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Circle sentencing is an alternative method of sentencing for eligible First Nations adult offenders who are guilty of an offence in the Local Court.

Rather than being sentenced by a Magistrate alone, the offender is sentenced by First Nations community members, the offender’s family, and relevant victims as well as the presiding Local Court Magistrate.

Those present work together collaboratively in discussion to determine the appropriate sentence.

The program’s aims are to include members of Aboriginal communities in the sentencing process, as well as increase their confidence in the sentencing process by reducing barriers between Aboriginal communities and the courts.

It also seeks to reduce recidivism in Aboriginal communities and provide more appropriate sentencing options.  A study by the Bureau of Crime Statistics and Research has found that offenders who participate in circle sentencing are 9.3% less likely to receive a prison sentence.

It also found that they were 3.9% less likely to reoffend within 12 months, and if they did reoffend, it took 55 days longer than those sentenced via traditional methods (478 vs 533 days).

Circle sentencing has been in operation in the state since 2002, and now operates at selected courts including Armidale, Bourke, Brewarrina, Dubbo, Kempsey, Lismore, Nambucca, Nowra , Walgett, and Mount Druitt Local Court.

This does mean that the proceedings will need to be at one of these specified courts for the option to be available to an offender.

A person will be deemed eligible to participate in the program if they are an Aboriginal offender who has been assessed as suitable for participation in the program by the Aboriginal Community Justice Group (‘ACJG’) and the court considers that the person will be required to serve a sentence, based on the facts of the case and their circumstances.

The offender will also need to enter into an agreement to participate in the program.

A sentence means a wide range of options ranging from ‘good behaviour bonds’ such as a conditional release order or a community correction order, as well as any sentence of imprisonment including full time custody or an intensive correction order.

In order to be deemed suitable by the local ACJG, the offender will undergo the following process:

  1. The presiding Magistrate must decide to refer the offender for a suitability assessment.
  2. The court’s Program Officer will then convene a meeting of the ACJG.
  3. The ACJG will then conduct the assessment by considering the offender’s connections to the local community as well as the impact of the offence on the community, the nature of the offence, and the benefits of the circle to the offender, victim, and community.
  4. If the ACJG deem the offender suitable, the Magistrate will make a program participation order. If they are not deemed suitable, the offender will undergo traditional sentencing.

After being deemed suitable, the Program Officer will convene the circle sentencing group.

The group must include the offender and their lawyer, the presiding Magistrate, the prosecutor, the Program Officer, and at least 3 Aboriginal persons belonging to the offender’s community or with whom they have a close association or kinship.

In practice, the group will normally include four Aboriginal elders (usually two men and two women) who are selected on the basis of their experience with the offender.

It may also include any victim of the offence who consents to participate in the group, chosen support persons, and any other persons chosen by the Program Officer, if this is consented to by the victim and offender.

During circle sentencing, the group will determine an appropriate plan (if any) for the treatment or rehabilitation and recommend an appropriate sentence for the offender.

The participants will sit in a circle and discuss the offender’s background, the offence, its impact on the victim, how similar crimes have affected the community and how all these factors can be incorporated into a sentencing plan.

The Magistrate will ultimately retain ‘final say’ in the sentencing, however, in practice it is generally by majority rule that members of the circle determine the penalty.

The circle sentencing scheme is governed by Part 7 of the Criminal Procedure Regulation 2017 (NSW).

By Poppy Morandin.

Published on 09/08/2023

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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