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Thematic Issue: Life Sciences: Ethics, Innovation and the Future of Law

Indigenous Experience Reports: Addressing Silence and Deficit Discourse in Sentencing


Anthony Hopkins, Thalia Anthony, Lorana Bartels, Sinead Allen and Emma Henke

The hyper-incarceration of Indigenous Australians urges analysis of unconscious bias, the application of criminogenic risk assumptions, and structural impediments to consideration of Indigenous experience in sentencing. Disrupting deficit-based discourses requires new approaches to sentencing, in which First Nations voices are heard. This article examines all 149 sentences delivered in the Supreme Court of the Australian Capital Territory between 2009 and 2019, in which the defendant’s Indigenous status was identifiable. We consider the extent and nature of engagement with Indigenous experience, finding a prevailing silence and limited evidence of strengths-based approaches. We argue that listening to First Nations voices in sentencing can provide a counterpoint to deficit discourses and a holistic understanding of the individual and their background, including the ongoing relevance of colonisation in their lives. The use of Indigenous Experience Reports to enable this listening may also promote strengths-based considerations and challenge the efficacy of carceral options.

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(2023) 46(2) UNSWLJ 615: