BEHIND ENEMY LINES: Taking sentencing out of the court of public opinion

By Amy McQuire, February 28 2013, Tracker Magazine.

NATIONAL: The complexity of sentencing decisions is ill-covered by media, writes AMY MCQUIRE.

Like all issues in Indigenous affairs, the skyrocketing incarceration rates of young Aboriginal and Torres Strait Islander children is an issue revisited every few years, with politicians and media riding out the shockwaves, and then returning to the issue with little or no improvement to report.

Sadly, the statistics show Indigenous youth are more likely to come into contact with police than non-Indigenous youth.

About 40 percent of Indigenous males have reported being charged with an offence under the age of 25.

They are also more likely to re-offend, and to end up back in the prison system as adults.

The situation is getting worse, not better.

The complex cocktail of factors which have led to Australia’s juvenile detention centres brimming with legions of Aboriginal and Torres Strait Islander youth are well known and well documented.

There has, however, been little substantive action to address them.

To its credit, The Australian newspaper has spent the past week focusing on a number of outrageous and inconsistent sentencing decisions which have contributed to this incarceration rate, including the case of an Aboriginal teenager in Parkes, NSW, sentenced to 12 months imprisonment for stealing a packet of hamburger buns.

Although shocking, such outcomes are not uncommon.

Unfortunately, the use of the old device – demonising Aboriginal men –formed part of the newspaper’s narrative.

It followed up its series of stories by interviewing the federal government’s Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda.

He claimed the “disparity” between domestic violence sentencing decisions of Aboriginal men in remote areas and the sentencing of Indigenous youth for minor offences in regional and urban areas was “perverse”.

“Very rarely do you see these cases of horrific domestic violence killings in Aboriginal communities being tried as murders,” he told the newspaper. “Yet kids that didn’t bash anyone get sentenced to 12 months in jail for stealing a packet of hamburger buns,” he added.

“It’s as if it’s seen as all right for Aboriginal men to bash women that’s what they do.”

It’s a strange comparison given that Aboriginal men from remote areas are the most incarcerated group in Australia.

Sentencing decisions should always be discussed and debated on the individual circumstances of the case – including the offender’s background.

Domestic violence is a scourge on our communities, as it is in the wider community but it is deeply simplistic to claim the court system is giving Aboriginal men the right to bash women.

And it unnecessarily diverts attention away from the issue at hand – the overpolicing and targeting of Indigenous youth, both in remote, regional and urban settings.

Courts have a long history of taking the experiences of Aboriginality into account in sentencing decisions – including the severe social and economic disadvantages that come with being an Aboriginal man or woman in a remote community.

Sensational reporting of these cases does little to help solve the underlying issues that lead to domestic violence, and I fail to see how sending more Aboriginal men to jail will help break the cycle.

Mr Gooda gave the much-publicised example of a disturbing rape case in Aurukun, which was sent to the Queensland Appeals Court following national and international outrage at the lenient sentences given to the perpetrators.

But he gave no other examples of where Aboriginal men were being given lenient sentences for domestic violence cases.

Locking up blackfellas as a final solution will not solve the poverty and disadvantage within Aboriginal communities. It will not put an end to the violence. It will not resurrect so-called “social norms”.

For example, the Northern Territory already hands out mandatory sentences for violent crimes.

It’s a system that has been criticised by the North Australian Aboriginal Justice Agency. NAAJA CEO Priscilla Collins recently appealed to the CLP government to closely examine the NT’s justice system.

“The Northern Territory already has the toughest sentencing regime in Australia for assaults,” she pointed out.

“Assaults which result in harm already carry a sentence of mandatory imprisonment. The NT has the highest imprisonment rate in Australia and the number of prisoners in the NT increased 14 percent last year.

“There is nothing to suggest that violent offenders are getting off light and the court system already allows for appeals if a sentence is too low.

“The prisons are full.”

Indeed, the rates of Indigenous incarceration in the NT have jumped by 90 percent in the past decade.

Governments are spending big on locking up Aboriginal people, but failing to divert much needed funds to combating the causes of crime.

Putting the focus back onto black-on-black crime, which is already disproportionately reported by media, will only mean the crucial underlying issues will continue to fly under the radar.

The future of Aboriginal communities are deeply invested in the future of our young people.

It’s crucial that we begin trying to fix the failings in our criminal justice system, and break this cycle.

This piece was originally published on Crikey.com.au on January 11, 2013.
* Amy McQuire is a Darumbal and South Sea Islander journalist and editor of Tracker.

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