ACT Supreme Court's Circle Sentencing pilot to continue for First Nations offenders

There has been a quiet experiment over the past year or so as the ACT Supreme Court tested a new regime in the battle to reduce the number of Indigenous prisoners in Canberra's jail.

It is known as Circle Sentencing, and is available to First Nations offenders who are prepared to plead guilty and take responsibility for their crimes.

The Supreme Court pilot is now set to continue after money was allocated for at least another three years in the last ACT budget.

New Chief Magistrate Louise Taylor has overseen the program while still a judge in the Supreme Court.

For any doubters, she warns it is no soft option.

"In all cases which came before the Supreme Court pilot, there were periods of imprisonment imposed.

"It is a much more rigorous process in terms of personal accountability and many offenders find that quite confronting to be asked to personally and directly take accountability for their conduct."

Ten people were included in the trial, for offences including property crimes and family violence.

More serious crimes like homicide, sexual offences and driving offences causing death are excluded.

Long history of sentences

Circle Sentencing is not a new idea.

The first court was in New South Wales at Nowra in 2002.

The Galambany Court in the ACT Magistrates Court has been running for about 20 years.

What is unusual is for the scheme to be applied to more serious crimes in a Supreme Court.

Benny Hodges is one of the elders who works with the Magistrates in the Galambany Court on a regular basis.

He is from Gimuy Walubara Yidinji country in north Queensland, and like most on the panel is not from Canberra.

Mr Hodges points out the room is carefully arranged, with a plinth in the centre displaying an important symbol.

Also unlike other courtrooms, the bench is arranged in a circle.

Kamilaroi woman Paula McGrady, who is also an elder in the Galambany Court, said that was an important feature.

"That is absolutely deliberate because everybody is equal at the table and we make sure that the person knows that they're the most important person in this space," Ms McGrady said.

To get a hearing in the court, offenders first have to be assessed by the elders, and are often given tasks to complete before sentencing.

Mr Hodges said most cases did go through, but some may face more scrutiny than others.

"If they don't show remorse for their actions, if they're coming back, repeat offenders coming back for the same thing all the time, they haven't learned anything," Mr Hodges said.

He said the panel confronts offenders with the consequences of their crimes, including in family violence cases, where they try to bring home the facts about deaths and injuries for victims who may be the mother of their children.

Ms McGrady said it could be a hard process but it made lives better.

"We make people accountable, but we also lift them up so they can walk out of here and believe that, yeah, I can change my life," she said.

Not just for offenders

Chief Magistrate Taylor said the process was quite different to a regular sentencing because it confronted the offender directly with the consequences their actions had for other people.

But she said one of the best examples came from a Magistrates Court prosecution of two people who had robbed a pizza shop.

One was dealt with by the usual court system, the other went to the Galambany Court.

Chief Magistrate Taylor said the victim and his family took part in both processes, but it was the Galambany court that the family said provided them with a meaningful opportunity to have a voice in the process.

"It was a particularly powerful engagement which saw two young men from very different backgrounds engage with each other as offender and victim."

And Mr Hodges tells the story of another non-Indigenous family targeted by a burglar, who said they went in with a sceptical view and came out thinking the process was "brilliant".

He said the impact on the victims had gotten through to the offender who "couldn't say sorry enough … and [was] very, very remorseful".

Does it work?

Statistics have shown the practice of Circle Sentencing delivers much better outcomes for First Nations offenders.

Jackie Fitzgerald from the New South Wales Bureau of Crime Statistics and Research said her most recent research compared outcomes from offenders from 12 Circle Sentencing courts with a number of First Nations people who went through other local courts where it wasn't available.

"So we had nearly 700 circle sentencing participants and compared their outcomes to around 90,000 Aboriginal people going through traditional court processes," Ms Fitzgerald said.

The analysis was based on types of offences, prior offending and pleas.

Ms Fitzgerald said the key finding was that recidivism was less for those who had been involved in the Circle Sentencing process.

"The re-offending rate is still high, so around about 34 per cent of people do re-offend within the first year, but that's about 10 per cent lower than people, equivalent people participating in traditional court processes," Ms Fitzgerald said.

But Chief Magistrate Taylor said she is reluctant to identify reduced rates of recidivism as the marker of success.

"If that is one of the consequences, that's a fantastic consequence," Chief Magistrate Taylor said.

But she said there are more important issues, beyond the justice system.

"So for me, the marker of success or one of the markers of success for this kind of process is its meaning to those who participate in it," she said.

"So in seeking to orient the First Nations offender in the process … as a member of the First Nations community, it is an attempt to deliver individualised justice in a more enhanced and meaningful way."

Ms Fitzgerald said the New South Wales statistics also showed the likelihood of being sent to jail fell for those who joined Circle sentencing.

"A control group, around 18 per cent of people received a custodial sentence, but in the circle sentencing group, only 9 per cent received a custodial sentence," Ms Fitzgerald said.

But those running the ACT system reject any suggestion it is about lighter sentences.

They say the process is about offenders taking responsibility.

"It's very important for us to make sure that people are accountable for their actions," Paula McGrady said.

But will it work in the Higher Court?

Benny Hodges says Circle Sentencing in the Supreme Court operates a little differently.

"Because when our people come to the Supreme Court, it's not because I stole a packet of chewing gum, it's quite serious," Mr Hodges said.

"We can say things, but they're here because it's a really serious matter.

"And it's up to the judge or whichever justice person that's sitting, they make that decision."

So far the most serious crimes, like homicide, are not included in the program.

Chief Magistrate Taylor said that could change, but not without careful consideration.

"I can certainly see opportunities for a meaningful process for more serious offences, but it would have to be done with due regard for people's safety and welfare overall."