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Aboriginality (C. History of Sentencing (Wanganeen v Smith - tribal…
Aboriginality
C. History of Sentencing
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Neal v The Queen - spitting at the white guy, racial relations should have been considered for a mitigating factor
R v Fernando - consideration of their subjective circumstances, where it throws light on the particular offence and the curcumstances of the offender.
Walker v New South Wales - criminal law should not apply to Aboriginals - not possible to have an alterantice body of law along side of it.
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R v Ceissman - - part aboriginal did not enliven Fernando principles - not form remote community so imprisonment would not be unduly harsh
R v Fuller-Cust - sexula offences while drunk - any issue srelevant to an offeners oboriginality may exist whether the aboriginal is living in an urban or rural situation - must take into account circumstances of the individual offender.
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Munda v Western Australia - to deny Aborignals full responsibility for their actions is to deny them the full measure of their human dignity.
Current Methadology
- Abriginality itself is not a mitgating factor per se
- Social background and experiences linked to this however may be mitigating
- Whether the defendant grew up in an urban or rural community is irrelevant
- If alcohol /violence/drugs are commonly present in the community then this may be a mitigating factor - if a singificant influence in their life.
- Imposition of customary punishments may take into account a form of curial unsidment however it does not spearate the two judicial parts, it may just be used as a altenate or compliementing form.
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Context /History
R v Murrell - wilful murder wnated to be punished by aboriginal customary law - land unnappropriated by anyone - Anglo saxon laws trump aboriginal laws, aborignials treated as equals under anglo-saxon law.
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