Australian Aborigines may be escaping heavy jail sentences for violent crimes such as murder, rape and sexual abuse

Patricia Karvelas:

ABORIGINES may be escaping heavy jail sentences for violent crimes such as murder, rape and sexual abuse because of fears a long period in jail could lead to a "death in custody".

Aboriginal leaders and Indigenous Affairs Minister Mal Brough claim victims are being "unintentionally" robbed of justice, 15 years after the Royal Commission into Aboriginal Deaths in Custody recommended jails be used as a last resort.

Mr Brough said yesterday the pendulum had swung too far away from properly punishing offenders.

"The deaths in custody is a terrible blight and people were doing everything they possibly could to stop it and prevent it, but in doing so the plight of the victim has been put into second-order, unintentionally," he said.

His view was backed by National Indigenous Council chairwoman Sue Gordon and prominent indigenous academic Marcia Langton, who argued that women and children were the most disadvantaged by the system.

Dr Gordon said since the deaths in custody report and the Bringing Them Home report by the Human Rights and Equal Opportunity Commission, a "softly softly" approach had been adopted.

But she defended the role of magistrates and judges in the process, arguing they had taken an oath to uphold the law.

"Government agencies across the states and territories charged with the statutory responsibility for children's issues have, I believe, taken the 'softly softly' approach to child abuse, (whether it be) ... emotional, physical, neglect or sexual, because they have been frightened of creating another stolen generation," she said.

"Even though they have been told repeatedly that Aboriginal children should be treated the same as the wider community, they have treated our children as second-class citizens by allowing them to stay in ... toxic environments."

Dr Gordon said Aboriginal children and adults were being treated as almost "lesser beings".

Professor Langton said a "culture of unwillingness" was allowing Aboriginal people to escape murder charges because of a fear of imposing mandatory life sentences.

She said some police and lawyers in the Northern Territory were reluctant to charge indigenous offenders with murder and added homicides were regularly downgraded to lesser charges, even though Aboriginal people wanted to see serious crimes treated appropriately. "There's a culture of unwillingness to go forward with murder charges when there's a life sentence," Professor Langton said.

"(There are) entire small communities where you have a violent offender who is charged with something less than murder, gets a short sentence, comes back to the community and murders or rapes or sexually assaults somebody again."

Professor Langton said a reluctance to charge Aboriginal people with murder resulted in "basically serial killers in the communities".

Aboriginal leader Pat Dodson, a commissioner at the deaths-in-custody inquiry, said the notion that prison should be the last resort, which arose out of the royal commission, was intended only in relation to less serious crimes.

Mr Dodson said if the court system was afraid to pursue life sentences for offenders because of the recommendations - and he had no evidence that it was - then it was a misreading of its recommendations.

"The notion that prison should be the last resort, that arose out of the royal commission, was really in relation to the less serious crimes," he said. "Serious crimes have obviously got to be prosecuted to the fullest extent."

Productivity Commission data reveals that indigenous people serve shorter jail terms on average. But for sexual assault, a primary concern about dysfunctional communities, the jail time is generally longer.

Indigenous academic Boni Robertson did not believe there had been lighter sentencing for Aboriginal people, saying: "When there's been lighter sentences, indigenous women have jumped on it."

Mr Brough said people had overreacted and "now we've gota situation where the pendulum has swung back too far the other way".

Northern Territory Director of Public Prosecutions Richard Coates rejected the comments, saying the most recent conviction for murder involving an Aboriginal offender was in Alice Springs in March. Chief Justice Brian Martin sentenced Jimmy Watson, 27, to life behind bars, with a non-parole period of 23 years, for stabbing a man to death in Alice Springs.

"Reducing indigenous imprisonment levels in accordance with the recommendations of (the royal commission) is not a factor that has any influence on the decision to prosecute," he said.

Overall, there has been a decline in deaths in prison custody since 1995 but the trend lines vary for sentenced and unsentenced prisoners. In 2004, 24 sentenced prisoners died and the remaining 15 were unsentenced prisoners on remand.

Death rates for Aboriginal and non-Aboriginal people in custody are similar but a significant finding of the royal commission is that a disproportionate number of Aborigines are in custody.

Aborigines accused of racism by woman