The current position in Australian law is that Indigenous
offenders are sentenced according to the same sentencing
principles that apply to all other offenders, irrespective of
the offender’s identity or ethnicity. Notwithstanding this, the
court is permitted to take a wide range of matters into account,
including social, economic and other disadvantages which may be
related to indigenous peoples’ experience. Such factors have
sometimes led to sentence mitigation. Historically this approach
has also allowed for the consideration of customary law
punishments, in particular ‘payback’ as mitigating factors in
sentencing. During Kriewaldt’s time on the Supreme Court bench,
important differences in the rules applicable to sentencing for
serious crimes, such as murder, allowed the judge to consider
flexible sentencing options and customary law. For white
defendants found guilty of murder, the inevitable punishment was
the death penalty, while for for Aboriginal defendants the
penalty was determined by the court on