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Cunneen, Chris --- "Book Review - Justice in Aboriginal Communities: Sentencing Alternatives" [2001] IndigLawB 5; (2001) 5(5) Indigenous Law Bulletin 24

Book Review

Justice in Aboriginal Communities: Sentencing Alternatives

Ross Gordon Green

Purich Publishing, 1998, 192p, index & bibliography

RRP US$20.00 + 7% GST & $8.50 postage and handling

Reviewed by Chris Cunneen

This book is primarily concerned with a discussion of alternative sentencing approaches that evolved in various Aboriginal communities across Canada during the 1990s. These alternatives can be broadly grouped under the title of 'sentencing circles'. There is a wide ranging discussion of various issues, including the historical context in which sentencing circles emerged, the developing case law around the use of these sentencing alternatives and first hand accounts of the sentencing circle process.

There are too many issues that emerge from this book to canvas in a short review. Thus I will concentrate on a few areas which are of specific relevance to an Australian audience, particularly given the discussion in Australia about the possible introduction of sentencing circles for Indigenous communities.[1]

An initial point that Green makes deserves reflection: 'It is unrealistic to expect changes in sentencing practice alone to achieve a significant reduction in the incarceration rate of Aboriginal offenders'.[2] There is no doubt that sentencing practice does affect incarceration. Mandatory sentencing provides a clear example of this. However, we should also perhaps be modest about the size of the reduction in incarceration we might expect from the use of alternatives like sentencing circles. The potential impact of the introduction of schemes like sentencing circles will also be directly dependant on their location within the broader legal and administrative processes which surround sentencing.

This later point is explored in more detail in the book. Sentencing circles allow the community to become more actively involved in the sentencing process and, as a result, introduce new ideas about what might constitute an appropriate sentence for an offender. In this sense community involvement opens the sentencing process up to influences beyond the ideas of criminal justice professionals. And this is particularly important for Aboriginal communities who have generally been excluded from legal and judicial decision-making.

However, it is also fundamental to recognise that sentencing circles are formed and deliberate within the existing parameters of Canadian law. Discretion as to whether a sentencing circle is appropriate remains with the judge, as does the ultimate sentencing decision which is reached. The judge is still obliged to impose a 'fit' sentence and is free to ignore the recommendations of the sentencing circle. Sentences imposed with the assistance of a sentencing circle are still subject to appellate court sentencing guidelines.

Not surprisingly, there may be a tension between community involvement in the circle and the power which the judge retains. While at one level there is an appeal to 'equality' within the circle, it is clear that the circle itself is significantly constrained by the wider power of the non-Indigenous criminal justice system. For some Indigenous communities this significant constraint may be seen as too much of a limitation on rights to self-government and self-determination. However, for other communities the use of sentencing circles may provide a practical process of engaging with and influencing the outcomes of the sentences imposed on offenders from within their community.

Finally we should also avoid the essentialism of assuming that sentencing circles are somehow naturally appropriate for Indigenous people, irrespective of their own specific cultural practices and historical development. Green notes within Canada the complexity of processes dealing with offenders in Indigenous communities (see chapter 2). While some Aboriginal nations in Canada may now accept sentencing circles as an appropriate way of influencing the sentencing process, this decision may arise as much from a contemporary political strategy as from any inherent link between traditional practices and sentencing circles.

Associate Professor Chris Cunneen is Director of the Institute of Criminology at the University of Sydney.

[1] See eg Luke McNamara, ‘Indigenous Community Participation in the Sentencing of Criminal Offenders: Circle Sentencing[2000] IndigLawB 72; (2000) 5(4) Indigenous Law Bulletin 5.

[2] Ross Gordon Green, Justice in Aboriginal Communities: Sentencing Alternatives (1998) 17.

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