AustLII Home | Databases | WorldLII | Search | Feedback

Precedent (Australian Lawyers Alliance)

You are here:  AustLII >> Databases >> Precedent (Australian Lawyers Alliance) >> 2020 >> [2020] PrecedentAULA 45

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Jarro, Nathan; Atkinson, Julia --- "Culturally appropriate responses to criminal offending" [2020] PrecedentAULA 45; (2020) 159 Precedent 28



By His Honour Judge Nathan Jarro and Julia Atkinson

This article will explore the steps taken in some jurisdictions across Australia to respond to the criminal offending of Indigenous people in a culturally appropriate way. It will also touch on a number of cases which provide commentary on this issue.

In 1991, the Royal Commission into Aboriginal Deaths in Custody (the Royal Commission) released its report.[1] The report identified an overrepresentation of Indigenous people in the court system and made a number of recommendations aimed at reducing this over-representation. The recommendations made to the courts included consulting with Aboriginal and Torres Strait Islander community members throughout the court process and employing Indigenous people as court staff. The issuing of the report sparked an effort by state and territory governments and judiciaries to implement the recommendations and respond to the overrepresentation of Indigenous people in the criminal justice system.

In 1999, South Australia became the first state to establish a specialised Aboriginal court, namely the Nunga Court. In 2002, Victoria and Queensland followed suit and established the Koori Courts and the Murri Courts respectively. In that same year, NSW introduced circle sentencing. In 2004, the ACT followed in their footsteps with the establishment of the Ngambra Circle Sentencing Court (now known as the Galambany Circle Sentencing Court).[2] The common theme among the varying responses of the states and territories is that an offender can only be dealt with in the specialised courts or circle sentencing programs where they have pleaded guilty to the offence or have indicated an intention to do so.

While the Northern Territory has not established a specialised court for the sentencing of Aboriginal or Torres Strait Islander offenders, the Sentencing Act 1995 (NT) allows the court to take into account customary law or cultural practice relevant to the offending if a party presents such information.[3]


Murri Court

In 2001, as a result of the Royal Commission, the Queensland government entered into the Queensland Aboriginal and Torres Strait Islander Justice Agreement with the Aboriginal and Torres Strait Islander Advisory Board. The goal of the Agreement was to achieve a sustainable, long-term reduction in the numbers of Indigenous people coming into contact with the criminal justice system over a ten-year period.[4] The Murri Court formed part of this effort.

The first Murri Court was established in the Brisbane Magistrates Court in 2002.[5] Murri Courts now operate in the Magistrates and Childrens Courts in Cleveland, Wynnum, Richlands, Caboolture, Cherbourg, Mackay, Maroochydore, Cairns, Mount Isa, Richlands, Rockhampton, St George, Toowoomba and Townsville. Murri Courts involve Indigenous Elders and respected persons, the offender’s family, Indigenous community organisations and community justice groups in the process of sentencing offenders.[6]

Murri Courts are not established by any specific legislation but are initiated through joint agreements between local magistrates and Elders from local Indigenous communities.[7] While the absence of legislative guidelines allows each individual Murri Court to operate according to the individual circumstances and characteristics of the particular community, Murri Courts in general are designed to be more informal and less intimidating than a traditional court and, where possible, deliver sentences that focus on rehabilitation.[8]

Sentencing guidelines

Section 9(2)(p) of the Penalties and Sentences Act 1992 requires a sentencing court to have regard to any submissions made by a representative of the community justice group in the offender’s community that are relevant to the offender’s sentencing. Submissions may cover issues including the offender’s relationship to their community, any cultural considerations, and any consideration relating to programs and services established for offenders in which the community justice group participates.

Parole considerations

The Parole Board Queensland has implemented measures to address the overrepresentation of Indigenous people in prison. This has involved recruiting Indigenous members to the community positions on the Board with the stated intention of adding more. In an interview with Queensland Law Society’s Proctor Magazine, Deputy President Julie Sharp estimated that the further recruitment will bring the total numbers close to ‘50 per cent membership of Aboriginal and Torres Strait Islander representation of community board members’.[9] With this representation, the Parole Board aims to facilitate meetings with Indigenous parole applicants and Indigenous community members of the Parole Board. The Parole Board hopes that the presence of community members will allow the Board to gain a greater understanding of an applicant’s circumstances and their needs, and thus what measures will be required to assist in their rehabilitation.[10]


Koori Court

In 2002, the Victorian government established the Koori Court by the enactment of the Magistrates’ Court (Koori Court) Act 2002 (subsequently incorporated into the Magistrates’ Court Act 1989 (the Act)). The Court has its origins in the Victorian Aboriginal Justice Agreement (VAJA), which was launched in 2000 in response to the Royal Commission.[11] The Court is conducted similarly to Queensland’s Murri Courts, however, unlike its Queensland counterpart, the Koori Court has legislative guidelines in place. The Act requires the Koori Court to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act, the Sentencing Act 1991 and the circumstances of the matters permit. The Koori Court is also required to make the proceedings comprehensible for the accused, their family members and any members of the Aboriginal community who are present in the courtroom.

Bail considerations

Victorian courts are also required to take into account certain considerations when determining an Aboriginal person’s bail application. Section 3A of the Bail Act 1977 requires a decision-maker to take into account any issues that arise due to the person’s Aboriginality, including the person’s cultural background and any other relevant cultural issue or obligation. Victoria is the only state with such a provision. In 2017, the Australian Law Reform Commission (ALRC) conducted an inquiry, Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (2017 Inquiry). In its report, the ALRC recommended that the other states and territories adopt this provision.[12]

Interpretation of s3A by the courts

The operation of s3A was broadly interpreted by the Victorian Supreme Court in DPP v SE.[13] In that decision, Bell J stated that s3A considerations should ‘be taken into account in relation to all aspects of the bail-determination process, including assessing unacceptable risk and setting bail conditions’.[14] Justice Bell further opined that s3A should be read in conjunction with s19 of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Charter), which protects the rights of persons to enjoy their culture and identifies distinct rights of Aboriginal persons.[15] In doing so, Bell J referred to s6(2)(b) of the Charter, which states that the Charter has limited application to courts and tribunals.[16]


Circle sentencing

Taking a slightly different approach to Queensland and Victoria, the NSW government enacted provisions in its Criminal Procedure Act 1986 to establish intervention programs. One of these is the Circle Sentencing Intervention Program, which is used in many local courts across the state.

The program is based on a similar program in Canada. Circle sentencing brings together the offender, community Elders, the magistrate, the offender’s family or support people, defence counsel and a police prosecutor and, in some cases, the victim and their family. After a determination is made that the offender is eligible for the program, the circle sentencing group convenes to determine an appropriate treatment or rehabilitation plan and recommend an appropriate sentence to the presiding magistrate.[17] If the magistrate agrees with the consensus of the group, the magistrate can impose the sentence on the terms that the group has recommended.[18] In 2008, the Cultural and Indigenous Research Centre Australia, under commission from the NSW Attorney-General, produced a report evaluating the program.[19] The report found that Elders, court officials and offenders felt that the program resulted in more culturally appropriate sentencing options for offenders because it takes into account individual circumstances and uses cultural and community knowledge to determine an appropriate sentence. One criticism expressed was the lack of available drug and alcohol programs that offenders could be referred to which, it was felt, limited the program’s effectiveness.[20]

NSW decisions on sentencing Indigenous offenders

It is well established at common law that an offender’s Aboriginality is of itself not a relevant factor in sentencing. However, many courts have recognised that there are factors extremely common in Aboriginal and Torres Strait Islander communities, such as mental impairment, childhood trauma, and drug and alcohol abuse, which are relevant to determining an appropriate sentence.

In R v Fernando,[21] the Supreme Court put forward a number of propositions to apply to the sentencing of Aboriginal and Torres Strait Islander offenders including, inter alia, that:

‘The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offender’s membership of such a group.’[22]

The majority of the High Court in Bugmy v The Queen[23] adopted the propositions in Fernando and further stated that:

‘There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice.’[24]

Bugmy involved an Aboriginal offender who appealed against a sentence for serious assault of a prison officer. In allowing the appeal, the High Court found that ‘Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender.’[25] However, the High Court ultimately held that a background of social deprivation remains a relevant consideration for repeat offenders and was one which the Court of Appeal did not give sufficient weight.


Nunga Court

The first Nunga Court was established by Magistrate Chris Vass SM.[26] Like the Queensland Murri Courts, Nunga Courts are not established by any specific legislation and are presided over by a magistrate, assisted predominately by Elders.

Sentencing conferences

Section 9C of the Criminal Law (Sentencing) Act 1988 allows a court in any South Australian criminal jurisdiction to convene an Aboriginal Sentencing Conference for Aboriginal offenders prior to a sentence being handed down. This sets it apart from the NSW and ACT circle sentencing programs in that the power is not reserved to local courts and, consequently, has the potential to be used in the sentencing of more serious offences.

Much like NSW’s Circle Sentencing Intervention Program in its constitution, the conference allows the offender greater involvement in their sentencing and the opportunity to explain the context of the offending and their relevant history in a less intimidating setting. If the victim is willing to participate, offenders have the opportunity to face their victims and apologise to them. The court may, but is not obliged to, take into consideration the views expressed at the conference.

A distinguishing feature of South Australia’s specialised court services is the inclusion of an Aboriginal Justice Officer. This role involves assisting the court in sentencing Aboriginal persons by providing advice on Aboriginal society and culture, assisting the court to convene sentencing conferences and assisting Aboriginal persons to understand court procedures and sentencing options and to comply with court orders.[27]


While it is clear that the states and territories have taken action to address the overrepresentation of Indigenous people in the criminal justice system, highlighted by the 1991 report of the Royal Commission, the 2017 Inquiry revealed that the rates of imprisonment for Indigenous offenders are still in ‘gross disproportionate numbers compared with non-Aboriginal people’.[28] In its report, the ALRC looked to alternative methods of addressing the overrepresentation such as justice reinvestment. Justice reinvestment involves the redirection of resources from the criminal justice system itself to addressing the causes of offending in communities with high incarceration rates.[29] While most states have implemented or have plans to implement justice reinvestment trials,[30] it is a relatively novel approach and its effectiveness has not been properly tested. This may be an emerging feature in future state and territory legislation.

It is apt to conclude this article with McHugh J’s succinct observation in Waters v Public Transport Corporation:[31]

‘Discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different.’[32]

His Honour Judge Nathan Jarro is a Judge of the District Court of Queensland in Brisbane. His Honour was the first Indigenous judge to be appointed in Queensland. Julia Atkinson is his Honour’s Associate.

[1] Royal Commission into Aboriginal Deaths in Custody (National Report, 1991).

[2] M Westcott, ‘Murri Courts’ (Research Brief No 2006/14, Parliamentary Library, Parliament of Queensland, 2006) 13.

[3] Sentencing Act 1995 (NT), ss104104A.

[4] Department of Justice and Attorney-General Strategic Policy Unit, Report on the Review of the Murri Court (2006) 13.

[5] Westcott, above note 2, Executive summary.

[6] Ibid, 1.

[7] Australian Institute of Criminology (AIC), Evaluation of the Queensland Murri Court: Final report (2010) xii; Department of Justice and Attorney-General Strategic Policy Unit, above note 4, 11.

[8] AIC, ibid, xi-xii.

[9] T Kiem, ‘On Parole’, QLS Proctor, Vol. 40(3), 2020, 27.

[10] Ibid.

[11] The VAJA has continued and been renegotiated since its inception, and it is currently in its 4th phase. See <>.

[12] Australian Law Reform Commission (ALRC), Pathways to Justice – An Inquiry into the nIncarceration Rate of Aboriginal and Torres Strait Islander Peoples (2017) Report No. 133, 13.

[13] [2017] VSC 13.

[14] Ibid, [20].

[15] Ibid, [21].

[16] Ibid.

[17] Criminal Procedure Regulation 2017 (NSW), reg 41.

[18] Ibid, reg 34.

[19] Cultural and Indigenous Research Centre Australia, Evaluation of Circle Sentencing Program Report (2008).

[20] Ibid, 42.

[21] (1992) 76 A Crim R 58.

[22] Ibid, 62.

[23] [2013] HCA 37; (2013) 249 CLR 571.

[24] Ibid, 592.

[25] Ibid, 594.

[26] Westcott, above note 2, 7.

[27] Criminal Law (Sentencing) Act 1988 (SA), s9C(5).

[28] ALRC, above note 12, 22.

[29] Ibid, 125.

[30] Ibid, 135.

[31] [1991] HCA 49; (1991) 173 CLR 349.

[32] Ibid, 402.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback