“Circle Sentencing” was a great idea: Get the Aboriginal Community involved in the the administration of justice to the First Nations people. But why wait until the horse has bolted, when guilt is assumed and penalty is the question.
Firstly, there should be involvement at the intake point. There was such an arrangement some time ago at Menindee, where the school headmaster got the charge sergeant to have a community elder alongside him when the paddy wagons brought in those picked up off the streets on a Friday or Saturday night, sorting out those who did not need to be locked up, or even charged. The practice reduced the Aboriginal conviction rate for the town by more than 40%. If such a practice were widespread in country towns, a similar reduction might ensue.
Secondly, decisions on Bail should return to the presumption in favour, but more so when community support is available. The fear of “failure to appear” could be obviated by community support and the use of elders and liaison officers assisting local courts. A worthwhile innovation, where a sufficient population is involved, would be to establish Aboriginal managed Bail hostels (like they have in UK), to assist in ensuring court attendance, avoiding the issuing of warrants requiring arrest and incarceration on demand for relatively minor offences.
Thirdly, judicial officers (principally magistrates) should be instructed/ educated as to the need to keep so many aboriginal people in custody. Our goals are bursting with people convicted of relatively minor offences, at the cost, in NSW, of around $170,000 per annum. Magistrates should be instructed to take seriously the presumption in favour of Bail, and to avail themselves of community resources which would make it effective.
Fourth, when matters eventually go to trial, magistrates should seek the assistance of aboriginal community elders to ensure fairness, taking into account cultural issues, e.g., funerals and ceremonial events.
Fifth, where a conviction is entered, the provisions of the Sentencing Acts that incarceration should be ONLY a Last Resort, where non custodial penalties may be applied, e.g., bonds, with or without supervision, community service, intensive corrections orders, taking the advice of of community elders. As an aside, when I started as Children’s magistrate at Pt Kembla in 2004, after 3 months the Registrar, Steve Archer, a lifetime court staffer, said formally to me, “these kids are calling you Santa Claus, you haven’t locked up one !” I pointed out that there was a an escalating scale for penalties in the legislation and no one had reached it. He rolled his eyes. Six months later he returned, saying, “I have to apologise, our results are the same as before, so what you do works as well !” After a lifetime in the job, praise indeed.
Lastly, if incarceration proves inevitable, despite all, the model of “Balunda-a” a northern NSW Corrections “prison” near Tabulam, a farm training operation, run by aboriginal community, with TAFE giving certificate standard skills, could be worth following as a placement, especially with its minimal recidivism rate.
These are a few things which are now available, and which would save money. Why not do them ?
Jim Coombs is an Acting Magistrate, precluded from sitting (without explanation) by his Chief, no doubt because of views like these…..
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