The Fernando principles require sentencing judges to address the entrenched pattern of disadvantage experienced by Aboriginal offenders, and failure to do so constitutes sentencing error. However, Fernando is not authority for the proposition that Aboriginal heritage of itself is a mitigating circumstance — it is the disadvantage associated with Aboriginality that warrants leniency. Sentencing judges must also ensure that application of Fernando principles does not devalue the effect of offences on victims who are themselves subject to the same pattern of disadvantage.
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