What can mainstream courts learn from aboriginal sentencing courts…

Guest blogger Jordan Tutton writes…

In early 2016, a young Indigenous Australian man robbed a liquor store in the southern suburbs of Adelaide, South Australia. He pleaded guilty and asked to be sentenced in a specialist criminal court established to sentence Indigenous Australians.

That Court was convened in September 2016 around a comically long Bar table, usually reserved for appeals to the Full Court of the Supreme Court of South Australia.

The man sat across the table from a casually dressed judge. He expressed his commitment to not re-offending, which the judge questioned by asking, ‘Well, what guarantee do I have that you’re not bullshitting me?’

Perhaps not an unusual thought for a sentencing judicial officer – but one rarely voiced so directly.

In this special court, the man was able to respond by making a pledge alongside his aunt and in the presence of a respected community Elder. The Elder, who had been a neighbour when the man was a child, was then able to evaluate the merit of that pledge for the judge.

These proceedings characterised the exceptional departure from ordinary sentencing practice that occurs in an Aboriginal Court.

Previous blog entries have considered the distinctive aspects of Aboriginal Courts and their relationship to therapeutic jurisprudence and other forms of non-adversarial justice processes.

This post investigates how, if at all, these kinds of proceedings might be adapted for mainstream Magistrates Courts.

First, the post considers sentencing practice and the need for a strong justification for departures from mainstream practice.

Second, the possibility to adapt the Aboriginal Court’s style of magistrate-offender communication is discussed.

Third, the jurisprudence in support of Aboriginal Court’s use of Elder’s is evaluated and it is found that no similarly compelling argument exists in favour of adapting that aspect of Aboriginal Court to mainstream Magistrates Court.

Aboriginal Court and departures from mainstream practice

South Australian Magistrate Paul Bennett summarises in that

 

…the Aboriginal Court is a hybrid, combing elements of the mainstream criminal court with informality, direct communication between the participants, a “conversational” sentencing process and, most importantly, the involvement of Aboriginal community members

 

There are two broad models of Aboriginal sentencing courts, and in-court practice varies between and within jurisdictions.

Nonetheless, these courts generally share several distinctive features which contribute to a more human and interactive style of proceedings.

This contrasts to the conventional approach to sentencing in depersonalised and adversarial proceedings.

Sentencing practice in Australian Magistrates Courts presently involves less formality than sentencing in higher courts and is envisaged by tradition, by virtue of the lower court context.

Professor Sharyn Roach Anleu and Professor Kathy Mack find that work in the Australian lower courts is characterised by ‘the high volume of cases, time pressures, unrepresented participants and visible human emotions’.

The Chief Justice of Victoria, Marilyn Warren, observes that these pressures and demands affect the proceedings by causing magistrates to adopt ‘a more flexible “rough and ready”… approach that does not ascribe to the rigidity and formality necessitated in higher courts’.

This link suggests that in-court practice may develop in a pragmatic way to respond to court workload. As such, I proceed from the assumption that any proposal to modify mainstream Magistrates Court practice must be so well supported in policy that it justifies interfering with this development.

The post now turns to consider two of the defining features of Aboriginal Court with a view to analyse whether such a justification exists.

Communication between magistrate and offender: Informal, more direct, conversational

In Aboriginal Court, magistrates alter their communication with the offender by, for example:

  • speaking directly to the offender, rather than through a lawyer;
  • speaking more slowly and clearly;
  • using language that is clear, non-legal, and perhaps informal;
  • encouraging the offender to engage with the magistrate by speaking openly in a conversation; and
  • actively listening to what the offender has to say.

The adaption of these features of magistrate-offender communication is desirable because of a strong policy justification arising from procedural justice theory.

Social psychology posits that offenders’ perception of procedural justice is likely to be informed by ‘four basic expectations’:

  1. the ability to participate in the case by expressing their viewpoint’;
  2. neutral treatment by authority;
  3. ‘respectful treatment’; and
  4. ‘trustworthy authorities’.

The law and the courts ought to enhance offenders’ perception of procedural justice because empirical findings suggest that it will, in turn, increase perceptions of legitimacy.

Perception of legitimacy is said to increase compliance with law because ‘one feels that the authority enforcing the law has the right to dictate behavior.’

The practice of this kind of communication is unlikely to require a massive departure from existing practice for some magistrates.

There is evidence to suggest that magistrates are increasingly trying to interact with court participants in accordance with principles of therapeutic jurisprudence, procedural justice and other non-adversarial paradigms.

Judicial officers interested in developing (or further developing) the kind of interactive judgecraft demonstrated in Aboriginal Courts may be assisted by the suggestions of Michael King in the solution focused bench book and other resources for judges.

Contrastingly, other aspects of Aboriginal Court are less capable of adaption because they manifest from the unique position of Aboriginal Australians.

Use of Community Elders

The most distinctive and significant aspect of Aboriginal Court is the participation of Aboriginal Elders and community members.

Their role in relation to the magistrate range from offering advice as to the cultural context of offending to ‘join[ing] the judicial officer in a sentencing dialogue’.

They may also engage with the offender to offer ‘positive encouragement’ so as to assist with rehabilitation; and/or engage with the offender by dressing him or her down, speaking to the effect of the offending, and contributing a sense of shame.

How can this significant departure from mainstream practice be justified?

As Paul Bennett observes, ‘in no other criminal court do laypersons directly advise on or influence the sentencing decision.’

On a consequentialist view, although Aboriginal Court may increase attendance rates, these proceedings tend to be resource-intensive and Bennett’s review of the empirical research found that they ‘do not appear to have reduced the recidivism rates’.

Nonetheless, the departure is well justified in the context of sentencing Aboriginal offenders.

Aboriginal Australians suffer a combination of personal, social, economic and political disadvantage that ‘re-appear in the broad fabric of Aboriginal society’.

Justice Tom Gray, Sally Burgess and Martin Hinton also remark on the significance of colonisation as ultimately ‘ha[ving] the effect of destroying the spiritual and cultural beliefs of Aboriginal society and progressively disempowered the Aboriginal people’. These issues continue to be exacerbated by the criminal justice system.

It is these circumstances that give rise to a jurisprudential basis for the Aboriginal Court. Marchetti and Daly summarise that these courts ‘operat[e] according to a transformative, culturally appropriate and politically charged participatory jurisprudence.’

Similarly, Paul Bennett finds that at the core, these courts have a function uniquely for Aboriginal Australians. He concludes: ‘the critical feature of the Aboriginal Court is the voice it gives to the Aboriginal community’.

On one hand, arguments exist to support the adaption of mainstream practice to account for cultural disadvantages suffered by offenders from other non-Anglo Australian backgrounds. For example, an offender whose criminal conduct arises from compliance with cultural norms is likely to be benefited by having their own community representative converse with the magistrate over sentence to put that offending into context.

However, in this author’s view, this is not sufficient to justify the adaption of mainstream procedure. It is the unique circumstances of Aboriginal Australians that lead to the ‘politically charged participatory jurisprudence’ which justifies departure.

In mainstream Magistrates Courts, these issues of cultural difference can be resolved to some extent through pleas in mitigation and pre-sentence reports; and are not so demonstrably a ‘social crisis’ that requires extraordinary intervention.

Conclusion

The adaption of more engaged, interactive forms of judging to mainstream courts is an issue of on-going interest (see earlier blog posts by Michelle Edgely in relation to mental health courts; and Magistrate Pauline Spencer on therapeutic jurisprudence).

This post has considered whether some aspects of Aboriginal Court practice can be adapted to mainstream Magistrates Courts.

Greater interactivity and lesser formality can be adapted through the adoption of particular methods magistrate-offender communication. This is desirable as a means to enhance perceptions of procedural fairness and consequently perceptions of judicial legitimacy.

However, where Aboriginal Court practice manifests from the unique position of Aboriginal Australians – such as the involvement of community Elders to converse with the sentencing magistrates – it is more difficult to locate a strong justification to depart from conventional practice which has developed in pragmatic response to the context of Magistrates Court work.

This post is part of a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. 

Students were invited to write blog posts explaining various complex areas of law relating to therapeutic jurisprudence to blog readers. The very best post on each topic is published here. 

About the Blogger…

Jordan Tutton is a Research Assistant at Flinders Law School. He recently completed a Bachelor of Laws and Legal Practice at Flinders University, Adelaide, Australia. In 2017-18, Jordan will be an Associate at the Federal Court of Australia.

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This entry was posted in courts, Criminal Justice, indigenous, judiciary, lawyers, legal education, mainstreaming TJ, prosecutors, sentencing, youth/juvenile justice and tagged , , , , , , , , , , . Bookmark the permalink.

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