Schwartz, Melanie --- "Opening a Circle of Hope: The NSW Government Review of Circle Sentencing" [2004] IndigLawB 1; (2004) 5(29) Indigenous Law Bulletin 4

Opening a Circle of Hope



The NSW Government Review of Circle Sentencing

by Melanie Schwartz

Circle Sentencing was introduced in Nowra, NSW as a pilot program in February 2002. While the law has been one of the primary tools of dispossession and disadvantage for Aboriginal people, circle sentencing aims to empower Aboriginal communities in the sentencing process, create more relevant and meaningful sentences, and strengthen local community through the process. The recent government review of the Nowra circles (the Review) recognises that the trial has been successful not only in breaking the cycle of offending, but has the potential to strengthen Aboriginal communities so that the underlying causes of crime are addressed.

People come before a circle after they have pled or been found guilty of an offence. The offender must pass a suitability test by the court, governed by the Criminal Procedure Amendment (Circle Sentencing Intervention Program) Regulation 2003, and an acceptability test by the Aboriginal Community Justice Group (ACJG). The ACJG will consider the nature of the offence and its impact on the community, whether the offender has strong links with the community where the circle is to be held and the potential benefits of the circle to the offender, victim and community.

Many characteristics of a circle differentiate it from an ordinary magistrate’s court. The Review calls the circle a “power sharing arrangement”, because the philosophy underpinning the process is that “the community holds the key to changing attitudes and providing solutions” (p 4). Like a magistrate’s court, the defendant, magistrate and prosecution and defence lawyers are present. Other key members of the circle, however, include the defendant’s support person, the victim and their support person, and four Elders from the offender’s community.

The Review identifies three features of the circles that sets it apart from mainstream sentencing processes:

1. Everyday language replaces complicated legal terms, facilitating communication within the circle and making it more comfortable for participants to voice their opinions. The lack of legal jargon also puts the magistrate and lawyers on more equal footing with the Elders, victim and the offender, in contrast to the hierarchical nature of the courtroom.



2. Whereas in traditional court proceedings, the victim is a silent observer or may not even be present, the circle provides victims with an opportunity to confront the offender. This process reminds the defendant of the human consequences of their actions and is crucial to the process of restorative justice that circles promote. It is an environment that encourages the offender to take responsibility for the harm they have caused, provoking genuine remorse and a platform on which rehabilitation can begin.



3. In a magistrate’s court the sentencing power rests with the magistrate. There is no place for community or health professionals to make suggestions about the appropriate structure of the sentence given the circumstances of the offender. Circle sentencing, however, is a collaborative process in that it is the circle’s responsibility, and not the magistrate’s, to decide what the penalty will be. This increases community and victim satisfaction with the sentence, and ensures that punishment is appropriate.

The Review reported that penalties imposed by the circles were no less onerous than those imposed for similar offences in magistrate’s courts. In the focus cases examined, custodial sentences were generally not handed down. Offenders were sentenced to drug and alcohol rehabilitation, anger management counselling, men’s and women’s camps organised by the community, and other penalties incorporating aspects of local Aboriginal culture or which were of benefit to the local community. Many sentences stipulated that the offender was to “accept the guidance of an Elder”, highlighting the way in which sentencing is used to build relationships within the community so that positive pressure can be applied on future conduct of the offender.

The Review concluded that the circle sentencing trial was a success and indeed that “it has been difficult to find any real deficits” (p 51). Circle Sentencing has been implemented in Dubbo and is to be extended into Brewarrina and elsewhere across NSW. The circles are a powerful initiative in a criminal justice landscape so often characterised by tragedy and hostility. The NSW Government endorsement of the pilot signals new hope for the future relationship between Aboriginal communities and the law.

Melanie Schwartz recently completed a thesis on circle sentencing as part of a Masters in Peace and Conflict Studies at the University of Sydney. She is a final year law student at the University of New South Wales.