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We had the opportunity to assist an elderly aboriginal person who had extensive mental and cognitive impairments, coupled with a criminal history, dating back to 1970. He had spent the better of 20 years in jail, and his case had even created a case law precedent when sentencing aboriginal persons — in essence, when determining the seriousness of the crime, Aboriginal offenders are not to be assessed differently based on race, paternalism or collective guilt, but rather realistically with reference to the particular circumstances of the offender.
Case Law Precedent affecting Aboriginal and Torres Strait islander offenders
The case was reported and became a well known case law precedent when sentencing aboriginal persons. In essence, Aboriginal offenders are to be sentenced in such a way to avoid any racism, paternalism or collective guilt yet nevertheless when determining the seriousness of the crime must be assessed realistically with reference to the particular circumstances of the offender.
That being said, in addition to our client having a very serious criminal history, he was also serving parole and an Intensive Corrections Order for further offending in 2020 and 2022. When pleas of guilty were entered to the offences, the Magistrate indicated it was inevitable our client would be sentenced to full-time prison.
Notwithstanding this, our criminal team, led by Nicholas Hardy-Clements, was able to persuade the magistrate not to sentence our client to a full-time term of imprisonment. After weeks of preparation, the Magistrate recognised the need for our client to remain within the community so that he could continue engaging in treatment and rehabilitation. Ultimately, the Magistrate imposed further concurrent Intensive Corrections Orders. The outcome was unlikely and a huge relief for our elderly aboriginal client.
The Outcome
Despite everything going against our client due to multiple parole breaches between 2020 and 2022, our criminal law team was able to convince the Magistrate not to strip an elderly aboriginal person of the life he had built for himself within the community over recent years, and afforded him one final opportunity to remain at home and continue with his treatment and rehabilitation.
