Original classification rating: PG.
This clip chosen to be G
We go 'inside the circle’ to see Circle Sentencing in action. Robert is an Aboriginal man who has been in trouble many times for domestic violence. Now he’s face-to-face with the victim and four Aboriginal Elders who are about to sentence him.
It’s a tense moment that Jonathan Holmes has set up for us, with a terrific narration, so that right from the start we understand who is involved and what is at stake – and it’s brilliantly filmed. We’re up close and personal, feeling the discomfort of the defendant as he faces his fate at the hands of the Elders in his community.
This clip shows a circle sentencing court, an alternative form of sentencing for Indigenous offenders. The offender (Robert Alder), magistrate, prosecutor, defence lawyer, Elders and victim sit in a circle to discuss an appropriate sentence. The commentator says that this is a 'radical experiment’ to tackle the disproportionate number of Indigenous people in New South Wales jails. The offender admits remorse, but the Elders ask if he understands the seriousness of his crime and one Elder warns that the circle court will not take a soft line.
Educational value points
- Unlike magistrate’s courts in which the magistrate alone has the power to pass sentences, circle sentencing courts are collaborative, bringing together the magistrate, prosecutor, defence lawyer, victim, offender and four Elders from the offender’s community to decide on a sentence. In arriving at an appropriate sentence the group considers the effect of the crime on the victim and community, as well as the circumstances of the offender.
- Circle sentencing was introduced to tackle the overrepresentation of Indigenous people in jails in NSW, where 20 per cent of the prison population is Indigenous compared with 2 per cent of the overall population. Based on a model developed by Indigenous people in Yukon in Canada, circle sentencing was trialled in Australia in 2002 in the Nowra court shown and then in Dubbo in 2003. Circle sentencing has since been adopted in other parts of Australia.
- While circle courts can impose a jail term, those sentencing aim to keep offenders out of jail by providing alternatives such as home detention or community service. Circle courts also address issues that may have contributed to the crime. For example, the offender may be required to undertake an anger management program or alcohol and drug counselling. If the offender fails to comply with the sentence, he or she is sent to the magistrate’s court for sentencing.
- Circle sentencing is based on the principle of restorative justice and is only open to offenders who have pleaded or been found guilty and who, like Alder, acknowledge wrongdoing and take responsibility for their actions. Offenders must make restitution to the victim and community for the harm they have caused, as well as undertaking a rehabilitation program.
- The process by which offenders are called to account by Elders from their communities has had more effect than facing lone magistrates. A 2003 review of the Nowra circle court found that the success of the court was in part a result of offenders realising that they had violated both the law and the values of their community, and that Elders were prepared to give them ongoing support.
- This clip illustrates how circle courts directly involve local communities in addressing and correcting criminal behaviour, an initiative that helps to counter Indigenous perceptions that the justice system discriminates against them. Nowra magistrate Doug Dick has said that having communities punish their own members situates that punishment within the community rather than as a continuation of an oppressive colonial legal system.
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