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Court and Tribunal Decisions - Australia
Supreme Court of South Australia (Gray J)
24 March 2003
Application for preventative detention — relevant criteria — taking outstanding criminal offences into account — factors to be taken into account in sentencing of aboriginal offenders — the issue of remand or bail — use of recommendations of Royal Commission into Aboriginal Deaths in Custody — supervision by court of defendant — role of indigenous community in sentencing — community protection — the purpose of punishment — balancing rehabilitative and deterrent aims in sentencing — relevance of therapeutic services — imprisonment should be a sentence of last resort — role of court — the relationship between the administrative and judicial arms of government — failure to implement certain recommendations of the Royal Commission into Aboriginal Deaths in Custody — extended deferral of case to allow for establishment of a comprehensive rehabilitative program — sentencing of defendant — taking into account local indigenous community wishes in sentencing — release on bond
The defendant was a traditional Pitjantjatjara man who had lived in Port Augusta, Coober Pedy and the Anangu Pitjantjatjara lands. As a young man he had sniffed petrol. He had a long-standing alcohol dependency and an extensive criminal history that included several terms of imprisonment. He pleaded guilty to seven counts of failing to comply with a paedophile restraining order, three counts of failing to comply with a bail agreement and exhibiting indecent material to a minor and the offence of larceny.
The Criminal Law (Sentencing) Act 1988 (SA) s 23 provides that, after conviction of certain offences, the Supreme Court may make an order for indefinite detention after two legally qualified medical practitioners give evidence that a defendant is incapable of controlling their sexual instincts. The Crown application for such an order in relation to the defendant was dismissed by Gray J after one of the two medical practitioners stated that, despite a long history of offending, the defendant had never previously been medically assessed for suitability for a treatment for his sexual proclivities. Justice Gray resolved that the defendant would be medically assessed and, if advisable, treated before being sentenced for all outstanding criminal offices. In the result, the sentencing proceedings occurred over a period of two years and occupied 32 days of court time.
Following the contemplated assessment, medical treatment involving a course of injective treatment (anti-libidinal medication) with ongoing supervision was recommended. It was necessary for the Court to become actively involved in securing the services necessary for the defendant to undertake and complete the treatment. The difficulties experienced by the defendant (and the Court) in securing those services prompted Gray J to identify the recommendations of the Royal Commission into Aboriginal Deaths in Custody relevant to the defendant and to detail the imperfect implementation of those recommendations in South Australia. After going to unusual lengths to ensure that the defendant received treatment and hearing evidence of the defendant’s significant progress and improvement as a result of the treatment, and attending the remote Aboriginal community in which the defendant was residing, the Court proceeded to sentence the defendant to a conditional bond.
1. As the Crown could not obtain unanimous agreement between the psychiatrists the application for indefinite detention would be dismissed [13].
2. As the Court now had before it the outstanding criminal matters it was appropriate for the Supreme Court to deal with those matters [81].
3. The use of the sanction of imprisonment against the defendant had been counterproductive and had not addressed the reasons for his offending nor had there been put in place the appropriate therapeutic regime to curb his offending [36].
4. The failure to provide the defendant with necessary supports and assistance meant that the recommendations of the Royal Commission into Aboriginal Deaths in Custody were not being implemented in relation to the defendant and, perhaps, other indigenous offenders [80].
5. As a result the defendant may have spent periods in custody that he ought not to have, had the recommendations of the Royal Commission into Aboriginal Deaths in Custody been properly implemented [31], [80].
6. That the Court in this case was required to act in an interventionist manner so as to achieve an outcome that would be of benefit to the rehabilitation of the defendant as well protecting the community from further offending [39]. The Court had to do so because of the inadequacy of the services provided to someone in the position of the defendant and the indigenous community in general [42]–[43].
7. To achieve a satisfactory outcome for the defendant required a lengthy involvement of two years by the court to ensure that the defendant achieved the appropriate assessment and treatment [14], [39].
8. That the recommendations of the Royal Commission into Aboriginal Deaths in Custody were not being properly implemented [37]–[38]. Those recommendations relating to bail, [15]–[18], health services [48]–[52], the provision of substance abuse programs [69]–[70], prison classification [19] and interpreters [71]–[80] were not being followed in relation to this defendant.
9. The fact that there was a satisfactory outcome at the conclusion of these proceedings arose only because the court had acted in an interventionist manner and put considerable pressure on other agencies of government to assist the defendant [79].
10. That protocols should be developed so that assistance for persons such as the defendant would occur as a matter of course rather than being the result of intensive judicial intervention [3], [62].
11. That in future cases it was necessary that the support offered to the defendant be offered to all indigenous offenders; particularly for those offenders in remote areas [68].
12. That it was necessary for the court to travel to the defendant’s community and hear evidence in order to assess the views of the community on an appropriate sentence [85]–[86].
13. That the provision of a comprehensive treatment regime for the defendant, and the positive response by the defendant to that support [91], had persuaded his community that he should return to that community with their wishes [88]–[90], [110].
14. In all the circumstances, and given the 10 months in custody the defendant had spent on remand in relation to the outstanding matters, the appropriate sentencing course was to place the defendant on a bond with strict conditions [111].
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17. Mr Scobie would seemingly commit an offence and then remain in custody for a period of weeks without this court being informed. By May 2001 Mr Scobie had been ‘in and out of’ custody for a total of seven months awaiting the resolution of his outstanding charges. The principle that a term of imprisonment should be a sentence of last resort was rapidly losing relevance. This situation was of grave concern given the nature of Mr Scobie’s offending and the recommendations of the Royal Commission. Recommendation 89 is of particular relevance: ‘That, the operation of bail legislation should be closely monitored by each Government to ensure that the entitlement to bail, as set out in the legislation, is being recognised in practice. Furthermore the Commission recommends that the factors highlighted in this report as relevant to the granting of bail be closely considered by police administrators.’
18. It was accepted that further imprisonment was counter productive and would not address the primary issue. The question was how to address Mr Scobie’s problems in the short term and at the same time provide community protection. Counsel for the Crown observed: ‘The Director’s submission is that this matter has got to be come to grips with and not [allowed] to drift as it appears to have been probably over the last 10 years. The Director is certainly anxious to see or hear of a suitable regime and structure in relation to what is obviously - I mean Mr Scobie ultimately is to be released from prison and we can’t get away from that.’ Eventually an arrangement was reached whereby prompt notice would be given to this court if Mr Scobie was taken into custody. This enabled the court to immediately re-appraise the situation and where appropriate adjust the terms of bail. Whilst residing at Port Augusta prison it was said to be necessary for Mr Scobie’s own protection that he be kept in solitary confinement. This was unsatisfactory and inappropriate. Recommendations 144 and 181 are as follows: ‘That in all cases, unless there are substantial grounds for believing that the wellbeing of the detainee or other persons detained would be prejudiced, an Aboriginal detainee should not be placed alone in a police cell. Wherever possible an Aboriginal detainee should be accommodated with another Aboriginal person. The views of the Aboriginal detainee and other such detainee as may be affected should be sought. Where placement in a cell alone is the only alternative the detainee should thereafter be treated as a person who requires careful surveillance.’ ‘That Corrective Services should recognise that it is undesirable in the highest degree that an Aboriginal prisoner should be placed in segregation or isolated detention. In any event, Corrective Services authorities should provide certain minimum standards for segregation including fresh air, lighting, daily exercise, adequate clothing and heating, adequate food, water and sanitation facilities and some access to visitors.’
19. The prison unit manager expressed concern that because of the nature of Mr Scobie’s offending no other area in the prison was available. The conditions were equivalent to a high security division. They dictated that Mr Scobie spend 23 hours a day in his cell. It was recommended that Mr Scobie should not remain in these conditions. Regrettably these recommendations could not be complied with at Port Augusta. The prison was not designed to house an offender of this type with traditional needs. It was said that a transfer to Yatala would be an alternative as Mr Scobie could be released from his cell for a more extended period. However this suggestion could have created further problems. Mr Scobie was unfamiliar with the Adelaide environs and would be even more remote from his traditional homeland. Recommendations 168 and 173 are as follows: ‘That Corrective Services effect the placement and transfer of Aboriginal prisoners according to the principle that, where possible, an Aboriginal prisoner should be placed in an institution as close as possible to the place of residence of his or her family. Where an Aboriginal prisoner is subject to a transfer to an institution further away from his or her family the prisoner should be given the right to appeal that decision.’ ‘That initiatives directed to providing a more humane environment through introducing shared accommodation facilities for community living, and other means should be supported, and pursued in accordance with experience and subject to security requirements.’ However there was no evidence before the court as to whether Pt Augusta was in fact preferable to Yatala in Mr Scobie’s case.
20. It was accepted by the Crown that it was inappropriate for Mr Scobie to remain in custody whilst the assessment and sentencing process was completed. However counsel submitted that Dr O’Brien’s preliminary report: ‘holds out some light for Mr Scobie which is better than the alternative. I am anticipating it is going to be a difficult road ahead because obviously he is in a fairly tragic position given his personal circumstances.’ Dr O’Brien observed that the opportunities for sexual offenders to access and undergo treatment and rehabilitative services varied depending on their culture, creed, gender, occupation and social class. He said that members of the indigenous community, particularly traditional Aboriginals such as Mr Scobie were disadvantaged. Where could Mr Scobie reside so that the chance of him re-offending was minimised and he could be adequately supervised? Where would he be welcome or at least not received with hostility by both the indigenous and wider community? Where best to facilitate his medical assessment and treatment?
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33. During the early 1980’s many Aboriginal people died in police or prison custody. In response to widespread national concern, the Royal Commission into Aboriginal Deaths in Custody was jointly commissioned in October 1987 by the Commonwealth, the States and the Northern Territory. In January 1988 investigations into deaths in custody commenced. An interim report was presented by the Commissioner in December 1988 although the investigations continued thereafter for more than three years. The mandate of the Commission was broadened to incorporate a wide-ranging inquiry into the involvement of Aboriginal persons in the criminal justice system. The circumstances of 99 deaths in custody were investigated and analysed. The final report was presented in April 1991. The Royal Commission found that underlying each of the deaths was the ‘historic structural inequality’ of Aboriginal people within the broader society. Disadvantage was seen to be the primary cause of the high indigenous imprisonment rate. Aboriginal people throughout Australia suffered ‘systemic socio-economic marginalisation’. This was said to be the result of ‘post-colonial dispossession, cultural fragmentation and disempowerment.’ The final report comprised 11 volumes, some 5000 pages and included 339 recommendations. Those recommendations covered law reform, justice issues and measures to address endemic disadvantage. They included measures to empower Aboriginal persons through self-determination and to implement urgent reforms within the criminal justice, juvenile justice and custodial systems. It was also recommended that imprisonment be a sanction of last resort.
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36. There has been tension in this case between the need to protect the community and the need to cater for Mr Scobie’s interests. Mr Scobie was overlooked by a system designed for non indigenous offenders. Perhaps he has been a victim of circumstances, language difficulties, differing cultural ideals and expectations. Whatever the reasons, he has spent the majority of his adult life in institutions. Mr Scobie’s successful rehabilitation is the best protection the community could have.
37. In this case the Royal Commission recommendations were eventually implemented. The proceedings tested their effectiveness. The end result is that after two years, Mr Scobie has been assessed, released from custody, treated, supervised and sentenced. He has been sentenced within his geographically remote community. The community has been protected but at what cost?
38. The Royal Commission recommendations were made with a view to ensuring that Aboriginal persons involved in the criminal justice system were properly protected by that system. The recommendations contemplate that the benefits be readily available. However in this case the recommendations were only complied with on an ad hoc basis because of the court’s directions. The full range of sentencing options only became available to the court after considerable effort and perseverance. It is probable that Mr Scobie would have spent less time in custody and that his rehabilitation would have progressed more rapidly if protocols facilitating compliance with the recommendations as a matter of course, rather than on an ad hoc basis, had been established. This was accepted by the Crown. ...
39. Significant difficulties were encountered throughout the course of proceedings. As earlier observed, some could be attributed to the lack of information about Mr Scobie’s personal circumstances and the cause of his previous sexual offending. Many details were inherently inconsistent and difficult to piece together. Constant judicial monitoring was necessary at every stage of the process. Proactive directions had to be given by the court. At times, to produce a just result, it was necessary for the court with the consent of counsel to act in an interventionist and inquisitorial manner. On occasions the court operated ‘nunga style’. [The nunga court has been operating as a specialist part of the magistrates court in Port Adelaide since June 1999. ... The nunga court sits to sentence aboriginal offenders who plead guilty to offences. The magistrate sits off the bench at the same level as the offender. An aboriginal justice officer is responsible for educating the aboriginal community in the operation of the court and the criminal justice system. They assist aboriginal people with bail conditions and court outcomes and foster links between the aboriginal community and the court. They act as consultants on aboriginal issues and cultural awareness. A senior aboriginal person may sit beside the magistrate to advise on cultural and community matters. The offender sits at the bar table. Legal representatives sit alongside the offender and relatives or friends are also permitted to sit alongside and participate in the proceedings. Once the police prosecutor and defence counsel have put submissions the family and community members or the victims can engage in discussion with the magistrate. The magistrate takes on an inquisitorial role often asking a number of questions to clarify matters or to assist in determining the most appropriate sentencing outcome for the particular offender. Family and community members are encouraged by the court to attend. The court is staffed by aboriginal court orderlies. They are often called upon to assist in proceedings. Anecdotally it is said that the attendance rate of offenders is over 80 per cent. This is considerably more than the attendance in other courts by Aboriginal persons.] The court was involved in this case in a way that a court would not normally be involved. There has been a significant difficulty in creating a management plan that provided a satisfactory level of protection to the community whilst at the same time catering for the needs of a traditional Aboriginal man with limited English and impaired cognitive functioning.
40. The Crown acknowledged that Mr Scobie’s particular needs were only met in this case on an ad hoc basis in response to the court’s directions. The Royal Commission recommendations were not intended to apply on a reactive, ‘knee-jerk’ basis. The recommendations were intended to ensure that members of indigenous communities had the benefit of the recommendations as a matter of course.
41. In response to the court’s requests, extensive information was provided by counsel and others. However it appeared that prior to the s 23 application a detailed history of Mr Scobie’s offending and his personal circumstances had not been compiled. Mr Scobie had been ‘in and out’ of the criminal justice system for several decades without any form of proper medical or personal assessment being undertaken or any rehabilitation plan made. This is of concern. As earlier observed, one effect was to delay Mr Scobie’s assessment and release from custody.
42. The relevant Royal Commission recommendations covered a variety of areas including the conditions of custody, the use of interpreters, the use and implementation of non-custodial sentencing options in rural and remote areas of significant Aboriginal population, community consultation in sentencing, the use and implementation of community service orders, the monitoring of parole and probation, the need to involve Aboriginal communities in the correctional process, the delivery of services, access to health care services, Aboriginal mental health, consequences of alcohol consumption and petrol sniffing. These recommendations were addressed in this case. However their implementation was protracted. Significant difficulties were encountered. The court’s level of involvement was of a nature one would not normally expect.
43. The Justice Strategy Unit report acknowledged that in this case there was an inadequacy of resources. ...
45. Recommendations 198 and 251 are in the following terms: ‘That Governments commit themselves to achieving the objective that aboriginal people are not discriminated against in the delivery of essential services and, in particular, are not disadvantaged by the fact that the low levels of income received by aboriginal people reduce their ability to contribute to the provision of such services to the same extent as would be possible by non-aboriginal Australians living in similar circumstances and locations.’ That access to health care services and facilities, including specialised diagnostic facilities, in areas of aboriginal population should be brought up to community standards. The greater needs, for the time being, of aboriginal people should be fully recognised by the responsible authorities in their consideration of the allocation of staff and equipment.’
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47. From the outset problems were encountered in giving effect to these recommendations. The need for an initial assessment by Drs Raeside and O’Brien raised the issue of whether Mr Scobie should be reviewed in Port Augusta or be brought to Adelaide. Later when it was established that he required regular injections of an anti-libidinal drug similar difficulties were encountered. The availability of doctors and medical staff on the Anangu Pitjantjatjara lands to administer and monitor Mr Scobie’s treatment program was problematic. Mr Scobie’s participation in programs for sexual offenders was also hampered by cultural factors, geographic location, staffing and supervision difficulties. The Department was unable to accommodate Mr Scobie’s specific needs.
48. Recommendations 264, 265 and 266 relevantly are as follows: ‘That there be a substantial expansion in Aboriginal mental health services within the framework of the development, on the basis of community consultation, of a new national mental health policy...’ ‘That as an immediate step towards overcoming the poorly developed level of mental health services for Aboriginal people, priority should be given to complementing the training of psychiatrists and other non-Aboriginal mental health professionals with the development of a cadre of Aboriginal health workers with appropriate mental health training, as well as their general mental health training. The integration of the two groups, both in their training and in mental health service delivery, should receive close attention. In addition, resources should be allocated for the training and employment of Aboriginal mental health workers by aboriginal health services.’ ‘That the linking or integrating of mental health services for Aboriginal people with local health and other support services be a feature of current and expanded Aboriginal mental health services.’
49. Generally no psychiatrists or psychologists attend the Anangu Pitjantjatjara lands for diagnostic and treatment purposes. This is unsatisfactory and needs to be rectified to enable recommendations 264, 265 and 266 to be fully implemented. If these services had been available to Mr Scobie his ongoing management could have been more easily effected. ...
50. As earlier observed Mr Scobie had not been medically or psychiatrically assessed prior to the s 23 application. It was proposed that Mr Scobie be transported to Adelaide to facilitate the assessment process. The difficulties encountered were with a traditional Aboriginal man with limited cognitive capacity managing in Adelaide. Who would accompany him? Where would he reside? Who would ensure that he attended necessary appointments? Who would ensure that he kept out of trouble? Similar questions arose on a number of occasions. Eventually the necessary funding and support was provided. However as earlier observed this was a response to the court’s specific directions rather than Mr Scobie accessing routinely available resources. ...
51. If an offender is in custody at Port Augusta it is desirable that any necessary psychiatric review be undertaken promptly. A protocol should be in place for when offenders are required to travel to Adelaide for specialist medical assessment and treatment. Transport to Adelaide from the Anangu Pitjantjatjara lands should be available for the offender and a designated friend. Food, accommodation, transport to and from the appointments and a return trip to the lands should also be provided. This eventually occurred in this case. Initially the Department said that it could not provide such services. The court was left, in effect, to arbitrate a departmental dispute as to who should meet these costs. The court was left to resolve matters in what appeared to be a case of the government’s inability to provide. This was unsatisfactory. It also brought into play the Royal Commission recommendations that deal with the provision of medical treatment and services in remote locations.
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53. Recommendation 112 is in the following terms: ‘That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population.’
54. In the past Mr Scobie had been dealt with by the courts frequently with orders for imprisonment. The breaches of the paedophile restraining order and his bail conditions, although serious breaches of court orders, were not of a nature that any sentence other than imprisonment was inappropriate. As earlier observed Mr Scobie spent over 10 months in custody whilst these matters were pending. The medical and treatment process was ongoing. It was critical that sentencing options other than imprisonment be explored. The court was again frustrated in its attempts to find a workable solution to address Mr Scobie’s difficulties.
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62. There is an urgent need for a protocol to be devised and procedures to be in place so that when specialist health services are required by an offender they can be provided without constant judicial supervision. Courts will then be in a position to make orders with some confidence that the administrative arm of Government will act as a matter of course. The laborious process of judicial monitoring that went on month after month in the present case should thereby be avoided.
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65. Recommendation 94 includes: ‘...consistent with the object of ensuring that offenders do not re-offend, approval should be given, where appropriate, for offenders to perform Community Service work by pursuing personal development courses, which might provide the offender with skills, knowledge, interests, treatment or counselling likely to reduce the risk of re-offending.’ ...
66. Ultimately this court considered that a bond was more appropriate for Mr Scobie than a community service order. However the necessary supervision and programs were not available in the same way that they were in city and suburban areas. The opportunities for offenders to perform meaningful work and undertake courses, treatment and counselling likely to reduce the risk of re-offending were non-existent and were not available unless special arrangements were made. Recommendations 119 and 187 are as follows: ‘That Corrective Service authorities ensure that Aboriginal offenders are not being denied the opportunities for probation or parole by virtue of the lack of adequate numbers of trained support staff or infrastructure to ensure monitoring of such orders.’ ‘That experience in and the results of community corrections rather than institutional custodial corrections should be closely studied by Corrective Services and that the greater involvement of communities and Aboriginal organizations in correctional processes be supported.’
67. As a result of its considerable involvement with Mr Scobie’s case the Department witnessed the difficulties associated with an attempt to design and implement a program specifically tailored to Mr Scobie’s needs. The Department has also seen what can be achieved with co-operation, assistance, perseverance and determination. Appropriate programs should be designed and implemented without the need for directions and close supervision by the court. Possible long term benefits to the community are evident. However they can only be achieved in other cases if appropriately qualified and trained staff are available in remote locations.
68. The level of support provided on an ad hoc basis to Mr Scobie should be available to offenders in remote areas where there is a significant indigenous population. This is the intended effect of the Royal Commission recommendations. Distance should not be a barrier to the provision of programs, supervision and other basic services. Recommendation 104 is in the following terms: ‘That in the case of discrete or remote communities sentencing authorities consult with Aboriginal communities and organizations as to the general range of sentences which the community considers appropriate for offences committed within the communities by members of those communities and, further, that subject to preserving the civil and legal rights of offenders and victims such consultation should in appropriate circumstances relate to sentences in individual cases.’ This recommendation was implemented in this case over a lengthy period at the court’s instigation. Consultation took place with the community on the lands and specifically at Fregon. Other persons and agencies were also involved.
69. Mr Scobie overcame his petrol sniffing difficulties many years ago. However as reported, this might have left him with cognitive impairment. Mr Scobie had a history of alcohol dependency. This had been a recurrent feature of his lifestyle and a cause of his offending. Treatment, counselling and educative programs were not provided on the Anangu Pitjantjatjara lands. Drunkeness on the lands was said to be endemic. These are matters of major concern. Recommendations 80 and 287 are as follows: ‘That the abolition of the offence of drunkenness should be accompanied by adequately funded programs to establish and maintain non-custodial facilities for the care and treatment of intoxicated persons.’ ‘That the Commonwealth, States and Territories give higher priority to the provision of alcohol and other drug prevention, intervention and treatment programs for Aboriginal people which are functionally accessible to potential clients and are staffed by suitably trained Aboriginal workers...’ However there was no evidence before the court that Mr Scobie could have the benefit of non-custodial facilities on the Anangu Pitjantjatjara lands. There was no evidence before the court of any substance abuse programs suitable for Mr Scobie. As earlier observed his alcohol abuse treatment was restricted to two counselling sessions. He was told that he could not be assisted. This conclusion was premature. ...
70. Recently the issues of petrol sniffing and alcohol abuse and their correlation with criminal offending were considered. ... Mr Scobie’s problems with petrol sniffing and alcoholism are a result of the socio-economic factors in which he lived and which placed him in a position of disadvantage.
71. Three interpreters had been arranged for Mr Scobie’s sentencing. However none attended. An elder was designated to translate but he was unable to assist adequately. Another elder then interpreted.
72. During the course of sentencing submissions counsel for the Crown spoke of jail however this was in the context of a suspended custodial order. Mr Scobie obviously understood the word ‘jail’ and believed that he was facing an immediate custodial sentence. He grabbed his wrists as if to shake off imagined handcuffs, shouted out and then fled the court. The court temporarily adjourned. Mr Scobie’s community corrections officer chased after him as did his counsel. Other members of the community drove after him to explain the situation and allay his fears. The community brought him back. The court resumed. This situation was unfortunate. It highlighted wider difficulties faced by indigenous defendants. There is an obligation to ensure that a competent and reliable interpreter is available to assist in court at all times. This is a critical aspect of access to justice.
73. The importance of competent interpreters was recognised by recommendations 99 and 100: ‘That legislation in all jurisdictions should provide that where an Aboriginal defendant appears before a court and there is doubt as to whether the person has the ability to fully understand proceedings in the English language and is fully able to express himself or herself in the English language, the court be obliged to satisfy itself that the person has that ability. Where there is doubt or reservations as to these matters proceedings should not continue until a competent interpreter is provided to the person without cost to the person.’ ‘That Governments should take more positive steps to recruit and train Aboriginal people as court staff and interpreters in locations where significant numbers of Aboriginal people appear before the courts.’
74. Without trained and qualified interpreters an offender is deprived of a fair hearing. Although dealing specifically with a criminal trial, the remarks of Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444 at [26] and [27] are apposite: ‘On a trial for a criminal offence, it is well established that the defendant should not only be physically present but should also be able to understand the proceedings and the nature of the evidence against him or her...If the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial.’ These basic principles are also contained in Article 14(3) of the International Covenant on Civil and Political Rights: ‘In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; ... (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;’
75. A sufficient number of interpreters should be available so that the difficulties of kinship ties that arise in small, interrelated communities are overcome. Mr Scobie’s case illustrates this need. There was information before the court to the effect that the nature of Mr Scobie’s offending and the likelihood that ‘private matters’ would be discussed discouraged or precluded a number of interpreters.
76. There has been a recent initiative. The Courts Administration Authority employed a full time interpreter to attend at the Magistrates Court and District Court at Port Augusta on a full time basis for a month. It has been anecdotally reported that this has been extremely successful.
77. The need for further initiatives has been acknowledged by the Justice Strategy Unit: ‘The matter of access and availability of interpreters to support Aboriginal defendants in the criminal justice system continues to be an area of concern. The Justice Portfolio is currently engaged in two projects around improving availability and access to accredited interpreters. One aspect refers specifically to the need for court interpreters and the second relates to a ‘whole of government’ initiative examining the requirements of key portfolios in the development and employment of Indigenous Language and Cultural Specialists in various Aboriginal languages.’
78. It was submitted by counsel for Mr Scobie that in many cases the financial reward for interpreters was viewed as inadequate because of substantial periods of unpaid travelling time. In addition the use of cheques was unsatisfactory due to difficulties obtaining payment in remote areas. It was said that a daily fee should be paid in cash.
79. The significant personal efforts that have been made throughout the course of this matter by many must be acknowledged. Mr Scobie was provided with treatment and assistance but only because of unusual insistence by the court. This case proved to be an extraordinarily inefficient way of tackling the problems faced by the community and Mr Scobie. As the Justice Strategy Unit acknowledged protocols should be devised for use in future cases. These protocols should be available to directly assist a court charged with the responsibility of sentencing an indigenous offender.
80. Mr Scobie does not appear to have received any benefit from the Royal Commission recommendations through the 1990’s. Had these recommendations been implemented his problems might have been identified, his treatment commenced and his condition resolved more than a decade earlier. The community might have been protected and Mr Scobie could have avoided years of imprisonment. Commentators have remarked about the failure of governments to implement the Royal Commission recommendations despite their general support. It is unlikely that Mr Scobie’s experience is an isolated one.
81. Once the s 23 application had been determined counsel sought to have all outstanding sentencing matters finalised by this court. This involved sentencing Mr Scobie for a number of offences. Magistrates would in the normal course be charged with sentencing for offences of this kind. They would usually do so on circuit on the lands. However for the most part Mr Scobie’s offending occurred whilst the s 23 application and the assessment and treatment process were current. It was appropriate for this court to perform the sentencing task.
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84. Once it could be seen that the best form of community protection was likely to be effected through Mr Scobie’s rehabilitation, the views of the Crown, counsel for Mr Scobie, the community, the police and the department began to alter. As the process of assessment and the provision of medical treatment progressed all agreed that treatment and rehabilitation were the way forward. Mr Scobie’s position went from hopeless to hopeful. At the time Mr Scobie was sentenced in May 2002 the views of all interested parties had altered. The Crown submitted: ‘It is pleasing to see that when [Mr Scobie] was returned to his homelands, to his home community, he did not have the access to alcohol...it appears on the face of it at least...to be no more trouble with Mr Scobie...it shows the importance of offenders like Mr Scobie being given the opportunity ...of returning to their own community to be looked after by members of their own community and to be away from alcohol that has been such a longstanding problem.’
85. Eventually matters progressed to the point where the court could proceed to sentence Mr Scobie for all outstanding offences. There was a need to consult with Mr Scobie’s community. The court had to gauge an understanding of their willingness to re-accept Mr Scobie and their general view as to sentence. This was a matter of understanding and assessing the views of different sections of the community. The process could not have been successfully undertaken without the court travelling to the lands and speaking with the indigenous and wider community. The ability to discuss matters on the lands was invaluable in aiding understanding and gaining an appreciation of the lands environs.
86. Mr Scobie was arraigned and pleaded guilty. Evidence was given from the community corrections officer involved in managing Mr Scobie’s supervision and bail conditions. After hearing submissions from both counsel the court invited submissions from other members of the community. Submissions were made by two elders of the indigenous community. They spoke on Mr Scobie’s behalf and assured the court that they ‘would look after him’ and ensure that he obeyed ‘white fella’s law’ and ‘black fella’s’ law. Both said that Mr Scobie was ‘now a good man’. These statements made in the presence of the community were significant. They showed a recognition and understanding of the problems which had confronted Mr Scobie in the past and the way that his problems were being addressed. They also showed acceptance of Mr Scobie as a valued member of the community and demonstrated responsibility to provide him with future support. These public utterances were invaluable.
87. By the time of sentencing Mr Scobie’s rehabilitation and treatment program had been developed and partly implemented. The Crown no longer sought an immediate custodial sentence. It was accepted that Mr Scobie should be released into the community. All agreed that he should continue with his treatment and rehabilitation
88. On 9 May 2002 Mr Scobie was sentenced within his community on the Anangu Pitjantjatjara lands. The sentencing remarks are annexure A to these reasons. A non-custodial sentence was imposed. Mr Scobie was released on a bond. The terms of the bond will continue to facilitate the treatment program devised for his rehabilitation. The paedophile restraining order continues in force. Mr Scobie is residing at Fregon on the Anangu Pitjantjatjara lands. His medical needs are currently being met and his sexual offending has apparently ceased.
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