Indigenous Law Bulletin
By Luke McNamara
Recently the New South Wales Aboriginal Justice Advisory Committee (‘AJAC’) released a discussion paper titled Circle Sentencing: Involving Aboriginal Communities in the Sentencing Process. The paper proposed that ‘circle sentencing’—a community-based sentence determination procedure which originated in Canadian Indigenous communities—be trialled in selected Aboriginal communities in New South Wales. Almost 10 years after the release of the final report of the Royal Commission into Aboriginal Deaths in Custody the need for alternatives to the conventional processes of criminal justice administration in Indigenous communities is as great as ever. Therefore, practical initiatives such as the AJAC proposal for a circle sentencing trial deserve serious consideration.
This article outlines some of the key features of circle sentencing as this form of community justice has operated in Canada since the early 1990s. A number of pre-conditions for the successful operation of circle sentencing are identified, including:
In its 1996 report on the criminal justice system, Bridging the Cultural Divide, the Canadian Royal Commission on Aboriginal Peoples simply but accurately described circle sentencing as a meeting where ‘individuals are invited to sit in a circle with the accused and discuss together what sentences should be imposed’. The recent origins of the practice of circle sentencing can be found in the Yukon Territory in north-west Canada where it was initiated in 1992 by Judge Barry Stuart of the Yukon Territorial Court in co-operation with a number of First Nation communities.
The objective of circle sentencing is to allow for direct community involvement in the sentencing process, with a view to arriving at an appropriate sentence which reflects, where achieved, the consensus view of the circle. Participants in a sentencing circle usually include the offender, the judge, the victim, the prosecutor and the defendant’s lawyer, along with a cross-section of the community (including family members of the offender and the victim).
The practice of circle sentencing (in a variety of forms) has since been adopted and adapted by criminal courts and Aboriginal communities in many parts of the country, most notably in the Yukon Territory and the province of Saskatchewan. It has been described by the Chief Justice of Saskatchewan Court of Appeal as ‘part of the fabric of our system of criminal justice and ... a recognized and accepted procedure’.
One of the objectives of circle sentencing is to move away from the retributive approach of conventional sentencing, towards an emphasis on restorative justice—which is commonly identified as more consistent with Aboriginal conceptions of justice. In this regard, the choice of the circle as the conceptual, physical and procedural framework for the reworking of criminal justice administration by circuit courts in the Yukon was not accidental.
It is widely recognised that the circle carries philosophical, spiritual and cultural significance for many First Nations in Canada but the cultural significance of circle sentencing is more controversial. For some, circle sentencing is a product of First Nations’ legal cultures based on ‘traditional’ methods of dispute resolution and decision-making in Aboriginal communities. For others, circle sentencing is the creation of a progressive minority within the Canadian judiciary.
Given that there has been debate over the relationship of circle sentencing to Indigenous laws and dispute resolution processes in Canada, it is likely that the issue will arise for consideration if the circle sentencing model of community justice is adopted in NSW. However, the appropriate questions as to the relationship between circle sentencing and Aboriginal cultures should be about acceptance, compatibility and community ownership rather than authenticity. As Judge Barry Stuart has observed, sentencing circles are best seen as a hybrid born of co-operation between Aboriginal and non-Aboriginal legal cultures:
The partnerships formed with Yukon Community Peacemaking and Sentencing Circles draw heavily upon Aboriginal concepts of peacemaking and the practices typically found in mediation and consensus-building processes. Community Circles are neither wholly western, nor Aboriginal, but combine principles and practices from both in creating a community-based process to respond to conflict in a manner that advances the well-being of individuals, families and the community.
Nevertheless, it is important to recognise, that not all so-called ‘restorative justice’ approaches are necessarily applicable to a particular Indigenous community in Canada or Australia merely because they are considered to have their origins in an Indigenous culture. In recent years a number of models of community-based decision-making (variously called family group conferencing, community conferencing or youth conferencing) have been developed as an alternative to conventional criminal justice system processes. The ready assumption that these approaches are suitable for Aboriginal communities in Canada and Australia, because they are purportedly based on Maori justice processes, has been rightly criticised. All Indigenous cultures (including legal systems) are not the same. Consideration of the possible adoption of circle sentencing in New South Wales must be based on the nature and circumstances of specific communities, rather than on a stereotypical homogenised ‘Indigenous culture’.
Given that one of the primary motivations for the adoption of circle sentencing is that it is desirable and beneficial to involve the community in the decision-making process, it is important to consider how the ‘community’ is defined and by whom the community is represented (that is, who participates in the circle, or how the participants are selected).
While the practice of circle sentencing has been primarily developed and used in First Nation reserve communities that are relatively distinct in geographic, social and cultural terms, circle sentencing need not be limited to such settings. Circles have been conducted in urban centres such as Vancouver and Saskatoon with participants drawn from the local Aboriginal community.
The availability of a community for the purpose of circle sentencing involves more than just being able to define the existence of a group, whether geographically or personally. Community capacity, willingness and preparedness to participate in criminal justice decision-making (and to oversee follow-up) is a prerequisite for the success of community-based justice, whether in the form of circle sentencing or otherwise. Adequate resourcing and training for community representatives is critical in this regard.
One of the critical tasks involved in the establishment of circle sentencing as part of the criminal justice process in Aboriginal communities in Canada has been the development of criteria for determining the types of cases in which it is appropriate to convene a sentencing circle. These criteria and guidelines have been developed in a variety of ways.
In the Yukon Territory First Nation communities have taken the lead in developing the admission and procedural rules for circle sentencing. Notwithstanding appellate court calls for the establishment of clear criteria and guidelines, judges involved in circle sentencing in the Yukon have generally declined to unilaterally impose criteria on the basis that this would be inconsistent with the community empowerment objective of the practice and would impede the creation of the relationship of trust and co-operation which is critical to the success of circle sentencing. In other jurisdictions, judges have played a more active role in developing and enforcing eligibility rules by developing and recording in their written judgments, their preferred criteria.
Common to almost all lists are two core requirements:
i) the offender must be willing to take full responsibility for his/her wrong-doing; and
ii) there must be a community willing and able to facilitate a process of healing and restoration for the offender.
Beyond these essential requirements, different communities and different courts have imposed various additional criteria. Questions which communities and the judiciary have had to confront include: whether it is mandatory that the victim consents to the holding of a sentencing circle and whether it is permissible or appropriate for a sentencing circle to be held where the offender is charged with a serious crime (commonly defined as an offence which would normally carry a jail term of two or more years).
Advocates of the ‘two-year limit’ often operate on the assumption that a non-custodial sentence is the objective of circle sentencing. However, as the AJAC notes in its discussion paper, circle sentencing ‘is not necessarily a prison diversion program as a term of imprisonment is available to the circle if the circle believes that to be appropriate.’ 
If circle sentencing is to be employed in New South Wales, the rules of eligibility will need to be clearly articulated. The need for clarity, consistency and certainty will need to be balanced against the need for community justice procedures to be locally relevant and accepted, which will in turn require a degree of flexibility in the establishment of eligibility criteria and procedural rules. Therefore if protocols were to be adopted in New South Wales (or elsewhere in Australia) it would be desirable if they were negotiated at the level of local Aboriginal communities and relevant justice administration agencies rather than adopting a blanket state-wide approach.
One of the potential benefits of circle sentencing is that the Aboriginal community can play an active role in deciding on an appropriate response to wrong-doing in the community, rather than have a sentence imposed from ‘outside’ the community. While the principle of community participation has been widely endorsed, a range of practices have been developed in terms of the nature of this participation.
At one end of the spectrum the circle’s recommendations have merely been afforded the status of a pre-sentence report which the judge may take into account when passing sentence. This is particularly so where the judge does not participate in the circle. Where the judge is a participant and the sentencing circle effectively replaces the conventional sentencing hearing, the degree of decision-making authority exercised by the circle can be difficult to identify with precision.
In Canada, where circle sentencing has developed out of judicial sentencing discretion, with no independent authority under Canadian law (see below), judges have consistently taken the position that the judge must retain the ultimate decision-making authority and is not formally bound by the recommendations of the circle. At the same time, a number of judges have also adopted a convention of respect for, and deference to, the views of the sentencing circle. This approach reflects the view that sentencing by the offender’s community is both a more appropriate and, potentially, more effective method of decision-making than conventional judicial sentencing.
Consistent with the co-operative nature of the exercise, decision-making in sentencing circles has been aptly characterised as a ‘power-sharing’ arrangement. Where the convention of adopting circle recommendations is well-established and consistently followed it offers a solid basis for meaningful Aboriginal community participation in the sentence determination process. However, if the community does not have confidence that the power-sharing arrangement will be honoured, the prospects for the successful implementation of circle sentencing are likely to be diminished.
The attitude of appellate courts towards sentences determined by a sentencing circle is also significant in this regard. In Canada, although provincial appeal courts have monitored the processes and outcomes of sentencing circles, they have very rarely overturned a circle sentence on appeal by the Crown. The way in which the NSW Court of Criminal Appeal exercises its responsibility for the oversight of sentencing parameters — particularly with respect to offences for which a guidelines judgment has been issued — is likely to have a significant impact on the development of circle sentencing.
One of the most distinctive features of the development of circle sentencing in Canada is that it has occurred at the community level — commonly as a ‘joint venture’ between circuit court judges and First Nation communities — and not as part of a government-sponsored law reform initiative, or from the passage of legislation.
However, subsequent to the development of circle sentencing in the early 1990s the Canadian Parliament codified sentencing principles in the Criminal Code. One of the obligations imposed under the revised sentencing principles was that the judge must, when sentencing an offender, take into account ‘... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders’.
In R v Gladue the Supreme Court of Canada held that this provision required judges to take into account the offender’s Aboriginality, not simply in determining the sentence to be handed down but in adopting suitable procedures for arriving at that sentence. Thus, section 718.2(e) of the Canadian Criminal Code appears to establish a presumption in favour of consultation with representatives of the offender’s community as part of the sentence determination process, although it is doubtful whether section 718.2(e) requires the level of community participation in the decision-making process which can occur when circle sentencing is utilised.
The origins of circle sentencing in the combination of judicial discretion and community authority are both a strength and a weakness. On the one hand, the emergence of circle sentencing at a distance from executive government and without a formal legislative framework has allowed the practice to emerge and take shape largely free of the potentially stifling influence of government policy considerations and in a manner adapted to the particular needs of the local community, rather than in conformity with a grand legislative scheme, which may tend to encourage uniformity and homogeneity. On the other hand, circle sentencing is vulnerable to the extent that, having no formally recognised authority in its own right (in the absence of a firm legislative foundation), it relies for its survival on judicial goodwill, community motivation and resources and the support of justice system professionals. Striking an appropriate balance between flexibility and stability will be critical if circle sentencing—or equivalent mechanisms of Aboriginal community participation in the justice system—are to be developed in Australia.
Although circle sentencing is now firmly established as a legitimate component of the Canadian criminal justice system it would be naïve to ignore the controversy which has surrounded this development. In addition to the debate about cultural authenticity (discussed above), various criticisms have been levelled at circle sentencing, including that it produces sentences that are too lenient, fails to adequately address the needs of victims (particularly in domestic violence and sexual assault cases), is susceptible to the influence of local politics so that it benefits certain families or the local elite in a community and has not led to significant reductions in rates of offending. Proponents of the establishment of circle sentencing in Australia will need to take these concerns into account when setting the parameters, objectives and procedures for local initiatives. Practical constraints, including the additional time and cost associated with circle sentencing, will also require consideration. 
Circle sentencing will not be a magic solution to the many weaknesses in the current criminal justice system which operate to the detriment of Indigenous people. However, the manner in which circle sentencing has developed over the course of the last decade in Canada does suggest that it has the potential to effect an important, if relatively modest, shift in the relationship between the criminal justice system and Aboriginal offenders, victims and communities.
The key lesson that must be taken from the experience of Aboriginal communities in Canada is that circle sentencing is not a generic community justice tool which can be taken ‘off the shelf’ and successfully implemented in any community in the world. Procedures designed to facilitate community participation in criminal justice decision-making, whether in the form of circle sentencing or otherwise, must be developed on a local basis and adapted in conformity with the law, culture, circumstances, needs and aspirations of the local community.
Luke McNamara is a Senior Lecturer in the Faculty of Law at the University of Wollongong.
[*] This article summarises the findings of research conducted with the support of a Canadian Studies Faculty Research Award. Thanks to the Canadian High Commission (Canberra), the Association for Canadian Studies in Australia and New Zealand, the International Council for Canadian Studies, and the Canadian Department of Foreign Affairs and International Trade for this financial assistance. For a more detailed presentation of the research findings, see L McNamara, ‘The Locus of Decision-Making Authority in Circle Sentencing: The Significance of Criteria and Guidelines’ (2000) XVIII Windsor Yearbook of Access to Justice 60.
 NSW Aboriginal Justice Advisory Committee, Circle Sentencing: Involving Aboriginal Communities in the Sentencing Process <http://www.lawlink.nsw.gov.au/ajac.nsf/pages/ circlesentencing> (‘AJAC Discussion Paper’) (November 1999).
 At the time of writing (August 2000) no decision had been made on whether the trial would go ahead.
 Royal Commission into Aboriginal Deaths in Custody, National Report (1991).
 See C Carcach, A Grant and R Conroy, Australian Corrections: The Imprisonment of Indigenous People, Trends and Issues in Crime and Criminal Justice No 137 (Australian Institute of Criminology) (1999).
 Only a brief overview is possible here. For a more detailed account of the origins, nature and operation of circle sentencing in Canada, see B Stuart, Building Community Justice Partnerships: Community Peacemaking Circles (1997); B Stuart, ‘Circle Sentencing in Yukon Territory, Canada: A Partnership of the Community and the Criminal Justice System’ (1996) 20 International Journal of Comparative and Applied Criminology 291; and R Green, Justice in Aboriginal Communities: Sentencing Alternatives (Saskatoon: Purich Publishing, 1998), chapter 5 ‘The Sentencing Circle’. Cf the resource list on circle sentencing compiled by the Native Law Centre at the University of Saskatchewan <http://www.usask.ca/nativelaw/jah_scircle.html> .
 Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996) 110.
 See R v Moses (1992) 71 CCC (3d) 347 (Yukon Territorial Court).
 The term ‘circle sentencing’ is sometimes used to refer to a community consultation where the judge does not attend or participate in the circle but receives and considers a sentencing recommendation from the circle.
 Chief Justice Bayda in R v Morin (1995) 4 CNLR 37 at 68, 69 (Saskatchewan Court of Appeal).
 See eg Aboriginal Justice Inquiry of Manitoba, Volume 1: The Justice System and Aboriginal People (1991), ch 2; and R v Joseyounen (1996) 1 CNLR 182 (Provincial Court of Saskatchewan) at 189.
 See eg R v Manyfingers (1996) 191 AR 342 (Alberta Provincial Court) at 358; R v Morin (1995) 4 CNLR 37 at 67 per Bayda CJ; and R v Rich (No 1) (1994) 4 CNLR 167 (Newfoundland Supreme Court) at 170. See also T Quigley, ‘Some Issues in Sentencing of Aboriginal Offenders’ in R Gosse, J Youngblood Henderson and R Carter (eds), Continuing Poundmaker & Riel’s Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994) 269:287; L Chartrand, ‘The Appropriateness of the Lawyer as Advocate in Contemporary Aboriginal Justice Initiatives’ (1995) 33(4) Alberta Law Review 874 at 878; and C Griffiths, ‘Sanctioning and Healing: Restorative Justice in Canadian Aboriginal Communities’ (1996) 20(2) International Journal of Comparative and Applied Criminal Justice 195:200.
 See C LaPrairie, ‘Sentencing Circles and Family Group Conferences: Response to Jenny Bargen’ (1996) 29 (1) The Australian and New Zealand Journal of Criminology 74.
 See A Janvier, ‘Sentencing Circles’ in Gosse et al, above n 11, 301-302.
 Stuart (1997), above n 5, 4.
 See eg the scheme established by the Young Offenders Act 1997 (NSW).
 C Cunneen, ‘Community Conferencing and the Fiction of Indigenous Control’ (1997) 30(3) The Australian and New Zealand Journal of Criminology 292:300; H Blagg, ‘A Just Measure of Shame?: Aboriginal Youth and Conferencing in Australia’ (1997) 37(4) British Journal of Criminology 481; J Tauri, ‘Family Group Conferencing: The Myth of Indigenous Empowerment in New Zealand’ (1999) 4(1) Justice as Healing 1. Cf J Tauri, ‘Family Group Conferencing: A Case Study of the Indigenisation of New Zealand’s Justice System’ (1998) 10(2) Current Issues in Criminal Justice 168; and G Lee, ‘The Newest Old Gem: Family Group Conferencing’ (1997) 2(2) Justice as Healing 1.
 R v SHE (1993) BCJ No 2967 (QL) (British Columbia Provincial Court); R v Cheekinew (1993) 80 CCC (3d) 143 (Saskatchewan Court of Queen’s Bench).
 R v Brown (1992) 13 CR (4th) 346 (Alberta Court of Appeal); R v Morin (1995) 4 CNLR 37 at 67; and Cheekinew (1993) 80 CCC (3d) 143 at para 15.
 See eg the rules and protocols established by the Kwanlin Dun First Nation in Whitehorse: Kwanlin Dun Justice Committee, Kwanlin Dun Community Justice: Circle Sentencing, discussed and extracted in R v Gingell (1996) 50 CR (4th) 326 (Yukon Territorial Court).
 R v Johnson (1994) 31 CR (4th) 262 (Yukon Court of Appeal); and R v Johns (1996) 1 CNLR 172 (Yukon Court of Appeal).
 See Stuart (1996), above n 5, 298.
 On the importance of this relationship see Judge Cunliffe Barnett, ‘Circle Sentencing/Alternative Sentencing’ (1995) 3 CNLR 1:3-4.
 See eg R v Joseyounen (1996) 1 CNLR 182 at 185-188; R v Cheekinew (1993) 80 CCC (3d) 143 at 149-150; and R v Morin (1995) 4 CNLR 37.
 See the competing views expressed by judges of the Saskatchewan Court of Appeal in R v Morin, (1995) 4 CNLR 37. Cf R v Taylor (1997) 122 CCC (3d) 376 (Saskatchewan Court of Appeal).
 AJAC Discussion Paper, above n 1, ‘What is a Circle Court’.
 See eg R v Naappaluk (1994) 2 CNLR 143 (Court of Quebec).
See eg R v Rich (No 2) (1994) 4 CNLR 174 (Newfoundland Supreme Court); and R v Morin (1995) 4 CNLR 37 at 75-76 per Bayda CJ. See also R Green, ‘Aboriginal Community Sentencing and Mediation: Within and Without the Circle’ (1997) 25 Manitoba LJ 77 at 86-90; and Judge David Arnot, ‘Sentencing circles permit community healing’ (Oct 1994) National 14.
 See R v Morin (1995) 4 CNLR 37. Cf Luke McNamara, ‘Appellate Court Scrutiny of Circle Sentencing’ (2000) 27(2) Manitoba Law Journal 209.
 See Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3, Div 4.
 Stuart (1997),above n 7, 113.
 See Criminal Code, RSC, 1990, c C-46, Part XXIII (came into force on 3 September 1996).
 Section 718.2(e) (emphasis added).
 R v Gladue (1999) 1 SCR 688.
 See generally J Roberts and C LaPrairie, ‘Sentencing Circles: Some Unanswered Questions’ (1996) 39 Criminal Law Quarterly 69; M Crnkovich, ‘A Sentencing Circle’ (1996) 36 Journal of Legal Pluralism 159; and E Zellerer, ‘Community-Based Justice and Violence Against Women: Issues of Gender and Race’ (1996) 20(2) International Journal of Comparative and Applied Criminal Justice 233.
 See AJAC Discussion Paper, above n 1, ‘Some Limitations’.