In describing the customary punishment, Chief Justice Martin said: ‘When you return to Yuendumu, you will be called upon to face tribal punishment ... by getting speared in each of your legs a couple of times in such a way that you will be pained for at least a couple of weeks ... A hunting spear would be used. The punishment would be administered by the brother of the dead man.’ Martin ordered police officers to witness the spearing so that they could verify that the sentence had been carried out. Walker was told to return to the court to have the sentence reviewed if this did not occur. 18.7.4 Alternative sentencing for Aboriginal and Torres Strait Islander offenders Aboriginal and Torres Strait Islander offenders who plead guilty early may be offered alternatives to court- imposed sentences. One initiative is circle sentencing, which is widely used in New South Wales. This includes elders, the victim, the offender, their lawyer, the prosecutor and a magistrate sitting together to determine an appropriate sentence. This process aims to avoid imprisonment and is not used for serious charges like murder or sexual assault. In circle sentencing, the offence is considered first; then, the offender’s background and the effect on the victim and the community are discussed. Elders decide the sentence, which must be approved by the magistrate. Sentences often include good behaviour bonds, with conditions such as counselling or community service that involves culturally appropriate supervision. The aim is to break the cycle of offending. Other states have similar programs: • Western Australia: Aboriginal Community Courts • Victoria: Koori Courts • South Australia: Nunga Courts The territories also have circle or community courts. These courts involve Aboriginal and Torres Strait Islander community members and are less formal than traditional courtrooms. Positive outcomes for Aboriginal and Torres Strait Islander offenders According to the 2021 census, Aboriginal and Torres Strait Islander Peoples make up 3.8 per cent of the Australian population but account for 32 per cent of the prison population. This over-representation is due to unequal social positions and cultural differences. Circle sentencing has been effective in lowering reoffending and imprisonment rates when compared to sentencing through traditional courts. This is because the underlying causes of offending, such as drug and alcohol addiction, are addressed. One criticism of this approach to sentencing is that the accused is required to plead guilty. This undermines the presumption of innocence, where the prosecution is required to establish the guilt of the defendant. In 2018, the Victorian Supreme Court ruled that Aboriginal and Torres Strait Islander Australians’ cultural rights should be considered when sentencing offenders, and that a request to be sentenced by the Koori Court is appropriate and cannot be refused.
552 Jacaranda Humanities Alive 8 Victorian Curriculum Third Edition
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