Skip to content. | Skip to navigation

Personal tools

Navigation

Australia

Marchetti, Elena. Indigenous Sentencing Courts.
This brief focuses on Indigenous sentencing courts, which operate in all Australian states and territories except Tasmania. These courts have been established according to protocols and practices, and can be distinguished from more informal practices that occur in remote areas where judicial officers travel on circuit. The first court was established in Port Adelaide on 1 June 1999. Indigenous sentencing courts do not practise or adopt Indigenous customary laws. Rather, they use Australian criminal laws and procedures to sentence Indigenous offenders who have either pleaded guilty or been found guilty, but they allow Indigenous Elders and Respected Persons to participate in the process, thereby creating a more culturally appropriate forum for sentencing Indigenous offenders (Auty 2004). (excerpt)
Proietti-Scifoni, Gitana and Daly, Kathleen. Defendants in the Circle: Nowra Circle Court, the presence and impact of Elders, and re-Offending.
The first Indigenous sentencing court was established in 1999 in South Australia, and as of mid-year 2008, about 40 adult courts are operating around Australia. A growing literature has mapped jurisdictional variation, analysed the courts’ processes and outcomes, and attempted to estimate differences in re-offending compared to conventional courts. This Report presents the first qualitative study of how Indigenous offenders view the court process and the role of Indigenous Elders, with reference to the Nowra Circle Court in New South Wales, established in 2002. (excerpt)
Sentencing Advisory Council. Sentencing in the Koori Court. Division of the Magistrates' Court. A Statistical Report.
This report, the first of two on the sentencing of Indigenous people in Victoria, presents a descriptive profile of the Koori Court. The Sentencing Advisory Council in its second phase of this project will aim to provide an in-depth analysis of Indigenous sentencing outcomes in both the Koori Court and the mainstream Magistrates’ Court.
Morgan, Anthony and Louis, Erin. Evaluation of the Queensland Murri Court: Final report
There have been a variety of innovative court models introduced, piloted and implemented across Australia to improve the effectiveness of the criminal justice system in dealing with specific offender populations. Indigenous sentencing courts have been established in most Australian jurisdictions in order to reduce high rates of reoffending among Indigenous offenders and to provide a more culturally-appropriate criminal justice process for Indigenous Australians that increases the involvement and confidence of the Indigenous community in the courts. There are a growing number of evaluations investigating the operation and effectiveness of these court models. These are important because they can provide policymakers, judiciary and court partners with an evidence base upon which to make decisions regarding the expansion, improvement and development of both new and existing court programs. This report presents the findings from the Australian Institute of Criminology’s (AIC) comprehensive evaluation of the Queensland Murri Court, undertaken with the support and assistance of a range of stakeholders involved in the program. This research was funded by the Queensland Department of Justice and Attorney General who previously funded the AIC to evaluate the Drug Court program in Queensland and with whom the AIC has a long history of collaboration. (author's abstract)
Youth Justice Conferences versus Children’s Court: A comparison of cost-effectiveness
from the article by Andrew Webber in Crime and Justice Bulletin: Aim: To compare the cost-effectiveness of Youth Justice Conferences (YJCs) to matters eligible for YJCs but dealt with in the Children’s Court. Method: The costs for Police, Legal Aid, Children’s Court, Juvenile Justice YJC administration and Juvenile Justice administration of court orders were separately estimated using a combination of top-down and bottom-up costing methods. These were combined with data from matched samples of young people who were to be dealt with by a YJC and young people who could have been dealt with by a YJC but instead were dealt with in the Children’s Court in 2007 in order to estimate average costs per person for each process.
Hyams, Ross and Batagol, Becky and King, Michael S and Freiberg, Arie. Non-Adversarial Justice
This comprehensive book provides a large overview of emerging trends in Australian criminal justice. While the current system operates under adversarial justice, there have been increasing movements away from it. Some alternative forms of non-adversarial justice that have developed are therapeutic jurisprudence, restorative justice, preventive law, creative problem solving, holistic approaches to law, and appropriate or alternative dispute resolution. Each approach is presented in its own chapter, with information about their backgrounds, potential benefits, and potential drawbacks. The authors then compare and contrast procedure under adversarial justice and non-adversarial justice in the context of family law. Then the book shifts away from modes of justice to specific developments in the legal system that reflect growth away from adversarial justice. These include problem-oriented courts, diversion schemes and intervention programs, indigenous sentencing courts, and managerial and administrative justice. Lastly, the authors develop what the application of adversarial justice to coroners, court management (specifically the development of the judicial role), lawyers, and legal educators would look like.
Indigenous Justice Clearinghouse. Victoria's neighbourhood justice centre.
Experience with community justice centres suggests that they can have a significant effect on the quality of local community life (Berman 1998). Indigenous communities, being particularly conscious of a community sense of justice, may find the approaches used in community justice centres particularly appropriate. In the context of a growing array of approaches to Indigenous justice (including Indigenous courts) in Australia, community justice centres would seem to have considerable potential for improving the life of Indigenous communities. This paper provides the global context for the establishment of the Victorian Neighbourhood Justice Centre (NJC) and details its rationale, operation, and results. (excerpt)
Juvenile crime rises after Newman government cuts rehab program
from the article on the Brisbanetimes.com.au: The president of the Queensland children's court has urged the Newman government to re-instate a juvenile offenders' program it cut at the start of 2013. With the latest statistics showing an increase in juvenile offenders, Judge Michael Shanahan criticised the government's decision to end the court-ordered Youth Justice Conference program.
. Indigenous sentencing outcomes: A comparative analysis of the Nunga and magistrates courts in South Australia.
Indigenous sentencing courts are touted by Australian governments as a key response to the Royal Commission into Aboriginal Deaths in Custody. Despite their introduction over a decade ago, research on these courts, particularly in terms of sentencing outcomes for Indigenous offenders, has been limited. This study provides a comparative analysis of sentencing outcomes for Indigenous offenders sentenced through Indigenous and conventional court processes. Using data from the South Australian conventional Magistrates Court and Nunga Court between 2007 and 2009, the analysis highlights three sentencing outcomes of particular importance for their recognised differential impacts on Indigenous offenders: imprisonment, monetary, and disqualification of driver's licence orders. Independent of other crucial sentencing factors, defendants sentenced in the Nunga Court were significantly less likely than Indigenous offenders in the conventional courts to receive these types of orders. (author's abstract)
Justice Gray. R v Police. No. SCCIV-02-1261 [2002] SASC 403.
Appeal against sentence- Young Offender. The appellant and others stole a letter box and caused damage to school property after attending two parties - alcohol and drugs consumed - appellant pleaded guilty on the basis of joint enterprise and was convicted, sentenced to two months detention - suspended - ordered to perform community service - whether magistrate erred in failing to consider the utility of referring the matter to a family conference - statutory diversion and its purpose in the Young Offenders Act 1993 (SA) - the fettered police discretion to divert - the unfettered judidical discretion to divert - no consideration given by magistrate to the impact of convictions on appellant - whether error in recording convictions - the power to impose a period of detention without recording a conviction - the ambit of section 16 of the Criminal Law (Sentencing) Act 1988 (SA) and section 17 of the Young Offenders Act - erroneous approach to proceed on the basis that no power to order a period of detention without imposing a conviction - impact of convictions - importance of rehabilitation when dealing with young offenders - the effect of a curfew on sentence - partial deprivation of liberty is a relevant factor to be considered when sentencing - principles governing the reception of fresh evidence - whether new information about the possible inability to obtain a visa overseas was evidence in the nature of fresh evidence - whether appellant's decision to undertake additional community service as a permanent volunteer with the Country Fire Service over and above his ordered community service obligations was in the nature of fresh evidence - error demonstrated - appeal allowed - appellant re-sentenced. (excerpt)
Victoria’s Neighbourhood Justice Centre
from the paper prepared by Courts and Tribunals Unit, Department of Justice, Victoria for the Indigenous Justice Clearinghouse: Community Justice Centres are neighbourhood-focused centres that seek to enhance community participation in the justice system, address local problems, and enhance the quality of local community life....Centres often vary in their model and focus but generally share a motivation to address crime and safety concerns locally, by developing effective relationships and links with the local community. Community justice centres challenge traditional methods of the criminal justice system. Rather than focusing on responding to crime after it has occurred, they seek to develop new relationships, both within the justice system and with stakeholders from the wider community, and to trial new and innovative approaches to community safety... A feature common to the various kinds of centres around the world is that they seek to respond in innovative ways to issues that may be otherwise considered negligible in the traditional criminal justice system.
Kent, Melissa. Prosecutors and the Sentencing Process in the Australian Capital Territory.
This paper highlights the three different sentencing options in the A.C.T. ranging from the traditional common law approach, the diversionary sentencing approach of the Aboriginal Circle Court (the Ngambra Court) and the new Restorative Justice legislation. The prosecution take part in both traditional sentencing and Circle Court sentencing, but have very little contribution within the Restorative Justice model. It is hoped readers will get a general idea of the sentencing options available in the A.C.T. and the important role prosecutors can have within the sentencing process. (excerpt)
McDonald, John M. Restorative Justice process in case law.
Recently in the NSW Land and Environment Court parties in a criminal matter involving environmental offences and the destruction of Aboriginal artefacts participated in a restorative justice process. This brought the parties together, achieved a significant and ongoing improvement in relationships and influenced the eventual outcome of the case. (author's abstract).
Palk, George and Livingston, Michael and Stewart, Anna and Hayes, Hennessey. Youth Justice Conferencing and Indigenous Over-Representation in the Queensland Juvenile Justice System: A Micro-Simulation Case Study.
Research suggests that rather than focusing on criminal justice responses, more progress in reducing Aboriginal overrepresentation might be made if the focus was shifted to the underlying causes of Aboriginal crime: substance abuse, family violence, poor school performance, and unemployment. Further development of initiatives to address the underlying causes of offending by indigenous young people, as well as use of effective criminal justice responses, such as youth justice conferencing, likely will be more effective in reducing the overrepresentation of young indigenous people in the juvenile justice system. The results of the simulations indicate that youth justice conferencing is unlikely to contribute significantly to the targets set by the Justice Agreement. While conferencing has the potential to reduce the number of young people reoffending overall, this impact may be more apparent for non-indigenous young offenders, resulting in an increase in the disparity in the ratio of indigenous to non-indigenous young offenders. While youth justice conferencing is only one of a range of criminal justice interventions identified in the Justice Agreement as strategies for reaching the identified goals, it is the only diversionary option that has been empirically shown to reduce rates of reoffending. However, there is a deep need for more rigorous evaluations of the impact of youth justice conferencing on reoffending; simulation modeling is only as good as the estimates that are used as parameters in the models. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).
Borowski, Allan. In Courtroom 7— The Children’s Koori Court at Work: Findings From an Evaluation
This article reports some of the findings of an evaluation of the Children’s Koori Court (CKC)—the first legislated effort in Australia to involve the Indigenous community in the sentencing of young Aboriginal offenders as a strategy for reducing their overrepresentation in the juvenile justice system. A prominent feature of this court of summary jurisdiction is that the presiding magistrate, while remaining the sentencing authority, is assisted by Aboriginal Elders. This article focuses on the evaluation findings that were derived from observations of the CKC in action. They indicate that the operational objective of cultural responsiveness was realized. They also point to realization of the community-building goal—fostering Indigenous ownership of the administration of the law. Little slippage was found between the CKC’s design and operation, although some areas of improvement were identified. Nevertheless, the scope for the CKC by itself to significantly reduce overrepresentation is limited.(Author's Abstract)
Mavec, Dante. The appropriate place of Indigenous Sentencing Courts in the Australian criminal justice system.
In light of their great potential, Indigenous sentencing courts have been established in most Australian jurisdictions but many controversies and uncertainties still surround their operation. One such controversy is whether Indigenous sentencing courts are suited to dealing with all offences. Sexual offences are excluded from the mandate of most of the courts, with justifications for this decision varying between jurisdictions. Another issue that constantly surfaces each time the use of Indigenous sentencing courts is widened is the concern that Indigenous sentencing courts distinguish defendants based on their race, and thus violate the principle of equality before the law. As use of these courts becomes more widespread, it is important that fundamental questions such as these are considered, to ensure that the courts take their appropriate place in the Australian criminal justice system. (excerpt).
Borowski, Allan. In courtroom 7 -- The children's Koori Court at work. Findings from an Evaluation.
This article reports some of the findings of an evaluation of the Children’s Koori Court (CKC)—the first legislated effort in Australia to involve the Indigenous community in the sentencing of young Aboriginal offenders as a strategy for reducing their overrepresentation in the juvenile justice system. A prominent feature of this court of summary jurisdiction is that the presiding magistrate, while remaining the sentencing authority, is assisted by Aboriginal Elders. This article focuses on the evaluation findings that were derived from observations of the CKC in action. They indicate that the operational objective of cultural responsiveness was realized. They also point to realization of the community-building goal—fostering Indigenous ownership of the administration of the law. Little slippage was found between the CKC’s design and operation, although some areas of improvement were identified. Nevertheless, the scope for the CKC by itself to significantly reduce overrepresentation is limited. (Author's abstract)
. Northern Territory Indigenous community sentencing mechanisms: An order for substantive equality.
This article contends that two long-standing community sentencing mechanisms in Northern Territory Aboriginal communities give rise to substantive equality through providing a more appropriate setting to deliberate on the sentences of Indigenous offenders. These mechanisms are the Northern Territory Indigenous Community Courts ('Community Courts'), which reside during formal court sittings, and Law and Justice Groups, which convene prior to Magistrates' Court sittings to prepare advice on sentencing options and written references.2 These mechanisms are able to shed light on the distinct subjective circumstances of Indigenous defendants and the seriousness of the offence for the community. Their advice to the court on the sentencing disposition can be more effective in deterring the offender and the Aboriginal community from committing similar offences, especially where Indigenous law and culture play a strong role in community governance. Through formal sentencing processes, the Anglo-Australian courts are not otherwise privy to community knowledge relevant to Indigenous defendants. (excerpt)
Supreme court of Queensland. R v Tran; ex parte A-G
In this case, the Attorney-General of Queensland appealed against the sentence imposed upon the respondent for the offense of armed robbery with personal violence. The respondent had been sentenced to serve a 12 month intensive correction order and to pay a significant amount in compensation. Certain aspects of the adjudication of this case featured a restorative justice approach, particularly in that the complainant (victim) was consulted in the determination of the sentencing outcome. After reviewing the facts of the case and principles of restorative justice, the court denied the appeal and upheld the lower court’s sentencing order.
Briggs, Daniel and Auty, Kate. Koori Court Victoria – Magistrates Court (Koori Court) Act 2002.
The introduction of Koori Courts in Victoria pursuant to the Magistrates Court (Koori Court) Act 2002 has not been without its detractors and like all change, is attended by controversies. Steps which attempt to ‘move the law along’ (as if she were an old bag lady), are often seen as a threat to the legitimacy of the legal system. Before we even commenced sitting at Shepparton by the Bayunga or Koriella river, known to non-Aboriginal people as the Goulburn, our regional Koori court was the subject of criticism with members of the legal profession commenting that Aboriginal people would not be able to find their way to the court, or that they would ‘go walkabout’ on the day of the hearing (Herald Sun 6/5/2002). This early criticism was met by much positive commentary (The Age October 2002). Nevertheless criticism continued, when a senior member of the Victorian bar, citing the establishing Act incorrectly, suggested that the Koori Court ‘tipped the scales’ and provided ‘luxury’ or ‘special’ courts and some ill-defined special regime of sentencing options (Galbally, Herald Sun 13/3/2003). He also contrasted the banning of Father Christmas from child-minding centres with the Koori Court initiative. The Victorian Attorney General, Rob Hulls criticised the ‘impaired logic’ which underpinned this commentary (Herald Sun 14/3/2003). It is timely to put the controversy and distractions to one side and start seriously considering what we do in the Koori Court in Victoria. (excerpt)

Document Actions

Restorative Justice Online - Featured Video

Restorative Justice Library Search

Search 11427 publications on restorative justice