Circle Sentencing: Alternative Justice in Australia

Circle sentencing is an initiative designed to give indigenous Australians an alternative to the criminal-justice system in which they fare so terribly.

In a dreary government building in the center of Moree, a cotton town in northern New South Wales, Australia, a 19-year-old Aboriginal girl by the name of Kate is about to be sentenced for a crime — in her case, throwing a rock at a police car. She fidgets nervously in her chair, inspecting her nails then pulling a beaded bracelet on and off her slender wrist. But she’s not handcuffed in a dock, and there is no judge’s bench. Instead, she’s sitting in a ring of 10 black plastic chairs. Occupying three of them are tribal elders who will pass judgment on her. “You’ll benefit from this. I am sure of it,” says her solicitor.

This is circle sentencing: an initiative designed to give indigenous Australians an alternative to the criminal-justice system in which they fare so terribly. Aborigines are 14 times more likely to go to prison (28 times more likely if they are juvenile) than their white counterparts are. In the Northern Territory, Aborigines represent 30% of the population but 80% of those imprisoned. Reoffending is high. A national study by the New South Wales Bureau of Crime Statistics and Research (BOCSAR) from December revealed that 80% of indigenous offenders appearing in court will eventually return to court, most of them within two years.
(Read “Australia’s Aboriginal Children: A New Inquiry.”)

The incarceration rate is just one of the appalling inequalities between indigenous Australians and the rest of the population. In every indicator — life expectancy, education, health, substance abuse, employment and income — Aborigines lag far behind the general population. As a community, they also cope with the deep psychological scars caused by the loss of traditional lands and ways of life, and the emotional legacy of government policies like the widespread forcible removal of Aboriginal children from their families for placement in state and foster care, which took place until the 1970s.

Helping indigenous Australians stay out of prison won’t solve these deep-rooted problems, but it might help. The circle-sentencing courts in New South Wales (there are similar initiatives known as Koori courts in Victoria, Murri courts in Queensland and Nunga courts in South Australia) follow the principles of those in Canada, which were pioneered in 1992 as a way of managing the crime rate among the indigenous population there. Elders, lawyer and magistrate together discuss the crime, the background of the victim and the impact the crime has had on the community. A sentence is pronounced.

To be eligible, the offender must be approved by a magistrate. Serious crimes, such as rape and murder, are not considered. But someone like Kate is a perfect candidate. She sits between her solicitor and two members from the Aboriginal Community Justice Group. The two policemen who were in the car she threw a rock at are to her right, and the elders sit opposite her. Magistrate Michael Holmes sits between the elders. All are dressed casually, including the policemen, who are out of uniform.
(See pictures of the Australian parliament’s historic apology to part-Aboriginal people.)

Kate is asked why she committed the crime. “I was drunk,” she says, explaining that she drinks because “it’s boring here, there’s nothing to do.” The elders then ponder her sentence. One of them had taught her in high school, another knows her family. “She’s a bright girl, she’s from a good family,” he says. Kate is told to perform community service once a month and to attend anger-management classes. “I would say that [in a regular court] she wouldn’t have had the same outcome,” says Holmes. “She would have probably had a conviction.”

Statistical doubt has been raised over the efficacy of circle sentencing in the crucial area of reoffending. “Controlling for age, gender, offence, priors and prison there was no significant difference between circle sentencing and the control group in time to reoffend,” says a 2008 BOCSAR report. But Holmes, who has been involved with circle sentencing since 2005, is adamant that he has witnessed improvements. “In the cases that I have seen there’s been very limited reoffending,” he says. “Even if they do reoffend, it may limit the offending behavior so instead of absolutely getting out of control it may reduce it. Another advantage of circle sentencing is that we seem to get to the root of the problem.”

In Moree, that problem is often violence at home — the town has the third highest incidence of domestic abuse in the state. “Drugs and alcohol are always involved,” says Janice Raveneau, coordinator of the Aboriginal Community Justice Group, an NGO that works with offenders and the criminal-justice system. “The circles force the person to seek help, to go to rehab. Going to prison won’t.”

The system is not without controversy. Most notoriously, a 26-year-old Aboriginal man, Steelie Morgan, was freed from jail in February 2010 after having completed just nine months of a three-and-a-half-year sentence for repeatedly beating his underage girlfriend (and on one occasion throwing a knife at her and injuring her), whom he had kept in captivity for 10 weeks. His release came after he apparently “sought reconciliation with his indigenous heritage” and appealed to a Koori court. Presiding judges explained the Koori court’s decision by saying that evidence for Morgan’s “remorse and reformation was uniquely compelling, particularly for an offender who had suffered from an unfortunate disadvantaged background.” Nonetheless, fears were raised that the circle-sentencing system could be abused.
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Some Australians also believe that the establishment of a separate legal system creates an unwelcome precedent. The fear is that other minorities could campaign for their own forms of justice — Muslims could demand Shari’a law, for example — and create divisions in the community. “If it’s so beneficial, then why isn’t it available to everyone?” asks Peter Faris QC, a Victorian barrister who helped establish the Central Australian Aboriginal Legal Aid Service in the Northern Territory’s Alice Springs but is a critic of circle sentencing.

For now, though, the system generally meets with support. Many Australians are genuinely ashamed of their country’s treatment of its indigenous minority and see circle sentencing not as divisive but as healing. “These courts do break down barriers,” says Holmes. “I don’t sit in a tower above everyone else — I sit with them. Now, people that normally wouldn’t look at me will greet me if they see me walk past them on the street. If you can turn a person around and have an early intervention, it makes a difference. All you want is not to see a person back before the courts.” And that’s what everybody — elders, lawyers, justice officials and police — wishes for young Kate.