Newcombe [2004] SASC 26 (2004) 144 A Crim R 328

• 19 year old Aboriginal offender kicked and broke shop windows while intoxicated and angry – appealed against decision of magistrate to record a conviction
• Crown accepted offender’s youth, good record and undertaking of education and work programs justified no conviction being recorded: at [14]
• Court further accepted as relevant evidence on diminished employment prospects for Aboriginals: at [17]-[20]

[17] By consent, further material was placed before this court concerning indigenous offenders and the situation of indigenous Australians in general. Two reports from the Australian Bureau of Statistics were tendered as well as a research paper from the Centre for Aboriginal Economic Policy Research. The research paper reached conclusions concerning indigenous employment levels:

… the key feature of Indigenous employment status is that it remains firmly below the national average at less than three-quarters of the level recorded for non-Indigenous adults.

[18] It was submitted that the circumstances that relate to Mr Newcombe by reason of his ethnicity, including diminished employment prospects, are matters relevant to sentencing.

[19] Counsel submitted to the court that the rate of unemployment among indigenous Australians was substantially higher than the unemployment rate for non-indigenous Australians. It was pointed out that Mr Newcombe lived in a rural area where opportunities for employment are commonly acknowledged to be less than that of an urban area. The recording of a conviction was likely to diminish Mr Newcombe’s employment prospects. It was said that the court should consider particular difficulties that could arise were a conviction to be imposed.

[20] In this case the effect that a conviction may have on Mr Newcombe’s future employment prospects is a relevant sentencing consideration. In considering the penalty to be imposed on Mr Newcombe, the court should take into account the factors relevant to him through his particular ethnicity. (footnotes removed)