R v Wanganeen
[2010] SASC 237
•30 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WANGANEEN
[2010] SASC 237
Judgment of The Honourable Justice Gray
30 July 2010
ABORIGINALS - CRIMES BY ABORIGINALS - SENTENCE - FACTORS TO BE CONSIDERED
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
Defendant pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA) - defendant an Aboriginal man - application made that sentencing proceed by way of sentencing conference pursuant to section 9C of the Criminal Law (Sentencing) act 1988 (SA) - application granted - consideration of purpose of Indigenous sentencing conferences - consideration of manner in which sentencing conference to proceed - consideration of use to be made of information arising from conference.
Criminal Law (Sentencing) Act 1988 (SA) s 9C and s 10; Law Consolidation Act 1935 (SA) s 23(1); Statutes Amendment (Intervention Programs and Sentencing) Procedures Act 2005 (SA); Criminal Procedure Regulation 2005 (NSW); Criminal Procedure Act 1986 (NSW); Magistrates Court Act 1989 (VIC); Children and Young Persons Act 1989 (VIC); Magistrates Court Rules 1992 (SA), referred to.
Neal v The Queen (1982) 149 CLR 305; R v Tjami (2000) 77 SASR 514; Police v Carter (2002) 81 SASR 330; R v Scobie (2003) 85 SASR 77, considered.
R v WANGANEEN
[2010] SASC 237Criminal
GRAY J.
On 2 November 2009, the defendant, Dwayne Lee Wanganeen, pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA). That offence was the second count on the Information, charged in the alternative to attempted murder. A nolle prosequi was entered by the prosecution with respect to the first count.
The defendant is an Aboriginal man. Counsel for the defendant made an application that sentencing proceed by way of sentencing conference, conducted pursuant to section 9C of the Criminal Law (Sentencing) Act 1988 (SA). That application was granted and the matter proceeded to the sentencing conference. An Aboriginal elder and an Aboriginal justice officer attended, in addition to the defendant’s mother, aunt and cousin. The victim did not attend.
Section 9C appears to have been utilised by the Supreme Court on only two occasions. As a consequence, I considered it appropriate to undertake an analysis of the provision, to provide context and guidance in relation to the process to be undertaken. I have been assisted in this analysis by a range of relevant materials provided by counsel, including sentencing remarks in cases where a sentencing conference has been held,[1] in addition to articles in relation to restorative justice and the sentencing of Aboriginal offenders, and materials prepared by Magistrates central to the introduction of initiatives in relation to the sentencing of Aboriginal people.[2] I have had regard to those materials in preparing these reasons.
[1] R v Harradine (14 January 2009) Sentencing Remarks in the Supreme Court of South Australia – Adelaide (Anderson J); R v Pompey (22 April 2009) Sentencing Remarks in the Supreme Court of South Australia – Port Augusta (Layton J); R v C, TE (21 August 2008) Sentencing Remarks in the Youth Court of South Australia – Adelaide (Judge McEwen); R v Martin (23 May 2006) Sentencing Remarks in the District Court of South Australia – Adelaide (Judge Tilmouth); R v Martin (4 August 2008) Sentencing Remarks in the District Court of South Australia – Adelaide (Judge Clayton); R v Weetra (4 August 2006) Sentencing Remarks in the District Court of South Australia – Adelaide (Judge Tilmouth); R v Day (20 October 2006) Sentencing Remarks in the District Court of South Australia – Adelaide (Judge Clayton); R v Logan (30 April 2008) Sentencing Remarks in the District Court of South Australia – Adelaide (Judge Millsteed); R v L, BP (7 January 2008) Sentencing Remarks in the District Court of South Australia – Adelaide (Judge Prescott); R v Harradine (2 April 2009) Sentencing Remarks in the District Court of South Australia – Adelaide (Judge McIntyre); R v Mildwaters (20 August 2009) Sentencing Remarks in the District Court of South Australia – Adelaide (Judge Shaw); R v Grose (21 October 2009) Sentencing Remarks in the District Court of South Australia – Adelaide (Judge Boylan).
[2] Colleen Welch, ‘South Australian Courts Administration Authority – Aboriginal Court Day and Aboriginal Justice Officers’ [2002] Indigenous Law Bulletin 3; John Tomaino, Aboriginal (Nunga) Courts (2004-2009) Government of South Australia - Office of Crime Statistics and Research; Dr Andrew Cannon, ‘South Australia: Nunga Court II - Aboriginal Sentencing Conferences’ (Paper presented at the AISA Indigenous Courts Conference, Mildura, September 2007) Restorative Justice Online; Elena Marchetti, Indigenous Sentencing Courts (5 December 2009) Indigenous Justice; Professor Andrew Goldsmith, Dr Mark Halsey & Mr David Bamford, Adult Restorative Justice Conferencing Pilot: An Evaluation – Final Report (August 2005); Office of Crime Statistics and Research, Port Lincoln Aboriginal Conference Pilot: Review Report (June 2008) Government of South Australia; H.B Bradley, Chief Magistrate Community Court Darwin, Community Court Darwin Guidelines (27 May 2005); Christopher J Charles, Nunga Court Improved Outcomes Through Effective Rehabilitation Programs, (26 October 2005) Aboriginal Legal Rights Movement; Jelena Popovic, Court Process and Therapeutic Jurisprudence: Have we Thrown the Baby Out with the Bathwater? (25 September 2006) Murdoch University Electronic Journal of Law; Mark Harris, The Koori Court and the Promise of Therapeutic Jurisprudence, (25 September 2006) Murdoch University Electronic Journal of Law; Kate Auty, We Teach All Hearts to Break – But can we Mend Them? Therapeutic Jurisprudence and Aboriginal Sentencing Courts (25 September 2006) Murdoch University Electronic Journal of Law; Australia’s Aboriginal and Torres Strait Islander legal services of WA, SA, NT, Qld, NSW and Vic, Minimum Standards for Aboriginal and Torres Strait Islander Courts in Mainland Australia 2007-2010 (September 2007); Michael S King & Kate Auty, ‘Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction’ (2005) 30(2) Alternative Law Journal 69; Jennifer Powell, The Nunga Court: A Descriptive Study of Aboriginal Sentencing Days, (Honours thesis, The University of Melbourne, Department of Criminology, 2001); Elena Marchetti & Kathleen Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29 Sydney Law Review 415.
The consideration of the legislative provisions and the matters informing the introduction of section 9C, in addition to the terms of section 9C, allows for the following summary of principles to be identified:
·Where the defendant is Aboriginal,[3] the court has a discretion to convene a sentencing conference.[4]
[3] Section 9C(4)(a)-(c) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
(4)A person will be taken to be an Aboriginal person for the purposes of this section if—
(a) the person is descended from an Aboriginal or Torres Strait Islander; and
(b)the person regards himself or herself as an Aboriginal or Torres Strait Islander or, if the person is a young child, at least one of the parents regards the child as an Aboriginal or Torres Strait Islander; and
(c)the person is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Islander community.
[4] Criminal Law (Sentencing) Act 1988 (SA) section 9C(1).
·That process may be undertaken in any criminal court.
·The defendant’s consent is required in order to proceed with a sentencing conference.[5]
[5] Criminal Law (Sentencing) Act 1988 (SA) section 9C(1).
·A sentencing conference must comprise: the defendant, and if the defendant is a child, the defendant’s parents; the defendant’s legal representative (if any); the prosecutor; the victim, if the victim chooses to attend; if the victim desires, a person chosen by them to provide support; and, if the victim is a child, the victim’s parent or guardian.[6]
[6] Criminal Law (Sentencing) Act 1988 (SA) section 9C(2)(a)-(e).
·The following people may also attend the sentencing conference if the court thinks that they may contribute usefully to the sentencing process: a person regarded by the defendant, and accepted within the defendant’s Aboriginal community, as an Aboriginal elder; a person accepted by the defendant’s Aboriginal community as a person qualified to provide cultural advice relevant to the sentencing of the defendant; a member of the defendant's family; a person who has provided support or counselling to the defendant; and, any other person.[7]
[7] Criminal Law (Sentencing) Act 1988 (SA) section 9C(3)(a)-(e).
·Those in attendance may express their views, and the court may take into consideration those views.[8]
[8] Criminal Law (Sentencing) Act 1988 (SA) section 9C(1).
·The conference is to be convened with the assistance of an Aboriginal justice officer, whose duties include:[9]
[9] Criminal Law (Sentencing) Act 1988 (SA) section 9C(5).
- assisting the court in the sentencing of Aboriginal persons by providing advice on Aboriginal society and culture; and
- assisting the court to convene sentencing conferences under section 9C; and
- assisting Aboriginal persons to understand court procedures and sentencing options and to comply with court orders.
·The sentencing conference is designed to promote, in the defendant, understanding of the consequences of criminal behaviour, and in the court, understanding of Aboriginal cultural and societal influences, and thereby make the punishment more effective.
·Sentencing conferences conducted pursuant to section 9C proceed on a less formal basis than sentencing submissions would otherwise proceed.
·Using a sentencing conference procedure does not change the matters to which a court must have regard under section 10 of the Sentencing Act when determining a sentence, or any other aspect of sentencing.
·The sentencing conference is a way of informing the court and the defendant, and his or her community, about matters relevant to sentence in a more comprehensive and understandable way than is possible using standard sentencing procedures.
·The use of the information arising from the sentencing conference is within the discretion of the court. The views expressed at the conference may provide the relevant context within which to consider the factors relevant to sentencing contained in section 10 of the Sentencing Act.
·The sentencing conference may proceed in the following manner:
- seating of participants in a “roundtable” arrangement;
- introduction of the sentencing conference, its purpose and informal nature, by the Judge or Aboriginal justice officer;
- introduction of all individuals present and their role, by the Judge or Aboriginal justice officer, or individuals themselves;
- coverage of relevant matters, including:
oreading of the charges and confirmation of plea of guilty or finding of guilt;
oreading of agreed facts and details of offender’s background;
oreading of any victim impact statement;
osummary by the prosecution of the basis of the allegations forming the charge.
- participants invited in turn to speak, facilitated by the Aboriginal justice officer;
- only one person speaking at a time;
- prompting and questions provided by the Judge and counsel when appropriate.
- The foregoing summary as to how the sentencing conference is to proceed is to be understood as merely providing assistance with respect to that process. Having regard to the purpose of the sentencing conference, it is not appropriate to set out in any strict manner the way a conference should be conducted. A measure of flexibility is required in order to maximise the effectiveness of the process.
Legislative Scheme
Section 9C of the Sentencing Act provides:
(1) Before sentencing an Aboriginal defendant, the court may, with the defendant's consent, and with the assistance of an Aboriginal Justice Officer—
(a) convene a sentencing conference; and
(b) take into consideration views expressed at the conference.
(2) A sentencing conference must comprise—
(a)the defendant and, if the defendant is a child, the defendant's parent or guardian; and
(b) the defendant's legal representative (if any); and
(c) the prosecutor; and
(d)if the victim chooses to be present at the conference—the victim, and, if the victim so desires, a person of the victim's choice to provide assistance and support; and
(e) if the victim is a child—the victim's parent or guardian.
(3) A sentencing conference may also include (if the court thinks the person may contribute usefully to the sentencing process) one or more of the following:
(a)a person regarded by the defendant, and accepted within the defendant's Aboriginal community, as an Aboriginal elder;
(b)a person accepted by the defendant's Aboriginal community as a person qualified to provide cultural advice relevant to sentencing of the defendant;
(c) a member of the defendant's family;
(d) a person who has provided support or counselling to the defendant;
(e) any other person.
(4) A person will be taken to be an Aboriginal person for the purposes of this section if—
(a)the person is descended from an Aboriginal or Torres Strait Islander; and
(b)the person regards himself or herself as an Aboriginal or Torres Strait Islander or, if the person is a young child, at least one of the parents regards the child as an Aboriginal or Torres Strait Islander; and
(c)the person is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Islander community.
(5) In this section—
Aboriginal Justice Officer means a person employed by the South Australian Courts Administration Authority whose duties include—
(a)assisting the court in sentencing of Aboriginal persons by providing advice on Aboriginal society and culture; and
(b)assisting the court to convene sentencing conferences under this section; and
(c)assisting Aboriginal persons to understand court procedures and sentencing options and to comply with court orders;
close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—
(a) the relationship between a legally married couple; or
(b)a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;
Note—
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
domestic partner—a person is the domestic partner of another if he or she lives with the other in a close personal relationship;
family includes—
(a) the defendant's spouse or domestic partner; and
(b) any person to whom the defendant is related by blood; and
(c)any person who is, or has been, a member of the defendant's household; and
(d)any person held to be related to the defendant according to Aboriginal or Torres Strait Islander kinship rules and observances;
spouse—a person is the spouse of another if they are legally married.
Section 9C was inserted into the Sentencing Act in 2005 by the enactment of the Statutes Amendment (Intervention Programs and Sentencing) Procedures Act 2005 (SA).[10] The purpose of that Act was described by the Attorney-General in the second reading speech as follows:[11]
This is a bill to provide a formal statutory backing for two practices that have developed in the courts. One is the practice of directing defendants to undertake programs of intervention that help them take responsibility for the underlying causes of their criminal behaviour. The other is the use of sentencing conferences in sentencing Aboriginal defendants.
[10] See section 7 of the Statutes Amendment (Intervention Programs and Sentencing) Procedures Act 2005 (SA). The definitions of “close personal relationship”, “domestic partner” and “spouse” were inserted by the enactment in 2006 of the Statutes Amendment (Domestic Partners) Act 2006 (SA) section 70.
[11] South Australia, Parliamentary Debates, House of Assembly, 22 September 2005, 3556 (The Hon M.J Atkinson).
The proposed provisions were outlined in the second reading speech in the following terms:[12]
Proposed Section 9C provides that a sentencing court may, before sentencing an Aboriginal defendant, convene a sentencing conference and take into consideration views expressed at the conference. A sentencing conference can only be convened under this section with the defendant’s consent. An Aboriginal Justice Officer will assist the court in convening the conference. An Aboriginal Justice Officer, as defined in subsection (5), is a person employed to assist the court in sentencing of Aboriginal persons and convening of sentencing conferences. An Aboriginal Justice Officer also assists Aboriginal persons to understand court procedures and sentencing options and to comply with court orders.
Subsection (2) lists the persons who must be present at a sentencing conference and subsection (3) persons who may be present. A person included in the list under subsection (3) may be present if the sentencing court thinks the person may contribute usefully to the sentencing process.
A person will be taken to be an Aboriginal person for the purposes of section 9C if the person is descended form an Aboriginal or Torres Strait Islander, regards himself or herself as an Aboriginal or Torres Strait Islander (or, if a young child, at least one of the parents regards the child as an Aboriginal or Torres Strait Islander), and is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Islander community.
The enactment of section 9C is a formal recognition of the cultural differences that should be accommodated when sentencing Aboriginal offenders.
[12] South Australia, Parliamentary Debates, House of Assembly, 22 September 2005, 3560 (The Hon M.J Atkinson).
It is relevant for the purposes of this decision to again record the over-representation of Aboriginal people in the criminal justice system, and the relevance of Aboriginality in sentencing generally, in order to provide further context to the enactment of section 9C.
The significant over-representation of Aboriginal people in Australian prisons has been an issue of concern for many years[13] and was particularly highlighted in the 1991 report of the Royal Commission into Aboriginal Deaths in Custody. That over-representation is apparent throughout the criminal justice system. Accordingly, the sentencing of Aboriginal offenders and the approach taken in the sentencing process to the cultural differences is of significance, having regard to the many challenges faced by Aboriginal people in contemporary Australian society.
[13] See the comments of Gibbs CJ in Neal v The Queen (1982) 149 CLR 305 at 318-319:
Although Aborigines comprise only 1 per cent of the total population they make up nearly 30 per cent of the prison population, and at times exceed that level. Comparing the disproportionate numbers of arrests of Indians in Canada, Maoris and Islanders in New Zealand, and Malays in Sri Lanka, Australia's rate according to the 1976 Census of 726.5 Aborigines in prison per 100,000 (there are about 140,000 Aborigines in this country) can reasonably be speculated to be "the highest rate of imprisonment in the world".
The difficulties that may be associated with being Aboriginal and the extent to which those matters may inform sentencing generally, has been the subject of discussion by the courts. Considerations with respect to the Aboriginality of offenders were discussed in Tjami where Nyland J observed:[14]
[14] R v Tjami (2000) 77 SASR 514 at [8]-[9].
…In [Fernando], Wood J, of the Supreme Court of New South Wales, had the task of sentencing an Aboriginal man who had pleaded guilty to one count of malicious wounding with a knife. During submissions, counsel referred his Honour to numerous authorities, reports and papers which discussed the sentencing of Aboriginal offenders. Wood J gave a summary of the propositions emerging therefrom which I respectfully adopt (at 62):
The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.
The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."
The propositions listed by Wood J do not, nor do they purport to, alter the sentencing process which is to be applied to Aboriginal offenders. Rather, the propositions reaffirm that the same sentencing process should apply to all offenders. This does not, however, mean that sentences are simply applied rigidly. Sentencing is a flexible process and there are, therefore, many considerations of aggravation and mitigation which the court may and should take into account when reaching a decision as to an appropriate sentence. In carrying out this exercise, a sentencing judge needs to be sensitive to the fact that there are particular mitigating factors which might apply more readily to Aboriginal offenders. The matters set out by Wood J are therefore a useful guide to be borne in mind in such cases.
Similar comments were made by the High Court in Neal where Brennan J observed:[15]
The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. …
[15] Neal v The Queen (1982) 149 CLR 305 at 326.
The above observations make clear that although the courts are mindful of matters relevant to sentencing which arise out of or are otherwise associated with the Aboriginality of an offender, the same sentencing principles apply to all offenders.
Although different sentencing principles may not be applied merely as a consequence of the Aboriginality of an offender, the courts and other agencies have recognised for some time that different sentencing strategies and approaches may be beneficial in the sentencing of Aboriginal offenders. A particular recognition of the difficulties faced by Aboriginal offenders in their interaction with the courts is reflected in the establishment of Indigenous sentencing courts. The first urban Indigenous sentencing court - the South Australian Nunga Court - was convened in South Australia on 1 June 1999.[16] By 2006 almost each Australian jurisdiction had established some type of Indigenous justice practice.[17]
[16] The operation of the Nunga Court has been discussed by a number of Judges of this Court. See eg Police v Carter (2002) 81 SASR 330 at [16] (Nyland J); see further R v Scobie (2003) 85 SASR 77, footnote 33, where the following summary is provided:
The nunga court has been operating as a specialist part of the magistrates court in Port Adelaide since June 1999. In March 2001 a nunga court began operating regularly in Murray Bridge. Nunga court practices are also adopted during the magistrate's circuits on the Anangu Pitjantjatjara lands and other places.
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.
[17] It is apparent that most Indigenous sentencing courts in Australia are based on the original Nunga Court established in South Australia. New South Wales and the Australian Capital Territory, use what is described as the “circle court” model and the Northern Territory Community Courts, use a combination of the Nunga and circle court models. The circle court hearings are generally held in a venue that is culturally significant to the local Indigenous community, instead of the mainstream Magistrates’ or Local Court. In a circle court hearing, the participants sit in a circle rather than sitting at a Bar table or in the traditional court seats and set-up. This can be contrasted with the original Nunga Court model. Victims have a greater degree of participation in circle courts and the Elders in a circle court have a greater degree of participation in the framing of the penalty imposed on an offender.
The South Australian Nunga Court was established in response to the view that emerged, from discussions between Magistrates, Aboriginal community groups, State Government agencies, the Aboriginal Legal Rights Movement, police prosecutors, solicitors and Aboriginal people, that Aboriginal people mistrusted the justice system, including the courts. It was apparent that Aboriginal people felt that they had limited input into the judicial process generally and sentencing deliberations specifically, and found the courts to be culturally alienating. Ultimately, it was understood that the traditional court structure created difficulties in relation to the cultural differences of Aboriginal people and that these difficulties contributed to the continuing over-representation of Aboriginal people in the criminal justice system. The commencement of the Nunga Court was designed to reduce the cultural alienation of Aboriginal offenders in the criminal justice system, to better meet the needs of the Aboriginal community and to ultimately promote better outcomes than conventional courts.
A key feature of the Nunga Court is the involvement of Aboriginal Elders or other respected persons in the court process, who may advise the court on cultural and community matters and counsel the defendant by making the defendant aware of the impact of the crime on his or her community. Another important feature is the increased participation of the Magistrate in the process, who may take and give advice from those involved. This manifests in an ability for the offender, the offender’s family, the victim (if present) and community members to speak directly to the Magistrate in the sentencing process and an ability for the Magistrate to ask questions of those people directly. The proceedings are generally less formal, in order to promote attendance and participation. It has been said that the Nunga Court proved successful in increasing attendance at court by Aboriginal people from below 50% to above 80%.[18]
[18] See eg, Colleen Welch, ‘South Australian Courts Administration Authority – Aboriginal Court Day and Aboriginal Justice Officers’ [2002] Indigenous Law Bulletin 3.
It is apparent that the types of practices developed in the Nunga Court to accommodate cultural differences were seen to be effective, and as a consequence, in 2005, were given statutory legitimacy with the enactment of the Statutes Amendment (Intervention Programs and Sentencing) Procedures Act, which provided a “formal statutory backing” for those practices.[19]
[19] It is relevant to note that most jurisdictions operate their Indigenous sentencing courts under general sentencing provisions and practice directions. However, similarly to the action taken in South Australia with the introduction of section 9C of the Criminal Law (Sentencing) Act 1988 (SA), New South Wales has amended its Criminal Procedure Act to formally recognise its Indigenous sentencing court processes: Criminal Procedure Regulation 2005 (NSW) sch 4; Criminal Procedure Act 1986 (NSW) ch 7, part 4. In addition, the Victorian Koori Courts were established under a separate legislative framework: Magistrates Court Act 1989 (Vic) sections 4A-4G, 16(1A)(e)-(f), 17A, schedule 8, section 28; Children and Young Persons Act 1989 (Vic) sections 8, 16A-16D, 27A, 280BA, schedule 3, section 27.
The manner in which a sentencing conference would continue to provide a more culturally appropriate sentencing approach was outlined in the second reading speech in relation to the introduction of section 9C:[20]
I turn now to Aboriginal sentencing procedures. The Magistrate’s Court has for some time used culturally appropriate conferencing techniques when sentencing Aboriginal offenders. These techniques are designed to promote understanding of the consequences of criminal behaviour in the accused and an understanding of cultural and societal influences in the court and thereby make the punishment more effective. The bill formalises this process. It allows any criminal court, not just the Magistrates Court, with the defendant’s consent, to convene a sentencing conference and to take into consideration the views expressed at the conference. …
It is to be observed that the terms of the section and the above passage makes it clear that the power to convene a sentencing conference pursuant to section 9C was not intended to be confined to the Magistrate’s Court.
[20] South Australia, Parliamentary Debates, House of Assembly, 22 September 2005, 3559 (The Hon M.J Atkinson).
It is apparent from the terms of section 9C(1) that the convening of a sentencing conference pursuant to section 9C is not mandatory. Rather, the section provides the court with a discretion to proceed by way of that conference. It is also clear that the conference may only proceed with the defendant’s consent and that it should occur with the assistance of an Aboriginal justice officer. Section 9C sets out the critical role of the Aboriginal justice officer in assisting in the interaction between the Aboriginal defendant and the court.[21]
[21] Criminal Law (Sentencing) Act 1988 (SA) section 9C(5)(a)-(c).
Significantly, the convening of a sentencing conference pursuant to section 9C does not alter the process to be undertaken with respect to sentencing generally. In particular, the matters outlined in section 10 of the Sentencing Act are still relevant to the consideration of an appropriate sentence to be imposed. In this manner, the enactment of section 9C still aligns with the views of the Court expressed in Neil and Tjami as earlier discussed. However, the conference is significant as it allows the sentencing process to occur in a manner more suited to the cultural needs of Aboriginal offenders. These matters were discussed in the second reading speech as follows:[22]
Using a sentencing conference procedure does not change the matters to which a court must have regard when determining sentence under section 10 of the Criminal Law (Sentencing) Act 1998 or any other aspect of sentencing. It is just a way of informing the court and the defendant, and his or her community, about matters relevant to sentence in a more comprehensive and understandable way than is possible using standard procedures.
[22] South Australia, Parliamentary Debates, House of Assembly, 22 September 2005, 3559 (The Hon M.J Atkinson).
The first section 9C sentencing conference to be convened in the Supreme Court was held in 2008.[23] In the course of his sentencing remarks, Anderson J agreed with the Aboriginal justice officer’s assessment of the purpose of the conference, namely:
…to allow an offender an opportunity to elaborate on the circumstances of the offending; to hear the stories from the victim and the victim’s families on how the offence has impacted on them; to find out the issues relating to why an offender committed the offence; to put in place strategies to address those issues and to rehabilitate the offender so that person does not re-offend in the future. …
These objectives accord with the second reading speech and the manner in which the Nunga Courts were traditionally conducted.
[23] R v Harradine (14 January 2009) Sentencing Remarks in the Supreme Court of South Australia – Adelaide, at 6 (Anderson J).
Ultimately, a section 9C sentencing conference allows the defendant an opportunity to speak directly to the court and have his or her say. It further allows the victim to contribute in the sentencing process. This may provide restorative justice opportunities for the victim and defendant. The sentencing conference may enable the court to better understand the cultural and societal influences relevant to the defendant’s offending. The involvement of an Aboriginal elder, family members and the wider community may further assist the defendant in desisting from the offending, including by elements of shaming from key respected community members, but also by assisting the defendant to realise the impact of the crime on their family and the community.
Process to be followed
It is to be observed that section 9C does not specify the degree of formality to be utilised during the course of the sentencing conference. However it is apparent that the purpose of the enactment of section 9C was to provide a statutory basis for the sentencing techniques used by the Nunga Court, and the Nunga Court at that time utilised a less formal approach than ordinarily used during the sentencing process. As a consequence, in my view, it is appropriate that sentencing conferences conducted pursuant to section 9C proceed on a less formal basis than sentencing submissions would otherwise proceed. This view is supported by the provision in section 9C for the court to take into consideration the views expressed at the conference. In light of the context of the enactment of section 9C, this provision suggests that the conference proceed more by way of dialogue than by a formal, traditional, sentencing approach. However, section 9C does not provide guidelines as to the precise process to be followed. It is to be noted that draft guidelines for the procedure to which a sentencing conference should adhere are in the process of finalisation. These guidelines may be expected to provide assistance for those conducting a section 9C sentencing conference.
Both counsel submitted that a less formal approach was appropriate. It was suggested that each person in turn have an opportunity to speak. Counsel for the defendant submitted that rather than counsel being placed at the bar table, with the Judge sitting on the bench and the defendant secured in the dock, the conference ought to take place in a roundtable setting. Counsel for the defendant indicated that it would be appropriate for either the Judge or the Aboriginal justice officer to take the role of unofficial chair of the conference. Counsel further foreshadowed that he would also take a proactive role in the process. It was suggested that the Judge might ask questions of those in attendance.
Counsel for the prosecution submitted that the section 9C conference proceed with those in attendance being introduced first, followed by an explanation of the parameters of the conference being provided by the Aboriginal justice officer. It was suggested that the parameters might include that everyone would get a chance to speak; that only one person should speak at a time; that defence counsel and the Aboriginal justice officer’s role would be to stimulate and lead discussion from members of the conference, one at a time; that the victim impact statement would be read out; and, that the prosecution would outline the charges, agreed factual circumstances and the penalty provisions.[24]
[24] It is instructive to note that the Community Court Darwin Guideline suggests that the process of the Court will include:
• The seating of participants to be arranged in a circle.
• Court begins by the Magistrate opening the Court and explaining the role of community members and the process to be followed.
• The participants in the Court introducing themselves, explaining who they are, their relationship with the offender or victim or their interest in the offence.
• The charges being read and plea of guilty confirmed.
• The prosecutor reading the agreed facts and details of the offender’s background.
• The Magistrate deciding the order of proceedings, thereafter.
• Victim, offender and other parties attending invited to speak.
• Only one person speaking at a time.
• General discussion as to the impact of the offending and the appropriate sentence.
• Offender’s formal submissions.
• Prosecutor’s formal submissions.
• Community Members comments.
• Sentence by the Court.
Ultimately the sentencing conference progressed in the following manner:
·Seating of participants in a “roundtable” arrangement;
·Introduction of the sentencing conference, its purpose and informal nature, by the Judge;
·Introduction of all individuals present and their role by the Judge;
·Victim impact statement read to the Court;
·Introduction by the Aboriginal justice officer of his position and role;
·Summary by the prosecution of the basis of the allegations forming the charge;
·Participants invited in turn to speak, facilitated by the Aboriginal justice officer;
·Only one person speaking at a time;
·Prompting and questions provided by the Judge and defence counsel when appropriate;
·Adjourned for formal sentencing submissions.
It is unnecessary for the purposes of these reasons to provide further details with respect to the content of what was said at the sentencing conference.
Use to be Made of Submissions and Views Expressed
It is to be noted that the legislative provisions do not provide any indication as to the precise use that can be made of the submissions and the views expressed at the sentencing conference. Section 9C(1)(b) merely specifies that the court may take into consideration views expressed at the conference.
Counsel for the prosecution submitted that counsel for the defence ought to provide written submissions outlining the information arising from the conference, said to be relevant to the defendant. It was contended that defence counsel ought to make it clear to the court the purpose for which particular information is sought to be used for sentencing purposes. It was suggested that those written submissions could be provided in advance of formal sentencing submissions, at which point, the prosecution would be entitled to make submissions on whether it opposed any suggested uses of the information.
The use of the information arising from the sentencing conference is within the discretion of the court. Section 9C does not limit the manner in which the court may take into consideration the views expressed at the conference. However, the use of the information arising and views expressed, is limited to the parameters outlined by section 10 of the Sentencing Act.[25]
[25] Section 10 of the Criminal Law (Sentencing) Act 1988 (SA) relevantly provides:
(1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
(a) the circumstances of the offence;
(b) other offences (if any) that are to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(eaa) the need to give proper effect to the policy stated in subsection (1b);
(ea)in the case of an offence committed by an intruder in the home of another—the need to give proper effect to the policy stated in subsection (2);
(eb)in the case of arson or causing a bushfire—the need to give proper effect to the policy stated in subsection (3);
(ec)in the case of a sexual offence committed against a child—the need to give proper effect to the policy stated in subsection (4);
(ed)if the offence was committed by an adult in circumstances where the offending conduct was seen or heard by a child (other than the victim (if any) of the offence or another offender)—those circumstances;
(f) the degree to which the defendant has shown contrition for the offence—
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(g) if the defendant has pleaded guilty to the charge of the offence—that fact;
(h) the degree to which the defendant has co-operated in the investigation of the offence;
(j)the deterrent effect any sentence under consideration may have on the defendant or other persons;
(k) the need to ensure that the defendant is adequately punished for the offence;
(ka)if a forfeiture of property (other than a forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence—the nature and extent of the forfeiture;
(l) the character, antecedents, age, means and physical or mental condition of the defendant;
(m) the rehabilitation of the defendant;
(n)the probable effect any sentence under consideration would have on dependants of the defendant;
(o) any other relevant matter.
(1a)However, a court, in determining sentence for an offence, must disregard any mandatory minimum non-parole period prescribed in respect of the sentence under this Act or another Act.
(1b)A primary policy of the criminal law is to protect the safety of the community.
…
(5)If a defendant has participated in an intervention program, a court may treat the defendant's participation in the program, and the defendant's achievements in the program, as relevant to sentence.
…
As with sentencing in the ordinary course, it is within the court’s discretion to assess the weight to be given to any factor in any given case. The views expressed at the sentencing conference may provide the information supporting any of the section 10 factors. Consequently, those views are, within the discretion of the court, relevant to sentencing. I reject the contention of counsel for the prosecution that it is incumbent upon counsel for the defence to provide written submissions outlining how they seek to use the information arising for sentencing purposes. Such a process may be followed, but it should not be mandated. How that information is sought to be used will generally be clear from the sentencing submissions ultimately made, and is a matter for the discretion of the court.
It is relevant to point out that prior to the enactment of section 9C, the Nunga Court was operated within the context of the utilisation of general sentencing powers.[26] Those powers provided a sufficiently broad framework, without any further legislative formality required, to convene an Indigenous sentencing court whereby the views of victims, Aboriginal elders and family members could be expressed.[27] How those views would be taken into account remained at the discretion of the sentencing judge. The enactment of section 9C has not introduced any limitation with respect to how information arising from the sentencing conference is to be utilised nor with respect to the discretion of the court to evaluate that information.
[26] See the comments of Nyland J in Police v Carter (2002) 81 SASR 330 at [16]:
In considering this appeal, I bear in mind that the Nunga Court was established to allow for a more creative approach to be taken in sentencing with specific regard to aboriginal defendants. I recognise that the court has been successful in providing a more sensitive environment for aboriginal defendants within the criminal justice system. The approach clearly must be encouraged and supported. The Nunga Court does not, however, have a specific legislative framework. Essentially it is a Magistrates Court operating in an informal way, depending largely upon the co-operation of the police and the defence to work effectively. Despite the court's unique procedures, it remains subject to the usual sentencing principles. In this case, once the magistrate reached the conclusion that it was necessary to impose a period of imprisonment upon the respondent, he was obliged to operate within the permissible limits of the sentencing discretion.
[27] It is to be noted that the Magistrates Court Rules 1992 (SA) took effect on 6 July 1992 – Rule 52 provided that the Magistrates Court may appoint cultural advisors, Aboriginal elders and experts within any field as it saw fit to advise it on the conduct of its work.
In my view, it is appropriate to publish these reasons before finally concluding sentencing in the within proceeding.
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