Sentencing indigenous riot offenders in a spatial fantasy

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Journal Article
Griffith Law Review, 2011, 20 (2), pp. 385 - 420
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© 2008, Routledge. All rights reserved. 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.
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