Late-modern developments in Sentencing Principles for Indigenous Offenders: beyond David Garland's framework


This paper explores the late-modern shifts in the characterisation of Indigenous offenders in sentencing judgments and legislation in New South Wales and the Northern Territory. It considers whether David Garland’s thesis, published in 2001 and developed in relation to the United Kingdom and the United States, applies to judicial and political conceptualisations of Indigenous offenders. Garland identifies of a shift in criminal justice conceptualisations from ‘penal welfarism’ in the post-WWII period – when offenders are contextualised in social relations – to ‘law and order’ in late modernity (1970s) – when offenders are decontextualised. This paper argues that Garland’s framework does not fully explain rationalities in sentencing offenders in Indigenous communities. While judicial discourses in sentencing Indigenous offenders resonate with Garland’s observations about the re-emergence of emphasis on the victim’s interest, retribution and protection of the wider community protection, it does not account for a changing view about the functionality of Indigenous communities. A post-colonial narrative of sentencing in ‘late modernity’ in the NT and NSW identifies the ongoing contextualisation of Indigenous offenders. However, this context is a dysfunctional community. The community is both condemned and in need of rescue, particularly through a bolder assertion of post-colonial crime control. The scapegoat in these rescue efforts is the Indigenous offender.

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