The use of Circle Sentencing in Indigenous Communities
Circle sentencing allows for more cohesion and
engagement with aboriginal communities and the court system. This is due to the
fact that elders are allowed to have their say in the sentencing of the
defendant. According to the2007 evaluation by the Cultural and Indigenous
Research Centre Australia, there has been indication "that barriers
between Aboriginal people and the Courts have reduced and Sentencing outcomes
were culturally appropriate when compared to the Local Court". Indigenous
may therefore be more engaged and respect the decisions that are passed. This
is also seen in and ABC online article with the title “Elder Praises Circle
Sentencing Court” in September of 2013 where Dhungutti Elder Aunty Mavis Davis
supported circle sentencing saying that “I am frightened of police. But this
relationship [through circle sentencing] has built up between Aboriginal
people, police and the court system. However more cohesive engagement towards
indigenous communities may be seen by other cultural communities as
favourability and bias. Australia is a
multicultural country that several minority groups, many of which may find it
discriminatory that those in indigenous communities are allowed such a large
amount of involvement and engagement within sentencing procedures. Many people
who are not fluent in the English language or in understand the general ideas
of the court system may find it hard during court proceedings.
Circle sentencing allows for more victim
involvement and freedom. Victims are allowed to voice their opinions and
suggest ideas, both of which are not usually present in a normal court trial.
Victims may not be present in normal court proceedings and as such damages
cannot be assessed and questions may go unanswered. Victim involvement may
allow for a more respected decision and for apparent fairness in sentencing.
Elders are allowed to fully assess the situation and then pass on an
appropriate judgement. The opposite is
also possible. Depending on the case, the victim may be afraid of confronting
the offender and as such a fair sentence through victim involvement may not
happen. It was found, in a newsletter named "Australian Domestic and
Family Violence Clearinghouse" in 2009 by Corinna Faulkner (in conjunction
with workers from Nowra and Mt Druitt), that "Victim support workers
interviewed felt that the power balance inherent in a violent relationship can
affect the circle sentencing process". Being unable to confront their
offender and provide the relevant information or opinion due to fear is
detrimental to the ideals that circle sentencing is basing its objectives upon.
Thus the process would be rendered useless in this fashion.
Confidence in the sentence given to the defendant
is an objective of circle sentencing. Due to the respect of elders with
aboriginal communities and that elders are heavily involved with the sentencing
of the defendant suggests that there will be confidence in the decisions made.
The 2007 evaluation of circle sentencing by the Cultural and Indigenous
Research Centre Australia, found, based on qualitative analysis, that for most
of the people involved in the process confidence in the sentencing process was
high. Furthermore confidence may have
been established as this process is based upon close interview and group
questioning of indigenous communities. In an article dubbed "Circle
sentencing expanded in NSW" in September of 2010 it was states that circle
sentencing was expanded due to "requests by aboriginal community justice
groups following a series of forums held late last year to discuss criminal and
civil justice issues". Opposingly, if there is lack of confidence towards
the sentence given to the defendant circle sentencing inevitably fails. This is
stated in a review and evaluation conducted by the Judicial Commission of New
South Wales in conjunction with the NSW Aboriginal Justice Advisory
council" that "It is recognised that if the community does not have
confidence that the power-sharing arrangements will be honoured, the prospect
that circle sentencing will be successfully implemented is likely to be
diminished". It can be seen that if there is no respect or confidence in
the process as well as the judgement then circle sentencing, as a process will
have a reduction in influence and its purpose nullified.
Recidivism should be reduced under the process of
circle sentencing. This is due to the respect held for elders and their
decisions as well as the increase in engagement with the court system.
Offenders are allowed to have more of a say within the circle sentencing
process. Offenders are supported through such process to reduce any chance of
recidivism and resentment towards the courts. This can be seen through stronger
stances made by the NSW Department of Justice & Attorney General's response
to the evaluation made by CIRCA, such as "following up of offenders after
sentencing", "ensuring greater consistency" and "increasing
numbers of Aboriginal offenders referred to circle sentencing". These
strong stances may project to lower recidivism rates within Aboriginal
communities. However, in the conclusion of a paper labelled "Does circle
sentencing in NSW reduce Aboriginal Offending?" by the NSW Bureau of Crime
Statistics and Research 2008, it was found that there was no difference in
recidivism between those who engaged in circle sentencing and those who did
not. Thus it suggests that circle sentencing may not reduce recidivism. This
was further found in the 2007 evaluation of circle sentencing by CIRCA "an
analysis of re-offending however found that further work was required for the
program to have a measurable impact on re-offending".
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