenerational effect.53 It has been suggested that:54

… Policies of child removal and institutionalisation have severely damaged the parenting capacity of many Indigenous people. Many parents are further incapacitated by their poor health, substance abuse and by imprisonment. Poor parenting is a very significant risk factor for offending …

Of great concern is the identification of an intergenerational cycle of abuse and violence. Indigenous children frequently witness or experience violence, which is normalised and increases the risk that they themselves will use violence …

[49] Now known as the Australian Human Rights Commission.

[50] Human Rights and Equal Opportunity Commission, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families: Brining Them Home Report (April 1997) 559.

[51] Human Rights and Equal Opportunity Commission, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families: Bringing Them Home Report (April 1997) 557.

[52] See for example the findings of the Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2011 (25 August 2011) Australian Government Productivity Commission http://www.pc.gov.au/__data/assets/pdf_file/0018/111609 /key-indicators-2011-report.pdf

[53] Dr Troy Allard, Understanding and preventing Indigenous offending: Brief 9 (December 2010) Indigenous Justice Clearinghouse http://www.indigenousjustice.gov.au/briefs/brief009.pdf

[54] Dr Troy Allard, Understanding and preventing Indigenous offending: Brief 9 (December 2010) Indigenous Justice Clearinghouse http://www.indigenousjustice.gov.au/briefs/brief009.pdf