We had the opportunity to assist an elderly Aboriginal person with extensive mental and cognitive impairments and a criminal history dating back to 1970. He had spent the better part of 20 years in custody. His matter engaged well known sentencing principles for Aboriginal and Torres Strait Islander offenders, which emphasise that courts must avoid racism, paternalism or collective guilt and assess seriousness by reference to the person’s particular circumstances.
Case law affecting Aboriginal and Torres Strait Islander offenders
These principles are reflected in leading authorities, including the High Court’s decision in Bugmy v The Queen and earlier sentencing guidance. In practice, Aboriginal offenders are to be sentenced without differential treatment based on race, yet realistically and individually, taking into account personal history and the objective seriousness of the offence.
Our client also had a very serious record and was serving parole and an Intensive Corrections Order (ICO) for offending in 2020 and 2022. After pleas of guilty, the Magistrate initially indicated full-time imprisonment was inevitable.
Notwithstanding that position, our criminal law team, led by Nicholas Hardy-Clements, prepared comprehensive material and submissions addressing treatment needs, cultural background, mental health and community supports. The court accepted there was a strong case for structured supervision in the community so rehabilitation could continue. Concurrent ICOs were imposed instead of full-time custody, a significant and appropriate outcome for our elderly client.
The outcome
Despite multiple parole breaches between 2020 and 2022, we persuaded the court not to remove the stability our client had built in the community. He was given a further opportunity to remain at home under concurrent ICOs with strict conditions, allowing treatment and rehabilitation to continue.
If you or a family member needs help with a sentencing matter, contact Jameson Law or call (02) 8806 0866 for confidential advice.
