Criminal Justice and the Rehabilitation of

Aboriginal Youth Offenders in Australia

Alicia Smith

Abstract:
The Australian criminal justice system should seek to provide more
rehabilitation opportunities for young Aboriginals, a demographic that is
significantly over-represented in Australian prisons today. A high rate of criminal
activity within Indigenous communities can be partially attributed to a variety of
socio-economic disadvantages and issues. The courts should consider
opportunities for potential rehabilitation and take advantage of the various
rehabilitative sentences/programs available when sentencing Aboriginal children
and young adult offenders. Aboriginal over-representation in incarceration has
the potential to be resolved through the prioritisation of rehabilitation focussed
sentences by the courts when sentencing young and minor offenders who have
a high likelihood of successful rehabilitation.
List of topic keywords: criminal justice, Aboriginal offenders, rehabilitation,
over-representation, incarceration, recidivism, youth.

Introduction
The Australian criminal justice system should seek to provide more
rehabilitation opportunities for young Aboriginals, a demographic that is
significantly over-represented in Australian prisons today. Indigenous people and
communities are affected by a variety of disadvantageous social and economic
issues, the root causes of high Aboriginal crime rate. If more sentences focussed
on rehabilitation as opposed to retribution, it is likely that recidivism rates
amongst young Aboriginals would not stand as high as they currently do. The
courts have a wide range of non-custodial sentences available to them, and
these should be considered when sentencing offenders. More effort should be

made to prioritise rehabilitative sentences for young Aboriginal criminal

offenders as these not only can prove to be more effective than harsh custodial
sentences, but provide an opportunity to young people to beat the cycle of
crime.
Causes of High Aboriginal Crime Rates
A high rate of criminal activity within Indigenous communities can be partially
attributed to a variety of issues including: poverty, substance abuse or
addiction, lack of education and unemployment. Aboriginals in Australia are
subject to serious economic and social disadvantages, and these confirm a
strong associationwith Indigenous contact with the criminal justice system
(Holmes & Weatherburn, p 564).
Sentences that focus on rehabilitation seek to directly resolve the problematic
issues that affect Aboriginals caught in the cycle of crime. Future endeavours to
reduce the over-representation of young Aboriginals in incarceration should be
directed at dealing with the underlying causes of Indigenous involvement in
crime, especially drug and alcohol use, child neglect and abuse, poor school
performance and unemployment (Holmes & Weatherburn, p 559).
A custodial sentence of imprisonment can be ineffective if it fails to meet any
evident rehabilitation needs the young offender might have. The courts in
Australia have a responsibility to assess these needs and, taking into account
their background, must sentence the offender appropriately. However, it is often
difficult to find a balance between providing a retributive sentence that
punishes the offender for a criminal offence and determining a rehabilitative
sentence that promotes positive change. If pertinent issues such as lack of
education, poor health or financial disadvantage were considered in depth by
the courts when sentencing, it is likely that rehabilitative sentences would be
given, and these often prove more effective than harsh custodial sentences.
Rehabilitation-Focussed Sentences
An offender who is able to be rehabilitated is no longer a threat to society
and, as the criminal justice system exists primarily for protection of the
community, rehabilitation is an important goal (Mildren, p 23).
The courts should first consider opportunities for potential rehabilitation and
various rehabilitative programs when sentencing young Aboriginal offenders.
Every rehabilitation program is diversionary by nature and aims to stimulate a
willingness to begin a healing and learning process for the offender. The preteen/early teenage years are ideal for young Indigenous offenders to undergo
rehabilitation in order for them to learn from mistakes, and recognise the need
to get their lives back on track. If there is evidence or promise of successful
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rehabilitation for a young offender, this should be taken advantage of and the
judges of courts should sentence accordingly.
For many Aboriginals, the Australian criminal justice system is more foreign and
complex than the unique sentencing process of their culture. Harsh custodial
sentences that only aim at punishment can institute a sentiment of vengeance
in offenders. This desire to exact revenge on society is spurred further on by
feelings of being targeted by the Australian criminal justice system and this
often leads to recidivism (repeat offences).
In Australia, a range of alternate strategies and sentences to incarceration are
available to the courts when sentencing Aboriginal youth. Community based
orders bind the Aboriginal offender to complete a number of supervised hours of
service to the community in the form of various activities (Kenny & Frize, p 14).
Specific sex education programs are developed that aim to educate Aboriginal
sex offenders about issues like the importance of consent or maintaining good
sexual health (Central Australian Aboriginal Congress Inc., p 34). For violent
offenders of assault crime or domestic violence, rehabilitation is available in the
form of aggression control sessions (Marchetti, p 267). Drug treatment orders
are sentenced to Aboriginal offenders who are addicted to drugs and alcohol,
offering them substance specific therapy (Chenhall, p 106). Additionally,
proceedings can take place in an Indigenous-specific Koori Court, where
Aboriginal elders can be present and contribute to the hearing, giving an insight
into differences in cultural values (Auty & Briggs, p 14).
These innovative rehabilitation programs have been developed with the
principal aim of encouraging and promoting positive change in the attitudes,
activities and lifestyle of Aboriginal offenders, deterring them from recidivism.
Rehabilitation directly targets the causes of significant contact with the criminal
justice system which range from poverty and low socioeconomic status to
substance abuse and addiction (McCausland & Vivian, p 302).
The Over-Representation of Aboriginalsin Incarceration
In 1991, the rate of Aboriginal imprisonment in Australia was 13 times
higher than the rate of non-Aboriginal imprisonment. By 2001 the
Aboriginal imprisonment rate was 15 times higher (Fitzgerald, Hua &
Weatherburn, p 65).
In relation to Australias population and the proportion that Aborigines
represent, their over-representation in incarceration is a significantly high
statistic.
The over-representation of Aboriginals in incarceration still continues to pose a
significant problem in Australia today. This problem is one that comes with many
long-lasting impacts. Young people grow up in Indigenous communities believing
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that crime is a norm. After just one minor offence young Aboriginals can find
themselves stuck in a cycle of crime, and without the offer of opportunity to
escape, recidivism will easily become their new way of life.
The incarceration of young Aboriginals who have the potential to participate
successfully in rehabilitation programs is unnecessary and forced separation
through incarceration intensifies this, creating a further marginalised and
destabilised young Aboriginal population and placing added burdens, both
financial and social (Krieg, p 535)
A main finding of the Australian Governments 1987 Royal Commission into
Aboriginal Deaths in Custody was that harsh custodial sentences should only be
used as a last resort when sentencing Aboriginal offenders. Purely retributive
sentences had been proven to have detrimental impacts upon Aboriginal
offenders. Although the Royal Commission emphasised the prioritisation of
rehabilitation and the consideration of alternate sentences when sentencing
Aboriginals, this has not yet been put into practice by the courts.
Circle Sentencing
Circle sentencing is an alternate sentencing process whereby the offender
comes before a magistrate as well as a number of Aboriginal elders to discuss
the offence and its impact upon the victim, then deciding on an appropriate
sentence for the offender (Fitzgerald, p 1). Circle sentencing is becoming
increasingly popular however, it has been argued that the process is not as
effective as most perceive.
A study by the NSW Bureau of Crime Statistics and Research found that circle
sentencing had no effect on the frequency, timing or seriousness of reoffending (Fitzgerald, p 7). Circle sentencing does not deter offenders from
repeat offences any more than ordinary court proceedings.
It must be noted that, regardless of its effect on recidivism rates, circle
sentencing does still provide many benefits in its role as an alternate process to
conventional sentencing, especially when it comes to sentencing of young
people. Respect for elders is an embedded value in Aboriginal culture and this
creates an environment through which the young offender has the opportunity
to take responsibility for their actions. When it comes to teaching young people
life lessons and allowing them to learn from mistakes, circle sentencing has a
crime prevention value that cannot be quantified (Fitzgerald, p 7). There are
undeniable benefits of the process and many success stories have sprung from
its recent introduction across rural and regional Australia.
Conclusion

The Indigenous population of Australia is extremely over-represented in prisons

across the nation. In conjunction with this, Indigenous youth in incarceration is
rising exponentially. Economic and social disadvantages such as poor education,
unemployment and substance abuse, should be considered in detail by the
courts when sentencing offenders as they all play a part in high Aboriginal crime
and recidivism. The primary focus of judges when sentencing young Aboriginal
offenders should be their prospects of rehabilitation, not purely retribution. A
united effort between the courts and the Aboriginal community is necessary in
order to shift the focus from punishment to rehabilitation. Only then will we see
less Indigenous youth in imprisonment, and more beating the cycle of crime
that has become too much the norm in Indigenous communities.
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