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20 Griffith L. Rev. 385 (2011)
Sentencing Indigenous Riot Offenders in a Spatial Fantasy

handle is hein.journals/griffith20 and id is 391 raw text is: SENTENCING INDIGENOUS RIOT OFFENDERS IN A SPATIAL
FANTASY
Thalia Anthony
There is precedent in Australian criminal sentencing to
consider Indigenous group membership as a mitigating factor,
including for Indigenous riots against racist acts or deaths in
custody. When mitigation has been invoked, it is based on the
reduced moral culpability of the Indigenous offender. A number
of higher courts, particularly in the 1980s and 1990s, pointed to
the stress caused by racism that provoked the riot. However,
recent sentencing remarks have tended to privilege
aggravating circumstances, especially the seriousness of the
riot and the harm or potential harm to the victims. This shift in
sentencing considerations for rioters dovetails a reimagining of
the Indigenous offenders and their communities as lacking
reason or legitimacy in the contest for space. This article
analyses key sentencing remarks and media reports for New
South Wales and Queensland Indigenous riot cases over the
past 30 years by drawing on Stanley Cohen's concept of 'moral
panics' and Ghassan Hage's notion of spatial racism to
demonstrate how the construction of riots as an out-of-control
response reflects a deeper national anxiety over 'white' space.
Whether the offence is riotous or righteous, criminal sentencing provides
unique opportunities for individualised justice. While normative sentencing
principles, such as deterrence, retribution, rehabilitation and community
protection, frame judicial discretion, such discretion is exercised with
reference to the offender's background and circumstances. Sentencing
principles are enshrined in legislation across Australia, including section 3A
of the Crimes (Sentencing Procedure) Act 1999 (NSW) and section 9(1) of
the Penalties and Sentencing Act 1992 (Qld). At the same time, the High
Court of Australia has remarked that courts have discretion to 'take account
of all relevant factors'.' Judicial discretion ensures 'individualised justice'
by requiring 'that all of the wide variations of circumstances of the offence
and the offender are taken into account'.' Individualised justice is a long-
Senior Lecturer, Faculty of Law, University of Technology Sydney. The author would like
to thank Amanda Porter for her thoughtful feedback on earlier versions and her creation of
the term 'riotous or righteous'. The author would also like to acknowledge the helpful
suggestions of David Lewis, Roshan De Silva and the anonymous reviewers.
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 611 (emphasis in
original).
2 R v Whyte (2002) 134 A Crim R 53 at 77 (Spigelman CJ).

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