Sentencing

Aboriginality is not a mitigating factor in sentencing (see See Rogers v the Queen (1989) 44 A Crim R 301; R v Daniel (1997) 94 A Crim R 96; R v Fernando (1992) 76 A Crim R 58). However, a judge or magistrate can take into account matters that are related to the person’s background when sentencing an offender. For an Aboriginal or Torres Strait Islander person, such factors might include socio-economic disadvantage, health problems, removal from family and so on.

In Fernando (R v Fernando (1992) 76 A Crim R 58 at 62-63), the court found that reduced socio-economic circumstances and impact of the loss of customary law can be into account when sentencing Indigenous offenders. This approach has been confirmed in the more recent case of Bugmy v The Queen [2013] HCA 37 where it was confirmed that, though these factors in an offender’s background should be taken into account, they need to be balanced with the sentencing aims of punishment, rehabilitation and deterrence.

Circle sentencing

Circle sentencing was developed in Canada as part of the court process. It results in convictions and criminal records for offenders, but includes community involvement. The usual process is that participants are welcomed to the circle by community elders and the judicial officer, with each person then introducing themselves and explaining why they are there. The facts of the case are presented to the circle by the prosecutor, and the defence is then allowed to comment. Following a period of discussion, participants develop a sentence plan, which the judge uses to sentence the offender. The judge is also free to ignore the sentencing circle recommendations and has to impose an appropriate sentence, which is still subject to appellate court sentencing guidelines.

Circle sentencing and Aboriginal courts (Koori Courts, Murri Courts and Nunga Courts) have been established for Indigenous offenders in Victoria, Queensland, South Australia, ACT and New South Wales over the last decade. More recently there have been similar developments in the Northern Territory and recommendations for similar processes in Western Australia.

Circle sentencing has operated for Indigenous offenders in a number of areas in New South Wales since 2002.

These processes and courts recognise the strong cultural differences between Aboriginal methods of dispute resolution and the Australian legal system:

Aboriginal disputes

British legal system

emotional response

controlled response

oral

written

disputants live together

disputants often strangers

experience as training

formal legal training

no rules of evidence

strict rules of evidence

process in front of community and family

process in front of strangers

disputants speak

use of advocates

time not an issue

deadline intensive

informal

formal

communal

hierarchical