Sentencing First Nations Defendants: Resisting Re-traumatisation

Many First Nations defendants have a history of adverse events and experiences. First Nations communities have demonstrated significant resilience in the face of this adversity, with community resilience potentially strengthened by responding collectively to this shared history. The enduring adversity associated with colonisation, intergenerational grief and loss, racism, and discrimination all influence the entrenched trauma associated with Aboriginality. The criminal justice system tends to focus on risks rather than strengths and protective factors when responding to First Nations defendants. While Australian case law in the past decade indicated greater acknowledgement of Aboriginality as a relevant sentencing factor, intergenerational trauma is rarely acknowledged as relevant in sentencing. This chapter examines current sentencing responses to First Nations defendants, as well as further opportunities to resist re-traumatisation, such as cultural reports. While much of the chapter focuses on Australia, it also draws from work done with First Nations people in Canada and Māori people in Aotearoa New Zealand. More broadly, culturally and historically informed responses may benefit all defendants with a history of trauma associated with culture, racism, and social exclusion.