THE judge who handed down non-custodial sentences to nine males who admitted raping a 10-year-old girl has previously spoken out about the challenges involved in sentencing Aboriginal offenders.
At a judges conference in January, Judge Sarah Bradley said indigenous offenders needed to be given special consideration by judges because of their gross over-representation in the criminal justice system.
Judge Bradley said a raft of issues, including cultural and language barriers, made it difficult for Aboriginal people to access the justice system and receive equal treatment.
She also identified the advantages and limitations of indigenous community justice initiatives and said justice could often only be done after obtaining input from community leaders. "Sentencing indigenous offenders is never easy. There are times when the offending behaviour clearly warrants the imposition of severe and significant penalties," she told the Perth conference.
"There are also times when a judge who has knowledge of a community, has information about the community view of the offending, the background to it and the full particulars of those involved may decide an alternative penalty is appropriate. Determining which category of case is before you can be problematic and can often only be done with input from the indigenous community itself."
Judge Bradley, 51, became the first magistrate in Queensland to be appointed to a higher court in 1999. Indigenous leaders welcomed the appointment because of her involvement in programs to keep Aborigines out of the prison system, especially in the troubled Palm Island community.
At the time, Judge Bradley, now president of the Australian Association of Women Judges, said it sent a message about women's roles in society. "It is important for women to be seen in positions of authority and power," she said.
Prior to her appointment to the bench, Judge Bradley was a magistrate for six years. Her first job as a lawyer in 1978 was with the prosecution section of the Solicitor-General's Office. She subsequently worked for 13 years as a solicitor at four southeast Queensland law firms.
The focus of the gang rape case now is whether Judge Bradley, who is also a Children's Court judge, should have accepted the recommendation of the Crown prosecutor not to impose custodial sentences.
Former Supreme Court judge Angelo Vasta pointed out that while a judge should give weight to a prosecutor's recommendation he or she retained the ultimate discretion on sentencing.
"They do not always accept it (a recommendation) as something which they would follow," Mr Vasta said. "They should take it into account but form their own view of the seriousness of the offence." Mr Vasta declined to comment on the case, but suggested the oldest offender, a 26-year-old, might have been lucky to avoid jail given his age.
In her sentencing remarks, Judge Bradley pointed out the seriousness of their conduct rather than deliver condemnation. "I hope that all of you realise that you must not have sex with young girls," she said. And she told the 26-year-old: "You should have known a lot better."
The guidelines set out by the Director of Public Prosecutions say the prosecutor must show child offenders "knew that what they were doing was seriously wrong and was deserving of punishment".
Additional reporting: Michael Pelly
An Australian judge has handed down sentences to nine males who have admitted rape of a 10-year-old girl, none of which involve incarceration. Six of the offenders, who were minors at the time of the crime were placed on probation. The other three aged 17, 18 and 26 were given suspended sentences.

In her ruling, Judge Sarah Bradley told them that the victim "was not forced and probably agreed to have sex with all of you".

"I hope that all of you realise that you must not have sex with young girls," she said. She further admonished the 26-year-old: "You should have known a lot better."

Australia's Prime Minister Kevin Rudd said he was "disgusted and appalled" by the court's decision. "I am horrified by cases like this, involving sexual violence against women and children. My attitude is one of zero tolerance," he told reporters.

Queensland Attorney-General Kerry Shine said he is appealing and "I am not prepared to just write this off as an unusual one-off case. I do want to satisfy myself this is not part of a broader sentencing trend that reflects a lower standard of justice for those communities."

Both the victim and all of the defendants involved are from Australia's aboriginal population, which has played a major factor in the case.

At a conference in January, Judge Bradley said: "There are also times when a judge who has knowledge of a community, has information about the community view of the offending, the background to it and the full particulars of those involved may decide an alternative penalty is appropriate. Determining which category of case is before you can be problematic and can often only be done with input from the indigenous community itself."

Boni Robertson, an aboriginal activist, disagreed with the judge's decision. "There is nothing culturally, there is nothing morally, there is nothing socially and there is definitely nothing legally that would ever allow this sort of decision to be made," she said.