South Australia: Nunga Court II – Aboriginal Sentencing Conferences
The new Aboriginal Sentencing Conferences (ASC) will be conducted by
a trained facilitator and an Aboriginal Justice Office (AJO). The
conferences will involve the victim, the defendant, Aboriginal Elders
and prosecutor. The new model includes:
- Criteria for selection as an Aboriginal sentencing matter. Any matter that is relevant for a Nunga court process would be eligible for the ASC. The circuit Magistrate will need to approve the proposed conference, which will be convened under the Magistrate’s authority. Guilty pleas should be recorded before the conference commences.
- Identification of suitable matters. Any suitable defendants for a conference may be identified by the Magistrate conducting a circuit, to be conducted on the following circuit, or by prosecution or Aboriginal Legal Rights Movement (ALRM) before a circuit commences.
- Arranging the ASC. The coordinator will arrange the conference with the assistance of the AJO, briefing participants if possible one month before the conference and maintaining phone and other contact with them in the lead up to the conference.
- Elders. The AJO will liaise with the local Aboriginal community to select suitable elders having regard to kinship and other relevant considerations and will ensure information on cultural considerations is available to at the ASC.
- Police. The police role during the ASC is to contribute the factual background and any advice on any minimum penalties to the ASC. The process is intended to be conciliatory and empowering for the victim, the community and the defendant to discuss the offences and potential outcomes.
- Victims. The police are to make any victim impact statements available to the coordinator who will contact the victims and after explaining the conference ask them whether they wish to participate, in person or by phone. If they do not wish to participate directly then they will be given the opportunity to have the victim impact statement and any other written material relevant to the effect of the crime on the victims produced at the ASC. If a victim declines to participate the ASC can still proceed. If a victim participates and dissents from any outcome, the dissent and reasons for it must be relayed by the coordinator to the sentencing Magistrate. Any outcomes from the conference, and the sentencing result should be relayed to the victims.
- Participants in the ASC
- Victims and any supporters and for a juvenile, parents or guardian
- Relevant family members of the victim or defendant
- Relevant community representatives
- ALRM field officer
- Interpreters as required
- Coordinator and AJO
- The defendant’s lawyer will attend but it will be expected that the defendant will speak for him or her self and the lawyer’s role will be as an observer and to give advice as required.
- Venue and time of the ASC. The ASC will be conducted in the conference room at the court house unless other wise ordered by the Magistrate. It will be conducted on the Monday or Tuesday of the week when the Magistrate is in Port Lincoln on circuit, in preparation for sentencing of the defendant on the Wednesday.
- Facilitation of the ASC. ASC’s will be facilitated using a dual facilitation model. The Family Conference Team coordinator will lead the process and the AJO will co-manage the proceedings and arrange for advice, in consultation with the Elder(s) and appropriate other members of the relevant community, on any cultural issues. The Elder(s) will also be present at the ASC to engage with the defendant and parties present. The focus of the meeting is to acknowledge the harm done to the victim (whether present or not) and to the community, and to provide opportunities for the parties to contribute and attempt to develop relevant responses to the offending behaviours.
- Sentencing. Sentencing will generally occur the day after the ASC. A record of who attended the ASC and any recommendations will be put in writing and given to the sentencing magistrate. The Elders, coordinator, and AJO will attend the sentencing hearing and advise the sentencing magistrate of any other relevant matters that arose from the ASC. The Magistrate will have the clerk record such of these oral submissions as s/he thinks are important for sentencing in her or his sentencing remarks. The written summary of attendances and outcomes and the sentencing remarks will be made available to any participants in the conference who request them.
The ASC pilot project began in September 2007.
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