The current position in Australian law is that Indigenous offenders are sentenced according to the same sentencing principles that apply to all other offenders, irrespective of the offender’s identity or ethnicity. Notwithstanding this, the court is permitted to take a wide range of matters into account, including social, economic and other disadvantages which may be related to indigenous peoples’ experience. Such factors have sometimes led to sentence mitigation. Historically this approach has also allowed for the consideration of customary law punishments, in particular ‘payback’ as mitigating factors in sentencing.
During Kriewaldt’s time on the Supreme Court bench, important differences in the rules applicable to sentencing for serious crimes, such as murder, allowed the judge to consider flexible sentencing options and customary law. For white defendants found guilty of murder, the inevitable punishment was the death penalty, while for for Aboriginal defendants the penalty was determined by the court on the basis of the evidence, including “any evidence which may be tendered as to any relevant native law or custom and its application to the facts of the case and any evidence which may be tendered in mitigation of penalty”.
Kriewaldt saw his duty in sentencing as part of a broader role in support of assimilation. Kriewaldt described the sentence “as an aid in the process of the assimilation of the Australian Aboriginal into the integrated community”. Thus he later accepted that one of the roles of sentencing was to apply the principle of general deterrence to assist in effecting assimilation. The consequence of the penalty would be to deter certain behaviours associated with Aboriginal ways of living.
Kriewaldt recognised that some Aboriginal people were already more assimilated (“civilised”) than others so that different kinds of treatment depending on the extent of assimilation would be appropriate. In many of his cases Kriewaldt made an assessment of the level of civilisation of the Aboriginal defendant who came before him. In his sentencing judgements he frequently assessed whether a particular defendant should be treated as if he were white (i.e. civilised or assimilated) or whether, because of a lack of civilisation, he should be given the benefit of leniency.
“In general it has been my practice …to impose on natives sentences substantially more lenient than the sentence imposed on white offenders for similar offences…[a native] by reason of his colour should never receive a sentence more severe than a white person would receive in similar circumstances. His colour may work to his advantage but never against him.”
Kriewaldt J in Anderson (1954)
“The nearer his mode of life and general behaviour approaches that of a white person, the closer should punishment on a native approximate punishment proper to a white person convicted of a similar crime.”
Kriewaldt J in Anderson (1954)
“I do not think the assaults were pre-meditated...They were influenced by sudden bursts of temper. If I thought the stockwhips were used in self-defence I would have released the Chambers brothers on a bond…If I thought the whips had been used to drive the natives back to work I would have imposed extremely severe penalties. But I think the whips were used on the ground to enforce the will of the white men over that of the natives to show that the white men would brook no interference in their dealings with the natives.”
Kriewaldt J in Chambers and Others, 1955
He saw sentencing “as an aid in the process of the assimilation of the Australian Aboriginal into the integrated community.”
Kriewaldt J in Wheeler, 1959