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Wallace, Gail --- "Nowra Circle Sentencing - Seven Years Down the Track" [2010] IndigLawB 3; (2010) 7(16) Indigenous Law Bulletin 13


Nowra Circle Sentencing - Seven Years Down the Track

Gail Wallace

This article introduces the Nowra Circle Sentencing Court and reflects on some of its achievements in the seven years since it was established in February 2002. In that time, my colleagues and I have been in contact with many people who are continually on the fringes of the criminal justice system. For many of us, it has been a real learning curve: not only do we listen to offenders, the open and honest dialogue means that we can learn from victims and the experience of many wise and experienced Aboriginal elders. In explaining this unique court, I hope to share some of those lessons with both the Aboriginal and non-Aboriginal community.

What is Circle Sentencing and How Does it Work?

Established by the Criminal Procedure Act 1986 (NSW),[1] Nowra’s Circle Sentencing Court is about diverting Aboriginal offenders from formal incarceration and imposing restrictions on them that can heal and change their lives. The court is a unique and historical one: it allows the traditional court system to take into consideration Aboriginal people and their values, customs and culture.

Under the legislation, circle sentencing sits within the traditional court system. This means that, in order to have access to Circle, the offender must plead guilty to the underlying offence with which he or she has been charged and must be assessed and found suitable to participate. While not based on customary law or a traditional Aboriginal structure, it represents a mechanism by which communities can manage problems in a distinctly Aboriginal way. The court is made up of a number of people including:

• the presiding magistrate

• a project officer

• four respected Aboriginal elders (two men and two women)

• a police prosecutor

• an offender and his or her legal representative and

• a victim and his or her support person.

Because it is part of the mainstream criminal justice system, Circle is presided over by a Magistrate, who has final say as to the sentence handed down. However, the process is distinct from conventional practices because it requires the Magistrate to hand over proceedings to the elders, who have carriage of discussions throughout and who recommend the sentencing orders that they feel appropriate for the matter at hand. Here in Nowra we have been very fortunate: our Magistrate, Doug Dick and our Police Prosecutor, Sergeant Craig Veness have been tremendously respectful towards us and have contributed a great deal to the court’s success. After officially opening the court, Magistrate Dick then hands the reins over to the elders. In my experience, he defers to the elders in almost all instances, only giving directions when asked to do so.

During proceedings, we discuss the background of the offender, the offence and the impact it has had upon the victim. We can have discussions around the extent of similar crimes in the community, their underlying causes, what life was like before the increase in crime, the impact of these crimes on community and family life and the impact of these crimes on victims. We also talk about what can be done to prevent this type of behaviour, what must be done to heal the victim, and what must be done to heal the offender. This is all incorporated into a sentence plan, and is also incorporated into discussions about what support can be provided for the victim. This stage generally takes around two hours, but can be longer.

Communication Barriers

One of the main lessons we have learned from this process is that we should take serious notice of the communication barriers that can perpetuate and encourage offences occurring within communities. Indigenous victims often have difficulty in reporting and giving evidence about offences due to communication barriers, meaning that these offences become unchecked and are left to fester. For that reason, Aboriginal English is the language of the Court; speakers of Aboriginal English are always on hand to translate any misunderstandings that may arise from time to time. Further, all evidence is presented in a narrative rather than the traditional question-answer form. In this way, Circles are able to deal effectively with the communication barriers that impede fairness and justice, not only for offenders but for victims as well. We have found this more culturally appropriate mode of communication to be very effective. Indeed, it seems from my experience that many offenders care more about the kind of treatment they receive in Circle than they do about the severity of their sentence. I recall one offender who was sentenced to 12 months’ imprisonment after his Circle. Because he felt that he had been treated respectfully, that he had been listened to, he still found it in himself to thank and even hug two of the elders who had set his punishment.

The Role of Elders

When selecting the appropriate elders to sit in the Circle, we make sure that they have the respect and trust of the offender and that they understand the issues that may have contributed to the offending behaviour. Nowra has six distinct Aboriginal communities – Jerrinja, Wreck Bay, Dharwal, South Nowra, North Nowra and Bomaderry – so the Circle is held in a community setting that is most relevant to the offender. We do not simply nominate any elder who happens to be available; the process is quite involved. Firstly we examine the offender’s Court files and note all the issues that might arise in his or her case. These might be as varied as domestic violence, drug and alcohol abuse, mental illness or traffic offences. We then list those elders who are familiar with the matters at hand. As the resident Project Officer at Circle, I then visit the offender and we discuss the list to find out which elders he or she respects and, most importantly, trusts. After this stage, I select appropriate elders to take part in that offender’s particular Circle.

The in-depth process of selecting elders is crucial to achieving the main objectives of Circle Sentencing, namely to empower Aboriginal communities in the sentencing process, to increase community confidence in the justice system and to foster a greater sense of equality between participants. The elders we choose are wise and have a great deal of knowledge about their communities; they were born and raised locally and thus have significant insights into what is causing problems affecting their area.

Involving elders who are respected by the offender is crucial to the shaming aspect of the process. Shaming is an effective way of convincing offenders that they must change their attitudes and lifestyles – this is the only way to win the respect of the elders. Often this change requires elders to spend a tremendous amount of time with offenders, offering them support long after Circle proceedings have ended. The elders do not teach the offenders to be ashamed of themselves but, rather, to be ashamed of their behaviour. This is very important when dealing with people who have been put down most of their lives. They already have low self-esteem so it achieves nothing to put them down further. They simply get their backs up and won’t listen. Often their lack of confidence and poor self-worth are among the causes of their offending behaviour. The elders are very clever in this respect, telling them

Be a proud Koori, you have much to be proud of, but be ashamed of your actions.

Lessons and Achievements

We understand that criminal behaviour is linked to dysfunctional community relationships and roles – both as a response to social instability, but also as a cause of future unrest for our younger generations. Recognising and shaming antisocial attitudes is an important part of reshaping community ideas of what is acceptable behaviour and is a central part of the healing process. It is our aim to make offenders feel comfortable in Circle, so as to encourage them to be open and to take responsibility for their actions. They speak honestly about their problems, allowing us to collect information that may otherwise never be revealed to anyone else – whether in a traditional courtroom setting or otherwise. This includes discussion about their backgrounds and problems within their communities. They share their individual stories, many of which go a long way towards explaining the person sitting before us. I am frequently appalled at the amount of abuse and neglect these people have suffered in their lives, whether physical, sexual or emotional. In this way, we all learn about the problems and the hurt running through our communities; we cannot hide from the harm caused by such destructive behaviour.

Circles also assist in community healing through the wider acceptance of the seriousness of crime and its impact on victims. Prior to Circles, victims did not receive the support of their communities, who were generally more likely to support offenders, implicitly condoning their actions as acceptable. Circles have been instrumental in breaking this pattern. With a dramatic shift in focus, they have reintroduced and reiterated the importance of community-based punishment for violent and destructive behaviour. While formal punishment is issued by the Magistrate, in practice, it is the Aboriginal elders who decide what punishment is appropriate to each case. Each sentence plan is designed to reinforce to the offender that his or her behaviour is unacceptable and has caused harm to the victim, as well as the broader community.

Sentence plans are highly individualised and may include a recommendation that the offender spend a period of time in prison or may be much milder, such as a recommendation that the Magistrate hand down a good behaviour bond. Generally, these conventional forms of punishment are accompanied by a requirement that the offender attend drug and alcohol counselling, undertake mental health treatment, or participate in an anger management or domestic violence program. Sentences may also require offenders to take part in educational programs and cultural camps. In our experience, offenders listen to the elders and are more likely adhere to the conditions of their Circle court orders than they would if the same orders were imposed by a Magistrate in a traditional court setting. It is thus not only through listening and discussing, but also through the process of shaming and punishing, that Circles re-build the role of elders, allowing them to reclaim their traditional role within the community, to take control and express their authority. This process has broader flow on effects: not only does it build elder self-confidence, it reinforces the faith and trust young people have in their community leaders. Reinforcing the value and importance of elders in this way is key to reviving cultural, social and legal order.

Building Bridges ...

By allowing Aboriginal lore to sit equally alongside the law, we are working together to build respect, to promote forgiveness and understanding. Having been involved in the process for seven years, I can see that it is building mutual trust and confidence. Prior to the introduction of this program, when an Aboriginal offender was sentenced to prison, communities would assume an ‘us’ and ‘them’ attitude to criminality, noting only that ‘poor so and so got sent in again’. We would immediately feel sorry for the offender, without knowing what he or she had really got up to and, over years, built up deep resentment towards the institutions and actors within the criminal justice system. We automatically believed that the police and the courts were unfairly targeting our people.

Since Circles were introduced, we have begun to learn about the seriousness of the crimes being committed, particularly after hearing from victims and discovering how offending behaviour impacts on them, on offenders, on their respective families and on the community as a whole. We are learning desperately needed lessons about crime, what it does to our family structures, how it damages individuals and weakens our kinship networks, and how we can help prevent it from happening.

The Need for Services and a Culture Shift

It is common knowledge that drugs and alcohol are leading causes of crime within our communities. What the elders and representatives manage to achieve in Circle is to identify the underlying trauma that results in these chemical dependencies. We have discovered that a large proportion of our people are connecting through alcohol and drugs rather than through their culture. Many of us know very little about the positive aspects of our culture. I recall one case where the offender summed it all up by saying,

I am not white, I am black, I am an Aboriginal, but what does that mean, I really need to learn what that means.

We are learning that cultural identity is key to building confidence, helping offenders and the community feel proud of themselves and their Aboriginality. We have found that the lack of cultural identity is linked to mental health and social issues that plague our communities. Low self-esteem is all too common and is frequently manifested through domestic violence, drug and alcohol abuse.

We now recognise a strong need for greater education programs within communities, to educate Aboriginal people about issues of depression and trauma so that we can recognise the symptoms, better understand when a loved one needs professional help and encourage them to seek it. But we have also started to ask: why do we have problems accessing these essential support services? Why are they out of our reach? We have to understand that mental illness, like a physical illness, can be treated with the appropriate assistance.

There are Aboriginal organisations and Aboriginal workers who are able to take on those who participate in Circle Sentencing but, at the end of the day, Aboriginal offenders and victims are reliant on mainstream services that are not fully culturally proficient. We are starting to think differently, realising that many of these difficulties could be better resolved with greater attention to the way in which our dominant social structures function.

We are starting to realise that, to properly reflect the complexity of Australia’s multicultural society, universities and training institutions must change the way they teach psychology and psychiatry. We now realise that these problems are systemic and must be addressed at a much more fundamental level. Too often, Circle identifies a problem but there are insufficient services to help the person, whether offender or victim. In addition to better community education, we need better cultural training and understanding within existing services, particularly in the area of drug/alcohol abuse and mental health. With this invaluable knowledge, we are working towards changing attitudes and towards changing the culture not only within families and communities, but also within the criminal justice system and the broader social support agencies. We hope that, with time and effort, this will help not only decrease the incidence of crime, but also to strengthen and revitalise our local communities.

Conclusion

Circle Sentencing can help the community to work beyond keeping offenders out of prison. It has the potential to change attitudes and educate all of us to the point where we can help our communities heal. But first we all have to face reality and work with the only justice system that can deal with the violence and abuse suffered and perpetuated by our people. At the same time, we must also introduce intense teaching of Aboriginal culture. Sound and healthy knowledge about our traditions, our spirituality, our people and our language is what is sorely missing from our communities. This would bring back some pride and dignity and would help us move forward in a more positive direction. Circle sentencing, specifically the relationships formed between participants and their elders, is crucial in this regard. As one participant, who overcame her heroin addiction, put it,

if it wasn’t for my elders’ directions I would be dead or in prison now.

Circle sentencing allows communities to reclaim some control over their own social problems and establish the mechanisms necessary to solving those problems. It is assisting beyond simply reducing the rate of re-offending; it is educating the whole community about crime. Circle sentencing is teaching us that crime is destroying our families and communities, mainly because it is taking mothers, fathers and our kids away and placing them into institutions, whether by incarceration or other forms of state care, which is the case for younger children placed into foster homes.

In the seven years that it has been running, the Nowra Court has been numerously commended for its achievements and has won two major awards, namely the Australian Crime and Violence Prevention Award in 2005 and the 2009 Justice Award by the NSW Law and Justice Foundation. We have learned that we are most effective when we work alongside the criminal justice system so that it does not contribute to the tearing down of our community cultural structures but instead assists in preserving them. Circle sentencing encourages judicial officers to engage with the community and the community to engage with the courts. This relationship increases awareness about how regular courts function, especially when dealing with Aboriginal offenders and victims. The more that Aboriginal communities learn about the courts and, at the same time, the more that courts learn about our culture, our values and the reality of our circumstances in life, the more confidence we will have to participate in court and legal processes.

Gail Wallace, LLB JP grew up on an Aboriginal reserve at Orient Point, now known as Jerrinja. Gail is currently the Project Officer with the Nowra Circle Sentencing Court and is enjoying it tremendously. She considers this to be a revolutionary step in criminal justice as it gives her people – for the first time since colonisation – the authority to engage with the legal system and to confront and overcome their own challenges.


[1] See ss 347, 348; see also Criminal Procedure Regulations 2005 (NSW) Schedule 4 – Circle Sentencing Intervention Program, Criminal Procedure Amendment (Circle Sentencing) Regulations 2009 (NSW) Schedule 1, which clarifies eligibility requirements.


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