The Fernando principles regarding sentencing of Aboriginal offenders do not assist where the evidence does not establish a disadvantaged childhood attributable to aboriginality, and the mitigating effect of aboriginality loses much of its force where the offender has committed similar serious offences in the past. Protective custody will not necessarily result in a shorter head sentence; its weight depends on the objective seriousness of the offence and the need for deterrence, and the onus lies on the applicant to establish the likely conditions of custody.
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