The ‘Walama List’ is an alternative sentencing procedure for Aboriginal and Torres Strait Islander people, who have criminal matters in the District Courts within the Greater Sydney Area.

The Walama List pilot commenced in February 2022, and is hoped to provide the necessary evidence to guide decisions regarding the establishment of a legislated, permanent court for Aboriginal and Torres Strait Islander people.

What does ‘Walama’ mean? In the Dharug dialect, ‘walama’ means to ‘come back’ or ‘return’. In the context of the list, it refers to coming back “to identity, community, culture and a healthy, crime-free life.”

Who Can Be Eligible for the Walama List Program?

For an offender to be referred to the Walama List, they must:

  1. Be descended from an Aboriginal person or Torres Strait Islander person, identify as an Aboriginal person or Torres Strait Islander person, and be accepted as such by the relevant community,
  2. Have pleaded guilty to the offence, and signed an Agreed Statement of Facts, and
  3. Be willing to participate in the Walama List sentencing procedure.

However, offenders will not be eligible for referral to the Walama List, if their matter involves:

  • A prescribed sexual offence (as defined by section 3 of the Criminal Procedure Act 1986 (NSW),
  • Wounding or grievous bodily harm with intent,
  • Choking, suffocation and strangulation,
  • Conspiring to commit murder,
  • Acts done to the person with intent to murder,
  • Acts done to property with intent to murder (for example: exploding a building, setting fire to a vessel), or
  • Certain other attempts to murder.

Only matters listed for sentence at Sydney District Court, Parramatta District Court, Campbelltown District Court, and Penrith District Court are eligible for referral to the Walama List.

Where a matter has been committed for sentence to the District Court (i.e., where a plea of guilty has been entered), and the offender meets the eligibility criteria, the offender’s legal representative is to make an ‘Application for Referral to the Walama List’ on the first court date in the District Court.

Subsequent to a consultation with the Walama List Judge to ascertain availability, the Judge will then adjourn the proceedings for mention to the Walama List.

It is important to note that due to high demand, there are most often more eligible applicants than there are available list positions. In this circumstance, a randomised ballot will determine which offenders are assigned to available places.

The aim of the program is to reduce the over representation of First Nations people in custody by increasing engagement with the court and reducing recidivism.

The Walama List Process

At the first mention date in the Walama List, the Prosecution, the legal representative for the offender, the offender, a Senior Aboriginal Client and Community Support Officer (‘SACCSO’) from the Aboriginal Services Unit, DCJ Strategy, Policy and Commission Division, and the Walama List Judge will be in attendance.

The mater will then be adjourned for a second mention. Between these court dates, the SACCSO will interview the offender and complete initial intake documentation.

At the second mention, the prosecution bundle will be formally tendered, and the matter will be adjourned for ‘Sentencing Conversation’, facilitated by the Walama List Judge.

The Sentencing Conversation will be attended by the offender, the offender’s legal representative, the prosecution, an allocated Community Corrections Officer and/or caseworkers from other nominated government and non-government support services, and the SACCSO.

Two Aboriginal or Torres Strait Islander Elders or Respected Persons nominated by the Walama List Judge in consultation with the SACCSO, as well as any other person the Walama List Judge considers appropriate (including but not limited to any victim/s and a support person) will also be in attendance.

During the Sentencing Conversation, the group will discuss the:

  • nature of the offending behaviour,
  • implications of that offending behaviour on the victim(s),
  • offender’s family and community,
  • offender’s background,
  • offender’s need for treatment and/or a rehabilitation program,
  • availability of a suitable program/s,
  • offender’s willingness to comply with a Walama Case Plan, and
  • any other matter relevant to sentencing.

The Judge may impose conditions on the offender’s bail requiring them to submit to assessments for a rehabilitation program as required or commence participation in any rehabilitation program and/or submit to drug and/or alcohol testing.

They may also nominate support agencies and/or caseworkers to work with the offender as required and make orders for further and/or updated reports.

The matter will then proceed to ‘Case Plan Conversation’. Prior to this court date, a draft case plan will be created following interviewing the offender and their legal representative, identifying any existing caseworkers and other supports (including treatment providers) that the offender wishes to continue to engage with, and obtaining contact details to notify existing service providers.

Case plans seek to address an offender’s underlying disadvantage and deprivation. The Walama List thus provides a multi-agency approach, to ensure offenders are connected with support services.

An example of proceedings includes an offender, who may be determined in the ‘sentencing conversation’ to come from a disadvantage background faced with domestic violence, children removed from their care, drug use and unstable housing.

It may be determined that housing is a prominent issue which can enable other risk factors to be remedied. In this circumstance, a case plan would likely involve support services securing emergency accommodation, and referral to services which can assist in finding a long-term residence.

It may also involve them attending treatment for drug abuse and engaged in drug testing.

The matter may be successively adjourned part heard for a period of up to 12 months for the purpose of ongoing Case Plan Conversations. This assists in monitoring the plan’s suitability and effectiveness, as well as the offender’s participation.

If an offender breaches a condition of their case plan, the Judge may make changes to the case plan, discharge the offender from the Walama List sentencing procedure or proceed to sentence the offender or adjourn the case for sentence to a later date.

Alternatively, they may take no action on the breach.

Upon the offender’s completion of the Walama Case Plan, the Judge is to sentence the offender, which will be in the presence of those previously outlined.

The sentencing options available are the same as those in normal proceedings (i.e., a good behaviour bond, intensive corrections order, full-time imprisonment).

In summary, the stages are:

  1. First Mention
  2. Second Mention
  3. Sentencing Conversation
  4. Case Plan Conversation
  5. Sentencing

The proceedings are conducted with minimal formality, and the layout is different to regular proceedings with those present (i.e., the offender and their lawyer, the prosecutor, SACCSO, and Judge) sitting around a large table.

It has been deemed a fruitful exercise as it provides a ‘safe space’ for offenders to address their behaviour, whilst also seeking to remedy their underlying issues.

The NSW Bureau of Crime Statistics and Research are currently conducting an evaluation of the impact of the Walama List pilot on sentencing and reoffending outcomes, which commenced in December 2022 and will be completed in March 2031.

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin