⌛ Model Rule Sentencing Case Study
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Case Study 2: Ending Life Sentences for Juvenile Offenders
Imagine you have committed an offence and instead of going to court and jail you'll have to face a circle of Elders, representatives of your community, and your victim. This is the concept of 'circle sentencing'. For a long time there has been no real improvement in the situation of Aboriginal people in jail, despite the Royal Commission into Aboriginal deaths in custody and its many recommendations.
Aboriginal People are over-represented in Australian jails. In addition, Aboriginal people in custody are often dying from treatable diseases like diabetes and heart disease. A scheme which is called " circle sentencing " in NSW tries to avoid gaol time for Aboriginal offenders. The term 'circle sentencing' comes from a circle of representatives sitting together and trying to decide a sentence which does not include a jail term. Representatives are mainly Aboriginal Elders, but also members of the prosecution or police and a magistrate. The circle will also talk about the background and effects of the offence and can involve meeting the victim. The sentence should, where possible, involve community work.
Sometimes it's harder for the offender to face his or her own people than to face a magistrate. Circle sentencing is an idea which in spread to Australia from northern Canada where the procedure was resurrected in from traditional sanctioning and healing practices. Circle sentencing is part of the court process and results in convictions and criminal records for offenders. In the Supreme Court of Victoria decided a defendant's request to be sentenced by a Koori court cannot be refused , a case which has been seen as the first proper consideration of Aboriginal cultural rights.
The supreme court found that in certain court processes, Aboriginal cultural rights were a relevant factor for magistrates to consider. Unfortunately, the option of circle sentencing is often not told to juvenile offenders by police. Sentencing circles require a significant commitment from those community members who participate in the circle. To maximise the benefit of each circle sentencing process communities should only invite offenders who demonstrate high levels of motivation and commitment to the process. The offender must normally enter a guilty plea early in the proceedings indicating a full acceptance of responsibility for the offence. Circles are not for people facing murder or sexual assault charges. Circle sentencing is not an easy way out for offenders.
Punishments tend to fall in the middle-to-heavy end of penalties. The program often involves culturally appropriate, intensive supervision of participants. This model is designed to break down the disengagement that Indigenous people have had with courts. I have seen first-hand how this program establishes a relationship between offenders and Aboriginal Elders so that they are linked back to the community and programs that can help them.
Sometimes you might hear of a 'bush court' that works in very remote communities. These are not circle courts as they operate like a miniature version of a regular Western court. Lawyers pack dozens of files and head out to these remote communities to deal with clients in rapid succession in makeshift courtrooms. No Aboriginal elders or media are present. The only people attending are the judge, some staff, the accused, an interpreter and defence counsel. Gardens outside community centres sometimes serve as interview rooms. Bush courts offer young lawyers a chance to visit communities and interact with Aboriginal people for the first time, an opportunity to leave behind stereotypes learned far away from them.
But bush courts can also be a far way away from scrutiny which can work to the detriment of those facing the judge, and the small amount of time for each case makes hearing all versions of events a challenge, especially when English is not a first language. In Robert, an Aboriginal man from Nowra about kms south of Sydney , got involved in a pub fight and badly hit another person. With his previous convictions this would have put him into jail--again. But Robert had the chance to participate in the first circle sentencing court in Nowra. He accepted. Four Aboriginal elders, a magistrate, a police prosecutor and a defence solicitor listened to Robert's and the victim's version of what had happened that night in the pub. Robert learned about how terrifying the experience was for the victim and felt remorse.
The elders asked Robert how jail would feel—three months would be the usual sentence. The victim felt it was too much. Eventually the sentencing circle court handed down their decision: Robert got six months' home detention . The selection of the locations was based on criteria that included the number of eligible Aboriginal defendants appearing in the Local Court, the number of Aboriginal defendants being sentenced to a term of imprisonment, Aboriginal community support for the program and local service infrastructure. Later circle sentencing locations were established following consultations with Aboriginal communities.
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