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McGlade, Hannah; Hovane, Vickie --- "The Mangolamara Case: Improving Aboriginal Community Safety and Healing" [2007] IndigLawB 29; (2007) 6(27) Indigenous Law Bulletin 18

The Mangolamara Case: Improving Aboriginal Community Safety and Healing

by Hannah McGlade and Vickie Hovane

The Case

The case of Director of Public Prosecutions for Western Australia v Mangolamara[1] (‘Mangolamara’), before the Western Australian Supreme Court concerned an application by the WA Director of Public Prosecutions (‘DPP’) for an order of continuing detention or a supervision order under the Dangerous Sexual Offenders Act 2006 (WA) (‘the Act’). The matter was heard at first instance by Blaxell J in August 2006 where his Honour agreed with the DPP that the history of offending on the part of the respondent, an Aboriginal man of the Kimberley region of Western Australia (‘WA’), was such as to warrant an order that the respondent undergo examination by two psychiatrists.[2]

The history of offending conduct on the part of the respondent included an indecent assault upon a five-year-old boy, an indecent assault of a 27-year-old woman, rape of a 28-year-old woman, and while on parole, several rape offences against a 12/13-year-old. While in prison the offender declined to participate in the Indigenous Sex Offender Program stating that he preferred to ‘just do my time’.[3]

The two psychiatric reports were of the effect that the offender had low victim empathy and was a continued risk to the community.[4] However, Justice Hasluck at the final hearing rejected an application for an order under the Act, finding that the psychiatric evaluation tools had not been tested with respect to Aboriginal people[5] and that according to the evidence of the psychiatrists, a suitable community supervision order may well have been adequate.[6] As the DPP had not ascertained the possible conditions of such an order, his Honour declined to issue any order at all, stating that to do so would not be consistent with his impartial judicial role.[7]

Prior to this case there had been four applications made to the Supreme Court under the new legislation, however this was the first to have been rejected by the court.[8] Shortly after Mangolamara, Justice McKechnie also refused an application for community supervision despite finding there was a ‘serious danger to the community’.[9] McKechnie J reprimanded the Government for making no efforts to investigate the possibility of a supervision order within the community.[10]

The backdrop to the Mangolamara decision includes the Gordon Inquiry,[11] which found that Government needed to improve its responses to family violence and child abuse in WA Aboriginal communities, in particular by providing a ‘joined-up’ and integrated approach to service delivery that responds to communities’ needs.[12] Unfortunately this approach was not evident from the Mangolamara case in which the DPP later conceded deficiencies in the evidence on the suitable terms for the order, and criticised other Government agencies for lack of cooperation and assistance.[13] The Aboriginal Legal Service of WA was also criticised for its role in arguing for the unsupervised release of Mangolamara notwithstanding the evidence of ongoing danger to the community.[14]

Programmatic Interventions for Aboriginal Violent Offenders within the Criminal Justice System

In WA, the responsibility for providing appropriate interventions for violent offenders such as Mangolamara, who have entered the criminal justice system, rests with the Department of Corrective Services. Such interventions are typically based on the principles for effective intervention outlined in the ‘what works’ literature.[15] Those principles are more commonly known as the Risks, Needs and Responsivity Model of intervention.[16] This is a mainstream model based on mainstream research from the United Kingdom, Canada and the United States. Indeed, more recent thinking in Australia has highlighted the shortcomings of this approach with offenders generally, and particularly in relation to effective intervention with Aboriginal offenders.[17] In addition, the Gordon Inquiry also highlighted a need to do things differently when it recommended that any such interventions should acknowledge ‘the sense of powerlessness and cultural loss, racism and prior physical and sexual abuse that has been part of many Aboriginal men’s experience’.[18] Despite this, current interventions continue to adhere, rather narrowly in some instances, to the risks, needs and responsivity approach. This includes WA’s Indigenous Sex Offender Treatment Program which is, in effect, an ‘indigenised’ version that ‘tinkered at the periphery’ of the mainstream Sex Offender Treatment Program and was largely developed by non-Aboriginal departmental staff. There is also a paucity of Aboriginal professionals working within the criminal justice system in the offender rehabilitation area to provide more appropriate counselling interventions. So in some respects Mangolamara may well have not benefited greatly or at all from attending the programmatic interventions currently offered by the system.

The Mangolamara case highlights the urgent need for the State to review the Act regarding what ought to be done with such serious violent Aboriginal offenders who pose an ongoing danger to the community and who decline to participate in any form of intervention. The reality is however, that even if they were willing to participate in programmatic or counselling interventions, there are no suitable interventions available within the system that adequately address the underlying dispositional factors to their criminal behaviour, as recommended by the Gordon Inquiry.[19]

This case also serves to highlight yet again – to both the WA Government and the Aboriginal community – the urgent need for adequately resourced and the improved development of programs and treatment services that are designed, implemented and delivered by Aboriginal people, specifically for Aboriginal offenders. Indeed, another principle for effective intervention highlighted in the ‘what works’ literature, is that programmatic interventions that are delivered in community settings (ie, community-based) are more effective than those delivered in custodial settings.[20]

A Way Forward

In Canada, a number of healing lodges have been established through which Aboriginal prisoners may serve their sentence or release order.[21] Under the Corrections and Conditional Release Act 1992 (‘CCRA’), the Correctional Service of Canada (‘CSC’) is entitled to transfer a prisoner to a healing lodge any time after sentencing, including for supervision or conditional release.[22] Healing lodges offer services and programs that reflect Aboriginal culture and are implemented in an environment incorporating Aboriginal peoples’ traditions and beliefs. In the healing lodge, the needs of Aboriginal offenders are addressed through Aboriginal teachings and ceremonies, contact with Elders and interaction with nature.[23] Healing lodges emphasise Aboriginal core programming, a commitment to healing and the safe reintegration of Aboriginal offenders into the community. Early evidence shows a low recidivism rate for healing lodge participants.

Aboriginal healing lodge programs are designed and developed by Aboriginal people in accordance with local protocols as required under the CCRA.[24] The involvement of local Aboriginal communities is also reflected by the provision that when inmate applies for parole to be released into an Aboriginal community, the CSC will (with consent) contact that community and ask it to propose a plan for the inmate’s release and integration.[25]

Irene Fraser, in writing of the importance of Aboriginal approaches within the criminal justice system, reminds that ‘no child is born an offender’ but that Aboriginal families and cultures have been weakened by the reserve system, legislation such as the Indian Act, residential schools, the introduction of alcohol, and racism.[26] The offender’s attitudes and values are fundamental factors determining not just criminal behaviour but also prospects of rehabilitation. The re-introduction of Aboriginal cultural values and spirituality through substantive initiatives in the correction system is therefore significant.

From the judgment in Mangolamara, it is evident that the respondent was affected by severe trauma, including the murder of both of his parents at a young age. His introduction to sexual matters was via pornographic films at a young age and there were later problems with alcohol and drug use. In 2002 the respondent’s community agreed that he could be released home on the condition that he met with Elders to discuss their expectations with him and that he promise not to re-offend or lead other young people astray. Mangolamara breached that parole by sexually assaulting a 12-year-old girl.

Conclusion

Aboriginal communities in Australia have traditionally been excluded and marginalised from having real and meaningful input as legitimate stakeholders within the criminal justice system, contrary to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody[27] and instruments such as the WA Statement of Commitment to a New and Just Relationship between the Government of Western Australia and Aboriginal Western Australians.[28] There are also too few rehabilitative programs for dangerous offenders. However, the recent development of the State Aboriginal Justice Agreement[29] shows promise in providing a means through which Aboriginal people operating at the coal-face community level, can have real and meaningful input into justice-related strategies and responses to issues that adversely affect Aboriginal communities, such as those highlighted in the Mangolamara case.

Hannah McGlade is a Nyungar human rights lawyer undertaking a PhD looking at the experiences of Aboriginal women and girls using the courts as a response to sexual assault. Vicki Hovane is an Aboriginal woman from Broome and Director of Indigenous Programs & Services Pty Ltd. She has a background in psychology and is undertaking a PhD in Forensic Psychology looking at developing a theoretical framework about child sexual abuse that is grounded in Aboriginal knowledge, conceptualisations and understandings of the issue.


[1] Director of Public Prosecutions for Western Australia v Mangolamara [2007] WASC 71 (‘Mangolamara’).

[2] Director of Public Prosecutions for Western Australia v Mangolamara [2006] WASC 172, [3] (Blaxell J).

[3] Ibid [25].

[4] Ibid [22].

[5] Mangolamara [165]-[166].

[6] Ibid [174] and [176].

[7] Ibid [178].

[8] It is believed that Mangolamara was also the first Aboriginal matter heard under the new Act.

[9] Director of Public Prosecutions for Western Australia v Williams [2007] WASC 95.

[10] Ibid, [55]; Ryan Pedler and Andrew Probyn, ‘Premier Attacks Rapist Decision’, The West Australian (Perth), 28 April 2007, 10.

[11] Sue Gordon, Kay Hallahan, Darrell Henry, ‘Putting the Picture Together: Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities’ (2002), <http://www.premier.wa.gov.au/feature_stories/gordoninquiryreport.pdf> at 8 May 2007 (‘The Gordon Inquiry Report’).

[12] Ibid 481-498; Sue Gordon, ‘Where are We Going with Addressing Child Abuse?’ (Speech delivered at the Mandatory Reporting of Child Abuse forum, Perth Town Hall, 3 November 2006).

[13] Ryan Pedler, ‘Rapist Stays Free Despite Fears he’ll Strike Again’, The West Australian (Perth), 19 April 2007, 9.

[14] Ryan Pedler, ‘ALS to Blame for Rapist’s Release’, The West Australian (Perth), 24 April 2007, 1.

[15] James Bonta, ‘Risks-Needs Assessment and Treatment’ in Alan T Harland, Choosing Correctional Options that Work (1996); Paul Gendreau, ‘Offender Rehabilitation: What We Know and What Needs to be Done’, (1996) 23(1) Criminal Justice & Behavior 144-161.

[16] Paul Gendreau, ‘Offender Rehabilitation: What We Know and What Needs to be Done’, (1996) 23(1) Criminal Justice & Behavior 144-161.

[17] Andrew Day, Kevin Howells & Sharon Casey, ‘The Rehabilitation of Indigenous Prisoners: An Australian Perspective’, (2003) 1(1) Journal of Ethnicity in Criminal Justice 115-133; Robin Jones, Mary Masters, Alison Griffiths & Nicole Moulday, ‘Culturally Relevant Assessment of Indigenous Offenders: A Literature Review’ (2002) 37(3) Australian Psychologist,187-197; Tony Ward, ‘The Management of Risk and the Design of Good Lives’ (2002) 37(3) Australian Psychologist 172.

[18] The Gordon Inquiry Report, above n 11, Recommendation 178.

[19] Ibid.

[20] James Bonta, above n 15; Paul Gendreau, above n 15.

[21] Irene Fraser, ‘Honouring Alternatives in the Criminal Justice System’ in John Bird, Lorraine Land and Murray Macadam (eds) Nation to Nation, Aboriginal Sovereignty and the Future of Canada (2002) 109-119.

[22] Corrections and Conditional Release Act, SC 1992, c 20, s 81.

[23] Correctional Service Canada, Aboriginal Initiatives Branch, ‘Healing Lodges for Aboriginal Offenders’, <http://www.csc-scc.gc.ca/text/prgrm/correctional/abissues/challenge/11_e.shtml> at 8 May 2007.

[24] Corrections and Conditional Release Act, SC 1992, c 20, ss 79-84.

[25] Corrections and Conditional Release Act, SC 1992, c 20, s 84.

[26] Irene Fraser, above n 21, 112.

[27] Commonwealth, Royal Commission into Aboriginal Deaths In Custody, National Report (1991) <http://www.austlii.edu.au/au/other/IndigLRes/rciadic/index.html> at 8 May 2007.

[28] Western Australian Government, ‘Statement of Commitment to a New and Just Relationship between the Government of Western Australia and Aboriginal Western Australians’ (2001).

[29] See <http://www.justice.wa.gov.au/W/wa_aboriginal_justice_agreement.aspx> for further information.