Underlying problems like drug and alcohol addiction, as well as particular problems faced by Aboriginal offenders, mean that various alternative programs are now supplementing more traditional methods of sentencing in NSW Courts.
These sentencing alternatives focus on community involvement, rehabilitation or even, in the case of forum sentencing, discussions between victim and offender as part of a process to help the offender understand the consequences of their actions and to make amends.
Circle sentencing is an alternative form of sentencing available to adult Aboriginal offenders. It is generally used to deal with more serious crimes and often entails full community involvement as well as consideration of traditional Indigenous forms of dispute resolution and customary law.
It directly involves local Aboriginal people and, according to legislation, its aims are:
- To include members of Aboriginal communities in the sentencing process
- To increase confidence of Aboriginals in the sentencing process
- To reduce barriers between Aboriginal communities and courts
- To provide more appropriate sentencing options for Aboriginal offenders
- To provide support to victims of offences by Aboriginal offenders
- To allow of greater participation for Aboriginal offenders and their victims in the sentencing process
- To increase awareness amongst Aboriginal offenders about the consequences of their actions
- To reduce recidivism in Aboriginal communities
The process starts when the magistrate welcomes everyone to the circle and the participants introduce themselves.
The magistrate then explains the function of the circle – it is a court and functions as one – and the guidelines for the system. The defendant and victim both have a chance to comment before the circle discusses the offence, its impact, what can be done to remedy the damage, and the support available to the defendant and victim.
The magistrate summarises what has been said during this time and then determines the sentence. Support groups for both victim and offender are established and a date for review is set before the circle is formally closed.
However, circle sentencing is only available within NSW court system for people who plead guilty. Those who wish to plead not guilty cannot use the circle sentencing system. This has led to fears that some people would plead guilty even if they weren’t, just so that they could have access to the program.
Forum sentencing is available for adults who have committed offences which mean it is likely that they will be facing time in jail, with the exception of some crimes like domestic violence and regulatory driving offences.
The offender and victim come together in forum sentencing, with a police officer, support people and a facilitator. The aim of the program is for a discussion about what happened and the harm suffered.
It provides another sentencing option if the matter has been heard before a judge, and may involve making an apology, payments, work or other forms of reparation to the victim as well as decisions to enrol in an appropriate program such as drugs or alcohol rehabilitation.
Forum sentencing aims to help offenders realise the harm of their actions, and to change their behaviour and reintegrate back into the community.
However, recent studies have questioned the effectiveness of forum sentencing. The NSW Bureau of Crime Statistics and Research revealed that there is no evidence that it reduced the likelihood of a further offence, number of offences or the gravity of the offences.
There seems to be no real difference in recidivism between offenders who took part in the program and those who did time.
The main beneficiaries from the program are victims who usually find it a positive experience, while the program often fails to deal with the root of offenders problems.
The Magistrates Early Review Into Treatment (MERIT) program focuses on helping defendants who are addicted to drugs or alcohol.
While most local courts deal with those suffering from drug abuse, some have the program open to defendants with alcohol abuse problems as well.
The MERIT program recognises the often-present link between drug use and other crime and attempts to break the cycle.
Participation in the program is voluntary and a person can be referred to the MERIT program by either a magistrate, police, a solicitor or even themselves.
How a person performs in the individually tailored program is taken into account when they come before a magistrate to be sentenced.
If you would like more information on the MERIT program, read our blog about the MERIT program in NSW courts.